SBI lab failed to test drugs in trials
Prescription pills identified by sight
08/18/2010 2:00 AM
03/27/2011 4:44 AM
For decades, State Bureau of Investigation drug analysts identified prescription drugs by simply looking at pills, forgoing definitive tests to detect controlled substances.
Veteran drug analyst Irvin Allcox testified in 2007 that the SBI didn't want to waste time testing these drugs when experienced analysts could look through a pharmaceutical manual and identify pills based on their appearance.
A stern ruling from the N.C. Supreme Court this summer forced a change in agency practices.
"It is difficult to view this testimony as reflecting anything other than a technique for 'cutting corners,'" Justice Edward Thomas Brady wrote in a majority opinion in June. Brady said in the opinion that he had little faith in Allcox's ability to get it right, despite his education and years of experience.
The ruling casts another layer of doubt on work by the embattled SBI laboratory.
The News & Observer published the series "Agents' Secrets" this month highlighting laboratory practices out of step with the larger scientific community. Agents have bent rules to please prosecutors at the expense of defendants. The SBI reports to state Attorney General Roy Cooper, a Democrat first elected in 2000. In response to The N&O's inquiry into the lab's practices, Cooper replaced Robin Pendergraft, who had been SBI director for a decade, with his legislative aide Greg McLeod.
It's too early to see the full of the Supreme Court ruling. Lawyers predict it will bring a wave of appeals, joining an untold number of other challenges spurred by recent revelations about shoddy work in several other units of the lab.
Many cases affected
"I think there are potentially tens of thousands of cases that could be impacted," said Paul Herzog, a Fayetteville lawyer who won the case at the Supreme Court. "The scary thing is that lawyers like me had trusted they were doing a thorough examination all along."
In the wake of the decision, SBI leaders have forbidden visual inspection alone in drug cases, even when the volume of drug would constitute only a misdemeanor charge. They will perform chemical analysis on all drugs submitted, according to a spokeswoman for the SBI.
Assistant Attorney General Amy Kunstling Irene defended the visual inspection practice to the Supreme Court, saying that doctors performed a similar analysis when they had to identify the pills of a patient facing a life or death situation at the emergency room.
Irene said other states use a similar methodology and the practice had been affirmed by higher courts in three states. In two states, however, courts have blocked the practice.
New Hanover case
Wilmington lawyer Bryan Smith stumbled upon the SBI's visual examination practice by accident in 2007, while representing Jimmy Waylon Ward in New Hanover Superior Court.
Ward, whose case brought the Supreme Court ruling, is a 70-year-old man who peddled an assortment of illicit drugs in New Hanover County in 2006. During an undercover buy, an informant for the New Hanover County Sheriff's Office bought from Ward 30 blue tablets, thought to be Lorcets, a prescription pain medicine.
Deputies soon found a sizable collection of pills, cash and rocks resembling crack cocaine in Ward's Chevrolet Monte Carlo. A month later, he was indicted on trafficking charges.
Back at the SBI lab in Garner, which handles the analysis for drug cases across the state, Special Agent Allcox, a 34-year veteran of the SBI, picked over the buffet of tablets, picking only half of the drugs for chemical analysis.
For the rest he consulted a pharmacy handbook. Among those Allcox certified with his eyeball check: hydrocodone, Adderall, Xanax, diazepam and Ritalin.
"I couldn't figure out how he knew these weren't counterfeit, so I started pressing him," said Smith, Ward's lawyer.
Smith said he expected Allcox to say that a chemical analysis had been performed.
Instead, Allcox said he could distinguish counterfeits because they don't have the same high quality as those made by pharmaceutical companies. He said none in Ward's batch appeared to be fake.
Smith pressed on and learned that the SBI maximized time and resources by often skipping chemical examination on prescriptions.
Allcox testified: "We have limited resources and we have to weed out. ...we have to analyze the most important items."
Allcox had worked in the SBI laboratory's drug chemistry section for nearly 25 years. He said during Ward's trial that he has testified as a drug analyst over 500 times in state and federal courts. Allcox retired from the SBI in 2001 but had returned on a temporary basis when he worked Ward's case.
Allcox could not be reached for comment.
'We have trusted them'
"All these years, we have trusted them," Herzog said. "It turns out that a guy with an eighth-grade education could do what they've been doing."
The impact on Ward is likely minimal. The Supreme Court upheld convictions for the drugs the SBI had chemically analyzed. The charges for which Allcox relied upon visual clues have been returned to New Hanover Court for re trial.
Because Ward's 10-year sentence is based on trafficking charges reliant on drugs that Allcox had chemically tested, Herzog doesn't anticipate any change in Ward's status. He is due to be released in 2017.
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