Lab woes go back earlier than disclosed

The Nassau County police crime lab failed to comply with national standards that guard against faulty handling of criminal evidence as early as 2003, seven years before county officials first publicly acknowledged problems at the facility, government correspondence shows.

Two letters written in January and February 2006 from then-state Division of Criminal Justice Services Commissioner Chauncey G. Parker to then-Nassau Police Commissioner James Lawrence show that an official inspection of the lab in early 2003 had uncovered "fifteen findings of noncompliance" that raised questions about evidence handling and the lab's ability to resolve them. The division oversees the state Commission on Forensic Science, which certifies New York crime labs.

Parker's Jan. 5, 2006, letter made it clear that the state's confidence in the lab was waning.

"Continuous correction of so many criteria in noncompliance does not instill confidence in the quality system of the laboratory," Parker wrote. "We are concerned that our recommendation in 2003 for the establishment of procedures for regular management review to ensure adherence to accreditation criteria have not been met."

The now-closed lab was first placed on probation by an official accrediting agency in August 2006, six months after Parker's second letter to Lawrence, and again in December of last year, when county officials for the first time spoke publicly about evidence-handling problems at the facility. The lab was the only one of its kind in the country to be so censured in 2010.

Didn't know, officials say

In December, Nassau District Attorney Kathleen Rice said she did not know about the 2006 probation. Lab inspection reports are public information. On Dec. 10, a week after the lab was placed on probation, its director was removed from his post. Two months later, in February, the lab was shuttered by County Executive Edward Mangano.

That closing has unleashed dozens of court filings on both pending cases and past convictions and forced the county to retest the evidence in thousands of felony drug cases. No official results of the retests have been released.

The disclosure that problems began seven years earlier than officials have revealed will likely only add to these challenges. Rice did not respond to requests for comment for this story.

The two letters from Parker to Lawrence -- the first dated Jan. 5, 2006, the second Feb. 8, 2006 -- raise the stakes significantly on critical questions about what went wrong at the lab, and when officials knew of these problems. The letters strongly suggest that, over a seven-year period -- 2003 to 2010 -- the lab failed to follow procedures meant to prevent evidence-testing mistakes.

Parker's letters move the clock back to 2003 on when such problems were first discovered. Besides being Criminal Justice Services commissioner, Parker also was chairman of the state Commission on Forensic Science, which oversees lab accreditation. He wrote in that capacity to Lawrence.

Parker, who is now executive assistant district attorney for crime prevention strategies in Manhattan, said in response to questions from Newsday, "I don't think it's appropriate to comment."

Lawrence, who retired in 2007, could not be reached for comment. Thomas Suozzi, who was county executive from 2002 to 2009, declined to comment.

State Inspector General Ellen Biben is investigating the shuttered lab to determine, among other things, sources have said, when officials knew of problems and how they were handled. Newsday has reported that Biben's investigators had subpoenaed Suozzi and other past and present county officials.

William Kephart, president of the Nassau Criminal Courts Bar Association, characterized the letters as "disturbing." He now wants Rice to examine and retest all cases that might have been affected by lab errors, going back to 2003.

'Now have proof'

"For the first time, we now have proof that they knew since 2003, so we should go back to correct all errors since 2003," Kephart said. "The documents now take us back eight years. The additional problem is trying to juxtapose what officials have told us about no one knowing and yet people in the state commission seem to have communicated about a problem that's been going on for eight years."

Brandon Garrett, a law professor at the University of Virginia who specializes in criminal procedures, said officials are ethically obliged to re-examine cases dating to 2003.

"The right and certainly the ethical and scientific thing to do is to go back and correct as many things as possible," Garrett said. "They would need to re-examine all the files and errors that could be affected by errors by the lab. That's the only sound way to do it."

Since the lab's closure in February, Nassau's drug testing -- new cases as well as retests of thousands of older ones for possible errors -- has been outsourced to a Pennsylvania lab, for about $100,000 a month, county officials have told Newsday.

In the Feb. 8, 2006, letter, Parker told Lawrence that a September 2005 inspection by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board found the lab noncompliant in 18 areas. He did not place all the blame on lab employees and told Lawrence, "Laboratories must have the strong backing and support of their parent agencies in order to successfully maintain accredited status."

The board's 2005 report noted issues such as the inconsistent use of appropriate controls to identify human blood; failure to check expiration dates on materials used to test for controlled substances, and the lack of testing to determine the competence of workers.

When the lab was placed on probation in 2006, inspectors cited problems such as controls not in place for human blood identification, chemicals not checked for reliability, and lab scales that were not checked yearly against an outside calibration system.

Among the accreditation board's findings when the lab was placed on probation last year included failures to maintain equipment, fingerprints that were not packaged or under seal, and reviews of blood-alcohol test results conducted by a supervisor without proof of training to do so.
  

WHAT HAPPENS NEXT?

 -- Retesting of drug evidence in as many as 3,000 felony cases, ordered by Nassau District Attorney Kathleen Rice, must be completed.

-- State Inspector General Ellen Biben will issue a report on her own investigation, ordered by Gov. Andrew M. Cuomo, into a history of deficiencies at the now-shuttered lab.

-- An appeal by the district attorney's office is pending in the case of Erin Marino, whose DWI conviction was overturned based on problems at the lab. The DA seeks to reinstate the conviction.