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Title: 'Tens of Thousands' Wrongly Convicted Based on Unreliable Drug Tests
Source:
Reason
URL Source: https://reason.com/blog/2016/07/11/ ... ousands-wrongly-convicted-base
Published: Jul 11, 2016
Author: Jacob Sullum
Post Date: 2016-07-11 09:36:18 by Deckard
Keywords: None
Views: 8065
Comments: 26
ProPublica reporters Ryan Gabrielson and Topher Sanders estimate that widely used but notoriously unreliable field tests for drugs have led to "tens of thousands" of wrongful convictions in the United States. The tests are not admissible in court, but that does not matter much, since the vast majority of drug cases—90 percent or more—are resolved by plea deals. Gabrielson and Sanders' story, which was published in The New York Times Magazine over the weekend, illustrates that point with the case of a Louisiana woman, Amy Albritton, whose employment prospects were ruined by a felony conviction after Houston police pulled over her car in 2010 and found a white crumb they mistakenly identified as crack cocaine. The test that was used to incriminate Albritton involves dropping a suspected drug sample into a vial of cobalt thiocyanate, which is supposed to turn blue in the presence of cocaine. But as Gabrielson and Sanders note, "cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners." That is not the only cause of false positives: Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question—but if the officer breaks the tubes in the wrong order, that, too, can invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street—flashing police lights, sun glare, street lamps—often prevents officers from making the fine distinctions that could make the difference between an arrest and a release. It is hard to say exactly how common false positives are, although a Las Vegas study found that one out of three samples identified as cocaine was in fact something else. In Florida, Gabrielson and Sanders write, "21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all." Since field tests are widely used and police arrest more than 1 million people for drug possession every year, even a relatively low error rate could lead to thousands of erroneous arrests each year. In their analysis of drug cases in Harris County, Texas (where Albritton was arrested), Gabrielson and Sanders found that 212 people were convicted of possessing a substance that a field test mistakenly identified as an illegal drug between January 2004 and June 2015. "If Albritton's case is one of hundreds in Houston," they write, "there is every reason to suspect that it is just one among thousands of wrongful drug convictions that were based on field tests across the United States." Despite the dubious nature of the evidence against her, Albritton ended up taking a plea deal that involved a 45-day jail sentence after she was told that she otherwise could spend up to two years behind bars. She ultimately spent just three weeks in jail, but that was the least of her punishment. She lost her job as the manager of an apartment complex in Monroe, Louisiana, and her new status as a felon made it impossible to find steady work that paid nearly as well, which in turn made it difficult to care for a son with cerebral palsy. Her whole life was upended by a crumb on the floor of her car that a lab test later found was not any sort of illegal drug. Albritton had no idea she had been exonerated until Gabrielson and Sanders tracked her down and got in touch with her. In addition to the unreliability of field tests, Albritton's case illustrates the power that cops have thanks to excessive judicial faith in drug-sniffing dogs. Police supposedly stopped her car, which her boyfriend was driving, because he had failed to signal a lane change. It turned out the boyfriend did not have a driver's license, but the registration showed Albritton was the car's owner, making her presumptively responsible for any drugs police might find in it. At this point the cops had no justification for searching the car, as became clear when they asked her permission. Albritton consented to the search partly because she knew she was not carrying any drugs but also because one of the officers said that otherwise he would bring in a police dog. The implication was clear: Either he would search the car based on her "consent," or he would search it based on the dog's purported "alert," which like the field test might or might not actually indicate the presence of contraband. One point that Gabrielson and Sanders do not make in their otherwise excellent exposé: It would be utterly absurd and unjust to lock Albritton up and ruin her life even if the speck of material on the floor of her car (which weighed in at less than two-hundredths of a gram) had contained cocaine. But whether or not they have anything to do with illegal drugs, Americans should be alarmed by the the fact that police have the power to stop your car at will, search it at will (assuming they have a dog or use the threat of one to obtain your consent), incriminate you with a test so unreliable that its results cannot be used in court, and railroad you into a felony conviction. A crumb on the floor of your car can make you a felon, even if it's just a crumb.
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Begin Trace Mode for Comment # 12.
#2. To: Deckard (#0)
ProPublica reporters Ryan Gabrielson and Topher Sanders estimate that widely used but notoriously unreliable field tests for drugs have led to "tens of thousands" of wrongful convictions in the United States. The tests are not admissible in court, but that does not matter much, since the vast majority of drug cases—90 percent or more—are resolved by plea deals. Presumptive tests are used to establish probable cause. Nobody has ever been convicted solely as a result of a presumptive drug test. Lots of people have been convicted as a result of a guilty plea. There is no need for the confirmatory test when the defendant pleads guilty, admits the possession, and chooses not to rebut the presumptive test result.
True in legal terms, but apparently not true in practice, as the full write up illustrates. The law and/or legal system in place apparently does not do justice when people are persuaded to plead guilty when they are, in fact, innocent.
The thread "article" is a rehash of the original article which appeared in the New York Times Magazine. The original title "Drug Test Sends Innocent People to Jail" is changed to the more sensational and less true supermarket tabloid styling, "'Tens of Thousands' Wrongly Convicted Based on Unreliable Drug Tests." Neither article mentions the appellate court Opinion handed down on June 22, 2016. Widespread evidence shows that these tests routinely produce false positives. Why are police departmentsand prosecutors across the country still using them? By RYAN GABRIELSON and TOPHER SANDERS The presumptive test must be confirmed unless the accused does not rebut it, as when he/she chooses to plead guilty. Few totally innocent people choose to plead guilty to a felony. A felony carries more than a year in prison. The article fails to mention the syringe that was booked into evidence but later found to have insufficient residue for testing. Incident Report: OFFICER HELMS FOUND THE CRACK ROCK ON THE PASSENGER FRONT SEAT FLOOR BOARD AND TOOK CUSTODY OF THE EVIDENCE. I FOUND THE UNKNOWN POWER (sic) IN THE CENTER CONSUL (sic) AND THE USED NEEDLE HIDDEN IN BETWEEN THE LINING OF THE ROOF ON THE DRIVERS SIDE. OFFICER HELMS TOOK CUSTODY OF ALL THE EVIDENCE AND THEN TAGGED IT INTO SOUTH EAST NARCOTICS. Typically, the plea agreement is not a barter over guilt or innocence, but involves a less than maximum possible sentence in return for eliminating the need for a trial. She could have declined the search, but did not because she knew or suspected that the drug dog would alert on her car. That is the actual implication, not that a phony dog alert would be arranged. It is quite a leap to conclude the cops had no justification for searching the car. The driver had no license. The owner had permitted an unlicensed driver [Anthony Wilson, 11/17/1981, 808 Otis, Monroe, LA] to operate the vehicle. They had sufficient cause to arrest the owner/operator and impound the vehicle. And Officer Nguyen had observed a partially hidden used syringe. And there was the positive presumptive drug test. Albritton and Wilson were arrested on 8/3/2010. Albritton was booked on 8/4/2010 at 3:37:00 AM. She pleaded guilty on 08/05/2010. If she were innocent, her best advice would be to not waive any of her rights, to say nothing beyond that she wants a lawyer, but definitely to say she wants a lawyer. To invoke the Miranda right to counsel, one must make a statement and say so. Remaining silent does not get it done. Albritton did not even wait for the test results. She chose to plead guilty at the first opportunity upon meeting the judge to be charged, less than 48 hours after being arrested. State of Texas v. Amy Albritton, Cause# 127297601010 Amy Albritton appealed. http://law.justia.com/cases/texas/court-of-criminal-appeals/2016/wr-85-184-01.html NO. WR-85,184-01 EX PARTE AMY ALBRITTON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS Per curiam. O P I N I O N Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to forty-five days’ imprisonment in county jail pursuant to TEX. PENAL CODE § 12.44(a). She did not appeal her conviction. Applicant contends, inter alia, that her plea was involuntary because, at the time she entered her open plea of guilty, she was not aware of subsequent laboratory testing that showed she did not possess any illicit narcotics in this case. Based on the record, the trial court determined Applicant’s allegations are true. The trial court also concluded that, because Applicant was not aware of the laboratory results, her plea in this case was unknowing and involuntary. Applicant is entitled to relief. Ex parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). Relief is granted. The judgment in Cause No. 1272976-A in the 183rd District Court of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris County to answer the charges as set out in the indictment. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues. Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and Pardons and Paroles Division. Delivered: June 22, 2016
I strongly disagree for the reason given in my prior post. The prosecutor can offer the defendant a request to the court for leniency in the form of a partially suspended sentence, in return for a guilty plea. Actually the article does indeed mention that. In the mind of the defendant, I think it's more genuine to say that it's a barter of more guilt vs less guilt, if guilt is being measured by the expected jail term. I disagree with the first statement. I mean, sure it could be true, but law abiding people generally don't refuse any request by police in part because they know they are innocent and want to cooperate to get the best treatment, and also because they trust the police. And we are all taught growing up that when you are polite to others, others are polite to you, and that police officers should be respected, and refusing any request is disrespectful. And some cops -- I'm sure not all -- get angry when people refuse to surrender rights. I'm not so sure about the search justification. If they had justification to search, then they had no reason to ask the woman for permission to search it. Though I suppose they would ask for permission just to prevent her from later claiming the search was illegal. The offense of driving without a license is administrative in nature and presents no direct implication of drugs being in the car. Searching the car would in no reasonable way offer the police more evidence of that offense, so why search? For the offense of driving without a license and allowing an unlicensed driver to drive, whether it's arrestable depends on jurisdiction, and the same for seizing the car. I do not believe either of those are generally arrestable, though I'll defer to someone who's honest and knowledgable of exact laws. But I'm pretty confident, at the very least, that allowing someone without a license to drive a car is merely a citable offense and not an arrestable offense. Ditto for seizing the car. If the car is in traffic, it can be towed, but otherwise, again, neither of those offense should result in the car being seized. In the present case, they surely seized it because of the supposed drugs, not the license offense. Though that test is, today, understood to be unreliable. If police know a test is unreliable and arrest anyway, then certainly they can be sued. Agreed. But remaining silent is not an isuse here, and she did, in fact, get a lawyer. A court appointed one that didn't give a crap about her. And that goes back to my earlier points about how innocent people fare worse in the legal system than do experienced lawbreakers. She probably had no idea that the field test was inadmissable in court, and certainly figured that if she went to trial she'd be found guilty. We cannot forget that among the inexperienced, there is a presumption that if you are charged with a crime, you are guilty. Not innocent until proven guilty, Just plain guilty. Albritton merely made decisions that day that she saw as making the best of a bad situation. Now she knows better, but only after suffering all the resulting hardship that she got.
Cite any case where this has been successfully done, on the stated basis that the test is unreliable. A presumptive test is not meant to provide proof beyond a reasonable doubt. This is based on what? For the initial appearance, the only thing anyone wants to know is how does she plead. At that point, nobody wants to hear why she believes she is innocent. If the prosecutor offers a plea agreement, the attorney must inform the client. The client can accept or reject. The attorney must accept the decision of the client. She pleaded guilty in under 48 hours. The attorney saw her, explained her options, and she took the deal. I do not see enough information to determine whether he gave a crap or not.
A lawyer is an advocate. It's someone who is knowledgeable about the laws and the legal system who will go to bat for the accused. It's someone who applies his skills in the most advantageous way for the accused. So yes, there IS one person who should have wanted to hear why she believed she was innocent, and that person is supposed to be this lawyer. Why? Obviously because if she has a very strong reason for believing her innocence, than it would play a role in the decision whether to plead guilty or not guilty. If all a court appointed lawyer is supposed to do is act as a communication liason between the defendant and the prosecutor, then the courts could save a lot of money by instead appointing court approved email accounts through which they can communicate with the prosecutor directly. If she was not informed that pleading guilty would mean a felony conviction following her the rest of her life impacting her ability to get a job and have a reasonable career -- and it seems she did not -- then the lawyer failed to do his job.
She will quickly be brought before a judge for a plea. The judge will not entertain arguments of innocence. He will ascertain a plea of guilty or not guilty. The only available opportunity for going to bat for the defendant at that stage is to try to get a good plea deal from the prosecutor. The defendant's profession of innocence plays no role in explaining the legal alternatives and explaining an offered plea bargain. In this case, he should have explained that she could take 45 days or plead not guilty and possibly do several years, depending on the confirmatory drug test. Her professions that the drugs belonged to the boyfriend speak to her expectation that the presumptive drug test would be confirmed. It was her car. She got arrested because the evidence was found in her car. If the evidence were to be confirmed, she could/would be convicted. If she pleaded not guilty and waited for the confirmatory drug test result, there is no guarantee the 45-day offer would still be there. It does not matter whether the presumptive drugs were hers or not, unless the boyfriend wants to claim them. There is a rebuttable presumption that the stuff in her car is hers. She never heard from the 30-day boyfriend again, so I doubt he was in a volunteering mood. From the "Gabrielson and Sanders' story, which was published in The New York Times Magazine." Her choice was to take 45-days or take a chance on several years, in the belief that the evidence was actually drugs. She jumped at the chance for 45-days. The judge should also have explained her alternatives and had her confirm, on the record, that she understood. Assume she pleaded not guilty. She was from Louisiana and was out of state in Texas. Would she make bail and would she be allowed to leave the state pending trial? What was the probability that the evidence would be confirmed? The attorney does more than act as glorified e-mail. He must explain the legal situation and available alternatives. If an offer is tendered, he has a duty to present it to the client. He can explain what he sees as good or bad, but the client must decide. The attorney should present the legal reality and the actual alternatives. If the confirmatory test came back positive, was her defence viable that she did not know the drugs were in her car, and that the boyfriend must have put them there without her knowledge? Would you have advised her to plead not guilty based on that defence? What other defence would have existed? Assume you believe her claim that she knew nothing about the alleged drugs. She is totally innocent regarding the alleged drugs except that they were found in her car. How do you know her boyfriend of a month did not put the alleged drugs in the car? Would you wager two years of your life betting that the sample will come back negative? That is what had to be explained to Ms. Amy and then it was her choice to make. It was not a question of whether she was innocent, but whether she found the probability of gaining an acquittal was worth turning down the offer of a 45-day sentence. The decision had to be made then, not four years later after the test came back negative. Even if she had never used or possessed illegal drugs in her life, she had no way to know that the samples would test negative. How the heck does it seem like her decision was not informed? She had to know, and certify that she knew, it was a felony that she was pleading guilty to. The attorney tells her what she is pleading to. The plea agreement is specific that it is a felony. If it carries a potential sentence of more than one year, it is a felony. The judge ensures she knows she is pleading guilty to a felony. The Information stated that Amy Albritton "did then and there unlawfully, intentionally and knowingly possess a controlled substance, namely, COCAINE, weighing less than one gram by aggregate weight, including any adulterants and dilutants." Ms. Amy signed a document that stated she was pleading guilty to "the above felony information." I am the defendant in the above felony information. My attorney has explained to me my right to be prosecuted by grand jury indictment, which I hereby waive, and I consent to the filing of the above felony information. APPROVED: s/s illegible DEFENDANT: /s/ Amy Albritton On this day, the defendant and his attorney apeared before me in open court. Having been advised by the court of the right to be prosecuted by indictment, the defendant knowingly and voluntarily waived that right. Done on this _____ day of _____ 20__. Stamp: AUG - 5 2010 V. Velasquez INFORMATION/WAIVER OF INDICTMENT The Attorney Fees Expense Claim indicates a total claim of $125 for one day, with no out-of-court hours. The only attorney date billed was for Thursday, 5 August 2010, the date of the court appearance. Your insinuation that she did not understand she was pleading guilty to a felony is without merit. She had to know it, she had to allocute to it in court, and she had to document it in writing with her signature. It seems evident that she knew there would be consequences, starting with pleading guilty to a drug felony and getting sentenced to jail time.
#13. To: nolu chan (#12)
Nolu, buddy, you don't get it. You do not understand my point. But first...: I challenge you to go ask some random people in your town what they understand about the total penalties of a felony conviction, even if they plead guilty to it instead of fighting it and having a judge or jury convict. Do that and tell me how many of those people already know that, beyond jail time, it means it will be on their record for life adversely impacting their ability to keep or grow a career. I'll bet the number that do will be an extreme minority, and that punishment certainly exceeds that of a 45 day jail sentence. Did anyone explain THAT part of the felony conviction to this woman? But dude.... step back a moment and consider that a woman's life was ... perhaps decimated is too strong a word in all honesty, but she lost a good job and home, and had her middle class life reduced to something close to poverty. All in spite of the fact that she was innocent. Ergo, the legal system FAILED. It FAILED. With a capital F. Okay. It didn't work. Now, by way of analogy, I'm in the software development field. If I write a program for a client and send it to him, and he calls me back and says it doesn't work, then it doesn't work. He will not be interested in my convoluted explanation about how it really does work. If it doesn't help him, then it doesn't work. Period. And I have to come up with a solution so it does work for him. Any time an innocent person is convicted of a crime it is a FAILURE of the legal system. Period. End of story. Okay? The purpose of the legal system is to convict those who are guilty and exhonorate those who are accused but really innocent. For those times it doesn't do that, it's a FAILURE of the legal system to serve the public good. Your convoluted defense of the legal system does not change the fact that an innocent woman had her life ruined by that same legal system. The proof is in the pudding. As for what I would have advised her, go to discovery and force the lab to do the test. Or if they can't do it in 180 days move to dismiss for denial of right to a speedy trial. Once they get the results, if they are negative, she's free. If not, then she has a clean record and can obtain leniency from the court for a first time offense, likely given the tiny amount of suspected cocaine. It is very unlikely she'd not get leniency and a reduced / suspended sentence given there's no evidence she was selling cocaine. Hell, she might have ended up with the same prison sentence, worst case, or time served if they didn't let her out on bail until trial.
Top • Page Up • Full Thread • Page Down • Bottom/Latest [Article] A crumb on the floor of your car can make you a felon, even if it's just a crumb.
#3. To: nolu chan (#2)
There is no need for the confirmatory test when the defendant pleads guilty, admits the possession, and chooses not to rebut the presumptive test result.
#7. To: Pinguinite, GrandIsland (#3)
Drug Test Sends Innocent People to Jail
JULY 7, 2016 EVIDENCE:
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
CAUSE NO. 1272976-A IN THE 183rd DISTRICT COURT
FROM HARRIS COUNTY
#9. To: nolu chan (#7)
Few totally innocent people choose to plead guilty to a felony.
A felony carries more than a year in prison.
The article fails to mention the syringe that was booked into evidence but later found to have insufficient residue for testing.
Typically, the plea agreement is not a barter over guilt or innocence, but involves a less than maximum possible sentence in return for eliminating the need for a trial.
She could have declined the search, but did not because she knew or suspected that the drug dog would alert on her car. That is the actual implication, not that a phony dog alert would be arranged.
It is quite a leap to conclude the cops had no justification for searching the car. The driver had no license. The owner had permitted an unlicensed driver [Anthony Wilson, 11/17/1981, 808 Otis, Monroe, LA] to operate the vehicle.
They had sufficient cause to arrest the owner/operator and impound the vehicle.
And Officer Nguyen had observed a partially hidden used syringe. And there was the positive presumptive drug test.
If she were innocent, her best advice would be to not waive any of her rights, to say nothing beyond that she wants a lawyer, but definitely to say she wants a lawyer. To invoke the Miranda right to counsel, one must make a statement and say so. Remaining silent does not get it done.
Albritton did not even wait for the test results. She chose to plead guilty at the first opportunity upon meeting the judge to be charged, less than 48 hours after being arrested.
#10. To: Pinguinite (#9)
Though that test is, today, understood to be unreliable. If police know a test is unreliable and arrest anyway, then certainly they can be sued.
A court appointed one that didn't give a crap about her.
#11. To: nolu chan (#10)
For the initial appearance, the only thing anyone wants to know is how does she plead. At that point, nobody wants to hear why she believes she is innocent.
If the prosecutor offers a plea agreement, the attorney must inform the client. The client can accept or reject. The attorney must accept the decision of the client.
The attorney saw her, explained her options, and she took the deal. I do not see enough information to determine whether he gave a crap or not.
#12. To: Pinguinite (#11)
As Nguyen and Helms continued the search, tensions grew. Albritton, shouting over the sound of traffic, tried to explain that they had the wrong idea — at least about her. She had been dating Wilson for only a month; she implored him to admit that if there were drugs, they were his alone. Wilson just shook his head, Albritton now recalls. Fear surging, she shouted that there weren’t any drugs in her car even as she insisted that she didn’t know that Wilson had brought drugs.
WAIVER OF INDICTMENT
The "Judgment of Conviction by Court—Waiver of Jury Trial" lists the degree of offense as "STATE JAIL FELONY-sec 12.44(a) PC." This document also contains the following: "APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED."
ATTORNEY FOR DEFENDANT
JUDGE PRESIDING
Replies to Comment # 12. Your insinuation that she did not understand she was pleading guilty to a felony is without merit. She had to know it, she had to allocute to it in court, and she had to document it in writing with her signature.
End Trace Mode for Comment # 12.
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