WILMINGTON – A Superior Court judge has set a hearing that could determine if the Delaware Attorney General’s Office will be able to prosecute hundreds of cases that have been held up since a drug theft scandal engulfed the Delaware Medical Examiner’s Office.
Judge William C. Carpenter Jr. told attorneys a hearing on July 8 has “the most potential” of resolving legal questions surrounding drug cases where the evidence was held or processed by the Controlled Substances Laboratory before officials discovered the problems.
Defense attorneys have argued that security lapses at the lab were so egregious that all drug evidence that passed through the facility between 2010 and February 2014 is tainted. The attorney general’s office said it plans to prosecute all drug cases, unless there is proof that evidence has been compromised.
Carpenter has been assigned by Superior Court President Judge James T. Vaughn to handle all motions and issues related to the drug lab scandal in criminal cases in New Castle County.
“I think both offices [Delaware Attorney General and Delaware Public Defender] need to tee-up the best fact case and litigate it,” Carpenter told attorneys on Tuesday. He added that the facts in the Unique Loper case seem to have the most potential to resolve some of the legal questions.
The legal showdown comes as the criminal investigation into thefts at the Controlled Substances Lab appears to be wrapping up and the Delaware Attorney General’s Office resumes aggressive drug prosecutions. Since Feb. 20, when the lab was closed down because of the thefts, prosecutors have sought to obtain a delay from the court, to offer defendants sweetheart deals or to drop the cases entirely.
In April, State Prosecutor Kathleen Jennings said prosecutors were preventing drug cases from going to go to trial because the office did not want to be forced, at a trial, to answer questions that could harm the ongoing investigation of the Controlled Substances Lab.
Two employees at the Medical Examiner’s Office recently were charged with crimes related to the drug thefts. James Woodson, a forensic investigator, was charged with possession of cocaine, theft of a controlled substance and tampering with physical evidence. Farnam Daneshgar, a chemist, was charged with two counts of falsifying business records, possession of marijuana and possession of drug paraphernalia.
Last week, prosecutors allowed the drug case against Richard Rodriguez go forward to trial. It was at a hearing in the Rodriguez case where Carpenter announced the July 8 hearing in Loper to be the test case for all similar matters related to the Medical Examiner’s Office.
The judge said his rulings in Loper “will provide some guidance to counsel as you pursue these [issues].”
And while defense attorneys have been pressing for exactly this type of hearing, the judge made it clear that the defense may have a high hurdle to clear.
When Rodriguez’s attorney Joseph Leager told Carpenter that there was a likely a break in the legal chain of custody because the drug evidence passed through the Controlled Substances Lab, Carpenter responded, “Why do you say that?”
“It would seem to me that if the evidence is sealed in an envelope, it’s taken to the Medical Examiner’s Office ... the seal is not broken, then its retrieved ... taken to the other lab and tested, I’m having some difficulty understanding why you think that opens it up to any conceivable question that you would like to ask about [the scandal at the Medical Examiner’s Office],” Carpenter said.
Echoing what other defense attorneys have been arguing, Leager told Carpenter that just because there is no obvious sign the seal was broken does not mean there was no tampering. In a January drug prosecution in Kent County, a state trooper closely examined an envelope containing drug evidence and testified to a jury that the envelope was sealed and had not been tampered with. However, when that trooper opened the envelope, expecting to show the jury 64 blue Oxycontin pills that he had seized, a dozen pink blood pressure pills fell out.
Carpenter responded that those facts were not in the record in the Rodriguez case but indicated they would be addressed at the July 8 hearing. In court papers, Loper’s attorney Albert J. Roop made a similar argument about tampering, charging that drug evidence should be excluded against Loper because of problems at the lab.
Carpenter then delayed the Rodriguez trial until July 8.
About 5,000 convictions during times of thefts
The Delaware Public Defender’s Office is scaling back some of its efforts to overturn drug convictions due to the scandal at the Medical Examiner’s Office.
Initially, Delaware Public Defender Brendan O’Neill said his office was looking to re-open and overturn some 9,500 convictions between 2010 and February 2014. This month, O’Neill said his office miscalculated the number of convictions by improperly including defendants who were originally charged with a drug crime but resolved their case by admitting guilt to a non-drug offense in plea deals.
O’Neill now estimates there are about 5,000 people who were convicted of drug crimes during those years when thefts were occuring in the drug lab.
Public defenders had filed 568 post-conviction motions when the error was discovered and have subsequently withdrawn about 100 of those motions.
But Assistant Public Defender Nicole Walker said now that the office has re-checked the data, they expect to resume filing post-conviction motions this week.
10:23 p.m. EDT June 15, 2014
The Newhawks Crew