Removing unneeded link in Md.'s chain of evidence

GETTING THERE

March 01, 2010|By Michael Dresser | Baltimore Sun reporter

A drunken driver crashes into another vehicle. The drunk is injured. The other driver is hurt - maybe even killed.

So the drunk gets rushed to the hospital. A police investigator, trained in the handling of evidence in such cases, goes there, too, hoping to collect the blood samples that could convict the perpetrator of driving under the influence or even more serious charges.

But once in the emergency room, the investigator is told it is hospital policy not to allow its medical personnel to help collect such evidence because they could be hauled into court and diverted from patient care. As a result, there is no chemical evidence and the case against the drunken driver falls apart.

In what Bizarro World could such a thing happen? A parallel universe? Some place out of a comic book?

Close. Maryland.

That is, in fact, the state of the law here. Harford County State's Attorney Joseph Cassilly is trying to change that.

Cassilly got a chance to make his pitch last week when he testified in front of the Senate Judicial Proceedings Committee in favor of Senate Bill 621, sponsored by fellow Harford Republican Sen. Nancy Jacobs, to repair this sorry state of affairs.

The Harford prosecutor has plenty of allies. Other state's attorneys and the Maryland State Police are in his corner. So is the Maryland Shock Trauma Center, which patches up lots of drunken drivers. All have a stake in seeing that solid drunken-driving cases aren't scuttled by technicalities.

According to Cassilly, the problem involves Maryland's interpretation of the "chain of evidence."

It is an important legal principle. "Chain of evidence" essentially means the state must be able to show who had custody of the evidence at each stage in the investigation. It protects folks from being convicted by tainted evidence.

But in Maryland, defense lawyers are permitted to subpoena the emergency room personnel who drew the blood from an injured drunken-driving suspect just to establish that they did, indeed, take the blood and had the qualifications to do so.

According to police and prosecutors, the defense doesn't do this to make medical witnesses answer these two pro forma questions. It does so in the hope that the nurses and other professionals won't show up - giving the defense lawyers an opening to ask the judge to exclude crucial blood evidence.

"Often cases are postponed or delayed until the state can arrange the presence of the qualified medical person, and once they appear in court, the defense stipulates to their testimony," Cassilly told the committee. "There are no instances where, as a result of this testimony or the waiver of it, that a defendant has ever been acquitted."

That's largely because the testimony of the medical people who draw blood is redundant. Standard procedure calls for the investigator to witness the drawing of blood. It's the investigator who is the actual custodian of the evidence and who can testify that the chain of evidence has been kept intact.

But since Maryland law has handed the defense bar a baseball bat by letting them call the medical folks, the attorneys are swinging it for all they're worth.

And the hospitals are getting tired of seeing their ER staff people being pulled off the job to cool their heels in court.

Karen E. Doyle, vice president of Shock Trauma, told the panel its nurses and physicians receive more than 500 subpoenas a year - about 100 of them over blood work.

"Having to schedule staff to appear in court to testify as to blood work can put significant pressures on the remaining staff and patients who rely on our expertise," she wrote. "Often, when the physicians and nurses do take the time to appear in court, the case is postponed, dismissed, settled and we have left our core duty of treating the state's most critically injured patients."

Is it any wonder that some hospitals tell their staff members to refuse to draw blood for law enforcement purposes?

The bill essentially would let the court admit a certificate attesting to the nurse or physician's qualifications without their having to show up to swear it's real.

The state Office of the Public Defender contends the bill would violate the defendant's constitutional right to confront accusers. But the Attorney General's Office says the legislation is not clearly unconstitutional. It cited a footnote in a Supreme Court case saying there is no need for "everyone who laid hands on the evidence" to be called to testify.

Since the courts haven't spoken clearly, shouldn't legislators simply do what makes public policy sense and let the A.G. show how skilled a lawyer he is at defending their handiwork? If the courts later slap the law down, the state can cross that bridge when it comes to it.

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