When Dr. Craig Mallak became Broward Medical Examiner in July of this year, he sought to move the office towards accreditation from the College of American Pathologists. In doing so, he discovered, “[t]he methods used to test bodily fluids for drugs being processed by our toxicology laboratory had not previously been validated. . . ”
In determining the root cause of this lack of validation, Dr. Mallak observed, “the office failed to recognize changing professional standards for the proper validation of drug testing procedures, designed to make sure toxicology results are accurate.” He went on to note that had the office been accredited, “it’s more likely the oversight would have been corrected.”
Upon learning of this oversight, Dr. Mallak did two things: first, he shut down his lab, referring pending cases to an accredited laboratory; second, he promptly notified the State Attorney Mike Satz of the situation. Mike Satz promptly passed the information on to the Public Defender’s Office.
The legal significance of this failure to validate procedures as it relates to the validity of the evidence in criminal and civil cases is clearly not lost on Craig Mallak. “I would question all of them,” Mallak said, “because they arose without using the appropriate method validation to start with.”
Public Defender Howard Finkelstein agrees. “If it’s not accurate, that could throw into question convictions of DUI where the person was driving under the influence of drugs. DUI manslaughter and even murder cases.”
Alcohol and PCP (angel dust) appear to be the only two substances with properly validated procedures. Called into question are cases involving “cocaine, heroin, oxycodone, hydrocodone, marijuana, amphetamines, Valium, Xanax, sleeping pills and other over-the-counter medications that affect a user’s ability to drive.” As many as 3,600 cases over 10 years may be affected.
Both the prosecution and the defense appear to be aware of the magnitude of the problem. They are working together to discover whether any injustices have occurred. While it is always disappointing to learn of improper procedures in forensic science, the transparency and cooperation of the relevant stakeholders in this case is commendable.
On a final note, one has to ask – again – how it is possible that 3,600 cases have passed through the criminal justice system without a single defense attorney questioning the existence of validation studies. Not a single prosecutor asked about the same. As noted earlier by this Examiner, “Those of us who are part of the criminal justice system can learn from this – or history will repeat itself. Again.”