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Judge refuses to dismiss 75 drug cases

Cape Gazette of Lewes, Delaware

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Graves: Tampering problems had no effect on many cases

A Sussex Superior Court judge has refused to dismiss 75 drug cases submitted for postconviction relief following turmoil in the Medical Examiner's Office early in 2014.

In a six-page order, Judge T. Henley Graves said he addressed convictions based on guilty pleas, but not cases where a defendant was convicted at trial or entered a no-contest plea in which the defendant admits nothing.

The state Public Defender's Office filed motions to dismiss the cases after officials discovered drug evidence sent to the Medical Examiner's Office for testing had been tampered with. Upon investigation, police discovered Oxycontin pills, marijuana and other drugs had been removed from packets at the laboratory for testing.

In making his decision, Graves refers to Judge William C. Carpenter Jr.'s review of drug tampering in the Medical Examiner's Office after officials realized there was a problem.

"His findings were that evidence was being pilfered for personal use or otherwise, not that there was planting of evidence for purposes of a false conviction," Graves writes. "Judge Carpenter noted what was not found, i.e., no evidence of misconduct by the police (planting false evidence) or any evidence that the drugs were improperly tested or any evidence that the chemists were creating false reports."

Most important, however,

Graves said many guilty pleas were made early in the timeline of the case, so the drugs were never tested by the Medical Examiner's Office.

In each case, he said, the defendant personally admitted and acknowledged his or her own guilt after discussing the charges with officials.

"The thefts were wrong, but these collateral thefts do not give rise to egregious misconduct impacting each of the defendants who pled guilty," he said. "... many of the guilty pleas took place prior to the opportunity to even have the substances tested."

Graves noted in his order that his decision applies only to convictions based on a guilty plea, an admission of wrongdoing. "Today's ruling does not address those cases in which the defendant was convicted following a trial nor does it address a no- contest guilty plea wherein there was no admission by the defendant," he said.

Since April, the Public Defender's Office has submitted thousands of cases for review following revelations of mishandling of drugs in the Medical Examiner's Office.

Two employees within the Medical Examiner's Office are facing charges unrelated to drug tampering within the office. Chief Medical Examiner Richard Callery was terminated from his position in July. Delaware State Police spokesman Sgt. Richard Bratz said the investigation is ongoing and there is no new information.

The only real change has been moving the Medical Examiner's Office out of the Department of Health and Social Services, and into the Department of Homeland Security and Public Safety. The office is now called the Division of Forensic Science.

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Original Publication Date: January 2, 2015

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