Friday, 25 November 2011 00:00
The Inspector General’s Report on Nassau’s dysfunctional police lab does not go far enough in affixing blame or in providing remedies. Instead of retesting in all cases at a cost of over $100,000 per month to Nassau’s blameless and overtaxed residents, priorities should be established.
For example, on simple drug possession cases and first offense DWI. charges, many of those cases could be dismissed and convictions vacated without conceding liability but at the same time mitigating damages and costs. In fact, in some cases where there is sufficient corroboration of evidence aside from lab results, no testing needs to be done. This is where an independent commission of lawyers and judges should review files. The District Attorney’s Office, culpable for neglect and nonfeasance, cannot at this stage be trusted to fairly review those files. A Special Prosecutor with a staff and resources would serve that purpose. Our Administrative Judges should have done that a year ago. A special prosecutor might also negotiate releases of civil liability in return for dismissals or reduction in charges. A Special Prosecutor should work with an independent team of civil lawyers also appointed by our Administrative Judges to work on the settlement of all of these cases. This should obviously be done without regard to politics.
The Inspector General’s Report and some Editorials have also placed some blame on defense lawyers for not doing enough. While it is true that since this lab’s problems became apparent in 2010 the Bar’s attitude has been to establish toothless committees that have done little more than ride shotgun to the Inspector General and District Attorney; the Bar Association, the County and the State have a combined responsibility to provide indigent defendants and defense lawyers with sufficient money for independent forensic evaluations so that defense lawyers can provide effective legal representation. Anything short of that is a violation of the Supreme Court mandate of Gideon v. Wainwright, which provides for free, effective legal representation for all indigent defendants in criminal cases.
The idea that the lab can also be run competently by the police must also be questioned. Aside from reverting back to independent labs for testing which have also been engulfed by problems, I would suggest that the lab should be brought under the County Medical Examiner’s office which is, in essence, an independent lab and not simply an arm of the prosecutor or the police. With some upgrading and additional staff it could also fulfill the obligations of a forensic laboratory. It is a fact that during the many years of its existence, the Nassau Medical Examiner’s Office has, for the most part, served with distinction and little controversy. Real scientists and medical personnel are already employed by the Medical Examiner. It makes no sense to try to upgrade police personnel to purported scientists that do not exist within their ranks.
The Inspector General took too long to issue her report. In the meantime, the County hedges its bets and plays Russian roulette with the lives of its residents and those who may be wrongfully convicted or incarcerated. The Inspector General has not given us real solutions to the problems we now face. It is up to us to provide them. In order to do that we need to stop the cover-up and truly come to grips with these problems.
Thomas F. Liotti
Former Chair, Criminal Justice Section, NYS Bar Association
Village Justice, Westbury