A Columbia defense lawyer’s questions this summer helped trigger the ongoing controversy that has so far has shut down the Columbia police crime lab, forced the department’s lone drug analyst out of a job and triggered a wide-ranging debate about just how reliable police crime labs are.
The lawyer, Victor Li, didn’t intend to rattle any part of the state’s criminal legal system when in July he hired a Charleston forensic scientist for $500 to double-check the weight of some crack cocaine police had seized from a client. It had already been weighed by Columbia police drug analyst Brenda Frazier.
“My client was very sure the amount of cocaine he was caught with was not what the police claimed,” Li told The State newspaper in an interview.
City testing had showed Li’s client – Issac Jones – had 10.7 grams of crack cocaine when he was arrested on Sept. 3, 2013, and charged with trafficking in cocaine.
Police can charge trafficking in cocaine when the amount is over 10 grams. Trafficking carries a three-year minimum prison sentence and is regarded as such a serious crime that a person’s conviction on two more such serious crimes will land him in prison for life.
“Ten grams is the magic number,” Li said, explaining why his client was protesting the city’s claim.
The expert Li hired was Robert Bennett, a respected forensic scientist who has been an expert witness in S.C. courts on drug, alcohol and other legal matters for more than 20 years. He has two advanced pharmaceutical degrees, including a PhD from the Medical University of South Carolina.
On July 22, drug analyst Frazier and 5th Circuit assistant prosecutor Jennifer McKellar brought the cocaine seized from Jones in 2013 to Li’s Main Street office, across from the Richland County courthouse.
There, they met with Li and Bennett. Bennett had brought his drug-weighing equipment, including a set of scales and factory-calibrated weights.
“We weighed the cocaine, and it came out to be eight grams or something like that,” Li said. “That meant Jones should have been charged with possession with intent to distribute – meaning he was eligible for probation.”
At that point, Li said, “Frazier started questioning my expert about his equipment, his calibration and his methodology of weighing the drugs. We said, ‘Fine – we can go back to the city police department and weigh the drugs there, too.’”
At the city’s drug lab, Li and Bennett watched as Frazier weighed the cocaine. They were joined by another assistant prosecutor, Curtis Dayson, who took photos.
“The weight turned out to be exactly what Dr. Bennett said it was – eight grams or so,” Li said.
At that point, Li said, Frazier started offering explanations as to why the cocaine might have lost weight.
“She said it might be due to dehydration, maybe a poor environment for holding the drugs, but my expert said it was very rare to lose 20 percent of a substance’s mass like that,” Li said.
“Frazier also said the weight might have been lost when she used some of the substance to analyze what it was. We then asked her if she kept records of how much she took. She said she didn’t keep any records of how much she took out to analyze. There was no way to back-check her work,” Li said.
The State’s efforts on Friday to reach Frazier were unsuccessful.
Li’s discovery on July 22 led 5th Circuit Solicitor Dan Johnson to communicate with city Police Chief Skip Holbrook, who said he immediately suspended Frazier, the city lab’s sole employee, from doing any more tests. Holbrook already had concerns about Frazier’s work. The chief officially closed the lab Aug. 21 after a review by experts from the Richland County Sheriff’s Department’s lab.
Frazier resigned Aug. 25.
“I feel all defense attorneys should challenge drug lab results. Most of the time, we simply accept what they say,” Li said.
Li, 36, is one of the few Chinese-American defense lawyers practicing in South Carolina. A 2003 graduate of the University of South Carolina law school, he speaks Mandarin.
After law school, Li did public service work before doing a stint with the 5th Circuit Solicitor’s Office under then-solicitor Barney Giese. Then he went into private practice.
“It doesn’t surprise me that it was Victor Li who found that,” Giese said in an interview. “Victor was always very thorough. He’s done a real service to the community – and not just to the legal community – but to the entire public.”
On July 23, a day after the re-weighing of Jones’ cocaine determined it to be under 10 grams, the charges against him were reduced to possession with intent to distribute. At the time, Jones was already serving time in prison on several non-violent offenses. The judge sentenced him to two years on the charge, but concurrent with other time he is serving.
Jones will be released in December of this year, according to the S.C. Department of Corrections. Had he been found guilty of the more serious charge, he would have almost three more years to go.
Johnson said he appreciated Li’s work, adding that’s the kind of job a good lawyer should do. And, Johnson said, the mission of his office is to handle cases fairly.
“I would never want to have prosecuted somebody on the basis of faulty information,” Johnson said. He add that, if anything, the due diligence by Li showed the justice system worked.
Columbia defense lawyer Joe McCulloch, director of the State Innocence Project, said the problem of crime labs making mistakes happens across the country.
“You would hope the people working in crime labs are scientists and not police officers. Crime labs need to be operated as science laboratories – not criminal evidence-gathering vehicles dedicated to proving someone’s guilty.”
One of the discussions city officials are having these days is whether the city should merge its crime lab operations with those of the nationally accredited Richland County Sheriff’s Department.
Richland County Council member Seth Rose, a former prosecutor and defense lawyer, said he is in favor of that because the sheriff’s department already has a top-notch reputation and would do speedy analyses of drugs and DNA.
“My constituents have an interest in having expedient and accurate DNA and drug analyses done in criminal investigations,” said Rose, who represents much of Columbia’s downtown area.
State Rep. Todd Rutherford, D-Richland, a Columbia defense lawyer, said revelations about Columbia’s crime lab have sparked a new consciousness about police test results.
“Police drug test results have been generally taken as the gospel –they tend to be reliable. Li’s work calls that into question,” Rutherford said. “Everybody is watching this – in fact, it caused me to get Dr. Bennett to go to York County last week and measure some drugs that were right at the threshold amount in one of my cases. ”
Meanwhile, police and prosecutors are analyzing hundreds of cases in which Frazier did drug tests to see if anyone was wrongly convicted.
Columbia City Council is considering whether to revive its police lab or merge with the Richland County Sheriff’s Department’s lab. The State Law Enforcement Division lab is handling city evidence for now.