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Is the Opioid Epidemic Fueling Wrongful Convictions?

Crime labs are overwhelmed and under-regulated – leading to the compromise of countless drug cases nationwide

Inside Drug Labs

Thousands of drug samples at facilities across the country have been compromised – which could mean an untold number of wrongful convictions.

Ty Wright/The New York Times/Redux

In separate incidents, just five months apart, two Massachusetts crime-lab chemists were arrested for tampering with evidence seized in drug arrests. At Boston’s Hinton State Laboratory, the state’s largest lab, Annie Dookhan falsified results by “dry-labbing”– submitting positive results for substances never tested – though she also added drugs to samples to increase the weight, enabling DAs to prosecute charges for distribution rather than just possession. At a smaller forensic lab in Amherst, Sonja Farak’s ravenous drug use compromised not only the samples she tested and her testimony delivered in court while high, but the entire lab’s ability to perform scientific testing: She ingested – and then diluted to cover her tracks – the samples that drug labs keep in stock to test against seized parcels.

Combined, Dookhan and Farak potentially helped wrongfully convict more than 32,000 drug defendants between 2003 and 2012. Though these may be two of the more extreme examples of crime-lab malfeasance, these incidents are common across America. Looking at the standards and practices of crime labs – and the science performed there – it’s not hard to tell why. The frequency of such scandals also reveals the sea change the opioid epidemic has wrought upon these labs in the 21st-century prosecution of the War on Drugs.

Since 2000, America’s 400-plus publicly funded forensic labs have seen a 74 percent increase in requests for drug-crime-related analyses. Drug-testing backlogs, owing largely to the opioid problem, have created variations on the crime-lab-technician-gone-rogue scenarios with sickening regularity in the past decade; addicted workers and the demand for quick turnaround have compromised lab work to a degree that may be immeasurable. For example, Kamal Shah was found to have potentially tainted as many as 14,800 cases in his 10 years at New Jersey’s State Police North Regional Laboratory before he was dismissed for dry-labbing in 2015. According to a since-deleted LinkedIn profile, he’d previously worked for 16 years at another lab.

“Some attribute the recurring scandals to underfunded labs and often undertrained technicians,” says Sarah Chu, senior forensic-policy advocate at Innocence Project, a nonprofit legal organization that has helped exonerate the wrongfully convicted for a quarter-century. “But what that overwhelming focus on drugs demonstrates is the priority of our criminal-justice system, which pursues the volume of these cases without ensuring that resources are in place to operate laboratories with the proper scientific and quality-management safeguards.”

Indeed, the pattern of rogue chemists emerging from the opioid epidemic suggests yet another epic civic failure resulting from the War on Drugs. For decades, draconian sentencing guidelines have destroyed American lives, in the name of what many experts realize would be much better fought as a war on addiction. What has gotten less attention is the extent to which the drug crusade may have compromised the legal system’s ability to provide due process, as crime labs across the country are proving to be incapable custodians of evidence in drug cases. And in an era increasingly riddled with synthetic, lab-grown drugs, lab technicians are offered an immense power.

So who are these workers, and what exactly are they doing?

Shah, Farak and many other forensic professionals are well-educated, but a large number of crime-lab technicians have no science education or experience at all. Protocols vary from state to state, but in many, techs are hired without comprehensive background checks or drug testing, and operate with minimal supervision in labs that are overwhelmed with work and are poorly equipped and cash-strapped.

A 2013 inspection of Cincinnati’s Hamilton County crime lab found the building antiquated, unsafe and underpowered: Its technicians had to use the boiler-room floor to dry marijuana for testing. A tech at the drug-chemistry section of the Nassau County crime lab on Long Island fell through a faulty floorboard, years after a promised new lab remained unbuilt and the lab had been put on probation by an outside accreditation agency. Yet nothing changed until the state’s inspector general investigated, and that only happened because of an executive order from Gov. Andrew Cuomo. The inspector’s 184-page report cited lab failures from top to bottom. A spokesman for the Nassau County district attorney ballparked the drug analyses needing to be re-examined “in the hundreds of thousands” when the lab was finally shuttered.

Dakota County public defenders Lauri Traub and Christine Funk are responsible for discovering widespread problems with the St. Paul crime lab. Friday, July 27, 2012.

That such failures go unmarked for years is not uncommon. Lauri Traub, a Minnesota assistant public defender, was horrified by the old-fashioned St. Paul crime lab she visited to interview the technician who tested substances taken from her client in 2011. Run by a police sergeant with no science education, its analysts had no written procedures to follow, used Wikipedia as a “technical reference” and failed to clean instruments between tests. Subsequent investigation showed officials were long aware of the lab’s problems, yet technicians continued analyzing parcels and testifying in court for a year longer before the lab was finally closed.

Such unsupervised labs become truly toxic when chemists become addicted. Matthew Barb, a technician at the Missouri State Highway Patrol crime lab, began stealing meth samples in 2004. Severely addicted when he turned himself in a year later, his signature was on every third report for drugs seized in southwest Missouri, and he’d appeared as an expert witness at times so high he found it difficult to testify.

“With drugs like methamphetamine, addiction can be a chicken-and-egg thing,” says Heather Harris, a forensic-chemistry consultant and assistant professor at Pennsylvania’s Arcadia University. “Sure, there are people going to work in labs already with dependency issues, but have perhaps restricted it to alcohol because of the stigma of drugs, knowledge of their consequences or just fear of the neighborhood they’d have to go to procure. Then they begin work in a crime lab and are handling these substances with no consequence. If the negatives of drug use are taken away and coupled with a tendency for dependency, the stage is set for them to become desensitized.”

That scenario becomes nightmarish when an overperforming chemist becomes addicted to opioids, such as Oregon’s Nika Larsen. In 2015, eight years into Larsen’s seemingly model career at state police crime labs in Pendleton and Bend, 18 Oxycontins went missing. She had begun entering the lab at off-hours – if not for opioids then for meth, diazepam, anything in bulk. Opportunity was rife: Controlled-substance requests had gone up 90 percent in Oregon labs during her years on the job.

Before their addictions, Barb and Larsen were their labs’ star chemists, a pattern familiar to Gordon Weekes, chief assistant public defender of Florida’s Broward County. His office was often tasked with defending against the tainted results of Kelli McDonald, regarded as the lab’s most efficient analyst at the Sheriff’s Office crime lab. “They get so caught up being number one,” Weekes told local reporters. McDonald had worked up to 1,000 cases a year from 2006 to 2014 before supervisors realized the problem. Again, the state’s slowness to react magnified the harm done, even though, as Weekes put it, “Everything about Kelli McDonald was screaming this was a problem.”

Amber Nawolski had worked with Georgia’s Valdosta Police Department for a decade before a 2016 audit exposed her opioid thefts from a regional crime lab, which may have gone unnoticed if she hadn’t put in for a different job at the lab, triggering the audit. In Montana, Lt. Steven Brester had served 20 years with the Missoula Police Department when his patrol car was rear-ended in 2014. The injury led to his transfer to the state crime lab, and to an opioid dependency. In a pattern typical of addicted lab workers, he cut into seized parcels and replaced pills with over-the-counter meds. In his nine months on the job, he tainted as many as 6,000 cases.

Neither Nawolski nor Brester were chemists. They were evidence custodians, manning the lab vaults and safes that substances are held in prior to and after testing. “Forensic crime labs are DEA-licensed facilities, places not only to test but store these substances,” says Harris, the Arcadia University professor. “There are lots of reasons drugs remain in labs after trial, and if you’re overseeing the tracking process you’re greatly empowered.”

Lax security in and out of safes and vaults has flourished in the opioid era. Matthew Lowry was a decorated 31-year-old Washington, D.C., FBI agent when he became addicted to hydrocodone in 2012, after four years on the job and a decade of chronic colitis. In a pattern that’s become all too familiar, he found a new drug when prescription opioids ran out: heroin. Assigned to a task force pursuing local traffickers, Lowry broke open a parcel of seized powder and began snorting. For 14 months he forged paperwork and used laxatives or Creatine to make up weight from parcels he transferred to and from the bureau’s crime lab before he was found incoherent near the Washington Navy Yard.

All this malfeasance raises the question: When things go wrong in a crime lab, who is to fix it? Cops? Judges? An agency that doesn’t exist yet?

“It’s a very difficult question,” says Harris. In her 20 years as a forensic chemist and 10 years consulting drug-defendant cases as an attorney, she’s seen little evolution in the science performed at labs or with DA offices and courts. Like Innocence Project’s Chu, Harris sees it as a top-down failure. “If you are a scientist and you find a flaw, you try to fix it,” she says. “I would hope the same is true in law. But sometimes they need a push from the courts, from prosecutors, or maybe just from the citizenry.”

It certainly isn’t coming from the government. In 1988, the Clinical Laboratory Improvement Amendments set federal standards for labs running tests regarding humans’ health. With addiction seen increasingly as a disease rather than a crime, and with crime-lab scandals so rife, one would expect similar guidelines for labs that can impact Americans’ lives. But there are no national standards for forensic crime labs, and there seems little hope – or interest – in addressing the problems through new laws. A 2009 study on crime labs commissioned by the Department of Justice had found large systemic flaws but suggested the regulation of such labs didn’t belong within the department’s purview. The DOJ established a commission to set guidelines in 2014, but it has no enforcement powers.

Oversight thus far has largely been through audits by private and independent accreditation firms; 83 percent of publicly funded labs currently submit to them, some required to and some not, varying from state to state. That said, 100 percent of the labs discussed above were certified – even the Nassau County lab put on probation by the outside accreditor, a firm affiliated with the American Society of Crime Lab Directors. The ASCLD, however, is a nonprofit created by the very labs whose work it oversees. So, labs are clients. Their certifications are usually for five years; follow-up audits are less intensive. And as in any specialized field, the crossover from industry to overseer is huge. Crucially, auditors are not bound to inform the public of problems found.

What happens far more often, Harris points out, is that accreditation is “something used to hide behind. The government presents a case favorable to them, and when the defense starts questioning, gets to say these questions are moot because the lab is accredited.”

“Accreditation is not a panacea,” says Chu, “and yet it is cast as a solution for the challenges that laboratories face – ‘If a method hasn’t been validated, accreditation will solve it.’ ‘If there is misconduct, accreditation will solve it.’ But accreditation doesn’t prevent misconduct – only rigorous blind testing can detect misconduct. And it doesn’t improve the validity of a method – only well-designed research studies can improve the science. Accreditation merely demonstrates that a lab meets the basic requirements for operation. There are a number of cases where labs have been accredited repeatedly, but it is later learned that the protocols, testing or testimony were incorrect.”

The answer to these problems may well already exist, and in a rather surprising place: the city of Houston, Texas. “For years,” says Chu, “its crime lab was notoriously the worst in the country. After millions of dollars spent to hire outside companies, the public had had enough. It’s since changed its culture entirely. The laboratory is a public/private partnership funded by the city, governed by a board, and operates with complete transparency. Approximately five percent of the workflow at the laboratory [undergoes] full-scale blind controls to help guarantee accuracy and integrity, and citizen complaints are evaluated by an independent state forensic oversight body. The quality of the work of the lab has greatly improved – so much so that it has improved public trust not only within the city of Houston but across the nation.”

Such measures are currently restricted to the state level. At the federal level, under the Trump administration, the government seems intent on doubling down on the War on Drugs. At a November press conference, Attorney General Jeff Sessions called the opioid epidemic the “deadliest drug crisis in American history” but focused on touting measures that will increase drug prosecutions – which will only send more drugs through crime labs. But without some kind of reform to these facilities, will the public ever be able to trust the outcomes?  

In This Article: Drugs, Opioid Epidemic, War on Drugs

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