FORT LAUDERDALE (CBSMiami) â 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 Examinerâs Office for falsifying data.
But Broward County prosecutors say the situation is being blown out of proportion and did not affect any criminal cases.READ MORE: South Florida Businesses Relying On Tourism Hope To Recover From Pandemic Lows
The issue arose in September 2018 when Senior Toxicologist Nadra Nash-Montgomery performed a test of blood samples. CBS 4 News obtained Medical Examinerâs reports that show Nash-Montgomery âwillfully changed the file nameâ on the test. She apparently entered the wrong month of the test. District 17 Medical Examiner Dr. Craig Mallak wrote that Nash-Montgomery âdisregarded a directiveâ by her supervisor not to change the information and changed it anyway. Mallak wrote that led to âfalsifying critical forensic documentation.â
In the termination documents, the MEâs Office wrote that Nash-Montgomery committed âsevere misconductâ that could lead to âjeopardizing (the MEâs) accreditationâ and âimpact the credibility of this Laboratory.â
Chief Toxicologist Gary Kunsman wrote in another document that the âfailure 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.â It also showed an âunacceptable disregard for the ethical duty that all forensic scientists bear.â
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 Defenderâs Office sent a letter to the State Attorneyâs Office today asking for âa complete audit of Ms. Nash-Montgomeryâs casesâ as well as a review of the evidence in the cases. âWe 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,â 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 Examinerâs Office before the results ever leave the lab. Horowitz stopped short of agreeing to a complete review of all of the former employeeâs cases.
âIt thereâs a specific case, we can look at that and ensure the accuracy of the results,â Horowitz said.
But defense attorneys are raising red flags about Nash-Montgomeryâs work product.
âHer judgement was not sound,â Weekes told CBS 4 News. âIf 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.â
Weekes believes the issue is not the single test but what it potentially signifies.
âIf youâre 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,â Weekes said.
Â STATE ATTORNEYâS 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, âThis 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.â He added that âThere was no issue as to the accuracy of the test performed.â Prosecutors said that all toxicology reports are triple checked before being approved.
In fact, prosecutors said Kunsman randomly selected 20 of Nash-Montgomeryâs 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.
âIf you donât do it right, it affects the integrity of the entire system,â he said. âIt goes to the integrity of the lab and the integrity of how the public looks at this and how itâs going to affect all these criminal cases. If you donât follow lab procedures and you mix things up, it could be worse.â
Bernstein said heâs 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.
âIs there any evidence, any evidence that any of the cases she worked on have been compromised?â a reporter asked Bernstein.READ MORE: BSO Clears Person Of Interest In Tamarac Burglary Where Thief Claimed To Be Deputy
âWe donât have any of the cases,â he said. âAll we have is the State Attorney saying, âNo.ââ
âAnd thatâs not good enough?â the reporter asked.
âI donât think itâs good enough,â the reporter replied. âThen you donât need defense lawyers. You just want to trust what the State Attorneyâs Office tells you.â
For most of her 12 years at the Medical Examinerâs office, Nash-Montgomeryâs work earned largely positive reviews. In a performance review dated June 2017, Kunsman said Nash-Montgomery âmade 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.â In 2014, she was lauded for âfocusing on being an effective team player working effectively in a mission oriented manner.â The reports show that she received promotions and positive feedback, including being called an âexceptional Toxicology Laboratory Technicianâ in 2008 and â a considerable benefitâ to the laboratory in 2009.
In a 2012 review, however, a supervisor wrote that â(Nash-Montgomery) must always be conscientious that accuracy is the top priority for all laboratory results.â
In the termination documents Nash-Montgomeryâs superiors, including Kunsman and Dr. Mallak, cited a ânumber of reporting and documentation errorsâ and a âfailure to grasp essential aspects of forensic toxicology, pharmacology, analytical chemistry, data review, data interpretation, data evaluation, and data reporting.â
All of that makes Bernstein wonder why the Medical Examinerâs Office allowed Nash-Montgomery to continue working in such a critical position.
âWhy did he keep her in that position and can I trust anything that comes from that lab?,â Bernstein said. âThatâs what I as a defense attorney have a problem with because of this.â
CBS 4 News requested an interview with the Medical Examinerâs Office. However, Dr. Mallak said the Office could not discuss it due to âpotential litigation.â
Weekes questioned the timing of the State Attorneyâs 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.
âOnce that information is brought to the state and they do not then share than information with the defense, thereâs no other way to describe it other than hiding evidence so they could be in a more superior or stronger position,â said Weekes.
The Public Defenderâs Office says the possible outcome of falsified evidence is significant.
âHaving that on your record can lead to a lifetime of consequences,â said Jennifer Edgley, Assistant Public Defender.
In its letter sent to prosecutors on Tuesday, the Public Defenderâs Office says that 54 cases never received information about Nash-Montgomeryâs termination.
But the State Attorneyâs Office maintains that they sent out notices to defense attorneys about Nash-Montgomeryâs 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 itâs a defense attorneyâs job to question the evidence and the testing of that evidence on behalf of their client.MORE NEWS: 'We Got Our Man': Patrick McDowell, Wanted For Killing Florida Deputy, Captured
âWhen you falsify data all we think about is somebody go to jail for nothing, the wrong person go to jail,â he said.