FORT LAUDERDALE (CBSMiami) – Several Broward County defense attorneys are demanding a review of dozens, if not hundreds, of criminal cases following the firing of a senior toxicologist at the Broward Medical Examiner’s Office for falsifying data.
But Broward County prosecutors say the situation is being blown out of proportion and did not affect any criminal cases.
The issue arose in September 2018 when Senior Toxicologist Nadra Nash-Montgomery performed a test of blood samples. CBS 4 News obtained Medical Examiner’s reports that show Nash-Montgomery “willfully changed the file name” on the test. She apparently entered the wrong month of the test. District 17 Medical Examiner Dr. Craig Mallak wrote that Nash-Montgomery “disregarded a directive” by her supervisor not to change the information and changed it anyway. Mallak wrote that led to “falsifying critical forensic documentation.”
In the termination documents, the ME’s Office wrote that Nash-Montgomery committed “severe misconduct” that could lead to “jeopardizing (the ME’s) accreditation” and “impact the credibility of this Laboratory.”
Chief Toxicologist Gary Kunsman wrote in another document that the “failure to apprehend the very serious ramifications associated with this most basic aspect of laboratory procedure reveals a fundamental lack of comprehension of the critical nature of forensic data preservation.” It also showed an “unacceptable disregard for the ethical duty that all forensic scientists bear.”
The documents show that Nash-Montgomery worked on DUI cases and sexual battery cases.
The revelation led several defense attorneys, including Chief Assistant Public Defender Gordon Weekes, to demand a formal review of all recent cases Nash-Montgomery worked on. The Broward County Public Defender’s Office sent a letter to the State Attorney’s Office today asking for “a complete audit of Ms. Nash-Montgomery’s cases” as well as a review of the evidence in the cases. “We demand that you retest specimens analyzed by Ms. Nash-Montgomery to ensure the integrity of evidence you have used to prosecute members of our community,” reads the letter signed by Weekes and Public Defender Howard Finkelstein.
In an interview Tuesday afternoon, Assistant State Attorney Michael Horowitz said his office was still reviewing the letter and is confident that no evidence was compromised and that safeguards are in place to do multiple checks on evidence at the Medical Examiner’s Office before the results ever leave the lab. Horowitz stopped short of agreeing to a complete review of all of the former employee’s cases.
“It there’s a specific case, we can look at that and ensure the accuracy of the results,” Horowitz said.
But defense attorneys are raising red flags about Nash-Montgomery’s work product.
“Her judgement was not sound,” Weekes told CBS 4 News. “If she exercised or exhibited poor judgment in her testing that needs to be put front and center on every case that she was involved in.”
Weekes believes the issue is not the single test but what it potentially signifies.
“If you’re gonna make a mistake and then try to cover it up as if no mistake had ever occurred that calls into question whether you can be believed or not,” Weekes said.
STATE ATTORNEY’S OFFICE RESPONSE
But Broward County prosecutors say the alleged misconduct represented a technical error that has not materially altered any criminal cases. In a closeout memo on the case, Horowitz wrote, “This issue had no impact on the data produced. The error was simply in the procedure of how she corrected the name/date of the file.” He added that “There was no issue as to the accuracy of the test performed.” Prosecutors said that all toxicology reports are triple checked before being approved.
In fact, prosecutors said Kunsman randomly selected 20 of Nash-Montgomery’s cases to review and he did not find a problem with any of them, which satisfied the American Board of Forensic Toxicology.
Defense attorney Alan Bernstein is skeptical.
“If you don’t do it right, it affects the integrity of the entire system,” he said. “It goes to the integrity of the lab and the integrity of how the public looks at this and how it’s going to affect all these criminal cases. If you don’t follow lab procedures and you mix things up, it could be worse.”
Bernstein said he’s been trying to get answers for months about the number of cases Nash-Montgomery handled. He said when it comes to dealing with evidence in criminal cases, the analysis must be beyond reproach and her work should be examined.
“Is there any evidence, any evidence that any of the cases she worked on have been compromised?” a reporter asked Bernstein.
“We don’t have any of the cases,” he said. “All we have is the State Attorney saying, ‘No.’”
“And that’s not good enough?” the reporter asked.
“I don’t think it’s good enough,” the reporter replied. “Then you don’t need defense lawyers. You just want to trust what the State Attorney’s Office tells you.”
For most of her 12 years at the Medical Examiner’s office, Nash-Montgomery’s work earned largely positive reviews. In a performance review dated June 2017, Kunsman said Nash-Montgomery “made a significant contribution to laboratory operations by her willingness to support the 2 Staff Toxicologists by participating in their duty rotation during an ongoing staff shortage.” In 2014, she was lauded for “focusing on being an effective team player working effectively in a mission oriented manner.” The reports show that she received promotions and positive feedback, including being called an “exceptional Toxicology Laboratory Technician” in 2008 and “ a considerable benefit” to the laboratory in 2009.
In a 2012 review, however, a supervisor wrote that “(Nash-Montgomery) must always be conscientious that accuracy is the top priority for all laboratory results.”
In the termination documents Nash-Montgomery’s superiors, including Kunsman and Dr. Mallak, cited a “number of reporting and documentation errors” and a “failure to grasp essential aspects of forensic toxicology, pharmacology, analytical chemistry, data review, data interpretation, data evaluation, and data reporting.”
All of that makes Bernstein wonder why the Medical Examiner’s Office allowed Nash-Montgomery to continue working in such a critical position.
“Why did he keep her in that position and can I trust anything that comes from that lab?,” Bernstein said. “That’s what I as a defense attorney have a problem with because of this.”
CBS 4 News requested an interview with the Medical Examiner’s Office. However, Dr. Mallak said the Office could not discuss it due to “potential litigation.”
Weekes questioned the timing of the State Attorney’s Office notification of what they learned regarding Nash-Montgomery. He believes the state did not alert defense attorneys in a timely fashion about a possible problem with evidence collection in a large number of cases.
“Once that information is brought to the state and they do not then share than information with the defense, there’s no other way to describe it other than hiding evidence so they could be in a more superior or stronger position,” said Weekes.
The Public Defender’s Office says the possible outcome of falsified evidence is significant.
“Having that on your record can lead to a lifetime of consequences,” said Jennifer Edgley, Assistant Public Defender.
In its letter sent to prosecutors on Tuesday, the Public Defender’s Office says that 54 cases never received information about Nash-Montgomery’s termination.
But the State Attorney’s Office maintains that they sent out notices to defense attorneys about Nash-Montgomery’s firing in almost 150 cases since September 2018 where Nash-Montgomery is listed as a witness. Prosecutors also questioned the source of the data cited by the Public Defender.
Still, Bernstein says it’s a defense attorney’s job to question the evidence and the testing of that evidence on behalf of their client.
“When you falsify data all we think about is somebody go to jail for nothing, the wrong person go to jail,” he said.