[h1]Crime lab fallout: Drug defendants go free[/h1]
SAN FRANCISCO -- It was Justin Belton's lucky day.
Belton, 30, pumped his fist in victory Wednesday as he left court after San Francisco prosecutors dropped a felony heroin sales case against him.
His was one of 25 drug cases dismissed at the Hall of Justice because of questions surrounding the police crime lab and a former technician there who is suspected of stealing and using drug evidence.
On Tuesday, police said they were shutting down the lab immediately and had ordered an audit of the operation.
"Thank God it got dropped. Now I can get on with my life," said Belton, who was surprised but pleased to learn he was off the hook.
He said he hoped to land a job and be long gone should prosecutors ever refile charges against him.
His lawyer, deputy public defender Peter Fitzpatrick, said the drug evidence in Belton's case had been tested by former criminalist Deborah Madden, 60, who authorities say stole and used powdered cocaine she was supposed to be testing.
'They have a situation'
With evidence in cases Madden handled called into question and no technicians available in the now-closed crime lab to test drugs in new cases, prosecutors felt they had no choice but to free Belton and other defendants Wednesday.
"It looks like they have a situation on their hands," Fitzpatrick said.
Madden abruptly retired Dec. 8 after 29 years on the job and has been in treatment recently for drug and alcohol use, officials said. She left the crime lab shortly after an audit discovered that drug evidence was missing, officials said.
She has not been charged in San Francisco, but she does face weapons counts in San Mateo County as a result of a police search of her San Mateo home earlier this month that allegedly turned up a gun.
Madden was not supposed to possess a weapon because of a 2008 misdemeanor conviction for domestic violence, authorities said.
Her attorney, Paul DeMeester, said he had advised her not to speak to the media or to investigators at this point. He had no comment on the allegations.
"Her spirits are good, given that she is the subject of lot of attention," DeMeester said. "This is a very difficult period for her, especially given her length of service, to go out on a bit of a sad note." He said the fact that some drugs were missing from the crime lab "doesn't change the test results." The remaining drugs will probably be retested with a different analyst, he said, and the cases will be refiled. "Nothing will change," DeMeester said. District Attorney Kamala Harris' office confirmed that it would seek to refile some of the cases once the drugs can be retested.
Who knew what, when?
Fitzpatrick and other defense lawyers wondered why prosecutors waited until Wednesday to dismiss cases, noting that Madden's work apparently came under suspicion at least three months ago. "They knew something was wrong at some point, and they weren't telling anybody," Fitzpatrick said. "Would you trust them? How do you ever trust that evidence?"
Police Chief George Gascón, however, said he hadn't learned of potential problems with Madden until late last month. "I am being extremely cautious," Gascón said. "If we did something wrong, we want to get the bottom of this." Harris' spokesman, Brian Buckelew, said that prosecutors had been "presented with a possible criminal case in February" and that the investigation was "just starting."
"We all acknowledge the right of defendants to be free of evidence that has been tampered with," Buckelew said. "We want to assure that a thorough investigation is conducted and we identify all cases of potential tampering."
No conviction disclosure
Defense lawyers pointed out that San Francisco prosecutors didn't reveal Madden's domestic violence conviction to them as they prepared their cases, an apparent violation of rules governing what should be disclosed to defendants' attorneys. Public Defender Jeff Adachi said his office specifically asked in July whether Madden had any relevant convictions and that there had been "no evidence forthcoming."
Adachi demanded that an outside investigation of the crime lab be launched. The police-requested audit isn't good enough, he said, because the Police Department is picking the auditor. "We were completely blindsided by this," Adachi said. "Obviously, it's very sad that this happened. But what's even sadder is that hundreds, if not thousands, of people might have been convicted based on evidence that was tampered with."
Defendants found guilty more than a couple of years ago cannot challenge their convictions, Adachi said, because drug evidence used in cases before 2008 has been destroyed. One of Adachi's deputy public defenders, Elizabeth Hilton, was in court Wednesday when four defendants' cases were dropped, including Christian Borda, a client of hers, and Moises Tejeda, accused of possessing marijuana for sale. The prosecutor, Seth Steward, told the judge the charges were dropped in the "interest of justice ... given the events that occurred yesterday regarding the crime lab."
Hilton said prosecutors should have disclosed what they knew about Madden as soon as they knew it. "The whole holding-back thing is ridiculous - this is about justice," she said. "You can't tell me nobody in the D.A.'s office knew about this before today."
Jaxon Van Derbeken, Chronicle Staff Writer
Wednesday, March 10, 2010