Dozens contesting Nassau crime lab results

Dozens of people accused of felonies in Nassau County -- five of them already convicted -- have filed legal challenges seeking to throw out charges based on potentially tainted evidence at the county's now-shuttered Police Crime Laboratory.

The 42 defendants in cases dating to at least 1991 include ex-Marine James Farr, convicted of fatally injuring two brothers while driving drunk in East Meadow, and an inmate serving 12 years for felony drug possession. One filed his own motion from prison. Another has been granted a new trial.

Most of these cases are based on potential evidence problems at the lab and eight are based more generally on the fact that the lab has been closed.

Of all the motions filed -- the vast majority are for pending cases -- 18 are drunken-driving charges, and eight are drug charges, prosecutors said. The remaining 16 are on a variety of charges and grounds, including a 1991 kidnapping case and a 2009 murder charge in which the defendant is challenging the ballistic evidence collected by the lab.

While experts caution that no prisoners should expect easy dismissals or overturned convictions, the fact that challenges are coming from those already convicted raises the stakes for the county as it tries to contain long-term damage from the lab's ills. The older the case, the harder it will be for the county to gather witnesses and other evidence. And there could be civil challenges ahead.

Defense lawyer Michael DerGarabedian, of Rockville Centre, said he expects to file about 12 motions this week, all for clients who pleaded guilty to drug charges before learning about problems at the crime lab.

"How do you begin to compensate someone for years of their life that they lost in prison?" he said.

'This is just the beginning'

A special judge has been assigned to hear allegations of botched lab evidence in the felony cases, and lawyers say the number of challenges is likely to multiply if evidence of mismanagement or mistakes at the lab mount. What's more, there are an unspecified number of misdemeanors facing or likely to face challenges.

"This is just the beginning," said William Kephart, president of the Nassau Criminal Courts Bar Association.

County officials closed the lab in February, two months after it was placed on probation because of concerns over the handling of evidence and other deficiencies. On March 24, Nassau District Attorney Kathleen Rice notified nearly 300 prisoners that their cases might be affected. State Inspector General Ellen Biben is investigating the history of lab deficiencies.

Two weeks ago, a Nassau County judge ordered a new trial for Erin Marino, one of the five people convicted of felonies. She was found guilty of driving drunk in June 2009 when she slammed into the rear of a minivan, injuring three people. Prosecutors have said they will appeal.

Kephart said lawyers for many other clients are watching as the early cases such as Marino's move through the court. He predicted that more cases will be challenged as people with past convictions become aware of lab problems, and any additional information comes out through retesting or the state inspector general's investigation.

Rice, the district attorney, said in a statement that she is reviewing cases one at a time, and aims to treat each defendant fairly. She said she is not troubled by the challenges so far, which represent a very small percentage of the roughly 5,000 felony cases the office handles each year.

"Even assuming some dramatic increase that we've yet to see, we expect to be able to handle each challenge with the resources and attention normally focused on a case," Rice said.

Challenge in murder case

One of those challenges was filed by defense attorney Dana Grossblatt of Jericho, who asked a judge to keep gunshot residue evidence out of the trial of a man charged with second-degree murder, or to hold a hearing on the matter.

Grossblatt, who would not identify her client, contends the gunshot residue collected by the Nassau lab and mailed to a Pennsylvania company for testing, arrived in an envelope that had been opened and not properly sealed.

The police crime lab, which tested blood, drugs, fingerprints, ballistics and other evidence, was put on probation Dec. 3 by a national lab accreditation agency for failing to meet 26 protocols deemed essential or important. County officials closed the lab's drug-testing unit Feb. 10 and then shut the entire lab Feb. 18 after allegations that police managers may have failed to disclose inaccurate testing.

Legal hurdles remain

Legal experts said defendants with the best hope of having charges tossed out are those whose cases are still open, and those who were convicted after trial. People who pleaded guilty to crimes will face a higher legal burden to withdraw those pleas.

"The strongest cases would be a drug or DWI case where you could point specifically at the results and question whether the results are reliable," said Gene O'Donnell, who teaches law and police studies at John Jay College of Criminal Justice in Manhattan.

University of Utah law professor Daniel Medwed, a nationally recognized expert in wrongful convictions, said the challenge for defense attorneys will be to prove that the new revelations about mistakes at the lab "would have created the probability of a different outcome" at trial.

"It's a relatively tough hurdle," McCann said.

The disclosure last month that prosecutors will retest all felony drug evidence collected over the past three years and re-evaluate blood-alcohol testing in drunken-driving cases back to 2006 has a lot of defendants waiting to see what their retest shows before they file.

Garden City lawyer Brian Griffin, who represents Erin Marino, said: "I think people are waiting for the dust to settle."