An audit of the Washington State Patrol crime lab a month after it lost the blood samples in the Fred Russell case disclosed that lab workers had lost or broken hundreds of blood vials during a transfer between freezers.
The audit also identified problems with record-keeping that former lab manager Ann Marie Gordon – who resigned in July amid a criminal investigation – told auditors she didn’t have time to perform properly.
“WSP policies and required procedures appear to be of secondary concern to lab personnel,” the audit report of Aug. 20, 2004, concludes. “Achievement in top priority areas is commendable. Accurate record-keeping and quarterly auditing as required by Patrol policies and CALEA standards is severely deficient.”
The audit is part of a court filing by defense attorneys for Russell, who is charged in a car crash on the Moscow-Pullman Highway in 2001 that left three dead. Shortly before his trial was to begin in October of that year, Russell fled the country and wasn’t caught again until last October.
Russell is asking a judge to dismiss the charges based on the fact that he can’t conduct independent tests of his blood, which was apparently accidentally destroyed in July 2004.
Russell will be back in Whitman County Superior Court today for a hearing on motions before Judge David Frazier.
An expanding scandal around Gordon in recent months has added ammunition to the defense case. After a state investigation, King County prosecutors are now deciding whether Gordon should face criminal charges for falsely asserting – in sworn documents and court testimony -- that she had tested blood samples that she hadn’t.
“Evidence suggesting that Ms. Gordon has routinely provided false testimony under the penalty of perjury is not only relevant to the issues in Mr. Russell’s case, but establishes misconduct by the State that is so deeply rooted and systemic that it taints the entire proceedings,” defense attorneys argued in court filings Sept. 13.
Prosecutors contend the results of Russell’s blood test should be admitted into evidence, saying the destruction of the samples was a mistake and that the test is corroborated by a hospital blood test.
Russell is charged with three counts of vehicular homicide and three counts of vehicular assault. The blood evidence is a key piece in the prosecution’s case, but he could still be convicted without it, if the state can prove he was negligent or reckless.
Attempts to reach attorneys in the case were unsuccessful Wednesday.
Russell’s attorneys have also asked the judge to move the trial out of Whitman County, where they say overwhelming publicity has made it impossible to seat an impartial jury. But Frazier ruled in July that he’d try to seat a jury first in Whitman County before deciding whether to move the trial. If he becomes convinced that it’s impossible, he said at the time, he’d have a backup plan to go to a nearby county and begin forming a jury pool.
In court filings earlier this month, Russell’s attorney, Francisco Duarte, argues that problems at the WSP lab have been confounded by difficulties getting records in discovery from prosecutors. He says that all the problems add up to misconduct that threatens Russell’s right to a fair trial.
He said Gordon’s destruction of two vials of Russell’s blood is only part of the problem. In the court filings, he said the state failed to promptly and thoroughly investigate what happened – officials say the blood was accidentally destroyed along with a batch of outdated samples, but the only probe of the destruction was conducted by Gordon herself.
Duarte raises several concerns about her account of the missing vials, noting that a WSP sergeant had questioned whether the proper procedures were followed and that log sheets on the vials offer different “notations as to its status.” Given the questionable information surrounding the matter, Duarte writes, it’s impossible to say for sure that the samples were destroyed.
Meanwhile, Gordon was being investigated for allegedly signing affidavits repeatedly claiming that she had performed blood tests in hundreds of cases where that testing was actually done by someone else. She resigned and has been unavailable as a witness because of those questions – which means that Duarte can’t question her.
Russell’s blood was apparently destroyed in July 2004, and it was discovered missing in February 2005.
In August 2004, an audit of the lab noted problems that occurred when samples where moved from an old freezer to a new one. After the move, 121 tubes were unaccounted for. Gordon told auditors the vials had been destroyed, but there was no record of that.
Another 122 tubes were destroyed and recorded, but no date of the destruction was marked down. And 295 vials were broken during the move.
Gordon told auditors that it wasn’t a problem because the samples were older than the nine months that samples are typically saved.
Auditors also noted that Gordon had not filed the proper forms for the destruction of blood evidence and was failing to track public records requests. In both cases, Gordon told auditors she didn’t have time to follow the procedures.
“Lab manager is resistant to change,” the audit says. “States that she is too busy to do things the way the Patrol wants them done.”