LAB SCANDAL MAY UNRAVEL DRUG CASES

San Francisco's D.A. Is Under Fire for Not Checking Witnesses' Criminal Records

A scandal that has shaken San Francisco's criminal justice system and
rocked the race for state attorney general began with a criminalist
who allegedly stole drugs from a police laboratory.

Investigators said Deborah Madden, a longtime Police Department
criminalist who testified for the prosecution in scores of cases,
told them she skimmed cocaine from the lab to help her quit drinking.
She also implicated other analysts in sloppy investigative work.

But the revelation that reverberated most was about Madden's past:
She had been convicted of misdemeanor domestic violence in 2008, a
fact known to her supervisor but never revealed to prosecutors or
defense lawyers when she testified.

Under Brady vs. Maryland, a 1963 U.S. Supreme Court ruling,
prosecutors are required to disclose evidence helpful to the defense
if it would likely change the outcome of a case. Madden's alleged
thievery has sparked revelations that Dist. Atty. Kamala Harris, who
is running for state attorney general, and her predecessors failed to
seek and disclose potentially incriminating information about law
enforcement witnesses.

"It was kind of a like a 'don't ask, don't tell' policy," said Jeff
Adachi, the elected head of the Public Defender's office. "The police
weren't telling and the district attorney wasn't asking."

Madden's admissions have prompted Harris to dismiss 700 pending drug
cases and the police to shut down the drug lab. They also have
sparked an ongoing background review of law enforcement personnel who
may have testified for the prosecution.

Once the review is complete, prosecutors and defense lawyers will
have to comb through a multitude of cases in which witnesses with
undisclosed misconduct testified. Although felons are barred by law
from being uniformed police officers, some officers could have
misdemeanor convictions.

Adachi said that more than 100 police employees may have a history of
misconduct that should have been disclosed and that "hundreds, if not
thousands" of criminal cases were likely to have been affected.

Harris' opponents in the race for the Democratic nomination for
attorney general have used the scandal to pummel her record. Former
Facebook Inc. executive Chris Kelly has accused Harris of
"extraordinary malfeasance," and former Los Angeles City Atty. Rocky
Delgadillo also has blamed her for the problems.

Her defenders say she inherited a dysfunctional office and moved
quickly to make changes once she learned that law enforcement
witnesses had backgrounds that required disclosure.

"You have a duty to turn over evidence that is exculpatory that is in
your possession, but you don't have a duty to find it," said UC
Hastings Law Professor Rory Little, a former federal prosecutor. But
he added, "It is stupid not to ask" potential witnesses for such information.

He estimated that 90% of prosecutor's offices in the U.S. have no
system for determining whether law enforcement witnesses have records
that should be disclosed, although Los Angeles has had such a policy
in place for years.

"Until a case blows up, you tend not to do it because police unions
resist it," Little said. "The D.A.'s office would assume the cops
aren't using a chemist who steals drugs and has a conviction. But you
cannot depend on people to disclose this kind of embarrassing
information voluntarily. You are going to have to put a system in
place that discovers it."

Harris established a 13-page internal policy on April 13, but that
has not spared her from criticism.

San Francisco County Superior Court Judge Anne-Christine Massullo
lectured Harris' office in a ruling last month to be "more mindful"
of due process.

A spokeswoman for Harris said she hopes to refile the drug cases that
were dismissed, after the evidence is tested by outside laboratories.
But Golden Gate University Law Professor Peter Keane predicted that
"many cases are going to be fatally defective and are going to wind
up being dumped."

"Ninety-nine percent of them will be cheap dope cases," said Keane, a
former San Francisco public defender. "I doubt you will see anyone
walking off death row as a result of this."

He said the revelations have highlighted the "stumblebum nature of
the criminal justice system in San Francisco," which he contrasted to
what he viewed as more professional law enforcement in Los Angeles
and New York.

"You can't lay this entirely on Harris' doorstep," Keane said. "It
surfaced on her watch, but it has been endemic for a long time."

Police Chief George Gascon, who was hired from the Los Angeles Police
Department, has said he noticed the absence of a system for learning
about so-called Brady material not long after he took over the
department. He said he discussed it with the D.A.'s office in September.

Prosecutors said they were prepared to address the problem before
Madden's alleged theft was uncovered.

Hastings Law Professor David Faigman, who specializes in forensic
science, said Madden's case did not surprise him. He recalled taking
a class to the drug lab several years ago and seeing open garbage
bags of what appeared to be marijuana laying on the floor.

"Courts need to be more attentive to what is going on in
laboratories," Faigman said. "The courts have been trusting them, and
there is good reason to mistrust."