Questionable results of drug tests

Attorney Fran Watson worries that people have been wrongfully convicted in Indiana, and findings released from a court-appointed task force show that she may be justified in having that fear.

The Indiana Supreme Court recently issued the findings of a task force formed last fall to analyze how the state’s legal system might be impacted by potentially incorrect lab test results performed by the Indiana State Department of Toxicology. The court review was the latest in a continuing saga that came to light in early 2011, when problems were discovered with how toxicology samples were tested. There is the possibility that hundreds – or even thousands – of tests used in court could be unreliable.

An independent audit, conducted at the request of the Department of Toxicology and led by former Marion County prosecutor Scott Newman, showed 10 percent of marijuana tests and a third of cocaine tests conducted in
 

2007 through 2009 reported as positive were not conducted according to basic and widely accepted scientific standards. The paper-only audit involved reviewing technical and procedural documentation generated during the original testing process, not actually retesting samples.

The controversy prompted legislative changes that removed the Department of Toxicology from the control of Indiana University School of Medicine to a standalone state agency under executive branch control. The governor created an advisory panel to oversee the transition to state government and review the independent audit. That panel ordered a more comprehensive paper audit of about 10,000 samples dating from 2007 to 2009 and an actual retesting of some of those samples. The comprehensive audit was later postponed before alcohol tests could be reviewed.

Indiana Chief Justice Randall Shepard recognized the impact this could have on the legal system and created the court’s task force to determine how the Hoosier courts would respond.

The state’s toxicology department sent nearly 500 cases that were retested following the independent audit in 2011 to this court-appointed task force, led by Indiana Court of Appeals Judges Michael Barnes and Nancy Vaidik. Those samples were reported to police and prosecutors as positive.

In a two-page statement summarizing the court task force’s findings, the Supreme Court on Feb. 28 confirmed that the state’s Department of Toxicology provided incorrect or inconclusive test results for use in marijuana and cocaine criminal cases. The full extent of testing problems at the lab remains unknown, but the panel found at least five cases where retested samples “did not reveal any of the substances originally reported.”

The report detailed aggregate results but didn’t specify exact numbers for the remainder of the retests. The Department of Toxicology submitted 485 retest results from 450 actual cases for the task force’s review, and the findings show that a majority of those individuals had pleaded guilty. Eighteen of the total 450 individuals remain incarcerated. The report says that a review of the retests show the results fall into four categories: cases where the sample was inadequate for retesting, cases where retesting showed the presence of the substance at issue, cases where retesting showed the presence of a successor substance, and cases where the test didn’t reveal any of the substances originally reported.

Now, it’s up to the courts to determine whether the data from concluded cases was strong enough to support the convictions, and if not, what might be done to address that problem.

Watson

Watson, a Clinical Professor of Law at Indiana University Robert H. McKinney School of Law, said these toxicology lab questions come at a time when the courts and general public are becoming more aware that forensics aren’t always reliable evidence and faulty science has led to some wrongful convictions. She said in that context, it’s important to have more information to determine what happened on the Indiana cases where lab results may have been insufficient.

“This is very unspecific information,” Watson said about the Supreme Court’s statement and information about the task force findings. “The court seems to be trying to assure fairness and transparency, but we still don’t know what the issues are, how many cases were affected or if they’ve been addressed. If one’s concerned about a client-specific or institutional irregularity, you read this statement and are left with more questions than answers.”

Indiana Public Defender Council director Larry Landis agreed that the Supreme Court statement didn’t provide any answers as to how lawyers or litigants should move forward.

While this court review only looked at certain blood test results, Landis said it begs the question of how any defense attorney could ever accept any toxicology department lab result without challenging its validity.

“This is all very frustrating and every time I think about it, I get angry and just don’t understand,” he said. “We have thousands of cases where these results have been accepted as fact, and we know there’s a high error rate. Why would we accept them, and how do we know these issues have been fixed?”

The Department of Toxicology’s general counsel Teri Kendrick said new protocols have been put in place to ensure accuracy and make sure that past mistakes don’t reoccur. The agency has tightened security access to the refrigerator where samples are stored, adopted procedures documenting chain of custody, and now records when samples are received. The agency also records the procedures used and staff members who are involved in testing, and verifies that equipment and testing methods are accurate. Kendrick also said that the department has started using accepted practices to validate tests and use control samples to ensure results.

Kendrick said that whenever a retest happens, the data is sent to the county prosecutor no matter the result and those prosecutors then decide whether they have the legal or ethical duty to disclose that information to a defendant or defense counsel. She also has seen specific cases where that information has been shared by prosecutors.

Landis

“The issues have been addressed, and I hope that puts the defense bar at ease,” she said. “There’s not much we can do in looking back, but we’re trying to move on. I think the defense bar and prosecutors that work with us have confidence and do understand that things are moving forward.”

The Indiana Rules of Procedure for Post-Conviction Relief provide a way for individuals to challenge any toxicology lab test results that might be questionable. The State Public Defender’s office will represent those individuals who are still incarcerated for free, and the Court of Appeals has agreed to expedite these PCR-petition requests that allege faulty toxicology protocol. Any non-PCR case from individuals who might have already served their sentences would have to go through other avenues, such as civil rights actions.

The Office of the Indiana Attorney General will handle any appeals from PCR petitions – as it does with all other criminal appeals – fairly, quickly and without any undue delay, according to spokesman Bryan Corbin. He said the office is prepared for a possible influx that could occur, similar to the sentencing-related requests that came in following the United States Supreme Court’s Blakely decision in 2004.

“Every case is different so we can make no predictions,” he said. “Along with trial judges and prosecutors, we will carefully review each case presented to us to ensure that a just result is reached for both the defendant and the community.”•