Indiana Supreme Court statement on the Department of Toxicology issues as released Tuesday:
Aware of recent revelations about irregularities which may have occurred in the testing procedures employed by the Indiana State Department of Toxicology, the courts have taken the initiative to examine these developments. Our objective has been to ensure that no person has been convicted of any crime in an unconstitutional manner or as a result of an improperly conducted test.
Inquiries by a temporary task force led by Court of Appeals Judges Michael Barnes and Nancy Vaidik have revealed the following. Our current information is that about 1000 samples were retested for marijuana or cocaine. Our committee has been supplied with aggregated results concerning about 500 of these. Of those 500, some 497 individuals pled guilty to associated crimes. Of the information the Department has supplied so far, it appears that 18 of the individuals whose results have been retested are currently incarcerated.
There were, according to our information, irregularities discovered in a paper-only audit of the lab procedures. To our best knowledge, these deficiencies were in the protocols leading up to the test, not necessarily in the physical testing itself. The physical retesting has produced results falling into several categories: (1) cases where the sample was inadequate for retesting, (2) cases where retesting showed the presence of the substance at issue, (3) cases where retesting showed the presence of a successor substance, and (4) cases where the test did not reveal any of the substances originally reported. At least five cases fall into this fourth category.
It appears that many of the questions presented by these results cannot be resolved or further clarified through additional inquiry by our task force. Rather, many of them can only be addressed through investigating and litigating individual cases.
Addressing the Cases of Individual Defendants
The Indiana Rules of Procedure for Post-Conviction Relief should provide a vehicle for individuals to seek relief from a guilty-plea conviction based on a possible State Department of Toxicology Lab test error. Attorneys from the State Public Defender's office will represent, at no charge, people who are still imprisoned, if those individuals cannot afford to pay for representation by an attorney.
Individuals who have already filed a post-conviction relief petition challenging their convictions on some basis other than a toxicology test will need to file a second or subsequent petition with the Court of Appeals of Indiana seeking permission to have a trial court consider the new petition. The Court of Appeals has agreed to expedite consideration of requests to file subsequent petitions based on faulty toxicology protocol.
The present Post-Conviction Rules appear sufficient for entertaining petitions for relief alleging that faulty test led to convictions. In post-conviction proceedings, the court may entertain a request that the prosecution retest a blood or urine sample, and the post-conviction court has discretion to order that the State pay for the retesting. Among the factors that the post-conviction court may consider are: (1) whether the sample is capable of being retested, (2) whether there has already been a retest conducted on the sample, (3) when the original toxicology test was performed, (4) the factual basis given by the defendant at the change of plea hearing, and (5) any admission of the defendant regarding the nature of the substance.
Indiana courts are committed to ensuring the fairness of our criminal justice system. We also deem it our duty to assure the public and all of Indiana's citizenry that equitable and constitutional results have been reached in these cases.
For the Supreme Court.
Randall T. Shepard
Chief Justice of Indiana