A federal jury will resume deliberating Tuesday in the retrial of a former San Francisco police crime laboratory technician accused of taking small amounts of cocaine from the facility in 2009.
Deborah Madden, 62, of San Mateo, is charged with violating a federal law that makes it a crime to obtain a controlled drug by means of fraud, deception or subterfuge.
The jury in the court of U.S. District Judge Susan Illston in San Francisco began deliberating this afternoon after hearing closing arguments today and three days of testimony last week.
After meeting briefly, the panel recessed for the day and will resume at 8:30 a.m. Tuesday.
The trial is Madden’s second on the charge. Her first trial in Illston’s court ended in a mistrial in October. Jurors in that trial said a majority favored conviction, but they could not agree unanimously on whether there was proof of deception.
Madden, a 29-year civilian employee, admitted in a 2010 police interview to taking trace amounts of cocaine spilled during weighing in the fall of 2009 and taking them home in her pocket.
But her defense lawyers have argued that there is no proof of the fraud or deception needed for a conviction under the federal law because she simply took what was in front of her.
“She has it in front of her and she takes it. The means of taking are sticking out her hand to the stuff that’s assigned to her,” defense attorney Paul DeMeester told jurors during his closing argument today.
Prosecutors contend Madden acted deceptively by working late more than usual in November and December 2009 so that she could take cocaine when no one was watching, and by opening a colleague’s locked evidence locker and restapling an envelope that contained drugs.
“This crime cannot be committed without deception,” Assistant U.S. Attorney Andrew Caputo told the jury today.
“It’s deceptive to go into an evidence locker at night when no one’s there and then lie about it and later shift your story,” he argued.
Prosecutors introduced evidence that 10 evidence packages weighed at the drug analysis unit between October and December 2009 were later found, when reweighed, to be missing 15.2 grams of cocaine, or about half an ounce.
Seven of those packages were originally analyzed by Madden and three were analyzed by her two colleagues in the small laboratory in offices at the former Hungers Point Naval Shipyard.
Although the missing amounts were small, Madden’s actions and other problems at the laboratory led to the temporary closure of the unit and the district attorney’s dismissal of hundreds of criminal cases that depended on evidence from the laboratory.
Madden went on leave and entered an alcohol and drug rehabilitation program in December 2009, and retired permanently in March 2010.
In a separate case, she was convicted in San Mateo County Superior Court in 2011 of possessing 0.09 grams of cocaine found in a 2010 search of her home and was sentenced to undergo drug counseling.
But she was never prosecuted in the state court system in connection with the laboratory pilfering. The California attorney general’s office announced in December 2010 that it would not file any charges against her because of a lack of sufficient evidence.
U.S. prosecutors then stepped in and obtained a grand jury indictment under the federal law, which is sometimes used to prosecute doctors, pharmacists and patients who fraudulently obtain unneeded prescription drugs.
If Madden is convicted, the federal charge carries a maximum possible sentence of four years in prison.
The jury has the option of considering a lesser included offense of simple cocaine possession, which has a maximum sentence of one year.
Defense attorneys have conceded Madden can be convicted of that charge on the basis of the 0.09 grams found in her home in March 2010, wrapped in waxed paper similar to that used for weighing at the lab.
But Illston has instructed the jurors that they cannot proceed to considering the lesser charge unless they first unanimously agree she is not guilty of the heavier charge of obtaining cocaine by deception.
Julia Cheever, Bay City News