Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
An audit of the State Department of Toxicology revealed 61 false positive marijuana test results from 2007-09 -- the strongest evidence yet that Hoosiers may have been wrongfully convicted because of problems at the lab.
The paper audit of blood and urine results found lab errors in 272 other samples, but auditors added that they "appear to be" positive.
In all, that's 333 lab errors among 3,200 results checked by the auditors -- or 10.4 percent.
The findings prompted two leading Indianapolis defense attorneys, J.J. Paul and John Tompkins, to call on the Indiana Supreme Court to intervene in every case covered by the audit -- and not just because of errors found in the audit.
They said perhaps more troubling was its limited scope. The auditor acknowledged that there was a long list of things that he didn't, or couldn't, check -- things that the attorneys said are required for results to be admissible in court.
"They're using this to legitimize individual tests that they can't legitimize," Paul said of Indiana University, which operates the lab. "This proves every single test in the audit is in question."
Tompkins said the audit reflects quality control failures that call into question the lab's competence in every other aspect of the tests that weren't audited.
"Passing this audit," Tompkins said, "doesn't mean the test was good, scientifically or legally."
IU spokesman Larry MacIntyre said the 10 percent error rate is "not an enviable statistic for any toxicology lab."
But he said the audit results are "unlikely . . . to overturn very many individual cases." He criticized The Indianapolis Star for an "over-exaggeration" of the potential impact of testing problems.
MacIntyre, for example, downplayed the 272 bad tests in which the auditor said they "appear to be positive." MacIntyre said that means marijuana was "probably present."
That only amplifies the disconnect between how IU and defense attorneys view the audit findings.
"Is that a scientific term?" Paul asked. "Probably present?"
Bruce Goldberger, a practicing forensic toxicologist from the University of Florida, said his profession has a unique responsibility to be precise because the results are used to force guilty pleas and put people in jail.
"We tolerate zero false positives," said Goldberger, who is technical and administrative director of the university's Forensic Toxicology Laboratory. "The field tolerates zero false positives."
Ralph Keaton, executive director of the American Society of Crime Lab Directors Lab Accreditation Board, said any false positive results from a forensic lab "would be very troubling."
In addition to the errors reported in the current audit, an ongoing Star investigation has found evidence of more errors beyond the scope of that audit.
The Star has obtained about 2,000 emails to and from the lab's former director, Peter Method. Those emails document 26 additional inaccurate results from 2004 to 2006. That includes 14 false-negatives -- results that may have allowed criminals to escape prosecution. The others were false positive.
One of the reported false-negatives detailed in emails was a case in which a driver had killed someone. Only after the prosecuting attorney contacted the lab again about the results did it discover what was described as a computer glitch. The test actually had found cocaine and opiates in the driver's system.
But the current audit won't reveal such cases because it's focused only on positive results from 2007 to 2009.
But if the emails obtained by The Star show errors going back well before the audit, the audit itself provides some evidence that things might have been worse in those previous years.
The audit report noted that testing "improved significantly" in late December 2008, which was soon after the arrival of a new director, Michael Wagner. Unlike his predecessor, Method, who was acting director from 2003-08, Wagner specializes in forensic toxicology.
The error rate during the portion of the audit period that covered Method's tenure was 16.3 percent. Under Wagner's leadership, it fell to 2.4 percent.
Wagner, who started the audit, resigned in May amid mounting criticism from prosecutors.
Inaccurate tests can have huge consequences, including an automatic driver's license suspension. Then there are court appearances and legal fees, not to mention the effect on a person's reputation, job and family.
People could be suffering consequences from inaccurate testing done as long as 10 years ago because of the time frame used in the habitual traffic violator law.
It's also possible that a testing error would have little or no impact on a case because a person may have been convicted on another, related charge that did not rely on drug test results.
IU said that of the 272 bad results that "appear to be positive," a second test "approved by the auditors" showed up positive in 148 of them. In Indiana, any amount of marijuana is considered positive. That means the second test could be enough to support a DWI conviction.
However, forensic laboratories have standard operating procedures dictating the lowest amount of a drug they will report as positive. That's because they can't be as confident in the accuracy of a test when very small amounts of a drug are found. One of the limitations acknowledged in the audit is that it made no attempt to assess whether a drug was present above the IU lab's "reporting limit."
Kenneth J. Falk, legal director of the American Civil Liberties Union of Indiana, said any false results -- positive or negative -- are unacceptable and undermine the justice system.
"If we come to accept that tests can be, and often are, incorrect, then no result will ever be unquestioned," Falk said. "So this undercuts the validity of all tests."
IU spokesman MacIntyre had a different concern -- the potential for a flood of what he would call frivolous lawsuits.
"The real problem here," he said, "is that the laboratory's past reputation for inaccuracy is harmful to the justice system because it casts a shadow of doubt on this evidence in every single case, and thus invites much litigation that should be unnecessary."
The Colorado lab contracted by IU to perform the audit of marijuana test results will now shift to cocaine and alcohol samples. MacIntyre said there's no timetable for when that audit will be finished.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: indystar.com
Author: Mark Alesia
Copyright: 2011 indystar.com
Contact: The Indianapolis Star
Website: Toxicology audit finds 10 percent error rate
The paper audit of blood and urine results found lab errors in 272 other samples, but auditors added that they "appear to be" positive.
In all, that's 333 lab errors among 3,200 results checked by the auditors -- or 10.4 percent.
The findings prompted two leading Indianapolis defense attorneys, J.J. Paul and John Tompkins, to call on the Indiana Supreme Court to intervene in every case covered by the audit -- and not just because of errors found in the audit.
They said perhaps more troubling was its limited scope. The auditor acknowledged that there was a long list of things that he didn't, or couldn't, check -- things that the attorneys said are required for results to be admissible in court.
"They're using this to legitimize individual tests that they can't legitimize," Paul said of Indiana University, which operates the lab. "This proves every single test in the audit is in question."
Tompkins said the audit reflects quality control failures that call into question the lab's competence in every other aspect of the tests that weren't audited.
"Passing this audit," Tompkins said, "doesn't mean the test was good, scientifically or legally."
IU spokesman Larry MacIntyre said the 10 percent error rate is "not an enviable statistic for any toxicology lab."
But he said the audit results are "unlikely . . . to overturn very many individual cases." He criticized The Indianapolis Star for an "over-exaggeration" of the potential impact of testing problems.
MacIntyre, for example, downplayed the 272 bad tests in which the auditor said they "appear to be positive." MacIntyre said that means marijuana was "probably present."
That only amplifies the disconnect between how IU and defense attorneys view the audit findings.
"Is that a scientific term?" Paul asked. "Probably present?"
Bruce Goldberger, a practicing forensic toxicologist from the University of Florida, said his profession has a unique responsibility to be precise because the results are used to force guilty pleas and put people in jail.
"We tolerate zero false positives," said Goldberger, who is technical and administrative director of the university's Forensic Toxicology Laboratory. "The field tolerates zero false positives."
Ralph Keaton, executive director of the American Society of Crime Lab Directors Lab Accreditation Board, said any false positive results from a forensic lab "would be very troubling."
In addition to the errors reported in the current audit, an ongoing Star investigation has found evidence of more errors beyond the scope of that audit.
The Star has obtained about 2,000 emails to and from the lab's former director, Peter Method. Those emails document 26 additional inaccurate results from 2004 to 2006. That includes 14 false-negatives -- results that may have allowed criminals to escape prosecution. The others were false positive.
One of the reported false-negatives detailed in emails was a case in which a driver had killed someone. Only after the prosecuting attorney contacted the lab again about the results did it discover what was described as a computer glitch. The test actually had found cocaine and opiates in the driver's system.
But the current audit won't reveal such cases because it's focused only on positive results from 2007 to 2009.
But if the emails obtained by The Star show errors going back well before the audit, the audit itself provides some evidence that things might have been worse in those previous years.
The audit report noted that testing "improved significantly" in late December 2008, which was soon after the arrival of a new director, Michael Wagner. Unlike his predecessor, Method, who was acting director from 2003-08, Wagner specializes in forensic toxicology.
The error rate during the portion of the audit period that covered Method's tenure was 16.3 percent. Under Wagner's leadership, it fell to 2.4 percent.
Wagner, who started the audit, resigned in May amid mounting criticism from prosecutors.
Inaccurate tests can have huge consequences, including an automatic driver's license suspension. Then there are court appearances and legal fees, not to mention the effect on a person's reputation, job and family.
People could be suffering consequences from inaccurate testing done as long as 10 years ago because of the time frame used in the habitual traffic violator law.
It's also possible that a testing error would have little or no impact on a case because a person may have been convicted on another, related charge that did not rely on drug test results.
IU said that of the 272 bad results that "appear to be positive," a second test "approved by the auditors" showed up positive in 148 of them. In Indiana, any amount of marijuana is considered positive. That means the second test could be enough to support a DWI conviction.
However, forensic laboratories have standard operating procedures dictating the lowest amount of a drug they will report as positive. That's because they can't be as confident in the accuracy of a test when very small amounts of a drug are found. One of the limitations acknowledged in the audit is that it made no attempt to assess whether a drug was present above the IU lab's "reporting limit."
Kenneth J. Falk, legal director of the American Civil Liberties Union of Indiana, said any false results -- positive or negative -- are unacceptable and undermine the justice system.
"If we come to accept that tests can be, and often are, incorrect, then no result will ever be unquestioned," Falk said. "So this undercuts the validity of all tests."
IU spokesman MacIntyre had a different concern -- the potential for a flood of what he would call frivolous lawsuits.
"The real problem here," he said, "is that the laboratory's past reputation for inaccuracy is harmful to the justice system because it casts a shadow of doubt on this evidence in every single case, and thus invites much litigation that should be unnecessary."
The Colorado lab contracted by IU to perform the audit of marijuana test results will now shift to cocaine and alcohol samples. MacIntyre said there's no timetable for when that audit will be finished.
NewsHawk: Jim Behr: 420 MAGAZINE
Source: indystar.com
Author: Mark Alesia
Copyright: 2011 indystar.com
Contact: The Indianapolis Star
Website: Toxicology audit finds 10 percent error rate
