Drug lab scandal: Man released after cocaine retested

After a retest of two kilograms of cocaine led to a man's 20-year prison sentence being overturned and his release, the Delaware Public Defender's Office is again asking judges to revisit dozens of drug convictions in which evidence was handled by the scandal-plagued drug lab.

The test showed this week that two tightly wrapped, shoe box-size bricks were not cocaine, but were instead powdered sugar or some other baking staple.

Jermaine Dollard, who has a long history of arrests and escalating criminal behavior dating to the late 1990s, was sentenced in 2013 to prison after those bricks were found in a secret compartment in his car. He was released from prison and the case against him was dropped.

Defense attorneys say the reversal, the first that led to the release of a convicted person since the scandal broke, raises more questions about the extent of drug evidence thefts. It also raises questions about which chemists were involved and if drylabbing – the practice of issuing a report without actually testing a drug – occurred in this case and was more widespread than initially thought.

"People were convicted based on evidence that doesn't support the conviction," Assistant Public Defender Nicole Walker said Friday. "Two kilograms, two big bricks can go missing; that is a serious problem."

A series of stories in the News Journal detailed problems with major lapses in security at the Controlled Substances Laboratory in the Office of the Chief Medical Examiner.

Investigators discovered more than 50 pieces of drug evidence had been tampered with at the OCME between 2010 and 2014, leading Delaware State Police to close the controlled substances lab in February and the Delaware Legislature to eliminate the OCME.

Its duties were assigned to the newly-created Division of Forensic Science underneath the Delaware Department of Safety and Homeland Security.

Two former OCME employees – forensic investigator James Woodson and chemist Farnam Daneshgar – were arrested and charged in connection with the scandal.

Dollard's Dover-based attorney Alexander Funk said Dollard's case, which was handled by Woodson and three other employees, raises "suspicions" about other cases.

"The greater concern and greater scandal here is the potential for drylabbing," he said.

The Delaware Department of Justice declined to comment on how it plans to respond to the public defender's request, except to say the matter has been referred to the Delaware State Police.

"The case has now become part of their larger, ongoing investigation," Spokesman Carl Kanefsky said.

Wiretapping

Dollard, 41, was arrested in June 2012 as part of a large-scale drug investigation conducted by Delaware State Police.

His first run-ins with the law were in the late 1990s, with motor vehicle infractions and a marijuana possession charge.

His most serious offense came in 2002 when he was charged with first-degree rape and eventually was found guilty of unlawful sexual contact and assault.

In 2012, police wiretapped the phone of a suspected drug dealer they believed was part of a larger organization supplying cocaine in Dover, court documents say.

While intercepting the dealer's calls and following his movements, they happened upon Dollard, who was selling to the lower-level dealer from his Smyrna home, according to court documents.

Police obtained a warrant to wiretap Dollard's phone and a warrant to search his Honda Accord.

They did so on June 13, 2012, intercepting Dollard on a drive back from New York City. The search turned up two kilograms of what police suspected was cocaine.

Dollard was charged with nearly a dozen offenses associated with drug dealing, possession and racketeering.

The two bricks were sent to the Office of the Chief Medical Examiner and a legal chain of custody report shows the cocaine was handled and tested by four employees – Woodson, Areatha Bailey, Irshad Bajwa and Laura Nichols.

Bajwa, who is still employed by the state as a chemist, testified at Dollard's trial that the bricks were tested and were confirmed to be cocaine.

Dollard was convicted in October 2013 and sentenced a few months later to 20 years in prison.

Shortly thereafter, the drug lab scandal broke, shining a light on widespread thefts and evidence tampering in the lab.

Because of the scandal, Dollard's attorney appealed the conviction and eventually asked Graves for a retrial. The judge seemed to reluctantly agree to retest the two bricks.

"As to whether or not any problems in the medical examiner's office would have created the probability of a different result? I don't think so but let's wait and see," the judge said on Dec. 16, according to court transcripts. "If that comes back as cocaine, which I suspect everybody in this room is probably going to bet the ranch that it's going to come back cocaine on, … then the motion for a new trial is going to be denied."

Different scenarios

The lab results, indicating the white powder was not cocaine, were completed on Jan. 7 and Dollard's case was dropped by Deputy Attorney General Nicole Hartman soon after.

"My client is grateful that the court ordered the state to retest the substances," Funk said. "Unfortunately he spent almost three years in prison and it appears he was convicted on the basis of a fabricated controlled substance report."

While it is still unclear if the cocaine was stolen or was never actually cocaine, the incident raises the possibility that the lab never tested it.

"What is the more likely scenario – that someone was able to remove two cocaine bricks, unpack it somewhere else, take the cocaine out and repack it with baking sugar, replace the bricks with no one noticing?" Funk said. "Or is it more likely that they never tested the two bricks in the first place and issued a fake report?"

Walker wrote a letter Friday to Graves and other judges in Delaware explaining Dollard's case and asking the court to revisit the idea of dismissing dozens of drug cases.

Judges in Sussex and New Castle counties previously declined to reopen or overturn closed drug convictions, including most recently on Wednesday. In one opinion, Graves wrote that the cases involved defendants who admitted guilt before trial and often before tests on the drug evidence were completed.

"I think that what the facts from this case underscore is that summarily dismissing our motions without having the extent of an evidentiary hearing is just inappropriate," Walker said. "This case reveals there is merits to these motions."

She said other cases like Dollard's could be out there, but the court is presuming the defendants are guilty.

Contact Jessica Masulli Reyes at jmreyes@delawareonline.com, (302) 324-2777 or on Twitter @JessicaMasulli