Pubdate: Wed, 09 Feb 2000 Source: San Francisco Examiner (CA) Copyright: 2000 San Francisco Examiner Contact: http://www.examiner.com/ Forum: http://examiner.com/cgi-bin/WebX Author: Jim Herron Zamora, staff writer PROCEDURE GLITCH UNDOES DRUG CASES Judges have dismissed at least 25 drug cases in San Francisco Superior Court in the past two months after defense attorneys challenged the way the Police Department crime lab processes narcotics evidence. All of the drug cases involve small quantities of heroin or cocaine allegedly bought by undercover cops from street-corner dealers during so-called "buy-bust" operations, according to Deputy Police Chief Richard Holder. The dismissed cases do not include any long-term investigations of major traffickers, Holder said. But neither police nor the district attorney's office could provide an exact number of the drug cases that have been dismissed in the past two months. Both agencies said the number was at least 25, but some estimates put the number as high as 50. "This is a very frustrating situation," said Capt. Kevin Cashman, head of the police narcotics unit that performs undercover buys. "The Police Department receives many community complaints of drug dealing on the streets. Our officers go undercover at considerable risk and purchase drugs from the dealers. We make arrests and the DA charges the case. The judges later dismiss the cases because of how the evidence is presented in court." The problem was brought on by the Dec. 6 move of the police crime lab from the Hall of Justice -- where the courts are located -- to a new, larger building in the old Hunters Point Naval Yard 5 miles away, police said. Judges, prosecutors and defense lawyers can no longer quickly summon a chemist from the crime lab to explain drug analysis findings in court if necessary. The cases have been dismissed by at least four judges, apparently unhappy because crime lab chemists haven't been available to testify during preliminary hearings in the cases or be interviewed face-to-face by the arresting officers who would later testify. Under state law, neither police chemists nor criminalists have to testify in a preliminary hearing that their tests show that a suspected narcotic is indeed that drug. But not all courts agree on exactly how that expert evidence can be introduced. For the past decade, the common practice in San Francisco has been for police officers to interview the criminalists at the Hall of Justice and review the drug evidence together. Then the cops would take the elevator to the first floor courtroom and recount the findings in court. If a problem arose, a chemist normally could be found on short notice. After the lab moved, judges began dismissing cases in which the police officer interviewed the criminalist by phone, saying that form of interview was insufficient to establish confirmation, according to police and prosecutors. Officers are now faced with a choice: They drive to Hunters Point to show chemists the bag of evidence and confirm that the contents are indeed the same material that tested positive earlier or they have a criminalist wait outside the courtroom during the hearing. "We decided it was easier to have a criminalist just hang out at the hall" to provide expert testimony, Holder said Tuesday. "It's not a good situation. It's an evidentiary problem that needs to be corrected. The district attorney is going to have to deal with this issue. The Police Department is going to have to deal with this issue. We are working together." Fred Gardner, spokesman for District Attorney Terence Hallinan, said prosecutors hope to solve the problem by setting up a video teleconferencing system with police that would allow them to conduct an interview and evidence review that would satisfy judges. Another possibility is used in many other California counties. That is for police chemists to sign an affidavit attesting to the veracity of their tests and then place the document in a sealed envelope along with the drug sample. So far, only two San Francisco judges have agreed to the system of using affidavits, police and prosecutors said. Gardner and Holder said both agencies are attempting to develop an affidavit that attests to the veracity of the chemists' tests and passes judicial muster. Defense attorneys take hard line Defense attorneys in San Francisco have long taken a hard line when it comes to the testing of purported drug evidence because of problems in the crime lab in the early '90s. In 1994, an internal police investigation determined that a crime lab chemist showed she certified evidence as illegal drugs without performing the required chemical tests. Civilian chemist Allison Lancaster left the department in 1995 after she was caught in an internal sting set up by police. Lancaster was given a bogus sample of drug evidence that internal investigators had earlier determined to be clean, according to police. She certified it as containing an illicit substance, police said. The Lancaster case prompted defense attorneys to challenge 910 drug convictions that were based on her tests during five years in the lab. The cases ultimately withstood legal challenge but not until they had caused a major headache for prosecutors and police. Holder and Gardner said they are determined that each of the cases dismissed since December will be refiled after new lab tests. "We are not going to let these cases go," Holder said. "These are drug dealers. We won't let them get away. We'll do whatever we have to do to get the evidence into court. Then we are going to go out and arrest them again." - --- MAP posted-by: Eric Ernst