Sean O’Sullivan

The News Journal

WILMINGTON – State prosecutors have notified 41 more defendants that drug evidence in cases against them – which passed through the state's troubled drug testing lab – has gone missing or has been tampered with.

This brings the total to at least 63 defendants with compromised cases as an audit of thousands of bags of drug evidence continues.

The growing numbers continue to raise questions about how many drug prosecutions will ultimately have to be dismissed – 3,700 drug cases were pending in the state's courts when the Controlled Substances Laboratory was shut down by Delaware State Police on Feb. 20.

Attorneys for those defendants are looking at the cases to see if they can move for dismissal, if it is a pending case, or seek to reopen a closed case if a defendant has been convicted and is incarcerated.

Evidence from all drug arrests since Feb. 20 is being sent to an outside lab in Pennsylvania for testing.

Prosecutors will not say how far they are into the audit of more than 22,500 drug evidence bags – that were either stored at the Controlled Substances Laboratory or were tested by the lab and returned to police agencies pending trial – making it difficult to know if the number of compromised cases will be in the dozens, hundreds or thousands.

But Wilmington defense attorney Patrick Collins said, at this point, it doesn't really matter how many more instances of tampering are uncovered because, "I think we are already well past the point of critical mass, in my opinion."

Collins and Delaware Public Defender Brendan O'Neill said it is now clear that the problems at the drug testing lab were so widespread that all of the lab's work from 2010 through 2013 must be considered suspect and that all pending drug prosecutions associated with the lab should be dismissed.

There have been no arrests in the disappearance of drugs from the lab, and Collins said that means that Delaware's situation is arguably worse than recent scandals at drug testing labs in California and Massachusetts, where hundreds of cases had to be dismissed.

"At least in those cases we knew it was a rogue lab [employee]," Collins said.

The Delaware Attorney General's Office did not answer questions about the newest list of defendants with compromised cases, but spokesman Jason Miller issued a brief statement indicating the state continues to work with state police agencies "to understand the full scope of the irregularities" at the drug lab.

State prosecutor Kathy Jennings has said they do not believe all cases that passed through the lab are tainted. If there are no signs of tampering and the audit shows that the drugs in the evidence envelopes match what was on the reports, Jennings said the state will be going forward with those prosecutions.

The recent revelations about "the gross failure" at the Controlled Substances Lab "demands public outcry like never before," the Rev. Derrick Johnson said on Monday.

Johnson, pastor of Wilmington's Joshua Harvest Church, has called for a rally with concerned family members and community members at noon Tuesday in the 800 block of N. Market St.

"The time is right to do right," Johnson said. "And that is, the release of people who've been wrongfully sentenced."

Rally participants will be demanding that a commission investigate the situation, including how defendants ended up taking pleas in cases where the evidence was tainted and asking Gov. Jack Markell to order the dismissal of affected drug cases, prosecution of all persons responsible and compensation for defendants.

The newest numbers of defendants with compromised cases come from an updated list that prosecutors provided to defense attorneys, as they are required to do under court rules when problems with a prosecution are discovered.

Prosecutors also clarified that the notifications are to individual defendants, and the number is not a list of compromised "cases," as a single case can have multiple defendants. Prosecutors also have not specified the individual incidents of tampering, which could be greater than the number of cases if multiple evidence envelopes were tampered with or taken.

The original list of 22 defendants with compromised cases was created on Feb. 26, and the newest list was dated April 3.

All of the new additions to the list are from 2010 through 2013, just like the earlier list. It is not clear, however, if the new instances involve any different drugs or different police agencies from the previous list. In the Feb. 26 list, the cases all involved the painkiller oxycodone or marijuana, and all of the cases were initiated by either the Delaware State Police or Dover police.

The News Journal has learned that the investigation at the lab, inside the Office of the Chief Medical Examiner in Wilmington, is focused on lapses in security in the drug evidence storeroom.

Prosecutors and Delaware Department of Health and Social Services officials have declined to talk about security procedures at the lab. But according to sources familiar with the investigation, employees regularly bypassed a pass code and pass key system to allow unrestricted and untraceable access to the drug evidence storeroom. The lab did not have a property clerk to monitor access, and the office did not keep video surveillance recordings of employees accessing the evidence locker.

The April 3 list of defendants with compromised cases was a bit confusing in that several names from the Feb. 26 list were repeated on the new list, but other names were not.

O'Neill said he has written to Jennings requesting clarification. Prosecutors did not explain the discrepancies but confirmed that the total number of defendants whose cases have compromised evidence is now 63.

O'Neill also has asked Jennings to specify how far investigators are into the audit and when the investigation of the lab may be complete, something that Delaware prosecutors and the Delaware State Police have so far declined to do, citing the need for confidentiality in the investigation.

"In all candor," wrote O'Neill, "I don't see how the answers to the above questions could in any way compromise the investigation."

Staff reporter Esteban Parra contributed to this report.

Contact Sean O'Sullivan at (302) 324-2777 or sosullivan@delawareonline.com or @SeanGOSullivan.