Cape Gazette
http://capegazette.villagesoup.com/p/1135993

Legislator: Drug lab fails to provide expert testimony

Chief medical examiner suspended; tampering investigation continues
By Melissa Steele | Mar 08, 2014
Source: submitted Rep. Steven Smyk says experts from the medical examiner's office never testified in lower court drug trials while he served as court liaison.

Fallout from the drug-tampering scandal in the Office of the Chief Medical Examiner has reached the chief medical examiner, who was suspended a week ago, while a local legislator and former state police officer says the office has been unresponsive for years to lower court drug cases.

Richard T. Callery was suspended with pay Feb. 25 pending an internal human resources investigation, said Department of Health and Social Services Secretary Rita Landgraf in a statement released  Feb. 28. Director of Communications Jill Fredel said privacy protection prevents the department from releasing when the internal investigation began. She gave no further details on the internal proceedings.

State and local Republicans question the delay in information released on Callery, who has served in the office since the 1990s and makes nearly $200,000 a year.

“Neither the governor nor the attorney general will talk about the situation. What’s worse is that they put agency staff on paid leave and dodged questions from the media for three days,” wrote John Fluharty, executive director of the Delaware Republican Party, on the party's website.

Sen. Gary Simpson, R-Milford, agrees with Fluharty's statement.

“I think Fluharty pretty much hit the nail on the head,” Simpson said.

Sen. Ernie Lopez, R-Lewes, said he would like to give the state's top officials the benefit of the doubt when it comes to the release of information, and he hesitates bringing politics into this serious matter.

However, he said, “There was a deafening silence, which was disappointing.”

Concerns about drug tampering of evidence sent to the medical examiner’s office first arose during a Jan. 14 drug trial in Kent County when pills displayed as court evidence were not the ones sent to the lab for testing.

Delaware State Police and the Attorney General’s Office announced a joint investigation Feb. 21 into drug tampering in the medical examiner’s controlled substance lab. Since then, 21 cases have been affected by charges of drug tampering.

Georgetown attorney John Brady said he expects hundreds of cases could be affected by drug tampering.

The issues at the Office of the Chief Medical Examiner are the most recent example of what Rep. Steven Smyk, R-Milton, said is a systemic problem he encountered while working as a court liaison for the Delaware State Police, mostly dealing with cases in the Court of Common Pleas.

In drug trials where evidence was sent to the lab for testing, Smyk said it often would take more than eight weeks to process – so long many trials he worked on would have already started before the results came back.

“I never was able to get someone from the medical examiner’s office to testify,” he said. “The problem persisted before me and continues.”

The number of cases during the year and a half he worked as court liaison varied from as many as five a week to none for three weeks.

He was told experts from the medical examiner’s office needed notice at least two weeks in advance, but that time frame would not work if a defendant demanded a speedy trial, Smyk said.

“Their excuse was they get so many subpoenas,” he said, adding he was lucky to get someone to answer the phone.

Most of the time, Smyk said, the defendant would take a plea or the charge would be dismissed.

“They had no plan to drive to Sussex County. They had no intention of driving down,” he said.

Departmental problem

Smyk said he realizes the office is small – 53 in the medical examiner’s office and six in the controlled substances lab that handles drug evidence. If experts were available to testify in trials in all three counties, that would require half the lab staff, he said.

A larger issue, however, is the Office of the Chief Medical Examiner's position under the Department of Health and Social Services. By falling under the purview of Health and Social Service, the office is outside the circle of criminal justics and, Smyk said, employees may be unaware of the importance of sworn testimony in court proceedings.

A testing lab in each county, which would answer to and respond to the courts would be an improvement, he said.

Smyk said he intended to raise concerns about the lack of response from the Office of the Chief Medical Examiner to Sussex County drug cases; recent problems in the drug lab now have allowed him to bring attention to it.

“I am certain the Attorney General’s Office is aware of this from me,” he said. “The AG's office has no clue of the systemic problem with the ME's office.”

No one from the Attorney General's Office could be reached for comment.

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