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Long IslandColumnistsJoye Brown

Judge: Refuse to use tainted lab evidence

A file photo of the Nassau County police

A file photo of the Nassau County police crime lab in Mineola. Photo Credit: NCPD

The Nassau County district attorney's office ought to stop prosecuting cases that rest significantly on evidence vetted through the county's discredited crime lab.

State Supreme Court Justice George Peck, in tossing out a drunken-driving conviction and ordering a new trial for Erin Marino of Hicksville, said as much in his decision Monday.

Peck noted that District Attorney Kathleen Rice ". . . certainly can refuse to initiate and continue prosecution based upon tainted evidence."

He's right about that. In one example cited in his decision, Peck leaves no ambiguity about the necessity of re-testing potentially tainted evidence from the lab. "The blood analyst on this case," he said, "mislabeled nine alcohol test results, the effect of which ascribed incorrect results to nine defendants."

In other words, the analyst who tested Marino's blood turns out -- months later, after the lab's problems came to light -- to be the same analyst responsible for attaching nine other alcohol test results to the wrong case files.

No wonder the judge ordered a new trial. And, in so doing, he likely opened the floodgates for other defense attorneys to challenge crime lab findings introduced as evidence in thousands of past and current court cases.

Rice, uncharacteristically, had no comment on Peck's decision Monday. In court, an assistant district attorney said the office would appeal.

That's the DA's choice; but it's the wrong one. As it is, Rice's office, recognizing problems at the lab, now gives defense lawyers, as part of the discovery process, copies of a report issued by the evaluation company that put the lab on probation.

That's not enough, Peck said in his ruling, pointing out the DA's office can't say it has no confidence in the lab and then go into court and stand by the lab's work.

The job of prosecuting using evidence from the lab got tougher in Marino's case because week after week, as the hearing continued, there were more and more revelations about serious issues -- from inaccurate lab testing to indications that supervisors knew but said little about problems at the facility.

Peck, a prosecutor under the late District Attorney Denis Dillon, praised Rice and County Executive Edward Mangano for their "prompt and responsible actions" in closing the lab.

But the damage is done. As it is, Gov. Andrew M. Cuomo has asked an inspector general to investigate what went wrong. That can't be enough.

Tuesday and Wednesday, defendants will go into Nassau criminal courts, where they are presumed innocent. It is up to prosecutors to prove otherwise, beyond a reasonable a doubt.

But the lab's woes are casting shadows of doubt, as Assistant District Attorney Robert Schwartz acknowledged during a hearing on Rice's unsuccessful attempt to push for the appointment of the special prosecutor she wanted. "Many of the cases that this office is currently prosecuting have been put at risk," Schwartz said then. "Many of the cases that this office has prosecuted in the past are also at risk . . ."

So why the appeal of Peck's decision? Why the delay when what's needed is so clear and so necessary?

The acting lab director early on in his investigation found problems while reviewing paperwork. It's time to go even further. Retest lab results for current cases; and Rice should announce she's stopping prosecutions that rely significantly on lab results until new testing can be done.

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