It puts every single sample that’s been processed by this laboratory at risk
Behind the locked doors of a third-floor office in South Seattle, countertop instruments filled with dozens of tiny vials feed data to nearby monitors while performing scores of tests each day in pursuit of justice.
The Washington State Patrol Toxicology Laboratory’s sensitive drug-testing equipment analyzes blood samples taken from people across this state and others. The tests detect the slightest traces of chemical compounds and can help make or break an impaired-driving case, show if a rape victim was drugged or determine whether substances played a role in someone’s death.
But in recent years, an unseen intruder has cast a lingering cloud over the seemingly orderly operations at Washington’s only forensic toxicology laboratory: methamphetamine contamination.
Traces of the drug — linked to makeshift meth labs that scientists set up for training years earlier — have randomly emerged during drug testing since at least 2018, including in two new cases this year. But while lab officials acknowledge catching some cases — fewer than a dozen — with false positive results, officials deny the tox lab’s integrity has been tarnished.
“At no time was any actual blood evidence compromised and we had never provided reports to customers that were compromised,” said Chris Loftis, a State Patrol spokesman.
Some defense attorneys and a prominent laboratory quality-control expert dispute the tox lab’s official line, however. They say the contamination may have tainted evidence in thousands of cases — including some in which defendants already have been convicted — and that lab administrators have downplayed the problem after keeping it private for more than a year.
Since March, public defenders who’ve uncovered internal documents about the tox lab’s contamination have helped at least three defendants with meth detected in their blood — all of whom deny using the drug — beat DUI charges. A judge in one case ruled the tox lab’s testing in a contaminated area amounted to “gross governmental mismanagement.”
Given the scope of potentially impacted cases, a public defender in Lynnwood, who has uncovered key records about the lab’s contamination, is calling for an outside investigation.
“It’s the state’s role to make sure this lab is doing its job in the interests of justice,” defense lawyer Bruce Adsero said. “They should realize that this isn’t going away.”
Toxic training
In 2002, shortly after the State Patrol’s forensic laboratories moved into the city of Seattle-owned office building on Airport Way South, scientists in the State Patrol’s Crime Laboratory — a separate lab that handles the bulk of forensic work other than toxicology tests — started cooking meth in a third-floor exam room.
The scientists synthesized the controlled substance 10 to 20 times in the room from 2002 to 2011, Loftis said.
After the crime lab moved out seven years later, in March 2018, the cramped toxicology lab, operating across a main hallway on the same floor, moved in.
Before expanding into the space, which they would come to call the “annex lab,” toxicology officials didn’t know about the previous meth production there, Loftis said. They also didn’t check for contamination, he acknowledged, despite industry standards that say lab facilities’ conditions “shall not adversely affect the validity of results.”
Scientists noticed the first drug-testing discrepancy in October 2018, when meth showed up in a blood screening but wasn’t corroborated in subsequent confirmation tests. Over the next eight months, two more cases with false positive meth tests emerged. Then, in June, six more cases were found, but this time at a hooded workstation in the main lab. All six had ties to scientists who also worked in the annex.
The nine cases with inconsistent results — seven death investigations and two DUIs — represented only a fraction of the thousands of cases handled by the lab during that time, Loftis said, “but it was becoming a greater concern.”
The contractor found meth residue on the ceiling and walls, in air vents, on doors and the floor, including various samples exceeding the state’s limits for occupying a dwelling. Three swabs also tested positive for cocaine in the office, a report shows.
Sampling also found meth in the main tox lab, in the vent of a hooded workspace used to extract and prepare testing samples and where the latest six false positive cases had emerged.
Toxicology officials initially hoped to reoccupy the annex after BioClean decontaminated it, but Dr. David Northrop, the state’s crime-lab manager, warned at least some forensics lab personnel in a December 2019 email that “It should be considered absolutely inappropriate” to perform toxicology functions “in the same space that bulk-drug chemistry work is either being done or has been done.”
BioClean eventually tore out ceiling tiles and air ducts and stripped the walls to the studs, but couldn’t completely clean the annex to the nondetectable meth levels that lab officials wanted, records show. After about a year, the contractor managed to reduce the contamination to levels within state-occupancy guidelines, but the annex lab has since been sealed and remains vacant.
Delayed disclosure
More than a year after they vacated the annex, tox lab officials still hadn’t notified prosecutors — who are obligated to disclose potentially exculpatory information to defendants — about the contamination.
They only confirmed the problem after an “offhand comment” that a local deputy prosecutor “heard at a social setting” led prosecuting groups to question state toxicology officials, said Pam Loginsky, staff attorney for the Washington Association of Prosecuting Attorneys.
The disclosure did not identify individual cases at that point, nor did it offer that meth also had been found in the hood vent of the main lab where all of the lab’s testing was then being performed. It included July 2019 email exchanges showing the tox lab had notified its accreditation agency.
“Essentially, all we got was three pages of information and a couple of supporting documents,” said Adsero, whose firm provides public defense work for the indigent in Lynnwood.
About two weeks after the first notification, Loginsky sent prosecutors statewide a master list provided by the lab that detailed 3,832 cases with at least one test tied to the annex space. She asked prosecutors to distribute the list to local defense attorneys.
She also left it up to local prosecutors to determine whether further disclosures were necessary for any “concluded cases,” opining that potential impeachment evidence “need not be disclosed in cases that resulted in guilty pleas.”
“A bogus case”
Not included on the state’s disclosed list was a Pierce County DUI charge against Dillon Paterson, then a high-rise window cleaner and Tacoma resident.
Shortly after 11 p.m. on Jan. 4, 2019, a state trooper stopped Paterson on Interstate 5 in Lakewood, after he dropped off his girlfriend at her work.
Paterson’s car reeked of marijuana, and the trooper later wrote Paterson “admitted that he had shared a ‘bowl’” with his girlfriend. Paterson spent the night in jail and the trooper got a warrant for a blood draw.
Nearly a year passed before Pierce County prosecutors charged Paterson with a DUI, based on the tox lab’s blood tests. They detected traces of THC, the chemical intoxicant in marijuana, and methamphetamine.
“I would’ve guessed marijuana was in my system, but the whole meth thing, I was really mad about it,” Paterson, 30, said in a recent interview
Paterson said he never used meth, adding only his girlfriend had smoked marijuana in the car that night despite what the trooper’s report said. The THC level in Paterson’s blood was below the state’s legal limit for driving, but drew the DUI charge in combination with the blood test for meth.
“I wanted to take the case to trial,” Paterson said. “I’m not going to take a plea deal on something I didn’t do.”
While waiting to go to trial, Paterson missed a mandatory pretrial probation meeting and was sent to jail. As a result, he missed work, lost his job and had to pay $2,500 to cover a bail bond.
“I was starting to lose my faith in the judicial system,” he said.
Winters hired Arvisu, the chemist and laboratory-quality auditor, to review the information and her client’s test results. Arvisu found that tox lab officials had failed to take proper corrective action after discovering the meth contamination.
In an affidavit, Arvizu stated that while the lab’s late legal disclosure had acknowledged the known cases with false positives, it “did not even consider the risk” that blood evidence in an unknown number of cases also may have been tainted before any tests were performed.
Because Paterson’s blood tube was opened in a meth-contaminated lab, she added, it was vulnerable to meth contamination through airborne particulates and direct contact with a tainted pipette, an instrument used to extract blood from tubes for testing.
Winters used Arvisu’s expert opinion and the records shared by Adsero to prepare a 48-page motion with exhibits seeking Paterson’s case to be dismissed.
On March 19, the judge decided against tossing out Paterson’s case, but suppressed his blood-test results after finding the lab’s testing in a contaminated area amounted to “gross governmental mismanagement.”
The lab’s meth-contamination issues also factored into decisions to drop DUI-physical control charges this year against two of Adsero’s clients.
In both cases, the defendants weren’t driving, but officers who encountered them behind the steering wheel of running cars suspected drug impairment. After charges were filed against each defendant based on blood tests detecting meth, each insisted they hadn’t used the drug.
“I was just like, these are not my results,” said one of the defendants, Kishara Simerman, 44, of Everett. “This is a bogus case. I want to fight this.”
Three days after the judge in Paterson’s case found “mismanagement” by the lab, prosecutors in Lynnwood agreed to dismiss Simerman’s case. Along with the unrelated death of the prosecution’s key witness, Simerman’s arresting officer, Adsero’s plans to pursue a tainted-blood evidence defense factored into the decision, said Chad Krepps, a lawyer whose firm prosecutes cases for the city of Lynnwood.
Similar considerations also led Krepps to drop the case against Adsero’s other client this month.
Tox lab officials maintain test results for Paterson, Simerman and Adsero’s other client — and all other cases with blood tests for meth and no testing discrepancies — are valid.
Disclosure delays, battles over records and other transparency issues remain a running point of contention that has left the public largely in the dark about the tox lab’s ongoing contamination problem, defense lawyers say.
“I think the tox lab has been less than forthcoming,” said Magda Baker, of the Washington Defenders Association, a resource support group for public defenders.
While serving as a prosecution witness in Paterson’s case, the tox lab’s acting manager, Dr. Brianna Peterson, misstated in an affidavit the lab’s known number of cases with false positive meth results as 3, rather than 9, during the time Paterson’s blood was being tested.
In March, while a Pierce County judge was still considering the motion to dismiss the case, Peterson notified WAPA of yet another false positive meth result, this time in the main toxicology lab. The lab had known about it for more than two weeks, but Peterson hadn’t mentioned the case when testifying at Paterson’s motion hearing.
Asked why Peterson didn’t disclose the lab’s latest false positive test during her testimony, Loftis, the State Patrol spokesman, said: “We are not able to speculatively comment on the specifics of her thought processes in testimony.”
In late April, the lab disclosed its second case this year with a false positive for meth in the main toxicology lab. Officials haven’t identified a root cause for the two latest testing irregularities and retained BioClean to conduct further testing at the lab.
Administrators assume contamination in the annex lab somehow traveled to the main lab, possibly by the air-handling system. But “we haven’t found that smoking gun yet,” Brian Capron, a toxicologist who replaced Peterson as the lab’s acting manager, told Adsero, according to a recording Adsero shared with The Seattle Times.
Toxicology officials have asked the National Institute of Standards and Technology and the National Institute of Occupational Safety and Health for “aid in further testing and any necessary mitigation efforts,” and also are retroactively reviewing cases with positive results for meth, Loftis said.
The lab’s accreditation agency and the Forensic Investigation Council, an independent agency that oversees Washington’s forensic lab operations and policies, also have been kept apprised of discrepant results, Loftis added. The council has “not called for any additional investigation (over and above current efforts) and have not called for any cessation of testing/operations,” he said.
That led him to seek court approval last October for funding to hire Arvizu, the lab expert, in Simerman’s case. He also requested a subpoena to obtain records more quickly from the lab, which drew an assistant attorney general into the case.
After a judge granted the subpoena, the AG’s office started turning over installments of records, but hundreds of pages of emails were blacked out under “attorney-client privilege.”
Adsero contends the AG’s office, with both state prosecutorial and investigative authority, has an obligation to the public for ensuring transparency and just outcomes, not just serving as the lab’s lawyer.
“But rather than independently investigating this, they’ve tried to run interference more than anything,” he said.
A spokesperson for Attorney General Bob Ferguson said in an email the office is obliged to provide legal advice to state agencies, but often cannot share it with the public due to legal ethical rules.
“Beyond that, it is important to note that our office does not have an oversight role with respect to either the Washington State Patrol Toxicology Lab or the 39 elected county prosecuting attorneys and the many city attorneys’ offices with jurisdiction over these cases,” the email said.
Tags: Contaminated Drugs Drug Test Evidence Compromised Meth
