Pubdate: Thu, 3 Jun 2010
Source: Los Angeles Times (CA)
Page: AA3
Copyright: 2010 Los Angeles Times
Contact: http://mapinc.org/url/bc7El3Yo
Website: http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: Maura Dolan, Reporting from San Francisco
Bookmark: http://www.mapinc.org/corrupt.htm (Corruption - United States)
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LAB SCANDAL MAY UNRAVEL DRUG CASES

San Francisco's D.A. Is Under Fire for Not Checking Witnesses' Criminal Records

A scandal that has shaken San Francisco's criminal justice system and 
rocked the race for state attorney general began with a criminalist 
who allegedly stole drugs from a police laboratory.

Investigators said Deborah Madden, a longtime Police Department 
criminalist who testified for the prosecution in scores of cases, 
told them she skimmed cocaine from the lab to help her quit drinking. 
She also implicated other analysts in sloppy investigative work.

But the revelation that reverberated most was about Madden's past: 
She had been convicted of misdemeanor domestic violence in 2008, a 
fact known to her supervisor but never revealed to prosecutors or 
defense lawyers when she testified.

Under Brady vs. Maryland, a 1963 U.S. Supreme Court ruling, 
prosecutors are required to disclose evidence helpful to the defense 
if it would likely change the outcome of a case. Madden's alleged 
thievery has sparked revelations that Dist. Atty. Kamala Harris, who 
is running for state attorney general, and her predecessors failed to 
seek and disclose potentially incriminating information about law 
enforcement witnesses.

"It was kind of a like a 'don't ask, don't tell' policy," said Jeff 
Adachi, the elected head of the Public Defender's office. "The police 
weren't telling and the district attorney wasn't asking."

Madden's admissions have prompted Harris to dismiss 700 pending drug 
cases and the police to shut down the drug lab. They also have 
sparked an ongoing background review of law enforcement personnel who 
may have testified for the prosecution.

Once the review is complete, prosecutors and defense lawyers will 
have to comb through a multitude of cases in which witnesses with 
undisclosed misconduct testified. Although felons are barred by law 
from being uniformed police officers, some officers could have 
misdemeanor convictions.

Adachi said that more than 100 police employees may have a history of 
misconduct that should have been disclosed and that "hundreds, if not 
thousands" of criminal cases were likely to have been affected.

Harris' opponents in the race for the Democratic nomination for 
attorney general have used the scandal to pummel her record. Former 
Facebook Inc. executive Chris Kelly has accused Harris of 
"extraordinary malfeasance," and former Los Angeles City Atty. Rocky 
Delgadillo also has blamed her for the problems.

Her defenders say she inherited a dysfunctional office and moved 
quickly to make changes once she learned that law enforcement 
witnesses had backgrounds that required disclosure.

"You have a duty to turn over evidence that is exculpatory that is in 
your possession, but you don't have a duty to find it," said UC 
Hastings Law Professor Rory Little, a former federal prosecutor. But 
he added, "It is stupid not to ask" potential witnesses for such information.

He estimated that 90% of prosecutor's offices in the U.S. have no 
system for determining whether law enforcement witnesses have records 
that should be disclosed, although Los Angeles has had such a policy 
in place for years.

"Until a case blows up, you tend not to do it because police unions 
resist it," Little said. "The D.A.'s office would assume the cops 
aren't using a chemist who steals drugs and has a conviction. But you 
cannot depend on people to disclose this kind of embarrassing 
information voluntarily. You are going to have to put a system in 
place that discovers it."

Harris established a 13-page internal policy on April 13, but that 
has not spared her from criticism.

San Francisco County Superior Court Judge Anne-Christine Massullo 
lectured Harris' office in a ruling last month to be "more mindful" 
of due process.

A spokeswoman for Harris said she hopes to refile the drug cases that 
were dismissed, after the evidence is tested by outside laboratories. 
But Golden Gate University Law Professor Peter Keane predicted that 
"many cases are going to be fatally defective and are going to wind 
up being dumped."

"Ninety-nine percent of them will be cheap dope cases," said Keane, a 
former San Francisco public defender. "I doubt you will see anyone 
walking off death row as a result of this."

He said the revelations have highlighted the "stumblebum nature of 
the criminal justice system in San Francisco," which he contrasted to 
what he viewed as more professional law enforcement in Los Angeles 
and New York.

"You can't lay this entirely on Harris' doorstep," Keane said. "It 
surfaced on her watch, but it has been endemic for a long time."

Police Chief George Gascon, who was hired from the Los Angeles Police 
Department, has said he noticed the absence of a system for learning 
about so-called Brady material not long after he took over the 
department. He said he discussed it with the D.A.'s office in September.

Prosecutors said they were prepared to address the problem before 
Madden's alleged theft was uncovered.

Hastings Law Professor David Faigman, who specializes in forensic 
science, said Madden's case did not surprise him. He recalled taking 
a class to the drug lab several years ago and seeing open garbage 
bags of what appeared to be marijuana laying on the floor.

"Courts need to be more attentive to what is going on in 
laboratories," Faigman said. "The courts have been trusting them, and 
there is good reason to mistrust." 
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MAP posted-by: Richard Lake