Judge Rejects DA's Bid for Special Crime Lab Prosecutor

So Kathleen Rice says she'll ask the governor to appoint one

By Frank Eltman
|  Friday, Feb 25, 2011  |  Updated 7:49 AM EDT
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A district attorney on Long Island said Thursday she will ask New York's governor to appoint a special prosecutor to investigate a troubled local police department crime lab after a judge rejected concerns that potential conflicts may arise from her probe of an agency also involved in law enforcement.

"We are moving quickly to ask the governor to appoint a special prosecutor so we can begin the process of restoring the faith that the public deserves to have in its criminal justice system," Nassau County District Attorney Kathleen Rice said in a statement.

Nassau officials closed the crime lab last week amid revelations that examiners were producing inaccurate measurements in drug cases, and that police supervisors were aware of problems months before a national accrediting agency placed the lab on probation in December.

Rice, who unsuccessfully ran for state attorney general in 2010, announced earlier this week that she was appointing a fellow losing rival for the post, Eric Dinallo, to investigate the lab troubles, pending approval by the court.

On Thursday, state Supreme Court Justice William Donnino rejected Rice's request.

"The claim ... that neither the Nassau County District Attorney nor any other district attorney can investigate police officials and employees connected to the Nassau County Police Department laboratory 'in light of their strong ties with law enforcement,' is simply not correct," Donnino said in a six-page ruling. "A district attorney is not disqualified simply because the object of an investigation or prosecution is a police officer."

Marc Gann, president of the county Bar Association, agreed with the judge's ruling.

"The most important thing is to get the proper individual appointed as soon as possible so that a full and thorough investigation can be conducted free of potential conflicts of interest, at the same time, ensuring that individual rights are protected," he said in a statement.

Besides analyzing drugs, the lab handles ballistics, blood-alcohol and other police evidence, ranging from homicide investigations to larcenies. Evidence in all current cases is being sent to an independent lab for analysis.

Defense attorneys have filed motions in more than a dozen cases questioning whether their clients received fair treatment, and Rice has conceded some convictions could be overturned.

In December, the American Society of Crime Laboratory Directors/Laboratory Accreditation Board placed the lab on probation, citing failures to comply with nationally recognized standards, including improper maintenance of equipment and instruments, failure to properly mark evidence, failure to properly store evidence, failure to secure the lab and inadequate record-keeping.

The Nassau lab is currently the only one in the country under such sanctions.

County officials reacted to the disciplinary action by transferring control of the lab from the police department to the county medical examiner's office. The lab's interim director has cited staffing shortages for some of the problems and immediately began recruiting new technicians.

Donnino also said in his decision that the state Constitution and other statutes "have vested with the governor the power to supersede a district attorney," and later noted "the governor's authority to do so is generally left to his sound discretion."

The judge, however, agreed that Rice was correct that the lab operation needs to be done: "A thorough and immediate investigation by a prosecutor appears necessary, and every effort must be made to guarantee that no person is presently in jail or being prosecuted because of any failures, criminal or negligent, by the laboratory, its supervisors or others."

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