1 See Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 597 (1993) (holding the rules

of evidence assign to a trial judge “the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.”). As will be discusse d, infra , this cas e ultimately did not involve a Daubert issue.

2 When a population contains nine or fewer items, the hy pergeometric sampling plan does not apply. See Hyp ergeome tric Sampl ing Table , attached hereto as Exhibit A. SUPERI OR COURT OF T HE STATE OF DELAWARE T. HENLEY GRAVES SUSSEX COU NTY C OUR THO USE

RESIDENT JUDGE 1 THE CIR CLE, SU ITE 2 GEORGET OWN, D

E 19947 (302) 856- 5257 September 17, 2015 Caroline Brittingham, Esquire Department of Justice 114 E. Market Street Georgetown, DE 19947 Jerome Capone, Esquire Office of the Public Defender 14 The Circle, 2 nd Floor Georgetown, DE 19947 RE: State vs. Richard Roundtree Case No: 1412017602 Dear Cou nsel: This is the Court’s written decision following its bench ruling issued on September 14, 2015, that granted the State’s Motion to allow hy pergeometric sampling

of sus pected drugs when a l arge quantity is involved. The Court held a Daubert hearing over the c ourse of two day s. 1 The issue before the Court i s narrow : whether hyp ergeo metricsampling may be used by the Divisi on of Safe

ty and Homeland

Security , Division o f Foren sic Science (herei nafter , “DFS” ) to test only a portion of seized dr ugs in la rge vo lume cas es. 2 On September 11 , 20 15, the Sta te prese nted two e

xperts, John M ario, a f

orensic scientist2

formerl y with the Suffolk County Crime L aboratory of New York, and Dr . Bradley Venner, a statistician with the Environmental Protection Agency . On September 14, 2015, the State presented the testimony of

Roby n Quinn, D FS’ forensi c testing supervis or, and Me

lissa New ell, the chemist who tested the drugs in

this particular case. The defense argued that hy

pergeometric testing was not as relia ble as te sting to w eight bu t did not of

fer any witness te stimony

to support

its argument. After hearing the evidence, the Court conc ludes the matter before it is not a ty pical Daubert issue, in that the issue is not whether to accept or reject a new tec hnology

or scien tific the ory . This matter concerns the day -to-day ope rations in drug laboratories and the subsequent use of evidence in a criminal trial. The questio n before the Court i s: Does the hyper geometric method of sampling in drug cases permit an inferenc e upon which the jury c an reas onably rely to satisfy the State’s burden o f proof? Thu s, this issue is really a suffic iency

of the evidence a

rgumen t. This case doe s not pert

ain to the chemical analy sis of suspected drug evidence. Rather, the question i s how much

of the se ized drug evidenc e must be a

ctually tested by the chem ist. Mr. Mario, a

chemica l forens ic scien

tist, provided the Court with a brief overviewof the fie ld of forensic drug testing. He testified that the laborat ory withwhich he had been affiliated from 1981 throu gh his retirement in 2013 uses hyper geometric testing. Mr. Mario was a me mber of the Core Committee of the Scientific Working Group for the Analy sis of Seized Drugs (“SWGDRUG”) from 1998 until he retired in 2013. He continues to consult with the Springfield Mas sachusetts Police Departm ent in a dr

ug evid ence au dit. Mr. Mario t estified

th at SWGDRUG cannot publish standards, per se, but can make recommendations to the inte rnationa l forens ic commun

ity. SWGDRUG endorses st ati sti cal sampling an d s up po rt s t he hyp er ge om et ri c a pp ro ac h. Th e A me ri ca n S oc ie ty f or Test ing and3 One of the labora tories re viewed w as Delaw are’s D FS.

3 Materia ls (“ASTM”) p ubl ishes standards. Their standards are review ed every five yea rs and updated

as needed . ASTM h as ado pted SWGDRUG’s recommendation on sampling. The I nternational Organization for Stand ardizatio n/Int ernatio nal Elec trote chni cal Commiss ion (“I OS/IEC”) is, according to Mr. Mario and not refuted by the defense, the leading standard f or testing laboratories and provides that laboratories must have a sampling plan and pr ocedures in place. Mr. Mario told the Court that a review of seventeen sampling plans from around the United States, including two federal laboratories, re veal ed tha t all of the

m employ

the hy perge ometric proba bili ty distr ibut ion ap proach when t hey condu ct sam plin g. 3 Among theselaboratories are the New York State

Polic e Forensic C enter, the Virginia Department of F orensic Science, the Texas Department

of Public Safe ty, the Ma ssachusetts State Police, and the United States Drug Enforcement

Administration. The State presented ample evidence that the hy

pergeometric sampling model is we

ll entren ched in dr ug testi ng labo

ratorie s. Dr. Venner testified that hy perg eometr

ic samplin g is a re asonably relied u pon proba

bility model that is used not only in testing drug samples, but

also f or all sorts of com merci al sam plin g. It is based upon solid mathematical and statistical grounds and was recog nized centuries ago and has since been refined. To a degree this is much ado about nothing, or pe rhaps deja vu a ll over again because we learn ed t hat the hyperg eometric model was used in Delaware by the Office of the Chief Medical Examiner(“OCME”) prior to its closure. I suspect it was such an imbedded practice, issues as to its use neve

r arose . The cur

rent noto riety of the me

th od seems to s tem from the objection to the policy of the Pennsylvanian labor atory, NMS, of

only testing nine or te

n samples, regardless of

the4 The dr ugs in this case we re ini tial ly sent t o NMS for te stin g. 4 population of items seized. 4 This is an acceptable procedure in Pennsy lvania, but its drug laws are d ifferent and, in fa

ct, curr ently under re vision. I n Pennsy lvania a nd some oth

er jurisd ictions, it is permissib le to make a general or arbitrar y infere nce argument to the jury

that, if all ten (10) samples tested positive f

or heroin, it can i nfer the

balance of the se ized items w ould

test positive for heroin. In this case, the Court rejected this general infe rence approach by

way of a bench ruling o n August 12, 2015. The

Court wasnot satisf

ied that a general inference

satisfied a

sufficiency

of the evidence thresho ld. Inte

resting ly, having

lost this init

ial battle , the State

acknowl edged

in its w ritte n submission to the Court that there are problems with the arbitrary inference approach. The polar opposite of permitting a genera l or arbitrary

inference w ould be to re quire the prosecution actually test that amount of drug s required fo r convi ction under the criminal statutes, i.e. , that DFS test to

the weig ht. This Court could only locate one jurisdiction, I llinois, that requires the prosecution meet this strict standard. The hyperg eometric sampling methodology allows the testing laborat ory to test a portion of the seized dr

ugs, an d, based

upon those

test results, infer

certain conclusions about

the balance of the untested

seized dr ugs. I t is a statistical model basedupon a mathematical formula that produces a statistical inference

that, if a certain number of randomly selected samples are tes ted and a ll test positive, then it is pr

obable that most of the remaining items would likewise test positive if actua lly tested. The number of

samples th a t must be tested has a direct statistical relationship as to the conclusion on proba

bility . In th

e drug testing world, the

standar d confide nce and probabil ity percentages requires that the number of samples tested produce a 95% confidenc e level that at least5

90% of the remaining population is of the same composition as what was tested. At the hear ing, the Court also

learne d that a ma

jor drive r for the use of hy

perge ometric sampling model is not only the reliability of its probability inferenc e, but also i ts practi c al it y. Testing t o the weig

ht requir es much mo

re time a nd State r esource s. The evidence s howed tha t, in Delaware, it

would be impractical, if not impossible, to test to the weight without a huge influx of money and reso urces in to DFS. Ms. Quinn, DF S’ labora

tory manage r, testif ie d D FS is licensed by the Ame rican National Standards Institute-Ame

rican Soc ie ty for Quality National Acc reditation Board (“ANSI -ASQ”). DFS also has ISO/I

EC 17025 accreditation, which is issued by the ANSI-ASQ. As noted, supra , the ISO/I EC 17025 standards require the laboratory have a sampling plan and procedure s for sampl ing. Ms. Qu inn ’s respo nsibilitiesinclude e nsuring DFS’ for ensic ch emistry unit is in co mpliance

with ISO/I EC 17025. Ms. Quinn was a laboratory manager at OCME and has been the laboratory

manager since DFS reopened under it s new inc arnatio n in January of 2015. When Ms. Quinn took her position, she testified that she made changes to the sampling model tomake i t “mor e cons ervati ve.” In so doin g, she relied u

pon SWGDRUG ’s reco mmendatio ns and otherlaboratories’ policies. All of the labor atori es from which she so ught i nput use hyperge ometr ic tes ting. Ms. Quinn testified that there are five chemists at the Delawa re lab. There are only

three Gas Chromatog

raphy -Mass Spec tro metry instruments (“GC-MS”), the machines utilized to identify substances in a test sample. Two are currently “on line” and available for use.5 In point of fact, there w ere originally 399 bags in this case. However, ten of those we re teste d by NMS. The rem ainin g 389 ba gs were s ent to DFS fo r test ing.

6 See Exhibit A. 6 In the present case, D FS received 389 bags of suspected he roin. 5 The table for determining the number of

samples to

be testedunder the hype

rgeometric model requires 28 randomly selected samples to be tested

. 6 Ms. Quinn testified that, if all 389 bags had to be tested, it would take approxima

tely thirty (30) hour s of prep

time plus ninety -seven ( 97) hoursof machi ne time to complete the GC-MS analysis. Althoug h the in strument is programed to run on its own, when a machi ne is i n use i t is n ot ava ilabl e for ot her tes ting. The impracticality of testing to weight increases as the tier level for a dr ug offe nse incr eases. For example, a

tier five heroin of

fense r equiresthat a defendant have five (5) grams or more of heroin. Ms. Quinn testifie d that, ba sed upon th e avera ge amou nt of her oin found in a bag o f heroin in this case

(.004 g rams), f ive (5) g rams of heroin couldbe contained in as many as 1250 bags of heroin. M s. Quinn op ined it would take one chemis t close to 3 90 hours to test 1250 b ags. With this said, practic ality and limited resources should not dictate the Court’s acceptance of shortcuts. Thus, this Court did not accept the general or arbitra ry infere nce theory

first proposed by the State. The hyperg eometric mod el for sa mplin g may

be a time saver, but it is a statistically and mathemat

i cally sound method of providing the jury a statistically based and pr obability bas e d inferenceas to the u

ntested it ems. I t allows f or a rea sonable

inference based upon

a mathematical and statistical model. Ultimately, the jury must decide whether the inference supports a conviction

or whether the State’s evidence falls short of its burden. For purposes of this motion, the Court finds7 See Ohio v. Gartre ll , 24 N.E.3d 680, 707 (Ohio 2014) (holding evidence of hyperg eometric sampling is “sufficient as a matter of law to support a determination that the entire substance recovered tog ether and similarly pa ckaged is the same controlled substance a s that tested”) (citation and internal quotation marks omitted). 7 that the hyperg eometric methodology of sampling provides sufficient evidenc e for the

State to get to th e j ur y. 7 The Co urt notes that the State’s expert witness, Mr. Mario, reviewed the State’s hyp ergeo metrictesting protocol. That protocol tracks the standard opera ting procedure for

the other labor atori es and agencie s that use hyperge ometr ic sam plin g. In each future case where

the State relies upon the labor atory ’s samplin g table

attache d to this decision, the State must still satisfy therequire ments for proper h ype rgeome trical sa mpling; to

wit, the State must

show how a determination as to the homogeneity of the tested population was made and how the tested samples were randomly selected. Homogeneity

requires the chemist to inspect visually each se ized item to

determine if the it

ems are s o similar in physical appear ance that they would be included in a single population. In the present case, M s. Newel l visually inspected the exterior o f all389 bags (also known as bindles). Ms. Newell testified the bags were all of similar ap pearance; in same size, blue bags; and stamped with the notation “Erruption” in the same col o r ink. Ms. Newell stated that, had she found any bags that were no t similar in

appear ance, sh e would have seg regat ed the dis similar ba

gs into a differe nt populat

ion pool. After the population has be en deter mined, the

samples to

be teste d must be r

andomly selected. In thi s case, a

fter counting th

e bags and makin g a homo geneit y de terminat ion, Ms. Newell placed the bags back

into a common container and randomly selected the requisite twenty -eight, per the hyperg eometric sampling table. Dr. Venner testified that, in his expert opinion, this method of8 As an aside, Ms. Quinn seemed baffled when the Court inquired a bout the potential effect a negative re sult in the sampled group would have; in her experience, she had ne ver encountered such a scenario. 8 random selection is an accepted

practice. The twenty -eight samples were weig hed and teste d. All tested positive f

or heroin. There

fore, the chemis t conclud ed with 95 % confid

ence the probabil ity

was that 90% o f the ent

ire popul ation of b ags co ntained h eroin. I n conclus ion, the hy

perge ometric model provided

Septembe

r 17, 2015 a statistic al proba bility in feren ce as to w

hat was in

the bag s; i.e. , heroin

. The Court note s Dr. Ven ner testi fied tha

t, had one

or two sam

ples tested n egative, the hyp ergeo metricmodel could still be used, but a different mathematical formula would be utilized, presuma bly creating a diff

erent ta ble. The Co urt’s decision

only address es the ma

thematic al formul a used when all the tested samples test positive. 8 In this decision, the Cou r t accepts the validity of hyperg eometric sampling. The Court recognizes that if protocol is followed and all of the samples test positive, there exists a statistical probabil ity permitting an inference with a 95% confidenc e level that 90% of the population contains the same substance as the tested samples. The Court will not require this statistical probabil

ity t o be proven again and ag ain with expert testimony in the future. The Court will, of cours e, permit the att or neys to arg

ue their respective positions as to the inferences that may

be made f

rom the us e of hyperg eometric testing because the jury ultimately decides whether it is satisfied the State has met its burden of proof. Hyper geomet ric sampling is used only for d etermining the probability of the entire population containing th e same substan ce. It tests each sa mple to determine one of two things: positive for controlled substance or negative. H ype rgeome tric samp ling is no t used to de termine t he total w eight;9

weight is determined by anothe

r process . The current lab does exactly what the OCME with regard to making a total weight

determination. In this case, Ms. Newe ll weighed the contents of the opened and tested bags. She took an averag e of those twenty- eight bags and extrapolated the total weig ht of the 389 bindles. Using this averaging process, a chemist does not open all 389 bags. The Court suspectsthere are other

methods of

determin ing wei ght; for examp le, takin g the tot al weig ht of all 389 bags and contents, then weighing out the average of the

bag alone, which should be consiste nt, and then s ubtra cting t he weight of 389 bags only f rom the total. Again, this method was not the f ocus o f the hea

ring because th

e hy perge ometric m

odel is onl

y us ed to dete

rmine the probabil ity inference of identify

ing the substance. The Motion to permit the use of hyper geometric sampling is grante d. IT I S SO ORDERED. Very truly you rs, /s/ T. Henley Graves T. Henley Gr

aves THG/y mp pc: Prothonotary Valerie Dunkle, Esquire