Sean O'Sullivan

The News Journal

In a growing scandal, investigators have discovered drugs sent to the Delaware Medical Examiner's Office for testing between 2010 and 2012 have gone missing – sometimes replaced with fakes – imperiling more than a dozen drug prosecutions and possibly many more.

"I don't think this is going to end soon. This is the tip of the iceberg," said Delaware Public Defender Brendan O'Neill.

The problem was discovered by prosecutors earlier this month at trial during a Kent County drug prosecution, according to State Prosecutor Kathleen Jennings. Since then she said the office has been moving quickly to investigate and notify the courts and defense attorneys.

The full scope of the problem is not yet known and investigators have not yet identified a suspect. But at least 15 cases have been flagged by investigators as having tainted or missing evidence.

Almost all the cases where drugs have gone missing involve Oxycontin tablets. In at least one case, the one that set off the investigation, a prosecutor at trial immediately recognized that pills in evidence that were supposed to be Oxycontin were in fact blood pressure medication. In other cases it appears the drugs were simply taken from evidence storage.

At least one marijuana case is also involved.

Delaware State Police are leading the investigation and Sgt. Paul Shavack said the Office of the Chief Medical Examiner is cooperating fully.

"Based on the nature of the ongoing investigation, the Controlled Substances Lab has discontinued drug analysis; however, all other functions of the Office of the Chief Medical Examiner remain uninterrupted and fully functional," Shavack said.

Hal Brown, deputy director at the Medical Examiner's office, confirmed there is an investigation and said his office welcomes the review by prosecutors and state police.

"We do not know if the source of these discrepancies occurred here or elsewhere," Brown said. "We hope they will get to the bottom of it and hopefully it will get resolved soon."

The medical examiner's evidence locker has been secured by the Delaware State Police. An outside company will be doing an audit of all the evidence in the locker related to pending cases to make sure it has not been tampered with or replaced with fakes.

In addition, police agencies across the state have been asked by the Delaware Attorney General's Office to do an audit of drug evidence they have sent into the medical examiner for testing to see if it matches up with medical examiner's records.

"This is considered an active and ongoing investigation being led by Delaware State Police Criminal Investigative Detectives," Shavack said, adding that no further information would be released at this time so as not to jeopardize the ongoing investigation.

In the case where blood pressure pills had been substituted for Oxycontin, Jennings said all charges related to Oxycontin were dropped.

Jennings said the state then immediately launched an investigation to determine the scope of the problem and took "additional measures to ensure the integrity of evidence in criminal drug prosecutions ... [and] notified defense counsel and the courts of this matter in order to ensure that the due process rights of the accused are protected."

O'Neill said the scandal "raises serious questions about the integrity of the state's drug testing laboratory."

"The theft of drugs by lab personnel undermines the reliability of the lab's work, casts doubt on the lab's test results and the credibility of the lab's employees," O'Neill said, calling for the state to quickly identify the employee or employees responsible.

"Any convictions achieved by the state's use of false, fraudulent or fabricated evidence blatantly and egregiously violates defendants' constitutional rights to due process and fair trial," O'Neill said.

"We need to address the issues raised by this scandal promptly and thoroughly," he said.

The case has similarities to a scandal from 2012 in Boston where a former chemist with the state's Department of Public Health admitted to faking test results in at least 1,100 criminal cases. Prosecutors charged chemist Annie Dookhan only tested a fraction of the samples she was sent in order to "improve her productivity and burnish her reputation."

So far in Delaware, however, it appears most of the problems are related to theft not falsification.

Dookhan's fraud left the Massachusetts criminal justice system scrambling to try to repair the damage. So far the episode has cost Massachusetts more than $8.5 million to deal with the situation. The state has also set aside another $8.6 million for this fiscal year. A number of drug defendants have also been set free.

In November, Dookhan was sentenced to three to five years in prison.

Information from the Associated Press was used in this story.

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