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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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