Rice: Lab woes call for drug case retests

Nassau drug prosecutions faced growing turmoil Tuesday from fallout of years of shoddy testing at the county's police crime lab.

District Attorney Kathleen Rice called for review of drug test results in all felony narcotics cases since November 2007 and retesting of 10 percent of all drug cases in that period, after nine drug cases from 2007 to 2009 were found last week to have been improperly evaluated.

The head of the Nassau County Criminal Courts Bar Association criticized Rice's latest response as inadequate, saying retesting of all the cases is needed. And attorneys for those accused of drug offenses scoured their cases with an eye toward freeing suspects from jail or having charges thrown out altogether.

Rice said at a news conference in Mineola that she will ask an independent consultant to undertake a technical re-evaluation of all felony drug cases her office has prosecuted since 2007 - roughly 900 cases a year. She said she also will ask the consultant to retest 10 percent of the drugs analyzed by each police crime-lab technician during that period, including both felony and misdemeanor cases.

Rice said she does not know how much the review of more than 3,000 samples will cost, but said the money should come from the Nassau Police Department's forfeiture budget, not taxpayers' pockets.

Police spokesman Det. Lt. Kevin Smith said it "remains to be seen" where the money will come from.

A spokeswoman for County Executive Edward Mangano and Pasquale Buffolino, the lab's director, said in a statement that they will continue to "work cooperatively" with Rice, but did not elaborate.

"It's incredibly upsetting to me," Rice said of the cascading problems stemming from the lab's work. "I pride myself on having unimpeachable integrity. If you shake the public's faith, it's very difficult to get it back."

Rice's announcement came almost a week after lab officials revealed that incorrect testing of the drugs ketamine and Ecstasy in nine cases may have meant some defendants faced stiffer charges than they should have. All drug testing at the lab has since been suspended, and samples in new cases will be sent to a private laboratory in Pennsylvania, Rice said Tuesday.

Lab officials sent the drug samples to the Suffolk crime lab for retesting in December. That month, the Nassau police crime lab was put under direction of the county medical examiner's office after a review by a national accreditation agency found multiple violations and the agency put the lab on probation for a second time. It is the only lab in the country currently on probation.

William Kephart, who heads Nassau's Criminal Courts Bar Association, said Rice's proposal to review felony cases is not the same as retesting drug samples.

"That place is a cesspool," Kephart said of the lab. "To use anything from it is suspect at best and incorrect at worst."

Kephart, in a letter given Tuesday to Mangano and Rice, said prosecutors should retest drugs in all narcotics cases and retest blood results in drunken-driving cases. In addition, he asked for suspension of testing in all areas of the lab and public hearings to determine the "root cause" of the lab's errors.

Rice said in some felony cases, the weight of the drugs tested - which can make the critical difference between a misdemeanor and a felony charge - cannot be retested because earlier tests may have affected the weights. She said her office will have to decide on a case-by-case basis whether to drop the charges against those suspects.

Meanwhile, defense lawyers went to court seeking postponements in their clients' drug cases.

Kent Moston, attorney in chief of Legal Aid in Nassau County, said his office has gathered all drug cases it is handling and is working on everything from getting people freed from jail to having charges dropped.

"We have assembled all of the cases we believe were adversely affected by the investigation," Moston said. "We're going to accelerate those cases."

Under state law, anyone charged with a felony has the right to demand what's known as a "felony exam." If such a demand is made, prosecutors have five business days to present their evidence either to a judge or to a grand jury to show that there is good reason to hold the suspect in jail. Suspects who have been indicted cannot demand a felony exam.

Some defense lawyers said they believe that it will be extremely difficult for Rice to get drug samples to the private lab in Pennsylvania to be tested and have the results within five days.

Rice said if a case is serious enough, she will have to find a way to get lab results expedited so the suspects will not be freed.

With Sophia Chang