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Sunday, December 05, 2010

Ind. Courts - "Toxicology gaffes likely to affect cases: Early audit finds high incidence of lax standards"

Here is the list of ILB toxicology entries. The ongoing blood test audit is discussed in these entries from Oct. 29, 2010 and Nov. 15, 2010. The latter includes this quote:

"I don't intend to do this alone," [former Marion County Prosecutor Scott Newman, who is directing the audit,] said. "If the reviewers turn up something, I will be going to my colleagues on the prosecution and defense side and lay out what we did.

"We're documenting every step we take. Every e-mail, every survey. I will welcome their input."

Today Mark Alesia and Tim Evans report in a lengthy, front-page story in the Indianapolis Star:
The first phase of a wide-ranging audit of the State Department of Toxicology found serious systemic problems in blood testing that will raise questions -- and probably spur legal challenges -- in numerous criminal cases.

Outside scientists conducted an initial examination of 26 cases and eventually will review more than 10,000. They have found examples of loose or nonexistent laboratory standards and gaps in the chain of custody of samples.

Former Marion County Prosecutor Scott Newman, who was hired in August to fix problems at the troubled Toxicology Department, told The Indianapolis Star that reviewers found problems that raised "serious concerns" in three of the cases.

Attorneys in two of those cases, both of which had guilty pleas for impaired driving, were notified last week of errors by the Toxicology Department.

In another, a positive marijuana test had been reported as negative -- an error that likely affected prosecution. * * *

Newman said 26 cases is too small a sample from which to extrapolate or make any assumptions about what the full audit will reveal. But he also said something potentially ominous: The initial sample of cases for the audit came from 2009 -- when the lab's science actually had improved under a new director.

"I'm concerned," Newman said, "about what we're going to see from '07 and the start of '08." * * *

"A deal has been struck, basically, in the legal system between law and science," Newman explained, "and it says this: If you follow the procedures that are generally accepted by the top professionals in the field, and if you can prove that you followed those procedures, we will accept your results as persuasive. That's the deal. Prove that you did it the right way . . . and we'll say that's good science.

"So procedure is everything. There is no small deviation of procedure. Once you step off that platform, you're in freefall." * * *

[John Tompkins, a leading impaired-driving attorney in Indianapolis,] said he expects defense lawyers to take aim at the lab, including those representing people who pleaded guilty.

But Joel M. Schumm, a professor at Indiana University School of Law-Indianapolis, said it is hard to get a conviction set aside when the defendant has pleaded guilty.

New evidence calling test results into question, he said, would have to be weighed in the context of all the other evidence in a case. * * *

The audit results come as a lawmaker who served on the assessment team is preparing legislation to remove the lab from IU control. State Sen. Tom Wyss, R-Fort Wayne, said he plans to introduce a bill to accomplish that in the upcoming legislative session.

"We need to get this to a place where we are looked at by all concerned -- defense attorneys, prosecutors and the public -- in a positive light," Wyss said.

Posted by Marcia Oddi on December 5, 2010 09:17 PM
Posted to Indiana Courts