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Lab chemists contracted to test drugs for Maryland prosecutions weren’t certified by the state. Now, several cases may need another look.

Chemists at a lab in Pennsylvania that test substances to see if they are illegal drugs for Maryland prosecutors were not certified by the state, despite signing a contract saying they would be.

Because of that, and a legal shortcut prosecutors used, an undetermined number of drug cases across the state could be reexamined after those chemists’ reports were brought to court without their testimony, and defendants may have made legal decisions they otherwise would not have, including taking plea agreements.

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The Harford County State’s Attorney’s Office was the first to discover the problem after a defense attorney asked about a chemist’s certifications and the office reached out to Maryland State Police.

Contracts the Pennsylvania-based National Medical Services signed in 2019 and 2021 with Maryland State Police stipulated that their chemists had to get certified by the state after the contract was secured. Not all of them did, according to a July 29 email sent to state prosecutors from Daniel Katz, director of the Maryland State Police’s Forensic Sciences Division, and their reports were brought to court without their testimony.

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That lack of individual certification, Katz wrote, represented a violation of their contract.

According to Maryland law, chemists who test drugs do not need to testify in court if they are personally certified by state agencies like the Maryland Department of Health and certain law enforcement agencies. It saves chemists time and functions as a legal shortcut.

If individual chemists do not have that certification, they can be called to testify to their findings in court. The lab they work in can be accredited — as NMS is — but the chemists still need personal certification to avoid testifying.

The NMS chemists’ lack of Maryland certification did not preclude them from testing drugs or testifying in court — only submitting reports without testimony, state police said in a statement.

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Dan Monahan, the chief executive officer of NMS labs, said the company was proud of the work it has done for Maryland State Police and noted that 10 analysts at the lab have been individually certified in Maryland “fairly recently,” but did not give an exact date.

Incremental changes to state law, Monahan said, made it so the lab’s chemists could not be certified by the Maryland Department of Health until the company had a contract with the state police, the first of which it was awarded in October 2019 and it was re-upped this past June. The lab’s accreditation was sufficient for its first contract with the agency, he said. He declined to discuss details of the contracts.

“We are kind of in a Catch-22 where they want our analysts to be certified to alleviate the need for testimony,” Monahan said. “But that can only be pursued once the contract is awarded, otherwise the Department of Health said ‘you don’t do any business in Maryland.’”

NMS has tested suspected drugs from many Maryland jurisdictions, mostly those that do not have their own drug labs and rely on state police for forensic testing.

Marijuana testing in particular was made more difficult in the state after Congress passed the 2018 Farm Bill that allowed production of hemp. Analysis of marijuana was farmed out to NMS because the state did not have the equipment to appropriately test the plant. Under the new law, a plant that has .3% or less THC in it is hemp. Anything over that threshold is considered marijuana. Maryland followed suit with its own legislation passed in 2019 to mirror the federal standards.

That new definition of marijuana made the state’s testing equipment obsolete, so it had to look for a place to send suspected marijuana for testing.

The NMS lab also tested other drugs for state police, spokesperson Ron Snyder said, to help with the volume of work.

More than 4,400 drug cases had been outsourced to NMS at a cost just under $1.95 million, according to a statement from Maryland State Police. That was paid for with grant funding, the agency stated.

The NMS chemists were qualified to perform the testing, according to the statement, and 14 more chemists are still waiting for their individual state certification.

NMS’s contracts required their experts be certified by the Maryland Department of Health, Katz wrote in July, and testing for Maryland cases at the lab ceased until their chemists were individually certified. That prevented the “financially and physically impossible” scenario of NMS chemists having to testify in multiple jurisdictions a day. Grant funding for their testimony would have quickly run dry, he added. It was unclear how long that certification would take, he wrote.

“This is necessary to prevent any additional cases from entering the Maryland court system in which the appearance of the NMS chemist would be required 100% of the time due to the lack of chemist certification,” Katz wrote in July.

Snyder said the two contracts NMS held required individual chemists to get state certification after the contract was awarded and that the state police knew the chemists were not certified when awarded the contract in 2019 because of the department of health’s rule. He would not say if the state police checked to make sure those chemists were certified.

Discovery

The matter came to the attention of the Harford County State’s Attorney’s Office after a defense attorney asked about the chemists’ certifications. After checking with the state police, State’s Attorney for Harford County Albert Peisinger said he realized the issue and notified Kelly Casper, Harford County’s District Public Defender.

Upon renewing the contract earlier this year, Maryland State Police “facilitated NMS submitting applications for certification to the Maryland Department of Health,” the agency said in a statement.

Peisinger anticipates about 200 to 250 cases will have to be looked at in Harford, but attorneys are still working through the list. While the chemists’ lack of certification presents an administrative nightmare for his office, Peisinger said it should not snarl the court system in Harford County. To his knowledge, all of the NMS cases in his office are marijuana cases.

In his letter to Casper, Peisinger said the issue does not mean his office will be summarily dismissing cases. Many of the cases will likely stay as they are, Peisinger said, but a few could see convictions overturned, drugs retested and some cases may run up against the statute of limitations.

“I have every intention of going back to make sure we captured every case,” he said. “That way [defendants] can make an intelligent decision.”

Prosecutors have an ethical obligation to turn over correct information to the defense, Peisinger said, and in this case, incorrect information could have led defendants to make legal decisions they otherwise may not have, including accepting a plea agreement.

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“People took pleas based upon the fact that we said we were going to rely on a certain statute,” Peisinger said. “We did not know it, but it was inaccurate at the time.”

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Issues stemming from the lack of certification will be dealt with on a case-by-case basis, Peisinger said, and the office will continue to prosecute marijuana cases in the meantime.

“Depending upon the remedy, it may involve having cases re-litigated or reopened, but a lot of these things may be done through paper,” he said.

Remedy

Andrew Geraghty, an assistant public defender in with Harford County, said the opportunity to cross-examine witnesses is foundational to the American judicial system, and a crucial way for attorneys to gain insight into the testing process and defend their clients.

“The idea is that the only way we can really be sure, if the state of Maryland hasn’t been looking over this person’s shoulder … is by getting to ask them questions about their process,” he said. “You generally do not just take a person at their word when the consequence is you could go to jail.”

The public defender’s office is waiting for NMS to disclose a list of cases affected and has alerted their attorneys to the problem, said Jeff Gilleran, the chief of the public defender’s forensics division.

The office instructs its attorneys to question the analyst in court regardless of a chemists’ certification, but that credential — or lack thereof — could have been weighed by a judge or jury deciding a case, and would likely have been the subject of cross-examination, he said.

Beyond any cases that may have made it to trial, the threat of introducing laboratory evidence can induce plea agreements, Gilleran said.

“There is incredible pressure for anyone charged with a crime to take a plea, which is heightened when the prosecution can threaten that a lab expert will introduce forensic evidence at trial,” he said. “The many guilty pleas statewide that involved NMS labs are all tainted by the lack of analyst certification and decreased credibility of their evidence.”

Gilleran said the remedy for the lack of certification is for each state’s attorney’s office to review the cases involving NMS and give defendants an opportunity to withdraw their pleas.

Re-examination

State’s Attorney for Baltimore County Scott Shellenberger said his office is looking at their list of cases affected by the certification issue and notifying defense attorneys appropriately. While he did not know exactly how many cases were affected, there are “more than a few” in his office.

“It was a bit of a surprise to all involved,” he said.

During the time NMS was unable to test drugs for Maryland, state police did all the drug tests in-house, Katz wrote in July. But the state lacked the ability to perform THC quantification tests, leading Katz to ask state’s attorneys to try to delay marijuana trials as much as possible, seek more lenient pleas, or even dismiss charges in some cases, if need be.

According to its statement, MSP is also contracting with Chesapeake Toxicology Resources, but will not send cases there until its chemists are individually certified. NMS has resumed conducting Maryland tests, but only with its state certified chemists. Maryland State Police is also working on bringing THC quantification testing in-house and received a $349,000 grant from the U.S. Department of Justice to buy the equipment, which it also plans to use to quantify fentanyl.

Training state police staff and implementing the procedures means it will take a few months before the equipment is ready for casework, according to the statement.

Most state’s attorney’s offices around the region were aware of the situation and evaluating next steps.

Rebecca Johnston, a spokesperson for the Cecil County state’s attorney’s office, said it was “taking the necessary steps to ensure that any labs we request and use in cases are done properly and legally.”

Interim State’s Attorney for Carroll County Allan Culver said his jurisdiction relies on Maryland State Police for drug testing and that his office was in the process of reviewing any cases where analysis was completed by NMS.

“In an abundance of caution, we are reviewing the individual cases and will notify the necessary parties,” he said. “We don’t believe that any further analysis will be necessary.”

The Baltimore Police Department has its own crime lab, and a spokesperson for the city’s state’s attorney’s office said it was evaluating the two cases that might be affected. No cases in Howard County were affected, according to Yolanda Vasquez, the external affairs director for its state’s attorney’s office, although it has handled cases in which NMS tested marijuana.

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