PASSAGE OF THE DAY: (HL): "In a short oral ruling, Judge Donald Marshall said he would not allow the hair-testing evidence prepared by Klein or Selavka, in part, because “no confirmation test was run by either expert.” He reserved the harshest criticism for Motherisk, comparing the scientific process to archery to make his point. As Marshall put it, whereas Selavka had shot his arrow and then expanded the bull’s-eye “so that the result could be declared a success,” Klein had simply “shot the arrow in the air, let it land, and then went and painted the target around the arrow.”
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STORY: 'Rejected in Colorado' by Reporter Rachel Mendleson as part of a Toronto Star/CBC investigation, published by The Toronto Star on October 19, 2017.
GIST: "Twenty-two years before controversy shuttered the Motherisk lab, before its hair-strand drug tests were deemed unreliable, before the outcomes of thousands of child protection cases were called into question, a Colorado court threw out Motherisk’s evidence in a hearing that foretold the crisis that is now playing out across Canada. The same failings identified in an independent review of Motherisk in Ontario in 2015 were laid bare in the American criminal case in 1993. In a pretrial hearing in a murder case in Adams County, Colo., the hair-testing evidence presented by former Motherisk lab manager Julia Klein was blasted by the prosecutor as being so deficient that it gave “legitimate researchers in this area a bad name.” The judge who rejected Motherisk’s evidence compared the lab’s process to one in which the scientist “shot the arrow in the air, let it land, and then went and painted the target around the arrow.” The Hospital for Sick Children’s Motherisk lab was criticized by the prosecutor, the judge and two scientists, including the other witness for the defence, for failing to verify preliminary results with a confirmation test; not following standard operating procedures; the fact that it was a clinical lab operating as a forensic lab; and failing to meet the high bar for evidence to be accepted in court. All of these shortcomings were identified more than two decades later by retired judge Susan Lang, who was appointed by the Ontario government to review Motherisk after the Star reported on questions about the reliability of the lab’s hair-testing evidence. In her 2015 report, retired judge Susan Lang determined that Motherisk “fell woefully short of internationally recognized forensic standards.” Lang, in her 2015 report, determined that Motherisk “fell woefully short of internationally recognized forensic standards.” She concluded that its hair tests were “inadequate and unreliable” for use in the thousands of child protection cases and a handful of criminal cases in which they were relied upon. The Colorado case is the earliest known example of Motherisk testifying to its hair tests in a criminal court, and shows for the first time that the lab’s reach extended beyond Canada’s borders. It also calls into question statements made under oath by Dr. Gideon Koren, the lab’s founder and former director, in the high-profile criminal trial that blew the lid off the Motherisk scandal. Koren’s testimony in Tamara Broomfield’s 2009 trial led a Star/CBC investigation to the Colorado case, which is perhaps the most tangible proof to date that even in the very earliest days of the Motherisk lab, the red flags were there. In early 1993, Colorado public defender Robert Pepin was preparing for a first-degree murder trial, trying to figure out how to save his client from the death penalty. Robert Pepin, the public defender in the 1993 case, in his Denver office. Pepin was searching for possible mitigating factors that could stave off a death sentence, and contracted Motherisk at Sick Kids to test his client's hair. Jack Dempsey for the Toronto Star. Allen Thomas Jr., an ex-con in his mid-20s, was charged with raping and stabbing to death a 71-year-old grandmother in her home in a Denver suburb in February 1991. The state had a strong case. But to obtain a death sentence, the jury would have to be convinced, among other things, that there were no mitigating factors clouding Thomas’s state of mind. Allen Thomas Jr. was charged with raping and stabbing to death 71-year-old grandmother Leah Bratsch. In an interview, Pepin said hair-strand drug testing was “pretty novel” in the early ’90s, but was a promising, “objective” way to prove heavy drug use. It seemed an avenue worth pursuing. “We’re talking about a capital case ... life and death,” Pepin said. “No stone goes unturned if you’re doing your job right.” He travelled to Toronto and contracted the Motherisk team to test Thomas’s hair. Klein, who managed the lab, went to Adams County in April 1993 to present Motherisk’s evidence. That’s six years earlier than Lang reports Motherisk started conducting hair tests for use in child protection and criminal cases, around 1999. According to the Lang report, that information was provided by Klein, who was “instrumental in the development of (Motherisk’s) testing methodologies,” before she was fired from the hospital in 2005. Lang said Sick Kids terminated Klein and a senior secretary “purportedly for cause” after an investigation into allegations that the secretary had “misappropriated funds from (Motherisk’s) customers.” Klein declined to comment for this story, citing pending litigation. She is being sued along with Koren, Sick Kids, another former lab manager, Joey Gareri, and a children’s aid society by a mother who claims she lost custody of her two daughters because of Motherisk’s flawed hair tests. According to a court transcript, Motherisk tested a sample of Thomas’s hair using radioimmunoassay (RIA), an immunology-based test that can be used to screen for drugs. Based on the results of that test, Motherisk concluded that at the time of the murder, Thomas was ingesting an average of 55 grams of cocaine a month, which translates to nearly two grams a day, heavy use by most standards. In 1993, the standard for admissibility of scientific evidence in Colorado was known as the Frye test. To meet it, Thomas’s defence would have to convince the judge that Motherisk’s testing was generally accepted by the scientific community, and that it produced reliable results. That did not happen. During the pre-trial hearing on April 8 and 9, prosecutor Eva Wilson exposed flaws in the testing’s methodology and analysis. She did so with the assistance of Frederick Smith, at the time a forensic chemist and associate professor of correctional justice at the University of Alabama at Birmingham, who acted as an “advisory witness” for the prosecution. Colorado prosecutor Eva Wilson exposed flaws in Motherisk's testing methodology and analysis during a pre-trial hearing in a murder case in 1993. In her opening statement, Wilson said she objected to Klein’s evidence for two primary reasons: “she came up with her results on the basis of one test, which was a screening test”; and that the hair-testing was performed in a “clinical laboratory.” Clinical labs are primarily interested in diagnosis and treatment, while in forensic labs, the analysis must meet the high bar for evidence in court — a point Wilson underscored when her witness, Smith, took the stand. “Do you have any concerns about the laboratory that she did her work in or about the other methods, just briefly?” Wilson asked Smith. “Yes,” he replied. “I’m concerned that the laboratory is not a forensic laboratory. It doesn’t have the safeguards that the forensic laboratory would have, such as documenting coming and going of people, such as storing specimens and controls. “There are all areas that point to a laboratory that may be fine clinically but for forensic purposes, in my opinion, don’t pass the mustard.” Smith said a major concern with Klein’s analysis was the use of “unconfirmed” radioimmunoassay (RIA) “for forensic purposes.” Relying solely on a preliminary screening test “is just not acceptable among forensic scientists,” he said, estimating this had been the case for at least five years. Smith explained that at the time, the consensus among forensic toxicologists was that results had to be verified with a second test, using the so-called gold-standard method, called gas chromatography-mass spectrometry (GC-MS). By 2005, the start of Lang’s review period, Motherisk was using a different immunology-based screening test, called ELISA (enzyme-linked immunosorbent assay), manufactured by a company in California. But Lang found that before 2010, despite “the international consensus and the unambiguous instruction from the manufacturer” that results must be verified, Motherisk “very rarely” confirmed its preliminary results with a gold-standard test..Decades apart, Motherisk’s tests debunked' In 1993 in Colorado a lawyer’s questions expose the same failings Justice Susan Lang identified in her report 22 years later... From the Colorado trial: Prosecutor Eva Wilson: We challenge her (Motherisk expert Julia Klein), Judge, in that we feel that her results are inaccurate and inadmissible because of the fact that she only used a screening method to arrive at them. … the Laboratory relied on the unconfirmed results of its … tests — both qualitatively (to distinguish positive from negative) and quantitatively (to calculate the drug concentration in the sample); and second, it had no written standard operating procedures for the hair tests it carried out, thereby calling into question the reliability. These two deficiencies alone are sufficient to render (Motherisk's) hair tests inadequate and unreliable during this period. P. 83 Prosecutor Eva Wilson: Other than the subjects that they deal with, do you know any of the differences between a forensic laboratory and a clinical one? Motherisk expert Julia Klein: No. I did an article published in the Journal of Forensic Sciences, and they are very similar. Their work is very similar to our work. Although the leaders of (Motherisk) had relevant experience as research or clinical toxicologists, none of them had any formal training or experience in forensic toxicology. … The result was inevitable: (Motherisk)'s testing and operations fell woefully short of internationally recognized forensic standards. P. 5 Wilson: What is your opinion, just briefly, with regards to the validity of Miss Klein’s analysis in this case? Forensic chemist Frederick Smith: I have two main areas of concern. First is that the use of an unconfirmed R.I.A. for forensic purposes is not generally accepted, and in fact, I believe it’s not accepted at all for forensic purposes. Wilson: I’m sorry, sir, you said an unconfirmed? Smith: Yes, using radioimmunassay without GC/MS— Wilson: Go ahead. Smith: —is just not acceptable among forensic scientists. Despite the international consensus and the unambiguous instruction from the manufacturer about the manner in which the ELISA tests could be used, (Motherisk) did not have the capability to test hair samples using a confirmation method, such as GC-MS or LC-MS/MS, in-house. P. 88 Wilson: Do you have any concerns about the laboratory that she did her work in or about the other methods, just briefly? Smith: Yes. I’m concerned that the laboratory is not a forensic laboratory. It doesn’t have the safeguards that a forensic laboratory would have, such as documenting coming and going of people, such as storing specimens and controls. Motherisk’s practices were unacceptable and fell well below expected standards for a forensic laboratory. P. 7 Defence lawyer Pepin presented a second expert, who also tested a sample of Thomas’s hair for drugs, using GC-MS, and testified after Klein: Carl Selavka, at the time director of forensic operations at National Medical Services, a drug-testing facility based in Willow Grove, Pa. At one point, Wilson asked Selavka if he was relying “in any way, shape or form in your opinion on the work that Miss Julia Klein did.” “No. I’m not,” Selavka answered. “You would actually call it (Motherisk’s testing) work which gives legitimate researchers in this area a bad name, would you not?” Wilson said. “I might, the researchers being those in forensic toxicology. There are certainly clinical utility (in the) work that has been described to me,” he said. In a short oral ruling, Judge Donald Marshall said he would not allow the hair-testing evidence prepared by Klein or Selavka, in part, because “no confirmation test was run by either expert.” He reserved the harshest criticism for Motherisk, comparing the scientific process to archery to make his point. As Marshall put it, whereas Selavka had shot his arrow and then expanded the bull’s-eye “so that the result could be declared a success,” Klein had simply “shot the arrow in the air, let it land, and then went and painted the target around the arrow.” Thomas was convicted of first-degree murder. Although prosecutors requested the death penalty, the jury declined to impose it, and he was sentenced to life in prison. The criticism of Motherisk tests at the Colorado hearing might have remained buried had it not been for Koren’s testimony in the Broomfield case. The case of Tamara Broomfield and her son, Malique, who suffered a near-fatal cocaine overdose, led to serious questions about Motherisk testing. Peter Small/Toronto Star file photo Before Motherisk’s evidence — tests of Broomfield’s son’s hair that purported to show high levels of cocaine over 15 months — was admitted in her trial, it was challenged by her lawyer in a voir dire hearing, a kind of trial within a trial, where the judge hears what evidence is to be admitted. Koren testified that Motherisk’s tests and the lab’s expertise had been “accepted by the courts in different jurisdictions,” including Canada and the U.S.
Justice Tamarin Dunnet asked Koren to “clarify how Motherisk’s tests were applied in court in the U.S.” Koren replied: “About 10 years ago, Your Honour, we were
asked by the Colorado court in a case of murder to test hair for cocaine
in an individual who claimed to being addicted to the drug, and to the
best of my knowledge, our results, not were just accepted, but had an
impact on the judgment.”
In her decision to admit Koren’s testimony, Dunnet said: “His expertise has been accepted in courts in Canadian provinces and in Colorado.” Koren did not provide — nor was he asked to — any more information about the Colorado case. (He also was not questioned by the Crown, defence or the judge about Motherisk’s lack of forensic accreditation, or the fact that the hair-testing results in the case were not verified with a confirmation test.) Dr. Gideon Koren, seen at a medical conference in England earlier this month, is the founder and former director of Motherisk. Koren referred to a U.S. case during testimony in Ontario, but wasn’t challenged on it. CBC, The Fifth Estate Broomfield was sentenced to seven years in jail for breaking her toddler’s bones and repeatedly feeding him cocaine leading up to a near-fatal overdose. Koren, who retired from Sick Kids in 2015 during Lang’s review, did not respond to emails seeking comment for this story. He told a reporter who approached him following a presentation he gave at a medical conference in the U.K. earlier this month: “Under legal instructions, I cannot talk.” The Star and the CBC searched legal databases, contacted Colorado district attorneys and criminal defenders, including Pepin and Wilson, as well as posting to several listservs for Colorado lawyers, but we were unable to locate a Colorado criminal proceeding in which Motherisk’s evidence was accepted. Toronto defence lawyer Daniel Brown tried to get Broomfield’s trial judge to reopen the case in 2010 to re-examine the medical evidence. The Star/CBC recently provided Brown with a transcript of the Colorado hearing. He says that if this was the case that Koren was referencing during Broomfield’s trial, a perjury investigation is warranted. “Dr. Koren’s testimony in the Broomfield case appears to be a deliberate attempt to mislead the presiding judge about the widespread acceptance of Motherisk’s hair testing procedures in criminal courtrooms throughout the continent,” said Brown, a Toronto director of the Criminal Lawyers’ Association. “Perjury strikes at the core of our justice system and any witness who deliberately lies under oath ought to be investigated by police for such misconduct.” Broomfield’s cocaine-related convictions were overturned in October 2014 with consent of the Crown after an expert sharply criticized the reliability of Motherisk’s results. As part of that deal, Broomfield agreed to abandon her appeals of the other child-abuse convictions related to her son. But in light of subsequent revelations about Motherisk, said her appeal lawyer, James Lockyer, “It is clear that bargain should never have been entered.” Lockyer said the new questions about Koren’s testimony at trial are “part of a pattern” that warrants reopening the case. He is currently drafting an application to set aside the abandonment of her appeal. After Klein left Sick Kids, she started a drug-testing consulting company and continued to testify, appearing in a child protection proceeding in Halton region as recently as 2014. Klein told Lang that Motherisk was not a forensic lab and that its work was “definitely not forensic.” However, she said she spoke to Koren “on several occasions” between 2003 and 2005 about the need to routinely confirm results with a gold-standard test — a claim Koren denied, according to the Lang report. Koren is now working in Israel, where he is listed as a member of the big data team at Maccabitech, the business development arm of the Maccabi Group, a health-care company based in Tel Aviv. He is under investigation by the College of Physicians and Surgeons of Ontario and is named as the co-defendant in at least 11 lawsuits including a national class action that is awaiting certification. In his statement of defence in the proposed class action, Koren denied the claims, and said the Motherisk’s hair tests were “accurate and reliable for their intended purpose” of providing clinical information “relevant to the medical care and safety of children.” He told the Lang review that “the term ‘forensic’ was not mentioned by any judge, child protection lawyer, defence lawyer, or Crown lawyer,” according to her report. In an interview, Colorado prosecutor Wilson said she was stunned to hear that Motherisk continued to present unconfirmed hair-testing results in Canadian courts after the 1993 hearing, and that the lab’s evidence went virtually unchallenged for so long. Eva Wilson, pictured in Golden, Colo., exposed flaws in the methodology and analysis of the Motherisk hair test used in the murder case. Jack Dempsey for the Toronto Star “It is extraordinarily surprising to me that that was allowed, especially where you’ve got a community where it’s been used routinely,” she said. Sometimes, that becomes the problem,” Wilson said. “Nobody steps back and says, ‘Why are we OK with this?’ ”
In her decision to admit Koren’s testimony, Dunnet said: “His expertise has been accepted in courts in Canadian provinces and in Colorado.” Koren did not provide — nor was he asked to — any more information about the Colorado case. (He also was not questioned by the Crown, defence or the judge about Motherisk’s lack of forensic accreditation, or the fact that the hair-testing results in the case were not verified with a confirmation test.) Dr. Gideon Koren, seen at a medical conference in England earlier this month, is the founder and former director of Motherisk. Koren referred to a U.S. case during testimony in Ontario, but wasn’t challenged on it. CBC, The Fifth Estate Broomfield was sentenced to seven years in jail for breaking her toddler’s bones and repeatedly feeding him cocaine leading up to a near-fatal overdose. Koren, who retired from Sick Kids in 2015 during Lang’s review, did not respond to emails seeking comment for this story. He told a reporter who approached him following a presentation he gave at a medical conference in the U.K. earlier this month: “Under legal instructions, I cannot talk.” The Star and the CBC searched legal databases, contacted Colorado district attorneys and criminal defenders, including Pepin and Wilson, as well as posting to several listservs for Colorado lawyers, but we were unable to locate a Colorado criminal proceeding in which Motherisk’s evidence was accepted. Toronto defence lawyer Daniel Brown tried to get Broomfield’s trial judge to reopen the case in 2010 to re-examine the medical evidence. The Star/CBC recently provided Brown with a transcript of the Colorado hearing. He says that if this was the case that Koren was referencing during Broomfield’s trial, a perjury investigation is warranted. “Dr. Koren’s testimony in the Broomfield case appears to be a deliberate attempt to mislead the presiding judge about the widespread acceptance of Motherisk’s hair testing procedures in criminal courtrooms throughout the continent,” said Brown, a Toronto director of the Criminal Lawyers’ Association. “Perjury strikes at the core of our justice system and any witness who deliberately lies under oath ought to be investigated by police for such misconduct.” Broomfield’s cocaine-related convictions were overturned in October 2014 with consent of the Crown after an expert sharply criticized the reliability of Motherisk’s results. As part of that deal, Broomfield agreed to abandon her appeals of the other child-abuse convictions related to her son. But in light of subsequent revelations about Motherisk, said her appeal lawyer, James Lockyer, “It is clear that bargain should never have been entered.” Lockyer said the new questions about Koren’s testimony at trial are “part of a pattern” that warrants reopening the case. He is currently drafting an application to set aside the abandonment of her appeal. After Klein left Sick Kids, she started a drug-testing consulting company and continued to testify, appearing in a child protection proceeding in Halton region as recently as 2014. Klein told Lang that Motherisk was not a forensic lab and that its work was “definitely not forensic.” However, she said she spoke to Koren “on several occasions” between 2003 and 2005 about the need to routinely confirm results with a gold-standard test — a claim Koren denied, according to the Lang report. Koren is now working in Israel, where he is listed as a member of the big data team at Maccabitech, the business development arm of the Maccabi Group, a health-care company based in Tel Aviv. He is under investigation by the College of Physicians and Surgeons of Ontario and is named as the co-defendant in at least 11 lawsuits including a national class action that is awaiting certification. In his statement of defence in the proposed class action, Koren denied the claims, and said the Motherisk’s hair tests were “accurate and reliable for their intended purpose” of providing clinical information “relevant to the medical care and safety of children.” He told the Lang review that “the term ‘forensic’ was not mentioned by any judge, child protection lawyer, defence lawyer, or Crown lawyer,” according to her report. In an interview, Colorado prosecutor Wilson said she was stunned to hear that Motherisk continued to present unconfirmed hair-testing results in Canadian courts after the 1993 hearing, and that the lab’s evidence went virtually unchallenged for so long. Eva Wilson, pictured in Golden, Colo., exposed flaws in the methodology and analysis of the Motherisk hair test used in the murder case. Jack Dempsey for the Toronto Star “It is extraordinarily surprising to me that that was allowed, especially where you’ve got a community where it’s been used routinely,” she said. Sometimes, that becomes the problem,” Wilson said. “Nobody steps back and says, ‘Why are we OK with this?’ ”
The entire story can be found at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
