Attorney seeks to toss 420 drug convictions

The Delaware Public Defender's Office has filed more than 420 motions since April 30 seeking to reopen and overturn old drug convictions due to lapses in security and thefts of drug evidence at the Delaware Medical Examiner's Office.

Delaware public defender Brendan O'Neill said his office will be filing motions to revisit all 9,500 felony and misdemeanor drug convictions between 2010 and February 2014 due to mismanagement at the state's drug-testing lab inside the Medical Examiner's Office, which broke the legal chain-of-custody.

If O'Neill's office is successful, hundreds of defendants serving time on drug charges could be released. At least 1,700 people who were convicted of drug crimes during those years remain in prison. It is not clear, however, if all 1,700 would be freed if their drug convictions were overturned because some may be serving sentences for other crimes.

"We intend to keep filing them [motions] every day, or as close to every day as we are physically able to, as soon as we hear from clients that they want us to file a motion on their behalf," said assistant public defender Nicole Walker.

O'Neill's office filed 112 motions April 30 and has filed some 370 motions since then. Fifty more motions are expected to be filed Tuesday, according to Walker.

"We want to get as many of these [motions] before the court as possible," Walker said. "This whole thing has cast a shadow over the criminal justice system, and it is time for the court to step in and do something about it to protect the due-process rights of these individuals."

So far, public defenders have not heard from prosecutors or the courts on any of their motions seeking to overturn closed drug cases, and the Delaware Attorney General's Office declined to comment on the motions Monday.

All this is on top of some 3,700 drug prosecutions that were pending at the time the lab was closed and could be dismissed due to the security breaches at the lab.

Dozens of pending drug prosecutions have already quietly been dropped or plead down to lesser charges, as The News Journal reported last month, because the Delaware Attorney General's Office does not want to take any drug cases to trial while the investigation of the drug lab remains open.

State prosecutor Kathleen Jennings said the state does not want to be forced to answer questions at a drug trial that could compromise the criminal investigation of the drug lab.

Police and prosecutors have declined to give an indication of when the criminal investigation, now in its third month, might wrap up.

Sgt. Paul Shavack of the Delaware State Police said on Monday that an audit of more than 8,500 bags of drug evidence that were being held at the lab is complete. However, Shavack said the investigation continues as investigators interview current and past employees at the Medical Examiner's Office.

He also said an audit of thousands of more bags of drug evidence – processed by the lab and returned to various police agencies across the state – has not yet been completed.

The Controlled Substances Lab was closed Feb. 25 by state police after it was discovered that drug evidence in criminal prosecutions had gone missing from the lab. So far, prosecutors have notified 63 defendants that drug evidence in their cases has been tampered with or has gone missing.

There have been no arrests so far in relation to the thefts of drug evidence from the lab.

Chief Medical Examiner Richard T. Callery and one employee at the lab, James Woodson, have been suspended with pay, according to the state Department of Health and Social Services.

Woodson has been identified in court papers as the usual "custodian" at the Medical Examiner's Office who logged in drug evidence when it was turned over to the lab for testing.

According to court papers, separate from the drug lab issues, Callery is being investigated for misuse of state resources to operate a private consulting business.

On Wednesday, State Sen. Robert Marshall, D-Wilmington West, is expected to hold a second hearing in Dover about the scandal at the Medical Examiner's Office and the public policy implications.

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