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Nassau County Crime Lab: How Could This Have Happened … And What Happens Next?

Most criminal defense attorneys have represented someone accused of possessing and/or selling a controlled substance.  For the most part, the client’s guilt or innocence breaks on the credibility of the police officers involved in the arrest.  Did the police have the lawful right to stop and search the client?  Did the observing officer truly see a “white rocky substance” at the time of the alleged sale, as is claimed?  These are the questions that prosecutors, defense attorneys and judges often grapple over in drug cases.

In recent months here in Nassau County, these questions have taken a back seat to a fundamental issue in drug cases rarely challenged in a court of law:  Is the substance really what the crime lab’s report says it is, and does it weigh what the crime lab says it weighs?  The pervasive pattern of mistakes uncovered at the Nassau County Crime Lab shake the very foundation of drug prosecutions past, present and future here in Nassau County.  The subsequent closure of the lab by County Executive Edward Mangano and District Attorney Kathleen Rice only solidifies the notion that thousands of drug cases prosecuted in Nassau County must be reviewed and, if necessary, re-opened and re-litigated.

So what is happening now and what happens next?  First, the Governor has taken the necessary step of appointing New York’s Inspector General, Ellen N. Biben, to investigate what went wrong with the evidence tested at the crime lab.  Inspector General Biben has the task of answering the vital questions of: 1) Are the inaccuracies in the test results limited to narcotics testing or do they also include tests done on finger-print analysis, ballistics testing and blood alcohol results?; 2) Who knew about the problems and when did they learn about them?; and 3) Was there an attempt to cover these problems up and, if so, by whom?  These are vital questions that must be answered by a fair and independent investigation.  It appears by all accounts that Governor Cuomo picked the right person to take on this task.

Aside from Inspector Biben’s independent investigation, Collins, McDonald & Gann partner Marc Gann, in his role as the president of the Nassau County Bar Association, has formed a Task Force made up of some of Nassau County’s leading attorneys in the area of criminal law.  The Task Force has been formed for the purpose of suggesting ways in which this problem (the scope of which has yet to be determined) can be dealt with immediately and in the future.  Specifically, the Task Force has begun to formulate a plan for the identification and review of cases that may have been undermined due to lab errors.  Additionally, the Task Force has begun to formulate a blue-print for how a successful and trustworthy crime lab operates.  Finally, members of the Task Force have begun to consider the larger picture, specifically, is there legislation that can be recommended so that issues of this nature may never arise again?

While this lab fiasco continues to change and develop almost daily, there is one constant that cannot be put aside or forgotten.  It is possible, in fact likely, that as you sit here and read this there are individuals serving prison sentences because of, at best, shoddy police work, and at worst, criminal activity by one or more of this county’s law enforcement community.  We at Collins, McDonald & Gann will continue to play an active role in monitoring developments and in doing everything we can to set things right for the future.

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