PUTTING TOXICOLOGY ERRORS ON TRIAL

Flawed Results From State Toxicology Lab Give Defense Lawyers New Ammunition

In what was otherwise a routine drunken-driving trial, defense
attorneys in Hamilton County this week attempted a strategy that
legal experts predict might become increasingly popular -- and
successful -- in Indiana courtrooms.

They tried to put the state's Department of Toxicology on trial.

The legal maneuver comes on the heels of last week's report in The
Indianapolis Star that revealed the depth of testing problems at the
lab: An ongoing audit found lab errors in 10 percent of 2,000
positive blood tests for marijuana.

And those results are only a fraction of what will eventually be
reviewed -- every test from 2007 to 2009, more than 10,000 samples overall.

Defense attorneys reacted to the audit results with words such as
"shock" and "inexcusable" and "forensic perjury." Former Marion
County Prosecutor Scott Newman called the findings "a potential
mess." Now Newman -- who was hired by Indiana University to assess
and address the problems -- is working to create a system for
handling what he expects to be a flood of appeals.

Prosecutors cautioned that it's too soon to know how many cases will
be affected, but they're preparing to address problems.

In the Hamilton County case, the attorneys asked Judge Gail Z.
Bardach to delay their client's trial until the audit is completed.
They also wanted the judge to require the state to prove its blood
test is valid. And they wanted her to compel Newman to testify about
the lab's performance.

According to results reported by the lab, which is operated by IU,
the man accused in the case had a blood alcohol level of 0.09; the
law considers 0.08 evidence of intoxication.

"Whether the 0.09 is accurate is the crux of the case," attorney Mark
E. Kamish said. "And we just aren't confident that finding is
accurate, based on some of the problems we are hearing about."

The man was acquitted -- but not because of any testimony about the
audit. The judge ultimately decided against allowing testimony about
the audit, which is not complete.

But another attorney in the case predicted it's only a matter of time.

"I can't imagine how juries will rule in future cases when a judge
will actually allow this type of evidence to be heard," said Andrew
Baldwin, a partner of Kamish's.

And that evidence will be heard. Newman has begun notifying
prosecutors and defense attorneys in cases where positive tests have
been called into question by the audit.

Among those called into question are about 50 test errors described
by Newman as a "conscious manipulation" of results out of laziness,
incompetence, time pressure and a lack of established operating procedures.

Other errors included failure to calibrate the testing machines with
known samples, or "positive controls," according to Newman.

As the ripples from the audit are creeping into Indiana courtrooms,
the problems also have caught the attention of state lawmakers. A
bill that would take the Toxicology Department out of IU is the focus
of a legislative hearing at 9 a.m. today.

But beyond the debate among lawyers and lawmakers, there is the real
potential for personal hardship brought on by questionable or
wrongful convictions.

Charles Shadowens pleaded guilty last year in Putnam County to a
charge of operating while intoxicated after a blood test came back
positive for marijuana. Now he wonders if he may be among the victims
of lab errors.

"I went on their word that I was guilty," Shadowens said of the test
results, which came back positive even though he contends he hadn't
smoked marijuana in a long time.

When he read The Star's story about the audit, Shadowens, a
motorcycle mechanic from Owen County, said, "I was thinking, 'Man, I
wonder if I got railroaded. I want to get my case reviewed.'"

He is far from alone in that concern.

Former Marion County Prosecutor Carl Brizzi said the topic generated
more than the usual number of calls to his WIBC radio program, "Crime
Beat," when it was discussed Saturday.

"They were absolutely shocked," Brizzi said of callers. "The
consensus was that this really does shake the very foundation of
people's faith in how the system is supposed to work."

"Now," Brizzi said, "the game has changed a little bit."

Maybe more than a little.

"If (lab) workers have manipulated any results," said J.J. Paul, a
prominent Indianapolis DUI attorney, "then I don't believe anything
that lab has done is believable. I think, frankly, that every single
case that passed through there is now questionable."

Paul downplayed the notion that some of the errors may have been small.

"There are no small errors; there are only errors," he said.
"Everything a lab does has to speak for the result. With any
deviation, no matter how slight, results cannot be used for evidence."

Defense attorneys aren't the only members of the legal community
concerned about the fallout. David Rimstidt, chief deputy for the
Marion County prosecutor, said in a statement: "We are very concerned
that the science upon which we depend has been called into question.
. . . Until we get all of (the) information, we can't get into specifics."

While Marion County has its own crime lab, the prosecutor's office
said it uses the state lab for some alcohol cases and some cases
involving driving under the influence of drugs.

Morgan County Prosecutor Steve Sonnega already is preparing for the
possibility of challenges.

Sonnega said he was informed by Newman last week that some of the
problem cases are from Morgan County.

"Whatever news we get," he said, "we will be letting defense
attorneys know there is a potential problem and try to start a
dialogue with them."

Sonnega said he had some experience with this type of situation after
a police officer in the county was accused of fabricating police reports.

"Everybody he arrested started asking, 'What about me? What about my case?' "

Sonnega expects people convicted in cases in which blood tests were
involved to begin asking those same questions.