Broward medical examiner’s evidence policy worries prosecutors, defense lawyers

By Eric Barton, FloridaBulldog.org 

Broward Medical Examiner Dr. Craig Mallak

The Broward County medical examiner has been destroying some tissue and blood samples after they are a year old, a policy defense attorneys and prosecutors say could affect untold numbers of criminal cases.

Dr. Craig Mallak told the Florida Bulldog he instituted the policy shortly after taking Broward’s chief medical examiner position in 2012. He says the rule helps ease his office’s overcrowded evidence storage and also conforms to the norms of his industry.

The change was never publicly announced. Instead, Fort Lauderdale defense attorney J. David Bogenschutz discovered it during depositions in a murder case. The Medical Examiner’s Office destroyed a year-old blood sample in that case, and now Bogenschutz believes charges against his client should be dropped.

Attorneys on both sides of criminal prosecutions say other cases could be affected by the destroyed-evidence policy. After learning of the change in 2013, Broward Assistant State Attorney Brian Cavanagh sent an email to fellow prosecutors warning that it “presents a significant destruction of evidence problem.”

So far, no cases have been thrown out or lost at trial because of the policy. But Public Defender Howard Finkelstein said the change will likely lead to requests for dismissals and mistrials in criminal cases where the evidence has been destroyed. In others, the destroyed evidence might simply be something that defense attorneys use to cast a reasonable doubt.

“There are plenty of ways you can increase storage capacity, but you can’t reclaim evidence once it’s destroyed,” Finkelstein said. “There will be a cloud over this kind of evidence for as long as this policy continues.”

The medical examiner’s practice of destroying year-old toxicology samples came to light as Bogenschutz developed his defense for Ronald Melnik on a second-degree murder charge.

According to prosecutors, Melnik shot Reza Payan shortly after midnight on Jan. 1, 2011. Bogenschutz said Melnik claims that Payan, a heavily trained Brazilian ju-jitsu fighter, attacked him for no reason and that he shot his longtime friend five times to defend himself.

Bogenschutz was going over the evidence with his client about a year after the shooting when Melnik honed in on a crime scene photo. On the ground near Payan’s body was a small vial, attached to Payan’s keychain.

The vial contained ecstasy, or MDMA, a psychoactive drug, Bogenschutz said. That night, Payan had also been drinking and smoking pot heavily. Mixed with ecstasy, that could lead to inexplicable aggression.

Police had taken a sample of Payan’s blood, so Bogenschutz sought to have it tested for ecstasy by an independent lab.

Blood sample destroyed

In April 2015, Bogenschutz learned from Dr. Gary Kunsman, the chief toxicologist at the Broward County Medical Examiner’s Office, that the sample had been destroyed under the new policy.

In response, Bogenschutz filed a 180-page motion to dismiss the charges against Melnik. At issue is a legal term called spoliation, which typically comes up when police or prosecutors have deliberately hidden evidence.

Fort Lauderdale defense lawyer J. David Bogenschutz

“The question for the judge is, can this destruction of evidence affect the outcome? And we believe that it clearly does,” Bogenschutz said.

The bigger issue, Bogenschutz said, is how this might affect other cases, especially those filed months after a crime. The defense in those cases may have no chance to conduct its own analysis of evidence that has been destroyed.

“I’ve had cases when eight, 10 or 12 months pass before charges are even filed. That would mean the defense has no chance to conduct its own examination of what might be key evidence,” said Bogenschutz, who has practiced in Florida since 1971.

During depositions in Melnik’s case, the medical examiner and his employees revealed that they had begun a new policy in late 2012 of destroying toxicology samples that were a year old.

Bogenschutz then filed a records request with the State Attorney’s Office and found a series of emails with Mallak, urging him to change the policy. The State Attorney’s Office offered compromises, including storing samples longer for ongoing criminal trials or notifying attorneys before samples are destroyed. In the end, Mallak agreed to one change: keeping blood samples in DUI cases for two years but destroying all others after a year.

Mallak said he was surprised that his policy caused “a shock to the system around here.” He said defense attorneys and prosecutors need to understand that the old policy was flawed, and that blood and tissue samples kept for months begin to deteriorate and cannot be accurately tested. Bacteria and mold can corrode the tissue, making samples meaningless.

‘I can’t change the laws of nature’

“I personally don’t keep things in my refrigerator for years, so you can’t expect me to keep evidence that way,” Mallak said. “I can’t change the laws of nature. I can’t stop these samples from breaking down.”

Mallak came to Broward after serving as the U.S. Armed Forces medical examiner. He oversaw 250 employees in a crime lab with a $50-million budget. He worked on high-profile cases that include the space shuttle Columbia explosion and identifying the body of Saddam Hussein after the Iraqis hanged him.

In Broward he inherited a 38-person department that had been under scrutiny for poor case management and slow turnaround rates. Shortly after he arrived, Mallak shut down his lab after discovering that employees had improperly validated drug samples, which forced a review of toxicology results in pending criminal cases. He said he has since reduced his office’s turnaround from 90 days to 10 and overhauled testing methodology to conform with industry standards.

Mallak said he also discovered there was no policy governing when evidence was destroyed. Some blood and tissue samples stored by his office dated back decades. Mold and bacteria covered a few vials.

“These samples are not like a bullet that can just sit on a shelf indefinitely,” Mallak said. “They have no evidentiary value after a long time passes.”

The rule he established covers only those toxicology samples like blood and human tissue that can erode over time. DNA and other samples that can be stored without refrigeration are kept indefinitely, Mallak said.

The policy Mallak instituted follows minimum requirements set by Florida administrative rules. It also conforms to minimum industry standards, said Dr. David Fowler, president of the National Association of Medical Examiners.

Blood and tissue samples can be kept for years if preserved in sodium fluoride. Medical examiners will often keep samples for years in ongoing cases, or when an attorney requests it, Fowler said. In Maryland, where Fowler is the state’s chief medical examiner, samples are typically kept for three years unless defense attorneys or prosecutors ask for them to be retained longer.

Broward Assistant State Attorney Brian Cavanagh

In Miami-Dade, the medical examiner’s office keeps such samples for five years, according to a memo on the department’s policy.

The destroyed evidence in Broward has become an issue in several criminal cases since the change, Cavanaugh said. But so far, no cases have been thrown out or lost at trial because of the policy.

When Cavanaugh learned of the change, he did an accounting of which cases might be affected. Among the destroyed evidence was blood taken from the 2012 crime scene where an 8-week-old baby died in the trunk of a car in Coral Springs. Luckily, Cavanaugh said, that evidence wasn’t pertinent. A jury in October returned a guilty verdict for the boy’s father, Janus Saintil, who is now serving a life sentence.

While the destroyed evidence wasn’t relevant in that case, Finkelstein worries that it could be in other cases. “This is not supposed to happen. People aren’t supposed to be acquitted because evidence has been destroyed,” Finkelstein said. “Even as a defense attorney, this is not what we want. We want the system to work correctly.”

In most cases, the destroyed evidence shouldn’t lead to charges being dropped or dismissed, explained Cavanaugh. But it’s an issue that could become a problem for prosecutors as defense attorneys use it to cast doubt. “It’s significant only in that it allows the defense to create an issue,” Cavanaugh said. “The question is, ultimately, is it going to be insurmountable?”

In the Melnik case, Circuit Judge Andrew Siegel has scheduled oral arguments for Aug. 5 to consider Bogenschutz’s motion to dismiss. The judge’s decision could be an indication of how the medical examiner’s policy can affect other cases.