Dakota County drug case retesting begins

Appealed cases could overwhelm the attorney’s office

Dakota County Attorney James Backstrom. Photo by Laura Adelmann

A week after workers testified to failures at the St. Paul crime laboratory, Dakota County is having retested all drug evidence in first-degree cases currently being litigated.

The evidence is being sent to the Bureau of Criminal Apprehension crime lab, which many other agencies also are using for retesting after Dakota County courtroom testimony revealed shoddy practices by an under-trained workforce at the unaccredited St. Paul crime lab.

Witnesses, some crime lab employees, testified in a special hearing the lab lacked oversight, documentation, standards, and quality procedures.

The drug lab department’s temporary closure could result in years of retesting and retrials, further clogging courts and other drug crime labs.

BCA officials will have increased drug lab caseloads from Dakota, Washington and Ramsey counties that used the St. Paul crime lab, and are attempting to triage the work, said Dakota County Drug Task Force Cmdr. Dan Bianconi.

“We only have the BCA willing to accept re-tests for our first-degree cases,” Bianconi said. “I don’t know if others will remain in  a holding pattern. … They recognize they have more than they can handle.”

Bianconi said the Drug Task Force averages between 500 and 600 cases annually that require testing of between 2,000 and 3,000 pieces of drug evidence, the vast majority of it done by the St. Paul crime lab for the past decade.

BCA spokesperson Jill Oliveria said they do not know how many cases to expect, but are meeting with agencies that used the St. Paul crime lab and plan to submit evidence to the BCA for testing.

“We are still in the process of working out how to process evidence, and the parameters for what will be tested,” Oliveria said.

The BCA lab employees 82 scientists and 13 of them do drug analysis, she said.

Uncertainty surrounds the potential caseload amount because the special hearing that brought the St. Paul crime lab issues to light is still being presented before Judge Kathryn Messerich.
At the Frye-Mack hearing, St. Paul crime-lab testing used to prosecute the first of eight drug cases (selected as a cross-representative sample of Dakota County drug cases) is being scrutinized by public defenders Lauri Traub and Christine Funk.

The first case involves Matthew David Jensen, 29, of Rochester whose girlfriend called 911 July 15, 2009, after Jensen shot heroin while riding in a car she was driving in Hastings, according to the Dakota County criminal complaint.

A primary issue in that case is the weight of the drugs seized at the scene, which the St. Paul crime lab testing claimed totaled 0.15 grams of heroin.

Traub and Funk’s concerns about reliability of the tests grew at a March 30 meeting with lab criminalist Kari McDermott and Assistant Dakota County Attorney Vance “Chip” Grannis III.

Grannis’ notes from the meeting state McDermott said the lab lacked security for test samples, had changed procedures for processing samples without approval or direction, did not have a lab code of conduct and did not perform validation studies, among other problems.

During the meeting McDermott said she did not understand why defense attorneys have not “attacked like this before,” and that it “horrifies her” that she has never seen any validation studies conducted. The studies are used by labs to verify testing machines and tools are working properly.

Additional issues raised during the court hearing included the lack of training for criminalists performing the tests.

Some of the training lab criminalists received came from Sgt. Shay Shackle, then-head of the crime lab, according to a May 5 affidavit.

Shackle’s resume states he received a law enforcement degree from Normandale Community College, then worked his way up in the department, attending conferences and classes after starting as a patrol officer in 1983.

Shackle was assigned to the crime lab and became a latent print examiner in 1998 after internal training provided in part by Sgt. Colleen Luna, then also a latent print examiner.

He became crime lab director in 2001, but after testimony last week was publicized, Shackle was relieved of those duties at the command of St. Paul police Chief Thomas Smith who ordered Luna, now head of internal investigations, to the position.

While Smith has vowed to correct the problems and seek accreditation for the lab, the hearings will continue in Dakota County.

Messerich’s decision is expected in late fall, and could trigger a potential avalanche of appeals of both convictions and plea bargains.

“The Dakota County Attorney’s Office is bearing the majority of this burden,” Bianconi said. “They already have caseloads through the roof. This is going to complicate things for them; they have their current caseload to keep up and they could be further burdened with these appeals.”

Questions have also been raised about what top officials knew about the St. Paul crime lab’s problems before the hearing, and why Dakota County continued sending evidence there for testing after the March 30 meeting raised concerns about testing quality.

Under Minnesota rules of professional responsibility, a lawyer is to uphold the legal process, and not knowingly offer evidence the lawyer knows or reasonably believes to be false.

Despite the issues raised by the defense attorneys, according to a criminal complaint search, Dakota County did not stop using the St. Paul crime lab for drug evidence testing or thoroughly investigate the significant issues raised during the March meeting and in Grannis’ notes, which were shared with other county officials.

Dakota County Chief Deputy Tim Leslie said he was given Grannis’ notes about crime lab procedures by Dakota County Attorney’s Office Chief Deputy Phil Prokopowicz a day or two before he, Bianconi and  Prokopowicz met with St. Paul police officials about lab concerns April 9.

Included at the meeting were Shackle, St. Paul Assistant Chief Kathy Wuorinen and St. Paul police Cmdr. Gregory Pye; Leslie and Bianconi said they assured the Dakota County officials everything was fine with the lab.

“The whole point of that meeting was to discuss the specifics of what the defense was raising as issues, and determine each point if it had merit or not,” Bianconi said. “My understanding when we left was that it’s not as bad as the defense is making it look.”

Leslie said St. Paul officials told them the March meeting had been with the most junior member of the department because everyone else was busy with a homicide.

They indicated the employee “was ambushed” and “misstated a few things,” Leslie said.

He said St. Paul officials assured them they had corrected any concerns identified in the Grannis memo.

Dakota County Attorney James Backstrom and Prokopowicz were out of town, not available for comment, but in a statement, Backstrom indicated the meeting reassured him of the crime lab’s testing capabilities.

“We were informed at that time by Crime Lab officials that there were no significant problems at their lab for us to be concerned about,” Backstrom stated.

Dakota County Sheriff Dave Bellows confirmed officials did not realize the significance of the issues until the trial was being held.

“One of the county attorneys came down and said the hearing was not going well,” Bellows said. ”He said St. Paul has some serious issues involving a lack of procedures.”

Leslie said the St. Paul officials did not lie when assuring them of the lab’s credibility in their April 9 meeting,

“They just maybe didn’t understand the depth of the issues they faced,” Leslie said.

Bianconi agreed, stating, “Obviously, at some point the standards the BCA and other labs are using, they somehow either weren’t aware of it or chose to ignore it. I think in their mind they were complying and exercising tests to the standards they knew of.”

During the hearing, defense witness Dr. Max Houck, director of West Virginia University Forensic Science Initiative, testified that while there is no national over arching regulation of forensic science, many tools exist to improve the lab operations at almost no cost.

“It just requires bringing them together, making changes and moving forward,” he said.

In the meantime, Dakota County is researching other evidence testing options, including using private labs. to avoid overwhelming the BCA lab with work.

Bianconi predicted the situation will take years to resolve, and expressed concern public safety could be jeopardized.

“It’s certainly frustrating because of the amount of time and effort, and to a large extent, the degree of risk … that goes into these cases,” he said.