Rape charges dropped against ex-Montco GOP chairman Robert Kerns

Former Montgomery County GOP Chair. Bob Kerns arrives at District Justices’ Sobeck’s court for arraignment on rape and other related charges Tuesday November 26, 2013. Photo by Gene Walsh/21st Century Media

(Updated 9:33 a.m.) NORRISTOWN — Sexual assault charges filed against former Montgomery County Republican Party Chairman Robert Kerns were dropped Monday because of a misinterpretation of a toxicology report that was a key piece of evidence for the prosecution.

The charges, which stemmed from the alleged drugging and rape of a female co-worker after an office party last October, were dropped without prejudice, which means charges can be filed again.

Montgomery County First Assistant District Attorney Kevin Steele handled the case in court Monday in front of Chester County Senior Judge Thomas Gavin.

Steele told the court that after learning that a lab report actually indicated there was no trace of the sleep aid drug Ambien in the victim’s blood, the district attorney’s office decided to drop the charges.

“I’m greatly relieved that we were able to discover this mistake and end this nightmare for Bob and his family,” defense attorney Brian McMonagle said after the hearing.

He credited the district attorney for moving quickly to end the prosecution and terminate the proceedings.

“I’m confident that this was an honest mistake made by the district attorney’s office and upon learning of it, they did the right thing and put an end to this horrible nightmare,” McMonagle said.

Kerns, 67, a prominent attorney in Montgomery County, made the following statement after the hearing: “I want to thank my attorney, Brian McMonagle, who did an incredibly good job. And also I’d like to thank my family and my friends who stood with me in this.”

McMonagle explained that after the preliminary hearing, he retained two toxicologists. He said the first toxicologist looked at the toxicology report and found no Ambien or any other drugs in the victim’s urine samples. McMonagle said the second toxicologist later confirmed the findings of the first.

“I notified the district attorney’s office of our findings and immediately, D.A. Ferman took steps to re-investigate the matter and confirm that in fact a mistake had been made,” McMonagle said.

According to the Commonwealth’s petition for Nolle Prosequi, the lab report from Quest Diagnostics had “Zolpidem” (more commonly known as Ambien) as “<5,” or less than five. The “less than five” was read as more than zero by prosecutors.

“It is not surprising that the Quest Diagnostics’ findings would have been interpreted by individuals unfamiliar with this reporting format to mean that the findings with a ‘<’ symbol in front of them represent positive findings. This improper interpretation would make even more sense since other results on the report were listed as ‘none detected,’” Dr. Robert Middleberg, the director for National Medical Services, wrote in a March 6 report to the district attorney’s office.

“The misinterpreted evidence was intertwined with the original charges and relied upon by the Grand Jury and Magisterial District Judge,” the petition states.

Montgomery County District Attorney Risa Ferman said she referred the case to the Pennsylvania Attorney General’s office on Friday because of a conflict of interest if she decided to pursue the charges again. She later said the Attorney General’s office approved the referral and would be re-examining the case to see if charges would be pursued.

She stated Dr. Middleberg confirmed that the manner in which the lab report was written was likely to lead someone to believe there was a positive trace in the sample when in fact there was not.

“Certainly that is not an excuse. The fact that it happened led me to conclude that something had to be done. In reviewing the case in terms of where we were at that point, it became crystal clear to me that there were no other options in the interest of justice but to nolle prosse the charges,” Ferman said.

Nolle prosse means that the prosecutor has chosen to cease prosecution.

Ferman declined to comment on the strength of the case without the toxicology report. She said it would be improper. However, in the nolle prosequi paperwork, the district attorney’s office states, “while there was and remains ample probable cause to support Kerns’ arrest, the mistake made by investigators in the interpretation of the Quest Diagnostics lab report has led to the necessity to nolle prosequi the criminal charges against Kerns as they currently stand.”

Ferman said Quest Diagnostics is not the lab the county usually sends evidence to and this wasn’t a case where they had evidence to send out. She said the victim went to the hospital and the hospital sent the urine and blood samples to Quest.

Ferman also announced she will be taking steps to see this does not happen again.

“We’re going to look at everything. We’re going to look at every step of the way, how this happened. We’re going to look to see what we can do to be sure nothing like this ever happens again. We’ll address the individuals who made the mistake. I think one of the important parts of this is we received a lab report that was ambiguous and I would say misleading on its face. I would like to take steps within that community to ensure that when lab reports are issued there is clarity to them,” Ferman said.

“As this developed, I can understand what happened and why it happened but it’s not acceptable and so I think it is incumbent upon us here in the office, as the leadership in the office to put systems in place to prevent this sort of thing from, in any fashion, happen again,” Ferman said.

Ferman said she will be putting a system with more robust checks and balances in place in the Montgomery County District Attorney’s office. She also said she will be looking at any reports the county has received from Quest Diagnostics to see if there have been other misinterpretations in reports.

“There is no reason to believe any similar situation exists but I think it’s important that we look at everything. So to the extent that we can identify any cases where we have received lab work from them, we will look at them to ensure that nothing like this has happened in the past,” Ferman said.

She stated that anyone who feels they have been involved with a case with a misinterpreted reading of a toxicology report to contact the District Attorney’s office.

Ferman said the victim has been notified and members of her staff have been keeping the victim updated since the situation unfolded roughly two weeks ago.

Kerns of Upper Gwynedd was facing charges of rape and sexual assault stemming from a situation on Oct. 25, 2013, in which he allegedly drugged and sexually assaulted a female co-worker while she was unconscious after an office party.

Kerns maintained all along that he was innocent. Kerns resigned from his post as the chairman of the Montgomery County Republican Party soon after it became public that he was under investigation.

EARLIER VERSION OF THIS STORY

NORRISTOWN — The alleged rape case against former Montgomery County Republican chairman Robert Kerns has been dropped.

Kerns, 66, of North Wales, entered a not guilty plea concerning charges he raped a former employee of his law firm in on Jan. 29.

He was accused of the assault after an alleged incident occurred in October 2013 after a GOP dinner.

Montgomery County prosecutors decided to drop the charges after a pretrial hearing Monday in county court.