Crime lab mistakes man’s Tums for cocaine; Audit underway

By Jatara McGee

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    CINCINNATI (WLWT) — A drug testing error at the Hamilton County Coroner’s Office and Crime Lab has triggered an audit reviewing six months of drug cases.

The lab is housed in a new state-of-the-art building in Blue Ash that just opened last year. It is responsible for testing suspected drugs in criminal cases.

An inaccurate result from a set of antacid pills tested in September 2021 has led to an audit one year later. The investigation stems from a drug possession case out of Springfield Township. In August 2021, Brian Freeman was stopped and searched by police at a gas station there.

Freeman admits he is not perfect. He has been in trouble with the law in the past and also dealt with a drug problem. But when police found orange Tums in his pants pocket and suspected they were illegal drugs, he maintained his innocence for a full year.

“I was detained, searched and they found Tums in my pocket in a baggie, and said they were going to send them to the lab and have them tested,” he said. “They actually said Tums on the tablets.”

The crime lab tested the pills in early September and reported the drugs were positive for cocaine. A warrant for Freeman’s arrest on felony drug possession charges was signed in late December 2021.

Freeman did not know there was a warrant out for his arrest until he was pulled over with his family in the vehicle, including his 8-year-old grandson, just a few days into the new year.

“I get pulled over at gunpoint, put on the ground, saying I have a warrant for possession of cocaine,” Freeman said.

He spent a week in jail before his family could bond him out. He also lost his roofing job due to the charges he was facing.

“I thought ‘I’m going to prison for sure,’ cause who gets out of things like this usually?” He said. “At first they wanted me to take drug clinics and classes and plead out. And I said no. I am not guilty.”

His charges were dismissed in the interest of justice on Aug. 29, eight months after defense attorney Lynn Pundzak got involved.

Freeman said Pundzak took his case pro bono. She fought to have the drugs retested. She enlisted the help of the Hamilton County Public Defender’s Office, which paid more than $1,200 for an independent lab to re-test the drugs.

The results came back negation for any controlled substance. The judge overseeing the case ordered the county crime lab to rerun the test and at that time, the crime lab’s results also came back negative.

“I just was touched by his story, and he really was trying to make a change to his life. Although I might have been a little surprised when the results came back negative, I was awfully happy for him,” she said. “The only reason this occurred is because the public defender’s office was able and willing to fund an expensive, independent test here. And clearly, that’s not doable in each and every case where someone comes in and says those aren’t drugs. Those aren’t illegal drugs.”

John Kennedy is the director of the Felony Division of the Hamilton County Public Defender’s Office.

“That’s a problem that would shake anyone’s confidence,” Kennedy said. “I think it is extremely unlikely that this is the only false positive test that the Hamilton County Crime Lab has done.”

Kennedy was also involved in a 2015 homicide case that lead to a different audit at the crime lab in 2020. A man was charged in a North Avondale homicide but acquitted after the crime lab failed to disclose a second DNA hit to the defense team. The Innocence Project filed a civil rights lawsuit that lead to a big settlement and an audit of the Cincinnati police department’s homicide cases involving DNA over a 7-year period.

“The lab will maintain these are isolated incidents, but the sheer number of them raises a serious question,” Kennedy said. “I think they should audit all forensic evidence in this Hamilton County crime lab, whether it’s DNA, whether it’s other trace evidence.”

Officials with the crime lab have not said if there is a theory as to how the error happened.

“Out of an abundance of caution, we are performing an internal audit of the analyst’s casework dating three months prior and three months following this particular case. That audit is still ongoing, and therefore, there is no additional information to release at this time,” Hamilton County Coroner chief administrator Andrea Hatten said in a statement.

Emails between the coroner’s office and prosecutor’s office show the lab could not rule out the possibility of cross-contamination when the testing occurred.

Defense attorneys who spoke with WLWT Thursday expressed concern about the scope of the audit and the possibility of additional inaccuracies in other tests.

“I don’t think it makes any difference as to whether you’re on the prosecution side or the defense side or if you’re a police officer, no one wants tainted convictions and no one wants erroneous results coming out of our state-of-the-art crime lab,” Pundzak said. “We don’t really know whether this was user error at this point or if this was an issue with their technology, and until we can figure that out I think it would be wise to have a more broad-reaching audit performed.”

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