Sean O’Sullivan

The News Journal;

It is a good time to be facing drug charges in Delaware.

Dozens of drug prosecutions are quietly being dropped or resolved on terms favorable to the defendants as an investigation into missing drug evidence at the Delaware Medical Examiner's Office drags into its third month.

Damage done by the scandal is mounting. In all, some 3,700 drug prosecutions, including 500 felony cases, could be imperiled.

Drug dealing is behind much of the rising tide of violence that has plagued Wilmington, New Castle County and other parts of the state. Community leaders and police have expressed frustration that the scandal has undermined police efforts to crack down.

Prosecutors are hoping to salvage some pending drug cases by avoiding taking any to trial right now, according to state prosecutor Kathleen Jennings, who said a trial would force the state to disclose details about the criminal investigation of the state's Controlled Substances Lab and potentially undermine the investigation.

"And we simply will not do that," she said.

Other attorneys have said if a judge were to rule in a case right now that security at the lab was so compromised that any drug evidence held there was irreparably tainted, it could scuttle most or all of the pending drug cases from 2010 to 2013.

In effect, prosecutors are sacrificing cases now to avoid losing them all. They are hoping that the investigation, when complete, will offer a chance some cases can be salvaged.

Delaware State Police have given no indication when the investigation, which involves a time-consuming and tedious audit of more than 22,500 drug evidence bags, will be completed.

In the meantime, more than just routine drug possession cases are being affected.

In one case this month, all drug charges against a man a police affidavit said was caught with 5,900 bags of heroin, $10,000 in cash and five guns, including an AK-47, were dropped before trial. That left only weapons charges against the defendant, and he was subsequently acquitted.

Had that man, Kevin L. Harris, been convicted of the original charges, he faced a life sentence. Instead, he will be back out on the street after he completes a short sentence for a probation violation.

Since the drug testing lab inside the Medical Examiner's Office was closed on Feb. 20, the state has been sending drug evidence to an out-of-state lab for testing. This week, Attorney General Beau Biden proposed establishing a new, independent state crime lab.

Widener Law professor emeritus Tom Reed said prosecutors dropping drug charges in the Harris case is "a big flag that something is going on here."

He said Harris was clearly a "heavy-duty bad guy," and there has been no indication to this point that any heroin had been tampered with at the Controlled Substances Lab, so he found it strange that prosecutors backed away from the case.

"Where there is smoke, there is fire ... this is really beginning to shape up to be a mega-scandal," he said, adding problems at the lab may be worse than suspected.

Wilmington City Councilwoman Maria Cabrera said the Harris case made her blood boil because it has been very difficult to get the community, which has been torn by drugs and violence, to put its trust in authorities to help clean things up. "And now we have to work even harder to build and earn that trust," she said.

Cabrera said she is equally upset that all the hard work of the police in the Harris case and other drug cases has been in vain. People are constantly questioning if the city police are doing their job, she said, and are asking, "Why aren't they locking these guys up?"

Here, the police did their job, she said, and locked a man up, yet he will soon be back on the street.

"And where are they going to go? Right back to the community," she said, adding that they are likely to cause the very same problems for which they were locked up.

"For us, it's like starting back at square one," said New Castle County Police Chief Elmer Setting. "If the people we investigate and ultimately arrest are released, unless they had some kind of rehabilitation, they're going to come back out and ply their trade."

When the scandal at the state's drug testing lab first broke in late February, Superior Court President Judge James T. Vaughn Jr. put a 30-day hold on all drug prosecutions set for trial.

Prosecutors then asked for an additional 60-day delay, saying they needed more time to investigate. But Vaughn declined to extend the delay, siding with defense attorneys who argued all cases should move forward on a case-by-case basis.

Since April 1, at least 16 felony drug cases have been delayed, dropped or resolved with a plea on the day of trial in New Castle and Sussex counties, according to the Delaware Attorney General's Office. That does not count cases in Kent County, any that were resolved before the day of trial or the 63 instances where defendants have been informed that drug evidence in their cases had been tainted or has gone missing.

No drug prosecutions have made it to a courtroom anywhere in the state since April 1.

In Sussex County, attorney John Brady said dozens of marijuana cases also have been dropped in the Court of Common Pleas. "In misdemeanor court, everything is being dropped down or waived," he said. Attorneys in Kent and New Castle counties said the same has been happening in misdemeanor courts there.

"And in Superior Court, they [prosecutors] are now being more reasonable," Brady said, with pleas being offered to drug defendants.

In one case typical of the last-minute offers, Wallace Sanchez was facing charges in New Castle County Superior Court involving dealing crack cocaine. He faced a sentence of up to 15 years in prison.

But on the day his case was set to go to trial, April 15, prosecutors offered him a deal to a sentence of time served if he admitted guilt. He agreed and was immediately released.

"It was a good deal," said Sanchez's attorney Brad Manning, who added that while defense attorneys have been looking to force hearings on the drug lab scandal, he had to consider the interests of his client first.

"There is never a good time to be a defendant, but if you are going to be a defendant facing a drug charge, there are some opportunities available right now because of the state's situation with the medical examiner," said Delaware public defender Brendan O'Neill.

"What I'm seeing is different charging decisions, a different logic," attorney John Deckers said, in terms of resolving drug cases since April 1.

That was clear in the Kevin Harris case. According to court papers, he was the target of a weekslong investigation that began in January 2012 with a tip to police that he was moving large amounts of heroin.

Police set up surveillance on Harris and multiple vehicles outside the Colony North Apartments. Once police moved in, they seized more than 5,900 bags of heroin in a stash vehicle at Colony North; a small amount of heroin, two guns and $10,000 in cash in the nearby apartment of Harris' ex-wife; and three more guns, including an AK-47, in the apartment's storage unit, according to a police affidavit.

However, without the drug charges, prosecutors could not refer to any heroin or money that were seized. At trial, the state struggled to connect Harris to the seized guns since Harris did not live at the apartment where they were recovered.

Deputy Attorney General Sarita Wright said she respects the jury's verdict but said it was "unfortunate that the jury could not see all the evidence investigators collected in this case."

Defense attorney John Barber said that at the two-day trial, no one testified to seeing Harris touching or holding any of the guns. The closest prosecutors came to tying Harris to the guns was the fact that one was recovered in an H&M bag that also contained a receipt for men's shoes that the state claimed Harris had purchased.

Prosecutors showed the jury a surveillance video that they claimed was of Harris buying the shoes, but Barber disputed that the grainy video actually showed his client.

"They didn't have the evidence to connect him to any of it," Barber said, adding his client also disputed the dropped heroin allegations.

"Kevin Harris maintains his innocence," Barber said.

Had Harris been convicted in the original case, he was looking at a life sentence as a habitual offender. Harris remains in prison, serving a two-year sentence for a probation violation related to his Feb. 15, 2013, arrest.

State prosecutor Jennings conceded that the case against Harris was weaker without the drug charges and acknowledged that prosecutors have been avoiding taking any drug cases to trial since April 1. She said this is, in part, because prosecutors do not have the detailed answers that defense attorneys are looking for about the size and scope of the scandal at the Medical Examiner's Office.

And in the cases where prosecutors do have answers, Jennings said they do not want to compromise the ongoing investigation of the drug thefts at the lab.

In the Harris case, Barber filed a detailed motion before trial that, among other things, sought details on the ongoing criminal investigation at the state's drug testing lab and how it may have affected his client's case. He also raised chain-of-custody concerns related to the drug evidence and sought to call suspended Delaware Chief Medical Examiner Dr. Richard Callery and other lab employees to the stand to answer questions.

Harris had at least seven prior felony convictions, and Jennings described him as "a bad ... violent, dangerous guy." But she said prosecutors made the decision to go forward without the heroin charges, because to put that case on – and open up the state to questions about the drug lab – "would have compromised what we are doing."

'I realize this can't go on forever.'

More than three months since the first problems were discovered at the drug lab and more than two months since officials closed it down, no suspects have been arrested, and no charges have been filed.

Both prosecutors and state police have been either unable or unwilling to say when the investigation will come to a close.

"They haven't told us a damn thing about what is going on," said William Deely, head of the Delaware Public Defender's Office in Kent County. "And the way they are not telling us is by dropping cases," he said, or by making favorable plea offers.

So far, the only employee who has faced any kind of public disciplinary action is Chief Medical Examiner Callery, who was suspended with pay on Feb. 25. Callery is also the focus of a separate criminal investigation for alleged misuse of state resources to operate a private business as a consultant.

Jennings said the uncertainty about what happened at the lab is why the state pressed hard for an additional 60-day delay in all drug trials.

"We have this robust, intense criminal investigation into what happened, and we are not going to sacrifice the integrity of that investigation and the ability of that investigation to get to its goal by being placed in a situation where we are answering questions about the investigation itself," Jennings said.

So, to protect that investigation, Jennings said prosecutors are cutting favorable plea deals and dropping charges.

"And we will try to get continuances in cases where we can reasonably ask [for a delay]," she said, adding that a delay was not possible in the Harris case because it was so old.

"I realize this can't go on forever," Jennings said. "Very difficult decisions have to be made, balancing the integrity of that investigation and the goals of getting to the bottom of this against what we take to trial at this point," she said.

Some defense attorneys, like Patrick Collins, said prosecutors also might be reluctant to take certain drug cases to trial because they are concerned about a judge making an early ruling that could result in the widespread dismissal of most, if not all, of the 3,700 pending drug cases from 2010 to 2013.

Collins and others have argued that there is already enough evidence of compromised cases for a court to find that the problems at the Controlled Substances Lab were so widespread and the security lapses so large that all of the lab's work from 2010 to 2013 has been irreparably compromised.

Prosecutors recently confirmed details about the lab's security shortcomings, first detailed by The News Journal in an April 6 front-page story. In an April 16 letter from Deputy Attorney General Caroline Cleary to the Delaware Public Defender's Office, the state confirmed "access to the drug evidence locker [at the Office of the Chief Medical Examiner] was not restricted to, or monitored by, a single individual" and "The door to the locker was left open at times."

The letter also reveals that there were significant discrepancies in record-keeping related to drug evidence at the lab. "In some cases, evidence logs could reflect a discrepancy of hours or days between the time the police log notes evidence as having been submitted to the OCME and the time the OCME records it as having been received," wrote Cleary.

Prosecutors also have said they are hoping to take many of the pending drug cases from 2010 to 2013 to trial. If drug evidence bags show no signs of tampering and the contents of the bags match the original reports filed by police, the state expects to move forward with prosecutions.

But if a judge rules that drug evidence has to be tossed out because of security lapses at the lab, regardless of evidence of tampering – which is apparently what authorities concluded in a similar drug thefts case at a crime lab in San Francisco – that could quickly have a snowball effect, said Collins.

Other defense attorneys would immediately cite that ruling and press for dismissal of other drug cases, Collins said, and a handful of dismissals could turn into hundreds.

"All we are getting is that the investigation is ongoing … we are just left to make assumptions about when this will come to a head," said attorney Deckers.

Longtime Wilmington defense attorney Eugene Maurer Jr. said that while the state has clearly been putting off a confrontation in court about the problems at the state's drug testing lab, "eventually it is going to happen."

Politicians, meanwhile, are also clamoring for answers.

"I really think that the Attorney General's Office, at this point, is really downplaying this in an effort to make this go away," said Senate Minority Whip Greg Lavelle, R-Sharpley.

"We now have a public safety issue as a result of multiple failures to oversee this office ... A hell of a lot of money and resources went into these cases that are now compromised, and even more will be needed to dig out from this problem," he said.

The silence has to end at some point, Lavelle said. "At some point, there has to be accountability."

Sen. Robert Marshall, D-Wilmington West, said there is statewide concern and anger about failures at the state's drug testing lab, but he said he has confidence in the Attorney General's Office and the courts to "do the right thing."

"We are all outraged at what has occurred, yet we need to work our way through it and make corrections in the system so it won't happen again," he said, voicing support for Biden's proposal for a new state crime lab separate from the Medical Examiner's Office.

As for answers, Marshall said officials from the state Department of Health and Social Services, which oversees the medical examiner, and the state Department of Safety and Homeland Security will be discussing the drug lab situation at a state Senate hearing on Wednesday.

Staff writer Adam Taylor contributed to this story. Contact Sean O'Sullivan at (302) 324-2777 or sosullivan@delawareonline.com or on Twitter @SeanGOSullivan