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Questionable results of drug tests

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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
 

toxicology The Indiana State Department of Toxicology, housed inside the Forensic & Health Sciences Laboratories on 16th Street in Indianapolis, became a state agency in 2011 after questions arose about uncertain lab results. (IL Photo/ Perry Reichanadter)

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

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-larry-mug 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.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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