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Defense attorneys have found a quick way to win cases: question the District’s drug lab.
They found a rock of crack cocaine in his mouth late one night this past April. The suspect, according to court documents, allegedly admitted what he was up to right on the spot. “I was just trying to make $20 dollars so I could buy my kid something,” he told the officers who arrested him on New Jersey Avenue NW. Yeah, sure. He was charged with a misdemeanor, one count of drug possession. An easy bust, right?
Depends on what your definition of “drugs” is.
“On the merits, I thought that initially the case looked tough,” says the suspect’s court-appointed defense attorney, Will O’Brien. Considering that there was a suspect caught with drugs and a confession, too, that might be a wee bit of an understatement. But after a phone call to Ed Shacklee, the supervising attorney for the nonprofit legal defense group D.C. Law Students in Court, O’Brien found his client a get-out-of-jail-free pass that’s recently helped a growing number of folks who seem to have been caught red-handed.
It turns out that it’s pretty easy to cast doubt on just what was in those red hands. The Drug Enforcement Administration’s (DEA) Mid-Atlantic Lab, located at 460 New York Ave. NW, has become notorious in recent years for not complying with judges’ orders to release testing data for specific cases. For years, many lawyers didn’t even know where the lab was located—let alone have time to question the chemist reports used in drug cases. But within the last few years, defense attorneys began asking questions and demanding documentation about the tests. And judges who find out that the U.S. Attorney’s office and the DEA won’t disclose details about the lab have a way of deciding against the prosecution.
During the past two years, Shacklee estimates, prosecutors have lost roughly 200 drug cases citywide because of the drug lab. U.S. Attorney’s office spokesperson Channing Phillips counters that the dismissed cases come out to little more than two dozen. But Shacklee says his office alone has used the lab to get more than 40 cases dismissed in the last two years—and adds that when you factor in the Public Defender Service, court-appointed attorneys, and private criminal defense lawyers, the numbers come out in the hundreds. There’s even a term of art for the tactic: the “drug lab motion.” Shacklee calls it the “motion du jour.”
It worked wonders for O’Brien. By the end of June, he had filed his own drug lab Motion, seeking all materials concerning lab equipment, training manuals, testing protocols, and the chemists’ notes concerning his client’s alleged crack cocaine. In late July, Judge Josey-Herring ordered the government to comply with the bulk of the request. “It was time for the government to produce these things,” O’Brien says. “What we wanted was this information to test the evidence.” He waited another month—and his client stayed out of jail—for the U.S. Attorney’s office to answer his questions.
Brad Weinsheimer, the current chief of the grand jury section for the U.S. Attorney’s office, says asking for reams of lab-protocol details is more about getting a quickie dismissal than searching for the scientific truth. “If you think it’s not cocaine, have your own expert test it,” Weinsheimer says. “We have no doubt that if the DEA says it’s cocaine, it’s cocaine. [Defense attorneys] are not interested in finding out whether the substance their client had was cocaine.They are asking for things they don’t want nor need.”
Weinsheimer complains that his staff has on occasion handed over equipment manuals and testing notes. He says every defense attorney gets a statement from the chemist stating the test results, called a DEA-7. But defense attorneys report that in many other cases, the government has been unwilling to turn over any documents. They also say it’s rare that a chemist’s notes are given out. In O’Brien’s case, the government offered up no documents.
Still, Weinsheimer believes that the fights over the DEA lab are worthless. “There’s nothing to hide,” Weinsheimer says. “It’s not like there’s some special DEA sauce or special technique. It’s caused a lot of headaches. We’d like to deal with the issue of whether the defendant is guilty of the offense.”
One slow, sad night two years ago, a few blocks from the Mount Vernon Square Metro station, Shacklee and another attorney sat in what looked like an abandoned storefront church. The small dwelling had long ago been reincarnated as a crack house and shooting gallery. Standing amidst vials and baggies on a floor stripped to its plain wood planks, the lawyers searched for any witnesses who might corroborate their client’s innocence. Shacklee also wanted to check out the scene, asking himself if the cop actually could have had a clear view of his client holding little plastic baggies of rocks.
Unfortunately, their client got nabbed by Vice Officer Bill Xanten—a veteran of narcotic patrols who was known for making clean busts. He was so tough to shake, addicts called him the “X-Man.” This time, Shacklee’s client was found with six crack bags. Everyone else shooting up that night got away.
“We went through it all,” Shacklee remembers. “Maybe we could find a witness. That was unlikely from the beginning. We didn’t have any witnesses. We didn’t know what to do.”
Then another idea dawned on Shacklee: Maybe he could do something about the drugs. If they could get any information on the drug lab or the testing protocols that could clear their client, it would be the equivalent of a John Grisham ending. “We realized we were completely ignorant about the drugs,” Shacklee admits. “We were assuming things. So we decided to look into it.”
Attorneys for years had relied on that form letter, the DEA-7. Most attorneys couldn’t name more than a handful of elements on the periodic table—let alone cross-examine a chemist on the witness stand. Shacklee had always figured that asking about the scientific methods used in drug testing would do more harm than good. “All of us do what’s normally done,” he says. “We’re like deer.”
Diane Savage, a criminal defense attorney who worked for years in a research lab at the Albert Einstein College of Medicine in the Bronx, says lawyers were missing a critical piece of their defense. “It’s absolutely necessary,” Savage says. She thinks the District’s lab is a perfect target. “You have an ethical obligation to attack all aspects of the case. If you can prove the testing was so bad, to me you are going to win a lot more cases.”
Shacklee, it turned out, didn’t need a master’s in chemistry to see problems in the tests run on his client’s crack. In results printed on the DEA-7, the lab stated that it tested seven bags of crack—one more than the arresting officer, said he had found. The charges against Shacklee’s client were quickly dismissed.
It was the first of many such dismissals. Shacklee thinks they would never happen if the DEA opened the lab’s doors to public scrutiny. “They have egged on this litigation by their attitude,” he says. “Our ignorance was the first thing that piqued our interest. Their reluctance was the second thing that piqued our interest.”
Shacklee says observers have found the lab to be overcrowded and overworked. In 1996, Thomas A. Constantine, the administrator of the DEA, testified before a Senate Appropriations subcommittee that the District’s lab was particularly problematic. “Failure to improve these labs could adversely affect the DEA’s ability to provide timely, effective support to law enforcement operations,” he said. Although Constantine was trying to squeeze some more money out of the subcommittee, his statement soon came back to haunt him: It now appears in nearly every drug lab motion.
The DEA refuses to speak beyond statements that can’t be cross-examined, like the DEA-7. According to Rogene Waite, a public affairs officer, the DEA is in compliance with the law and operates a clean facility. Waite refuses to comment regarding testing protocols.
In a written statement to Superior Court this past April, Joseph Bono, the drug lab’s director, asserted that his facility measured up to DEA standards.ÆMD-DNØ Bono stated that it would take his employees 77 work hours per week to comply with defense attorney queries. “If forced to produce this documentation, manpower would have to be diverted from present assignments, resulting in a further increase in the backlog of analyses and additional delay,” he said.
But local defense attorneys say that, given the average level of trust in the government, the DEA had better figure out a way to answer the drug lab motion. Last month, allegations of testing irregularities made by a defense attorney and a former employee of the Prince George’s County police drug lab opened the possibility of re-examining past drug convictions in that jurisdiction. And the July resignation of D.C. police narcotics expert Johnny St. Valentine Brown Jr. after allegations that he had lied under oath about his education, didn’t exactly help the credibility of local drug-testing institutions.
“You can’t take the government at face value. You have to probe and challenge,” says attorney Mark Rochon. “This lab has had problems in the past. They screw up. The government is perfectly capable of screwing up. It’s one of the many things that you have to look at in a case.”
From the outside, the Mid-Atlantic Lab doesn’t look much like a Space Age scientific compound. The lab sits alongside an auto dealership along a lonely strip of New York Avenue NW. You might mistake its faded brick 1926 facade for an abandoned house. The survelliance cameras clamped along the roof apparently didn’t deter the graffiti artists whose tags adorn the lab’s walls.
The only part of the lab that visitors get to see is the lobby. There, a security guard sits and stares into space. The room is small and cramped with a thrift-store-ready, raspberry-colored couch and a Formica table. The other rooms are off-limits. “We do not give tours,” says April Lee, a lab supervisor. “We just don’t—not to the public.”
And that’s the attitude O’Brien banked on in his crack case. When the government failed to provide documents at a mid-August hearing, the defense attorney called for a dismissal, and the judge immediately granted it. His client was a free man.
“I considered it a victory,” O’Brien says. “I view the information related to how the evidence is stored and handled as the merits of the case. The defendant should have the ability to test that. This isn’t about throwing mud at each other. This isn’t rocket science-it’s a simple drug possession case.”