Despite an exculpatory crime lab toxicology result, I was convicted of a DUI (and other crimes dependent on the DUI) and sentenced to a lengthy prison term. This is the executive summary of a complaint that I will be filing with ASCLD/LAB (American Society of Crime Laboratory Directors/Laboratory Accreditation Board) and the National Institute of Justice (A branch of US DOJ that funds these laboratories through Paul Coverdell grants), with copies to other authorities. The reference list is extensive, as is the body of the complaint. This is only a summary and introduction. This complaint has to do with improper testimony of a crime lab analyst, in a non-DNA toxicology case that resulted in conviction and sentence. I will share the link to the full body of the complaint, once it is completed.

Exculpatory evidence hidden.

To ASCLD/LAB

This is a formal complaint, regarding the trial testimony of a Kentucky lab analyst, during a jury trial on January 22, 2008. The analyst was, and still is, employed at a lab that was at the time of the testimony, and still is, under your purview. The analyst’s name is Ryan Johnson. He works in the Toxicology section of the Central Forensic Laboratory, a division of the Kentucky State Police (KSP), in Frankfort, KY. The Kentucky State Police and its labs are a division of the Kentucky government known as the Justice and Public Safety Department. Mr. Johnson is the current supervisor for the Toxicology division of this lab, although in 2008 when he testified, I do not believe he was a supervisor. The lab Director is Ms.Laura Sudkamp.

Posing as a clinical and pharmacology ‘expert witness,’ Mr. Johnson based his under-oath statements on, in some cases, information that did not exist, regarding the prescription benzodiazepine, clonazepam. In other instances he took a drastic departure from the FDA-regulated package insert (which clearly divides adverse clinical trial events into two separate and distinct categories) and delivered exactly the opposite information to the jury, or delivered information and represented it as accepted fact, when such information did not exist. He misled the jury by claiming by inference that this product, since it happens to be a benzodiazepine, causes nystagmus, for example. In truth, clonazepam can be and has been, according to the peer-reviewed literature (more than a few sources), used to treat and alleviate pathological nystagmus and other problems related to vision. (A partial list, here are just eight of those journal articles listed in PubMed: Currie, et al., Thurtell, et. al., Young, et. al., Cochin, et. al., Strupp, et. al., McConnell, et. al., Yokota, et. al., Inobe, et. al., and others). I will provide more detail in the body of this complaint. (References will be provided in the body of the complaint).

In addition, Mr. Johnson reported that he was “familiar with this drug” and that he had “read the literature” for this drug. His extensive review of the peer-reviewed clinical literature consisted of two articles, each written at least six years prior to the drug being marketed, available and regulated in the United States, and each published in countries outside the United States. On one article he presented information that was diametrically opposed to the article summary (related to eye movements). The other article discussed only ten volunteer healthy human subjects, only four of whom were women, none of them within ten years of my age. Mr. Johnson expanded the ten-volunteer-subject findings (again, done in a laboratory setting and not a clinical one) to include all humans taking therapeutic doses of the drug.

One resource he described relying on is called Courtroom Toxicology, which is not peer-reviewed by the clinical world, and is authored by a lawyer (likely a prosecutor). I will discuss the problematic clinical bibliography for this publication in the body of the complaint. The DRE (Drug Recognition Expert) non-peer-reviewed literature that he discusses relies, in pertinent part, on a study done on primates, in 1968, on a different drug, ten years before clonazepam was invented, 27 years before the drug was available, marketed and regulated in the United States, and 37 years before Mr. Johnson represented the information in the study as accepted scientific fact for all humans taking the drug at therapeutic doses. When I attempted to contact the author of the ape study, I learned that he is retired. That study is: 9 David A. Robinson, Eye Movement Control in Primates, 161 Science 1219 (Sept. 1968). The reference document is here.

Mr. Johnson gave a technically misleading description of the chemical structure of this drug, describing it as having a unique characteristic (an attached chlorine atom) that is, in fact common to most of the drugs in this class, and misrepresented an extraction and separation process of organic chemistry as a diagnostic quantification tool. He wrongly stated that “liquid-liquid extraction is incapable of pulling clonazepam out of the blood,” when, in fact, liquid-liquid extraction has been the gold standard for extracting this drug (and about 6,000 others) from the plasma into a pH-adjusted organic layer for years. He stated,

Basically, it’s a, it’s a drug like diazepam but they put a chlor, a chlor, a chlorine atom on it, and that ends up, um, making it so that the test that we run, it’s called a liquid-liquid extraction, um, that test is incapable of pulling clonazepam out of the blood.

The chemical name for clonazepam is 5-(2-chlorophenyl)-7-nitro-2,3-dihydro-1,4-benzodiazepin-2-one, and the chemical name for diazepam is 7-chloro-1,3-dihydro-1-methyl-5-phenyl-1,4-benzodiazepin-2(3H)-one. Both structures have chlorine atoms. Clonazepam is not utterly unique for having the chlorine atom attached to the phenyl group (a group attached to the diazepine ring that is closely related to benzene) of the benzodiazepine skeleton. Ativan (lorazepam), another common benzodiazepine, is also a chlorophenyl benzodiazepine, named, (RS)-9-chloro-6-(2-chlorophenyl)-4-hydroxy-2,5-diazabicyclo[5.4.0]undeca-5,8,10,12-tetraen-3-one.

Mr. Johnson misstated the drug’s time-span of therapeutic activity as well as its’ half-life (he did not bother to explain half-life to the jury), and compared it, wrongly, in milligram-to-milligram equivalency that he termed “potency” to another drug, valium.

He misrepresented rare adverse, uncommon adverse and in some cases, non-existent adverse events as common every-day effects that are part of the well-known therapeutic profile for the drug and commonly experienced by everyone who is taking the drug as prescribed. He lied about the ‘generally accepted’ purpose of the drug, agreeing with the prosecutor that clonazepam is “specifically designed to get the user high.” Ironically, clonazepam is listed in the Bureau of Prisons formulary. As the only benzodiazepine allowed in the prison system, one of its ten off-formulary approved uses is “**04. Detoxification for substance abuse**.” In some cases, Mr. Johnson represented rare adverse events associated with extreme serum toxicity of a different benzodiazepine as common effects related to intended therapy and prescription of clonazepam.

Mr. Johnson lied by deliberate omission about not having a specific request to test for the drug by name in my case, when in fact he did have a request, to ‘test for’ clonazepam, by name. That request was verified to me by Laura Sudkamp on the telephone last month. He failed to explain to the jury that forensic lab toxicology testing takes the unknown to the known in a two-pronged approach that involves presumptive screening followed by quantification if the screen is positive and a report of “no drugs detected” if the presumptive screen is negative. He failed to explain the limits of detection for his testing purposes. He failed to explain that, generally speaking, for all of the classes of drugs that they screen for, drugs that fall below the limits of detection are not reported because they represent no issue of toxicological or therapeutic interest.

Mr. Johnson left the jury with the impression that (1) the drug was present in my blood and (2) no matter how high the level of this drug may have been, ie., even if the blood he presumptively screened had contained blood from a deceased person who had died from a toxic overdose of clonazepam and clonazepam alone, he simply would have had no way in the world to figure that out, with the equipment he had, in his toxicology laboratory at the time.

Mr. Johnson’s written lab report is unambiguous and exculpatory, and without a single notation or even asterisk explaining, “We have no idea what this drug is,” or “We can’t test for this drug because we can’t extract it in our lab,” or “not tested- clonazepam,” or “Please give us a call if you have a problem with the fact that we cannot meet your explicit request,” or “Shall we save this blood until the day when we have the right machine, and that could be years from now?” or “The principles of Organic Chemistry do not work in our lab,” or “We don’t have any money, but if you send us some, we’ll get this tested at NMS Labs in Willow Grove, PA, a third party contract lab that we typically send mysterious blood samples to.”

Mr. Johnson, when confronted with his own exculpatory lab result that lacked an asterisked notation regarding clonazepam, misrepresented the same report as inculpatory, leaving the jury with the impression that there was not only clonazepam present in the blood, but the level was likely in the higher range for prescription therapy. He discussed, as would a licensed physician or clinical pharmacologist, the “normal dosages” at “normal dosage times” for this drug, even though he has, by his own admission, never seen it before in his life.

In addition to this discussion being outside the scope of Mr. Johnson’s practice as a lab tech, Mr. Johnson’s discussion contained a dearth of information that was not bogus. He gave his name. I will assume, for the sake of argument that he told the truth about that. I was not able to verify his stated course of education, however.

Mr. Johnson’s testimony has far-reaching potential impact on the citizens of Kentucky. I was convicted of a DUI (among other things that depended on the DUI conviction) with no drugs or alcohol in my blood, and without exhibiting any unlawful driving whatsoever. I appealed and my conviction was affirmed by the Kentucky Court of Appeals in a unanimous, 26-page published opinion. The opinion has ‘facts’ in it that are based on this man’s trial testimony. In other words, there is a published and binding affirming opinion in Kentucky that not only contains science fiction, but actually obviates the need for any lab testing at all. The Kentucky published opinion affirming is based on findings of fact that are not founded in any sort of clinical reality whatsoever, and are a direct result of Mr. Johnson’s testimony. The published opinion could potentially affect any and all drivers in Kentucky who are ever pulled over for any reason. Mr. Johnson’s problematic testimony can and likely will lead to future unfortunate litigation around future no-drugs-no-alcohol-no-improper-driving DUI convictions.

Mr. Johnson appears to enjoy his deliberate, false testimony, as he smiles and giggles throughout. Part one of his testimony follows. Since he was recorded on videotape, I will include an official court-reporter transcript, for ease of review. Mr. Johnson is unsafe and unfit to work in a laboratory and make decisions about what to do with the blood samples that he receives.