FIFTH ESTATE: Motherisk hair test evidence tossed out of Colorado court 2 decades before questions raised in Canada
By Lisa Mayor, John Chipman, CBC News
A U.S. court laid out extensive problems with how hair-strand tests were being done at the Motherisk Drug Testing Lab at the Hospital for Sick Children in Toronto more than two decades before similar issues were uncovered in Canada.
A joint investigation by The Fifth Estate, CBC Radio’s The Current and the Toronto Star uncovered a capital murder trial in Colorado in which Motherisk’s tests were found to be “not competent evidence” and thrown out in 1993.
But the lab’s work continued to be used in Canadian courts and relied upon in thousands of child protection cases, including ones in which children were permanently removed from their parents.
From 1991 until 2015, Motherisk was performing what have now been determined to be unreliable and inadequate drug and alcohol tests on thousands of members of vulnerable families across Canada, with the results in some cases leading to child welfare decisions to separate children from their parents.
Child welfare agencies in five provinces across Canada paid for Motherisk’s hair-strand tests, believing they were hard scientific proof of substance abuse.
The Ontario government appointed retired Court of Appeal justice Susan Lang to investigate the lab’s procedures and protocols after a series of investigations by the Toronto Star revealed problems with the tests. Lang’s inquiry was completed in December 2015.
Through that investigation, it was determined that Motherisk’s results were unreliable and inadequate opinions from scientists who operated without any forensic training or oversight.
Two decades before the Ontario government launched its investigation into Motherisk’s hair-strand tests, Julia Klein, Motherisk’s de facto lab manager at the time, testified at an admissibility hearing in a 1993 death penalty case in Colorado.
Allen Thomas Jr. had been charged with raping and stabbing to death the grandmother of his ex-girlfriend. He faced the death penalty if convicted.
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One of the defence strategies if Thomas Jr. was found guilty was to argue that he was so high on cocaine at the time he was incapable of committing intentional, premeditated murder, which was required for the death penalty in Colorado.
The defence would need to prove that he was taking cocaine at the time, and Motherisk was one of the few labs doing hair tests for drugs and alcohol in North America.
The Motherisk hair test results appeared to show Thomas Jr. was taking 55 grams of cocaine per month at the time of the killing.
This case is the earliest known example of Motherisk’s hair tests being used in a criminal court.
The defence in the case wanted to introduce the hair test Motherisk had done on the defendant, but Justice Donald Marshall wouldn’t allow it. In his decision, the judge laid out many of the same deficiencies at the lab that would be uncovered in Ontario more than two decades later.
Marshall ruled Motherisk’s tests results were “not competent evidence.”
“He found that it was not reliable,” said Eva Wilson, district attorney on the case.
“I really appreciated his analogy: this reminded him of someone shooting at a target with a bow and arrow, and that Miss Klein shot the arrow, the arrow landed and she then drew the bulls eye around the arrow, a big round circle, to show it met its mark.”
Klein declined repeated requests for an interview and wouldn’t answer specific questions sent to her.
The Colorado case arose in the joint investigation by The Fifth Estate, The Current and the Toronto Star during a review of a 2009 court case in Toronto. In that case, comments were made by Dr. Gideon Koren, the founder and longtime director of the Motherisk lab.
In that case in Ontario’s Superior Court of Justice, Tamara Broomfield was convicted of assault causing bodily harm, aggravated assault endangering life, failing to provide the necessities of life and administering a noxious substance with the intent to endanger life after allegedly feeding her two-year-old son near-lethal doses of cocaine.
Koren told the court the lab’s expertise and Motherisk’s tests had been “accepted by the courts in different jurisdictions,” including Canada and the U.S.
“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,” Koren testified.
The Fifth Estate, The Current and the Toronto Star scoured legal databases and contacted Colorado district attorneys and criminal defenders, but were unable to find any Colorado criminal proceeding in which Motherisk’s evidence was accepted.
Daniel Brown, a Toronto criminal lawyer who represented Broomfield in the early stages of her appeal, reviewed the Colorado hearing.
“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, who is a Toronto region director with the Criminal Lawyers’ Association.
“Dr. Koren wasn’t the doctor who testified in Colorado but you would have thought that he would have been keenly aware of what had happened,” Brown said.
“The fact that he would come to court 20 years later and suggest that that evidence was accepted in that Colorado courtroom was surprising. It seems to be misleading and it certainly warrants a perjury investigation if he deliberately tried to mislead the judge about the scope of the Motherisk evidence and how it’s been accepted across the continent.”
Koren did not respond to emails seeking comment for this story.
Broomfield was initially sentenced to seven years in prison.
In October 2014, after new evidence surfaced that questioned the accuracy of Motherisk’s results, Broomfield’s cocaine-related convictions were overturned.
Later that year, the Ontario government launched the investigation into Motherisk’s lab procedures and protocols headed by Lang.
“I considered it a tragedy that it’s not good for our justice system that we’re relying on forensic evidence that is unreliable and inadequate,” she said in an interview with The Fifth Estate.
“It’s a tragedy for the families, it’s a tragedy for the parents who may have lost temporarily or otherwise contact with their child, it’s really a tragedy for the children.”
In Klein’s testimony in the Colorado case, it appeared she didn’t understand what constituted forensic testing.
Wilson, the prosecutor, was shocked.
“She talked about forensic labs, [saying] their test samples come from dead people,” Wilson said.
“That’s not true. There’s a lot of living people whose blood and urine and semen, and body tissues and fluids, are being tested by forensic labs, thank goodness, otherwise we wouldn’t be able to charge people with driving under the influence of drugs unless they were dead.
“She was really off base with all of that.”
The Motherisk lab has always insisted its tests were meant to be only clinical in nature and not forensic.
Clinical tests are mainly meant for patient care — accuracy is important, but so is speed. Forensic labs do tests for legal purposes, such as DNA or fingerprints, and do this for more than just criminal matters.
“They need to be right,” Lang said. “They don’t just need to be right in criminal law; they need to be right in family law. And a lot of people didn’t see family law as forensic work.… That isn’t good enough.
“Losing your child is the capital punishment of child protection law. You need to have these test results done right.”
Koren has been named in at least 11 lawsuits, including a proposed class action suit.
In his statement of defence in one of the lawsuits, Koren said Motherisk’s hair tests were “adequate and reliable for their intended purpose” and were meant to provide “information relevant to the medical care and safety of children.”
For its part, the Hospital for Sick Children has apologized for the Motherisk tests.
“We deeply regret that practices in and oversight of this particular program did not meet SickKids standards of excellence,” Dr. Michael Apkon, president and CEO of SickKids, said in a public statement on its website.
“We remain resolved in our efforts to ensure that we have effective oversight and the highest standards of quality and safety in all of our programs.”