Marc Gann Quoted in the NY Times
Drunken Driving Conviction Voided for Crime Lab Errors
Continuing questions about the reliability of tests done in Nassau County’s now-shuttered crime laboratory led a judge to overturn a drunken driving conviction on Monday.
Judge George R. Peck of Nassau County Court cited prosecutors’ own statements in court about errors in the laboratory and a possible cover-up of them in his decision to grant a new trial to Erin Marino, 30, of Hicksville.
A national accreditation agency placed the laboratory on probation in December after finding procedural and policy violations in drug testing. As evidence of more widespread problems emerged, the Nassau district attorney, Kathleen M. Rice, called for the entire laboratory to be closed on Feb. 18.
Gov. Andrew M. Cuomo has asked the office of the state inspector general, Ellen Nachtigall Biben, to investigate the lab’s conduct.
Ms. Marino was charged with vehicular assault, drunken driving and related charges stemming from a June 2009 accident. She was convicted on some of those counts after a monthlong trial last year, her lawyer, Brian Griffin, said.
At the trial, Mr. Griffin argued that there were problems with the blood testing that was used to prove Ms. Marino’s blood-alcohol level. But the defense was not informed about the problems in the laboratory.
After her conviction, Ms. Marino filed a motion contending that what had come to light constituted new evidence that could have changed the verdict and warranted a new trial. The same argument could apply in other cases that involve evidence tested at the laboratory, Mr. Griffin noted.
Drug cases dating to late 2007 are being reviewed for signs of errors.
“Any citizen deserves evidence that comes out in their trial to be within the guidelines of proper scientific protocol,” Mr. Griffin said. “When you convict somebody based on tainted evidence, that conviction generally should not and will not stand.”
A spokeswoman for the district attorney said the prosecutor would appeal the decision to overturn the conviction.
William Kephart, president of the Nassau County Criminal Courts Bar Association, said the district attorney should not admit any evidence tested in the laboratory until it could be verified, even if doing so delayed the resolution of cases.
“Otherwise, in my estimation, you’re offering compromised justice,” Mr. Kephart said.
Ms. Rice’s chief of staff, Meg Reiss, said that that “is absolutely what we are doing” in drug cases. She added that defendants had always had the right to bring in their own experts to test evidence.
Marc Gann, president of the Nassau County Bar Association, concurred with Mr. Kephart, despite concern about the cost of reviewing evidence and potential lawsuits. And he said the prosecutor should review all cases involving evidence that went through the laboratory, not just drug cases.
Now that the laboratory, which had been at Police Headquarters in Mineola, is closed, county officials said they were sending evidence elsewhere to be tested. The county is also constructing a new laboratory in New Cassel under new leadership.
Stephen Del Giacco, a spokesman for the state inspector general, said the office was acting expeditiously in its investigation.
“Last week, the inspector general’s office took control of the Nassau County police laboratory and all pertinent files,” he said. “The inspector general has issued subpoenas, we’re conducting interviews and our investigation is ongoing.”