Marijuana evidence vanishes off truck

Marijuana that prosecutors planned to use as evidence in a Nassau County drug case has vanished from a FedEx truck that was taking it for testing to a Pennsylvania crime lab.

The disappearance is the latest fallout from the shutdown of Nassau's police crime lab because of evidence handling and analysis errors. Since the lab's closure in February, the county has been shipping evidence to a Willow Grove, Pa., lab at a cost of about $100,000 a month.

Sources with knowledge of a state investigation of the lab said state Inspector General Ellen Biben has told the county to stop using couriers such as FedEx to transport evidence and start doing the job itself.

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

"This is evidence you're using to convict someone of a crime and you're entrusting it to a FedEx driver?" said attorney Daniel Friedman, who represents the defendant in the misdemeanor drug possession case involving the marijuana."It's almost saying 'Steal me.' "

A question of trust

Friedman said prosecutors told him about the missing evidence last week. It included two small marijuana samples and a scale.

The incident has many defense lawyers questioning whether they can trust the chain of custody for any evidence that has been sent to an outside lab since the Nassau crime lab was closed.

But Eugene O'Donnell, a professor of law and police studies at John Jay College of Criminal Justice in Manhattan, said, in general, evidence is not automatically thrown out because of chain-of-custody issues. He said defense lawyers can argue at trial that the evidence was not handled properly, and jurors can make their own decision about whether that should affect their verdict.

A case against tampering

In cases where drug evidence makes it to the lab and is tested, O'Donnell said it is hard for defense lawyers to argue that it might have been tampered with. "It's a hard case to claim that someone tampered with evidence and made something into drugs that wasn't drugs before," he said.

FedEx is looking into the possible theft -- which is believed to have occurred sometime in early June -- said Chris Stanley, a FedEx spokesman. "We do have a network in place to protect the security of customer shipments," he said.

John Byrne, a spokesman for Nassau District Attorney Kathleen Rice, said only that "an investigation is ongoing."

A police spokesman, Det. Michael Bitsko, also said an investigation is under way, but offered no details. Asked if police will begin transporting evidence themselves, he said officials are reviewing their protocols to determine what comes next.

John Milgrim, a spokesman for Biben, also declined to comment. Biben's office opened an investigation of the crime lab in the spring.

Since the lab's closure, Nassau's drug testing -- new cases as well as retests of thousands of older ones for possible errors -- has been outsourced to NMS Labs in Willow Grove.

Marc Gann, immediate past president of the Nassau County Bar Association and head of an association committee examining the crime lab problems, said Meg Reiss, Rice's chief of staff, called him Tuesday night to tell him the evidence went missing. Gann said he was told a shipping box had been opened, the marijuana had been removed, and the box had then been resealed.

He said Reiss told him the drugs had been shipped in accordance with standards set by the federal Drug Enforcement Agency. DEA Spokesman Robert Michaelis confirmed that the agency occasionally uses private couriers to transport evidence, and said there have never been any problems.

An eye on outsourcing

Joseph LoPiccolo, president of the Nassau Criminal Courts Bar Association, said in light of the possible theft, he has urged members to be vigilant in examining the chain of custody in any case where evidence testing has been outsourced.

"If prosecutors don't prove every link in the chain of custody, there's a strong possibility that a court will be made to suppress evidence, or even dismiss charges," he said.

It is not the first time there have been problems with evidence before it reached NMS Labs. Defense attorney Dana Grossblatt said gunshot residue linked to one of her clients got to NMS in an envelope that had been torn open.