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Defense attorneys await drug lab closing probe

September 20, 2000

Defense attorneys await drug lab closing probe



By BOB PARTLOW / Staff Writer, Martinsburg


MARTINSBURG, W.Va. - Local criminal defense attorneys said the closure of the state drug testing lab for investigation by the FBI into possible irregularities could create havoc for cases past, present and future.

Brenda Waugh, a Charles Town attorney and former assistant prosecutor in Kanawha and Berkeley counties, said the problem centers on whether people testing the drugs followed the proper administrative procedures. If they can't testify in court that they did, the evidence would be suspect, she said.

"For cases in the past, you would certainly raise the issue" of whether the evidence was valid, she said. "For the future, depending on how long this goes on, you will have to send the drugs to independent labs and that gets into the area of costing more money. And for present cases, there's the issue of a speedy trial."

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If it takes longer to test the drugs and a backlog develops, defense attorneys could argue their clients have the right to speedy justice and the court must provide it or dismiss the charges.

She said she might want several of her past cases reviewed.

Martinsburg attorney Keith Wheaton said one trial already has been affected. Three people are charged with murdering a Hedgesville woman last year. Police allege they thought she was going to inform on their drug activity. Their trial has been delayed from Oct. 10. because of uncertainty over the reliability of tests on the drugs, he said.

"The court wants to make sure of the extent of the problem at the drug lab," said Wheaton, attorney for defendant Andrew Jackson. Wheaton said the problem at the lab could extend into DNA testing, raising more questions.

"It's very likely this will affect clients I have had or will have in the future," said Shepherdstown attorney David Camilletti. "It's clear this could affect anything that came down the pike within the last year or two. You're talking about every nickel or dime bag or marijuana that has been tested the past year or two.

"Maybe your client only got probation for a felony count of possession with intent to distribute," he said. "But it's still a big deal if he gets arrested for anything in the future. You want to have that expunged. It's going to be a nightmare for the courts."

The lab closure also echoed the case of discredited serologist Fred Zain, who left the agency amid allegations that he had testified falsely about evidence sent to the State Police lab.

Public Safety Secretary Otis Cox, who oversees the State Police, said the latest problems surfaced when one worker in the lab challenged techniques used by another, then complained to State Police Superintendent Gary Edgell.

Edgell closed the lab immediately and put the employee whose work was challenged on leave. The episode did not become public until a week later, however, when four other employees were suspended. Even then, the information offered by police was sketchy.

Federal court personnel have already been alerted to the problem, said Fawn Thomas, a spokeswoman for the U. S. Attorney's office in Wheeling. Any person charged who had drugs tested in Charleston is being told about it and given the opportunity to have them re-tested, she said.

"Some drugs may need to be re-tested and some drugs may just be corrupt," said Martinsburg attorney Barry Beck, who handles many federal cases. He said drug tests are particularly important at the federal level because the sentence a person receives is based on a formula which is heavily based on the weight of the drugs. A pound of drugs is treated differently than 100 pounds.

"The amount could be real significant to whether one gets one year, two years or longer," he said.

The Associated Press contributed to this story.

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