Pubdate: Sat, 21 Oct 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Author: Rachel Mendleson
Page: A1

A Colorado judge mocked and threw out Motherisk's evidence in a murder
case that foretold the crisis now playing out across Canada. That was
22 years ago.


Hair testing by Motherisk was presented as evidence in a murder case.
It was deemed not up to forensic standards, tossed out and even mocked
by the judge. That was in Colorado - 22 years before the Motherisk
scandal blew up

Twenty-two years before controversy shuttered the Motherisk lab,
before its hair-strand drug tests were deemed unreliable, before the
outcomes of thousands of child protection cases were called into
question, a Colorado court threw out Motherisk's evidence in a hearing
that foretold the crisis that is now playing out across Canada.

The same failings identified in an independent review of Motherisk in
Ontario in 2015 were laid bare in the American criminal case in 1993.

During a pretrial hearing in a murder case in Adams County, Colo., the
hair-testing evidence presented by Motherisk former lab manager Julia
Klein was blasted by the prosecutor as being so deficient that it gave
"legitimate researchers in this area a bad name." The judge who
rejected Motherisk's evidence compared the lab's process to one in
which the scientist "shot the arrow in the air, let it land, and then
went and painted the target around the arrow."

The Hospital for Sick Children's Motherisk lab was criticized by the
prosecutor, the judge and two scientists, including the other witness
for the defence, for failing to verify preliminary results with a
confirmation test; not following standard operating procedures; the
fact that it was a clinical lab operating as a forensic lab and
failing to meet the high bar for evidence to be accepted in court.

All of these shortcomings were identified more than two decades later
by retired judge Susan Lang, who was appointed by the Ontario
government to review Motherisk after the Star reported on questions
about the reliability of the lab's hairtesting evidence.

Lang, in her 2015 report, determined that Motherisk "fell woefully
short of internationally recognized forensic standards." She concluded
that its hair tests were "inadequate and unreliable" for use in the
thousands of child protection cases and a handful of criminal cases in
which they were relied upon.

The Colorado case is the earliest known example of Motherisk
testifying to its hair tests in a criminal court, and shows for the
first time that the lab's reach extended beyond Canada's borders.

It also calls into question statements made under oath by Dr. Gideon
Koren, the lab's founder and former director, in the high-profile
criminal trial that blew the lid off the Motherisk scandal.

Koren's testimony in Tamara Broomfield's 2009 trial led a Star/CBC
investigation to the Colorado case, which is perhaps the most tangible
proof to date that even in the very earliest days of the Motherisk
lab, the red flags were there.

In early 1993, Colorado public defender Robert Pepin was preparing for
a first-degree murder trial, trying to figure out how to save his
client from the death penalty.

Allen Thomas Jr., an ex-con in his mid-20s, was charged with raping
and stabbing to death a 71-year-old grandmother in her home in a
Denver suburb in February1991. The state had a strong case. But to
obtain a death sentence, the jury would have to be convinced, among
other things, that there were no mitigating factors clouding Thomas's
state of mind.

In an interview, Pepin said hair-strand drug testing was "pretty
novel" in the early '90s, but was a promising, "objective" way to
prove heavy drug use. It seemed an avenue worth pursuing.

"We're talking about a capital case . . . life and death," Pepin said.
"No stone goes unturned if you're doing your job right."

He travelled to Toronto and contracted the Motherisk team to test
Thomas's hair.

Klein, who managed the lab, went to Adams County in April 1993 to
present Motherisk's evidence.

That's six years earlier than Lang reports Motherisk started
conducting hair tests for use in child protection and criminal cases,
around 1999. According to the Lang report, that information was
provided by Klein, who was "instrumental in the development of
(Motherisk's) testing methodologies," before she was fired from the
hospital in 2005. Lang said Sick Kids terminated Klein and a senior
secretary "purportedly for cause" after an investigation into
allegations that the secretary had "misappropriated funds from
(Motherisk's) customers."

Klein declined to comment for this story, citing pending litigation.
She is being sued along with Koren, Sick Kids, another former lab
manager, Joey Gareri, and a children's aid society by a mother who
claims she lost custody of her two daughters because of Motherisk's
flawed hair tests.

According to a court transcript, Motherisk tested a sample of Thomas's
hair using radioimmunoassay (RIA), an immunology-based test that can
be used to screen for drugs. Based on the results of that test,
Motherisk concluded that at the time of the murder, Thomas was
ingesting an average of 55 grams of cocaine a month, which translates
to nearly two grams a day, heavy use by most standards.

In 1993, the standard for admissibility of scientific evidence in
Colorado was known as the Frye test. To meet it, Thomas's defence
would have to convince the judge that Motherisk's testing was
generally accepted by the scientific community, and that it produced
reliable results.

That did not happen. During the pretrial hearing on April 8 and 9,
prosecutor Eva Wilson exposed flaws in the testing's methodology and
analysis. She did so with the assistance of Frederick Smith, at the
time a forensic chemist and associate professor of correctional
justice at the University of Alabama at Birmingham, who acted as an
"advisory witness" for the prosecution.

In her opening statement, Wilson said she objected to Klein's evidence
for two primary reasons: "she came up with her results on the basis of
one test, which was a screening test"; and that the hair testing was
performed in a "clinical laboratory."

Clinical labs are primarily interested in diagnosis and treatment,
while in forensic labs, the analysis must meet the high bar for
evidence in court - a point Wilson underscored when her witness,
Smith, took the stand.

"Do you have any concerns about the laboratory that she did her work
in or about the other methods, just briefly?" Wilson asked Smith.

"Yes," he replied. "I'm concerned that the laboratory is not a
forensic laboratory. It doesn't have the safeguards that the forensic
laboratory would have, such as documenting coming and going of people,
such as storing specimens and controls.

"There are all areas that point to a laboratory that may be fine
clinically but for forensic purposes, in my opinion, don't pass the

Smith said a major concern with Klein's analysis was the use of
"unconfirmed" radioimmunoassay (RIA) "for forensic purposes." Relying
solely on a preliminary screening test "is just not acceptable among
forensic scientists," he said, estimating this had been the case for
at least five years.

Smith explained that at the time, the consensus among forensic
toxicologists was that results had to be verified with a second test,
using the so-called gold-standard method, called gas
chromatography-mass spectrometry (GC-MS).

By 2005, the start of Lang's review period, Motherisk was using a
different immunology-based screening test, called ELISA (enzyme-linked
immunosorbent assay), manufactured by a company in California. But
Lang found that before 2010, despite "the international consensus and
the unambiguous instruction from the manufacturer" that results must
be verified, Motherisk "very rarely" confirmed its preliminary results
with a goldstandard test.

Defence lawyer Pepin presented a second expert, who also tested a sample 
of Thomas's hair for drugs, using GC-MS, and testified after Klein: Carl 
Selavka, at the time director of forensic operations at National Medical 
Services, a drug-testing facility based in Willow Grove, Pa.

At one point, Wilson asked Selavka if he was relying "in any way,
shape or form in your opinion on the work that Miss Julia Klein did."
"No. I'm not," Selavka answered. "You would actually call it
(Motherisk's testing) work which gives legitimate researchers in this
area a bad name, would you not?" Wilson said.

"I might, the researchers being those in forensic toxicology. There
are certainly clinical utility (in the) work that has been described
to me," he said.

In a short oral ruling, Judge Donald Marshall said he would not allow
the hair-testing evidence prepared by Klein or Selavka, in part,
because "no confirmation test was run by either expert."

He reserved the harshest criticism for Motherisk, comparing the
scientific process to archery to make his point. As Marshall put it,
whereas Selavka had shot his arrow and then expanded the bull's-eye
"so that the result could be declared a success," Klein had simply
"shot the arrow in the air, let it land, and then went and painted the
target around the arrow."

Thomas was convicted of first-degree murder. Although prosecutors
requested the death penalty, the jury declined to impose it, and he
was sentenced to life in prison.

The criticism of Motherisk tests at the Colorado hearing might have
remained buried had it not been for Koren's testimony in the
Broomfield case.

Before Motherisk's evidence - tests of Broomfield's son's hair that
purported to show high levels of cocaine over 15 months - was admitted
in her trial, it was challenged by her lawyer in a voir dire hearing,
a kind of trial within a trial, where the judge hears what evidence is
to be admitted.

Koren testified that Motherisk's tests and the lab's expertise had
been "accepted by the courts in different jurisdictions," including
Canada and the U.S.

Justice Tamarin Dunnet asked Koren to "clarify how Motherisk's tests
were applied in court in the U.S."

Koren replied: "About 10 years ago, Your Honour, we were asked by the
Colorado court in a case of murder to test hair for cocaine in an
individual who claimed to being addicted to the drug, and to the best
of my knowledge, our results, not were just accepted, but had an
impact on the judgment."

In her decision to admit Koren's testimony, Dunnet said: "His
expertise has been accepted in courts in Canadian provinces and in

Koren did not provide - nor was he asked to - any more information
about the Colorado case. (He also was not questioned by the Crown,
defence or the judge about Motherisk's lack of forensic accreditation,
or the fact that the hair-testing results in the case were not
verified with a confirmation test.)

Broomfield was sentenced to seven years in jail for breaking her
toddler's bones and repeatedly feeding him cocaine leading up to a
near-fatal overdose.

Koren, who retired from Sick Kids in 2015 during Lang's review, did
not respond to emails seeking comment for this story. He told a
reporter who approached him following a presentation he gave at a
medical conference in the U.K. earlier this month: "Under legal
instructions, I cannot talk."

The Star and the CBC searched legal databases, contacted Colorado
district attorneys and criminal defenders, including Pepin and Wilson,
as well as posting to several listservs for Colorado lawyers, but we
were unable to locate a Colorado criminal proceeding in which
Motherisk's evidence was accepted.

Toronto defence lawyer Daniel Brown tried to get Broomfield's trial
judge to reopen the case in 2010 to re-examine the medical evidence.
The Star/CBC recently provided Brown with a transcript of the Colorado
hearing. He says that if this was the case that Koren was referencing
during Broomfield's trial, a perjury investigation is warranted.

"Dr. Koren's testimony in the Broomfield case appears to be a
deliberate attempt to mislead the presiding judge about the widespread
acceptance of Motherisk's hair testing procedures in criminal
courtrooms throughout the continent," said Brown, a Toronto director
of the Criminal Lawyers' Association. "Perjury strikes at the core of
our justice system and any witness who deliberately lies under oath
ought to be investigated by police for such misconduct."

Broomfield's cocaine-related convictions were overturned in October
2014 with consent of the Crown after an expert sharply criticized the
reliability of Motherisk's results. As part of that deal, Broomfield
agreed to abandon her appeals of the other child-abuse convictions
related to her son. But in light of subsequent revelations about
Motherisk, said her appeal lawyer, James Lockyer, "It is clear that
bargain should never have been entered."

Lockyer said the new questions about Koren's testimony at trial are
"part of a pattern" that warrants reopening the case. He is currently
drafting an application to set aside the abandonment of her appeal.

After Klein left Sick Kids, she started a drug-testing consulting
company and continued to testify, appearing in a child protection
proceeding in Halton region as recently as 2014.

Klein told Lang that Motherisk was not a forensic lab and that its
work was "definitely not forensic." However, she said she spoke to
Koren "on several occasions" between 2003 and 2005 about the need to
routinely confirm results with a gold-standard test - a claim Koren
denied, according to the Lang report.

Koren is now working in Israel, where he is listed as a member of the
big data team at Maccabitech, the business development arm of the
Maccabi Group, a health-care company based in Tel Aviv. He is under
investigation by the College of Physicians and Surgeons of Ontario and
is named as the co-defendant in at least 11 lawsuits including a
national class action that is awaiting certification.

In his statement of defence in the proposed class action, Koren denied
the claims, and said the Motherisk's hair tests were "accurate and
reliable for their intended purpose" of providing clinical information
"relevant to the medical care and safety of children." He told the
Lang review that "the term 'forensic' was not mentioned by any judge,
child protection lawyer, defence lawyer, or Crown lawyer," according
to her report.

In an interview, Colorado prosecutor Wilson said she was stunned to
hear that Motherisk continued to present unconfirmed hair-testing
results in Canadian courts after the 1993 hearing, and that the lab's
evidence went virtually unchallenged for so long.

"It is extraordinarily surprising to me that that was allowed,
especially where you've got a community where it's been used
routinely," she said.

"Sometimes, that becomes the problem," Wilson said. "Nobody steps back
and says, 'Why are we OK with this?' "
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