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Thursday September 18th 2014

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Broken Chains

Inside the Case of the “Rogue Chemist”
By Rick Outzen

On Feb. 4, agents with the Florida Department of Law Enforcement, working with the Escambia County Sheriff’s Office, arrested former Pensacola crime laboratory chemist Joseph Graves on charges of grand theft, 12 counts of tampering with or fabricating physical evidence and nine counts of trafficking in illegal drugs.

Graves had worked nearly 2,600 cases for 80 law enforcement agencies spanning 35 counties and 12 judicial circuits since coming to Pensacola in December 2005.

Defense attorney Michael Griffith entered a not guilty plea on March 27 on behalf of Graves, who had been labeled a “rogue chemist” by some in the media. State Attorney Bill Eddins said at the arraignment that he anticipated more charges against the former FDLE lab supervisor. The trial was set for July 7.

The chain of custody of  evidence, a core facet of all criminal investigations and their prosecution, had been broken. The chain of custody is the paper trail that shows the seizure, custody, control, transfer, analysis, and disposition of physical or electronic evidence. Breaks in the chain could lead to cases being dropped and convictions being thrown out.

Law enforcement investigators had found that prescription pills seized during arrests were either missing or had been switched with over-the-counter medications. They believed that Graves had tampered with the evidence when it came to the lab for analysis. All of the cases handled by Graves had to be reviewed for possible tampering.

Upon Graves’ arrest, FDLE Commissioner Gerald Bailey said,  “The actions of Joseph Graves are disgraceful. FDLE is working with State Attorneys’ Offices statewide to ensure he is held accountable for his action.”

The press release stated that FDLE had made the arrest after an investigation in January into missing prescription pain pills from the evidence room at the Escambia County Sheriff’s Office (ECSO). The actual discovery of what may eventually turn out to be the largest breach in the chain of custody of evidence in Florida history was due to an ECSO internal investigation that began seven months earlier.

Problems in the 
Evidence Room
In late May 2013, the state attorney’s office requested that drugs held in the ECSO evidence room be sent to the crime lab for analysis. The evidence, 280 blue oxycodone pills, couldn’t be found.

“The unusual thing about it was the evidence card itself was also missing,” said Captain Ray Briggs, who had been assigned to the evidence room investigation. “I’d never heard of that happening. It may take a day or two to find a card, but they are always found. They are never to leave the building.”

The evidence card is the official chain of custody document. Everyone who handles any piece of evidence must make an entry on the card and sign it. ECSO opened an internal investigation and notified the state attorney’s office.

Briggs, Sheriff David Morgan and Colonel Laura Montoya agreed to sit down with the Independent News and discuss their investigation into the ECSO evidence room and how it led to the arrest of Graves.

“We didn’t do this investigation in a vacuum,” said Sheriff Morgan. “We told our legal staff to call the state attorney’s office. We told them that we were identifying issues with evidence. We were not sure of the scope and we would keep them briefed.”

Two weeks later another issue popped up.

“During the course of that investigation, we came across other issues. Someone admitted that they had actually taken a piece of evidence, a watch, that was in the pile to be destroyed,” said Briggs.

Subsequently two employees involved left the ECSO—one retired, the other resigned.

“Both were done under investigation,” added the sheriff. “The state attorney will make a determination on whether there is enough probable cause for arrests.”

Briggs’ investigation pointed out several issues with the evidence room, which is actually a 20-year-old building behind the ECSO Administrative Office. With the ECSO taking in over 60,000 pieces of evidence annually, the building was running out of space.

Compounding the space issue, items weren’t being destroyed on a regular basis after their cases were dispensed. The space was stacked with 4-foot long boxes filled with sealed manila envelopes, some dating back over two decades.

“It’s a massive problem, almost mind-boggling, trying to get the numbers,” said Colonel Montoya. “The best way to describe it is we’re trying to untie the Gordian Knot.”

The ECSO began inventorying its evidence from two directions. They hired retired officers and criminal justice students as limited contractors to examine each manila envelope.

To ensure that the evidence in the current cases had been handled correctly, workers examined the most recent evidence taken. They also reviewed the cases from 2004 forward to determine if the evidence could be destroyed.

“The focus has been on narcotics and weapons right now because those are the high probability cases where you might have something overturned. Eventually, we will get to the property cases,” Morgan said.

The agency also looked at its procedures and made changes. All guns and drugs were put under lock and key. Two keys were needed to get into any of the secure areas. Security cameras were installed throughout the building. No one was allowed to keep evidence at their workstations unattended. If an evidence technician didn’t finish his intake of evidence at the end of his shift, that evidence was locked in a locker.

The staff had challenges with determining what exactly was inside the sealed manila envelopes, especially when it came to counting prescription pills. They had to find a way to verify the pill counts without tampering with the envelope and breaking the chain of custody.

“I have to give kudos to my people because they figured that you could put the envelope over a light and count the pills,” said Montoya. “They also would weigh the envelopes.”

In October, more evidence problems emerged. Briggs said. “There were pills missing that should not have been missing.”

Seventy-nine oxycodone pills were found missing when the state attorney asked to view the evidence. The evidence room had received them on July 12, 2013. The charges for the prescription drugs were dropped and the two defendants pled to possession of marijuana. In another case, 116 hydrocodone pills went missing. The defendant pled guilty to a violation of a domestic violence injunction and the drug charges were dropped.

Then in January, Briggs’ team discovered even more envelopes missing drugs.

“They hit an envelope that was supposed to have 147 oxycodone pills and it was only 47 pills,” said Briggs. “We thought maybe someone made a clerical mistake and added a one to the number, but the officer who turned it in said it was 147.”

The next day, they found pills missing from two more envelopes. “We opened those up and physically looked at the pills through the plastic bag and the condition of them,” he said. “We said, ‘Time out, this isn’t what was turned in.’”

“At that juncture, we had turned over so many rocks with our people,” said Morgan. “I told my staff it’s time for us to look outside the sheriff’s office. We’ve got an issue and it maybe isn’t us.”

Crime Lab Under Suspicion
For the state attorney’s office, which had been following the investigation of the evidence room, the missing pills took things to a different level. The Independent News discussed the case with Chief Assistant State Attorney Greg Marcille and Assistant State Attorney John Molchan.

“ESCO notified us that they had a problem in the evidence room,” said Marcille. “Items were either stolen, missing or mishandled, and they identified individuals that they thought were responsible and made some changes. Some time later as they were going through an audit, they discovered some prescription-type pills that appeared to have been tampered with or switched.”

A meeting was held with the state attorney’s office, ECSO and FDLE to determine what could be happening. In the matter of a few days, six more cases with missing pills were discovered. FDLE made the decision to bring in their investigation team. Then something happened in Tallahassee that took the investigation into a different direction.

“Shortly after the new investigation had begun, Graves was testifying in Tallahassee as a witness,” said Marcille. “The prosecutors on the day of trial were examining the evidence and discovered that those drugs had been tampered with.”

Graves had been the analyst on that case and he was also the analyst on the Escambia County cases. The focus of the investigation quickly became Graves, not ECSO.

“We’d never, to my knowledge,  had a situation where drugs sent to crime lab to be analyzed were stolen,” said Marcille.

According to his FDLE personnel file, Graves, 32, was an exemplary employee, whose father also worked at the agency. He had been transferred the crime lab Pensacola in December 2005. Four years later, he was promoted to supervisor at the lab.

“There was no indication of any problems,” said Marcille. “He had been a witness in cases. His father works for FDLE and is well respected. This was pretty much a surprise to everybody.”

John Molchan blamed the prescription drugs. “Part of what you see is that these drugs are very powerful drugs, and unfortunately we see many people who become addicted to these medications,” he said. “I’ve prosecuted criminal cases where they have no criminal history. They have a car accident, get injured, are prescribed pain pills, and the next thing you know they’re stealing from their mothers to buy more.”

Upon Graves’ arrest, FDLE began checking the evidence in the nearly 2,600 cases handled by the Pensacola lab chemist. The agency also had to verify that Graves was the only problem.
“FDLE had a review done by its auditor general office of all its procedures at the lab,” said Marcille. “They made additional recommendations as to what could be done to tighten up the handling of evidence. FDLE accepted those recommendations and are in the process of enacting them.”

Marcille and others from the state attorney’s office also went through the crime lab. They walked through where the evidence came into the lab, how it was processed and stored in the vault, how it got from the vault to analyst, where the analysts keep it while they’re working on it and how it was returned to the law enforcement agency. They also did spot checks on the work of the other analysts.

“There is no indication that any other employees engaged in any sort of illegal or improper behavior,” said Marcille. “They do have procedures in place, but there were opportunities for people, in this instance Graves, to tamper with the evidence that he was analyzing. There is no evidence that he stole from what others were analyzing.”

The investigation did reveal that, as a lab supervisor, Graves would assign prescription drug cases to himself, which gave him a greater opportunity to steal those medications.
Marcille said, “One of the recommendations made by the auditor general was that an individual can not assign cases to himself.”

Since Graves analyzed cases from jurisdictions across the state, each judicial district is determining what cases have been impacted by the breach in the chain of custody. According to Marcille, the number of cases in the First Judicial District that have actually been affected appears to be relatively low.

“I think 50 or 60 cases have been affected one way or another,” he said. “You have cases that Graves worked and he stole drugs, obviously those are the worst. Then you have cases that Graves worked but there is no evidence that he stole anything, and then there are some cases worked by other analysts that some defense attorneys have attempted to attack. We don’t believe there is any effect on those cases whatsoever.”

Doubts from the Public Defender
Public Defender Bruce Miller is not as confident as the state attorney’s office and believes that the prosecutors should be turning over more information regarding the problems at the ECSO evidence room and crime lab. He believes that there is Brady material out there that his attorneys have yet to receive.

Brady material consists of exculpatory or impeaching information and evidence that can impact the guilt or innocence or the punishment of a defendant. In the case Brady v. Maryland in 1963, the U.S. Supreme Court ruled that suppression by the prosecution of evidence favorable to a defendant who has requested it violated due process.

“Brady imposes upon the state what is both an ethical and constitutional obligation to advise the defense if there is anything exculpatory or favorable to a defendant,” explained Miller. “That also includes what we call ‘impeachment,’ which is anything that may cast doubt on the credibility on their witness or any aspect of their case.”

The state attorney’s office views the Brady Disclosure rule as a post-trial requirement. “If we have done something, then the defense can raise a Brady violation, but it doesn’t become a Brady violation until after the trial,” said Marcille. “What we do is if we are aware of something that is Brady, we provide notice of that information in every single case prior to trial.”
Molchan said that he had sent out three separate notification letters on the problems at the evidence room and more after Graves’ arrest.

“When I got the information from Ray Briggs that we had problems with the evidence room with specific cases, the first thing I did was notify those individual defendants,” he said.

“Secondarily, I went over to the Bruce Miller’s office and to the Regional Conflict Counsel because we wanted to make them aware that there is a problem and that they should conduct their discovery accordingly.”

“We obviously disagree with their position and their legal argument as to what their obligation is under Brady,” said Miller. “Because Florida has such liberal discovery rules, compared to other states, it seems to me that they believe that discovery takes care of Brady. That is not the correct analysis. Brady is completely separate from discovery.”

However the public defender admitted that the Brady rule is open to interpretations. “Some people read Brady narrowly, some people read it differently. There are lots of cases, federal and state, that you can take little blurbs from and defend your interpretation. The bottom line is it’s a basic obligation of the state.”

Miller did not believe that Molchan’s letters went far enough. “If you take those letters that they wrote in June and November, they kind of intimate that there is a Brady issue here, tell your attorneys so that they can figure it out in discovery. They have an obligation to give us Brady material, not send us down rabbit trails or go play hide-and-seek.”

Believing that his office had not received all the Brady materials it was due, Miller filed motions this past February in several cases for the judges to compel the state attorney’s office to do so. While the state attorney’s office maintained that they had met the Brady obligation, an agreement was reached to postpone the hearing while more information on the Pensacola crime lab was provided to the public defender’s office.

“We started to receive material that seemed to me was a tremendous amount of Brady material, “ said Miller. “For example, there were reports of missing keys to the FDLE evidence locker, one of the analysts had been reprimanded for having things missing from his work area, there was a machine that had malfunctioned at one point or time. Those are issues that I think are Brady and go to the integrity of the way the lab is run.”

Miller was not impressed with FDLE’s investigation of the lab either. “That agency was investigating itself and we’re supposed to say all that’s okay. They are going back to the same lab, retesting evidence and then trying to continue the prosecution. They expect everybody to have confidence in that. I’m not so sure that was a good way to pursue that.”

When news of the problems of the evidence room and crime lab surfaced, Miller mandated that his attorney and investigators go out to the evidence room and examine the evidence. Several times, the sheriff’s office had trouble locating the evidence.

“Initially it could not be found and then two hours later the evidence was found under the wrong case number according to the staff,” said Assistant Pubic Defender Scott Miller, who has been reviewing the Brady materials. “Maybe that is what happened, but we need a higher level of comfort when they are going to put our people in a jail cell.”

Miller added, “All these things impact the integrity of whatever faith we can put in the sanctity of the evidence room, FDLE crime lab and the chain of custody.”

The public defender is considering another motion for Brady material, this time on the evidence room. “Seeing what material we received before we made the motion (on Graves’ cases) and what we received after that and considering the problems we believe are at the Escambia evidence locker on which we received virtually nothing at this point, I would say it’s safe to say we’re frustrated.”

Ritchie said, “How broad, how deep is the information we are missing? Without having the Brady information, there’s no way to tell that.”

For the assistant public defender, the arrest of Graves was a shocker. “The analysts have been pretty good witnesses and respected by the defense bar,” said Ritchie. “We never would have thought the person in the FDLE crime lab would even have the opportunity to steal the drugs he was analyzing.”

Not Again On This Watch
At ECSO, Captain Briggs and staff continue inventorying evidence and making changes in policies and procedures. Job functions have been divided into intake, storage and destruction. People are cross-trained, similar to what can be found in most banks.

“Through the delineation of tasks, you keep people accountable,” said Colonel Montoya. “Everyone is verifying the work of others.”

Briggs said, “We had a function in our system for scanning evidence, but we found that it never worked. Everything had a barcode on it, but no one ever used the bar code scanners. They are now working, and so if you want to inventory a box, you can scan the labels.”

They are looking into adding transfer lockers for intake. An officer brings the evidence in, fills out the evidence card, puts the envelope into the transfer locker and locks it. An evidence technician then takes it out of the locker and finishes the intake process.

“Literally we have had three or four officers waiting in line at the evidence room,” said Colonel Montoya. “This will get them back out on the streets sooner.”

“As I told my folks, fixing blame is not part of this process,” said Sheriff Morgan. “The importance of this whole exercise is to identify the problem, its scope, and correct it because we now own this.”

He added, “This is something we discovered. You can lament that it occurred but what we need to do is to come up with an explanation as to how it happened, fix the problems and ensure people that on this watch that it won’t happen again.”