1. How often has AIDWYC come across MDTL reports in our cases?

Transcription

1 April 13, 2015 Linda Rothstein Lead Counsel to the Independent Reviewer Motherisk Hair Analysis Independent Review 155 Wellington Street West 35 th Floor Toronto, ON Dear Ms. Rothstein: RE: Motherisk Hair Analysis Independent Review Thank you for your letter of March 6, 2015 addressed to Ron Dalton and Russell Silverstein, co- Presidents of AIDWYC. They have asked me to respond in my capacity as Senior Counsel for AIDWYC. I should note that, as private counsel, I represented Tamara Broomfield on her appeal of her child abuse related convictions. Fresh evidence was admitted at her appeal that undermined the Motherisk evidence led at her trial. The Court of Appeal s judgment led to a series of articles in the Toronto Star which eventually led to the present review being undertaken. 1. How often has AIDWYC come across MDTL reports in our cases? AIDWYC has not been approached for assistance by anyone who was convicted of an offence after a trial involving testing by Motherisk employees. 2. What knowledge does your organization have about the science underpinning hair analysis? Who provided that information and in what form? Our knowledge is gleaned from the Broomfield case, Dr. Chatterton s review of Motherisk s involvement in her case, and from literature and other research that we have conducted in the field.

2 In this regard, I enclose the Commonwealth of Massachusetts Civil Service Commission case involving hair testing of members of the Boston Police Department, and the judgment from the United States Court of Appeal (2014) in the same case. I also enclose two decisions from the Family Division Courts in the United Kingdom which relate problems that have occurred in the hair testing field in England. I also enclose some newspaper articles and a Blog in this regard for your assistance. AIDWYC and Its Mandate Given the mandate of AIDWYC, we do wish to offer some opinions on the review of Motherisk. We are not entirely clear on the relationship between the Hospital for Sick Children and Motherisk. It is clear, though, that Motherisk is overseen by, and subject to, the Hospital. The Hospital s reaction to the Motherisk s revelations has been disturbing. It was apparent from the fresh evidence admitted in the Broomfield appeal that Motherisk had provided results to the trial court whose significance and weight were not only exaggerated, but were based on a screening test, and not on an analysis which drug-in-hair-testing protocols demand. Most of our comments and recommendations came directly from the Broomfield case. Dr. Koren s Testimony at the Broomfield Trial Dr. Koren s testimony at the Broomfield trial was misleading. In his testimony, he lauded the immunoassay method and, in an oblique reference to GC-MS methodology, suggested that the former was superior to the latter. He testified at the trial: A. The most sensitive methods are the immunoassay methods which are very sensitive in their abilities. We use chromatographic methods which are based on fingerprinting of the materials too and the measure depends upon the indication. Each drug and each chemical has its own methods. Q. And the method for detecting cocaine or cocaine metabolites that was employed in this case is what method? A. Is radioimmunoassay. (emphasis added) Dr. Koren called immunoassay a widely accepted method that is published a lot in hundreds of scientific papers and books and used in courts and other jurisdictions. Describing it as a 2

3 robust methodology, Dr. Koren omitted to advise the court that there was, in fact, a far more robust method of analysis which the forensic community requires be employed for reporting in a criminal trial. Motherisk s employees, Mr. Gareri and Ms. Karaskov, were equally reticent in their failure to inform the court that the immunoassay methodology was universally recognized in their profession as being merely a preliminary screening test. In addition, on a number of occasions in his testimony, Dr. Koren was rude and abusive to counsel. The trial judge in Broomfield was clearly mislead by Dr. Koren s testimony and the testimony of other Motherisk employees. She found Dr. Koren s testimony to be credible and compelling. She erroneously found as a fact that: The procedure used to analyze Malique s hair has been scientifically tested and peerreviewed nationally and internationally. Some of Dr. Koren s responses to Dr. Chatterton s first report were reminiscent of the tone he used in his cross-examination at trial. In light of his trial testimony, it was remarkable that he now said, in an to the Crown: Every high school student knows today that GC-MS or Tandem M-S are superior to immunoassay in terms of specificity. The Broomfield Appeal and Dr. Koren s Attempt to Avoid Cross-Examination You are likely aware of the attempt of Crown Law Office - Criminal to prevent crossexamination of Dr. Koren at the Broomfield appeal. I enclose with this letter the Applicant s factum, the Respondent s Factum and the judgment of the Court of Appeal ordering that Dr. Koren be made available for cross-examination. As things turned out, the cross-examination never occurred because of the Crown s concession that the fresh evidence was admissible. Motherisk is Not a Forensic Laboratory I believe you have Dr. Craig Chatteron s reports of July 18, 2012 and June 6, Dr. Chatterton was correct in his observation that Motherisk is not a forensic laboratory but yet purports to provide forensic testimony in criminal and family cases. As he wrote in his report of June 6, 2014: 3

4 Dr. Rollins and Mr. Gareri state that the Motherisk Laboratory is accredited as a biomedical laboratory. The Motherisk Laboratory has accreditation for biomedical and diagnostic testing. As I have stated, the circumstances of Ms. Broomfield s case, in my opinion, required the use of a forensic analytical investigation and hence a forensic laboratory. The Motherisk Laboratory is not a forensic toxicology laboratory. It is not accredited according to the ISO standard, as recommended by the Society of Hair Testing for the purpose of forensic analysis. (original emphasis) This is sufficient reason in itself to prohibit Motherisk from further work in these fields. The stakes are too high whether it is a criminal case or a family case to allow Motherisk to continue to conduct hair analyses to be used in court proceedings. If Motherisk had been a forensically accredited agency, it would have ensured that it had a sufficient sample of Malique s hairs so that its testing of them would not consume the entire sample. Unfortunately, the defence in Broomfield could not challenge Motherisk s findings in a laboratory, only in a courtroom. We will never know whether their findings had any validity or not. The Motherisk Results in Broomfield Motherisk s findings in Broomfield were always open to question. Dr. Koren said Malique s levels were the highest that he had ever seen in a young child. The levels suggested that he had been ingesting cocaine for 15 months leading up to his collapse which meant that he had been ingesting cocaine since he was 14 months old. These results placed Malique in the top 95 percentile of adult cocaine users/addicts, yet not once did his caregivers notice that he was suffering the effects of this continual and considerable ingestion of cocaine. On the contrary, staff at the daycare centre that he attended reported that he always appeared healthy and happy. It may be that Malique s hair samples were contaminated by the environment in which he lived as it remains unclear whether the hair samples were washed by Motherisk employees in advance of their analysis. Alternatively, the results may reflect bad practices at Motherisk involving, possibly, the use of wrong, or out-of-date chemicals. Or it could involve contamination in the Motherisk Laboratory. Contamination was found to have occurred at the Centre of Forensic Sciences in Guy Paul Morin s case at the Public Inquiry, and a number of wrongful convictions in the United Kingdom in the 1980s and 1990s involving explosives arose from contamination problems in the laboratory during analyses for explosive substances. 1 1 See R. v. McIlkenny, [1991] Cr.App.R. 287; R. v. Maguire, [1991] 2 All ER 433; R. v. Ward, [1993] 2 All ER 577 4

5 AIDWYC s Suggestions for the Reviewer AIDWYC urges the Independent Reviewer to consider the following: 1. Hair testing to detect alcohol or drugs for presentation in court proceedings should be assigned to a forensic laboratory with the proper accreditation for a forensic laboratory. We suggest the Centre of Forensic Sciences be approached and asked whether they could assume this work in Ontario. 2. Hair testing results should only be presented in a courtroom or adjudicative setting if they are obtained through the application of GC-MS or LC-MS. 3. All cases in the period in which questions have been raised, whether they are criminal or family cases, should be thoroughly investigated. AIDWYC would welcome the opportunity to be involved in any criminal case in which Motherisk results were used to assist in determining whether there may have been a wrongful conviction. 4. Motherisk should be required to provide the following information to the Reviewer: A catalogue of all criminal cases in which Motherisk provided opinions and the methodology used in providing the opinions. A catalogue of all cases in which it relied exclusively on immunoassay results. Whether it always failed to advise its consumers that immunoassay results were presumptive only. 5. The Hospital for Sick Children should be asked to explain: Why was Dr. Koren, with his torrid past, allowed to acquire the position that he did within Motherisk and the Hospital? Why did the Hospital apparently ignore the Broomfield revelations? Why did the Hospital defend him so vigorously in the media in the face of calls for a review of Motherisk s work? What caused the Hospital to reverse its position and limit Motherisk to research work? AIDWYC cannot understand the Hospital for Sick Children s actions in light of the Charles Smith scandal and the Goudge Inquiry recommendations. Recently, it has been reported that Dr. Koren and Motherisk have been recommending the morning sickness medication, Diclectin, to pregnant women that is manufactured and/or 5

6 distributed by a company for which Dr. Koren is a paid consultant. This is disturbing and reminiscent of the problems Dr. Koren has had in the past. We ask that these matters be fully explored by the Reviewer. Conclusion We recently spoke to Dr. Chatterton and I understand that you have not yet approached him. May I suggest that you do. Besides having provided the fresh evidence in Broomfield, he has a vast knowledge of hair-for-drug testing in Canada, the United States, the United Kingdom and Europe. We are grateful for the work that is being put into this Inquiry. AIDWYC s greatest concern is that Motherisk may have been responsible for one or more wrongful convictions and we would be pleased to assist in any case in which this may have occurred. Enclosures (11) CC: AIDWYC Board of Directors (w/enclosures) 6