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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: 8060
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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#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.
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.
It appears you are living in a dream world. I don't know anyone who does not know that pleading guilty to a cocaine drug felony has consequences. With the problem remaining that you did not say the legal system failed, you said the defense counsel didn't do his job. No, I defended the defense counsel from a baseless charge. I made no defense of the legal system. I did offer some of the realities of it. If you are going to dream, dream big. It was Texas. She was charged with a state jail felony. A trial conviction carries a 180-day minimum. https://www.versustexas.com/criminal/realities-speedy-trial/ By Benson Varghese [excerpt] A “Presumptively Prejudicial” Delay In assessing whether a defendant has been deprived of his speedy trial right, there must first exist a delay that is “presumptively prejudicial.” There is no set time frame that triggers the presumption, but a delay approaching one year is sufficient to trigger a speedy trial inquiry. Orand v. State, 254 S.W.3d 560 (Tex. App. Fort Worth 2008). Once it has been determined there is a presumptively prejudicial delay, the court will use the Barker Balancing Test to assess whether the defendant was deprived of his speedy trial right, and thus entitled to a dismissal. At the link is a list of 14 Texas cases that denied claims of speedy trial violations for delays from 13 months to 8 years. It lists 5 Texas cases that upheld claims of speedy trial violations for delays from 2 years 3 months to 6 years. If you just want to set a Texas record, you should shoot for 2 years. The only remedy for a finding of a violation of the right to a speedy trial is a dismissal of the charges. Unless it is a state with a statute that specifies a shorter time (definitely not Texas), you should wait about eight months to a year before they will take your speedy trial motion seriously. Inform your client what the law in Texas actually says, not what you think it ought to say. You may be 100% correct that the law should say something else. Feel free to tell your client that you disagree with the law as it is. Then tell her what she actually needs to know, and what you are required to tell her. Turning down the 45-day offer is great if she has a firm belief that the test will come back negative. Her statements made clear that she held no such belief. Her immediate reaction was to point at the boyfriend. Waiting for a test result that the client believes will be positive, and planning to ask the judge to waive the 180-day minimum required by law is not much of a plan. If the test came back positive, visit her often and give her pep talks. The situation was explained to Albritton and she chose to take the 45-day jail sentence and waive any appeal. She got buyer's remorse after the test results came back. As long as her attorney explained it to her and gave her a fair assessment under the actual laws of Texas, there is no reason to say he did not do his job. He has to work within the system he and his client are stuck with.
An innocent woman got saddled with a felony conviction. Ergo. The system FAILED. Period. End of Story.
Ergo. The system FAILED. Period. End of Story. When the facts are against you, pound on the law. When the law is against you pound on the facts. When both the facts and the law are against you, pound on the lectern. Harummph, that's all there is to be said, I don't want to talk about it anymore. A woman voluntarily entered into a plea agreement to avoid the very real probability of a very worse result had she proceeded to trial. You tried to blame an imaginary system failure on the defense counsel and that effort fell flat as the defense counsel has very little authority in the matter. Indeed, your fallback position is to not identify any failure in the system but to claim the woman was innocent and conclude the system failed. You fail to see that the system worked exactly as it has been designed and is intended to work. That may explain your frustration in attempting to identify the person responsible for the alleged failure. I did not just endorse the system, but I will not say it failed when it worked as designed. It is designed to impel the vast majority of defendants to waive trial and plead guilty. Moreover, as you cannot identify the failure, you cannot offer any rational proposal for a solution. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. Try doing away with the plea system and you will need to multiply by many times the number of judges and court facilities. Disposition of charges after plea discussions is not only an essential part of the process, but a highly desirable part for many reasons, not least being that it leads to prompt and largely final disposition of most criminal cases. Severe minimum sentences serve the deliberate, recognized purpose to encourage plea agreements rather than risk a trial one may lose. That an innocent person may be induced to plead guilty is a recognized factor, rather like collateral damage. You may now deal with the fact that the system did not fail, it worked. The U.S. Supreme Court found in Bordenkircher v. Hayes, 434 U.S. 357 (1978): Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U. S. 63, 431 U. S. 71. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U. S. 742, 397 U. S. 758, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U. S. 238, 395 U. S. 242, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U. S. 257, 404 U. S. 262. [...] Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra at 397 U. S. 752. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S. at 397 U. S. 758. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App.Draft 1968); Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. Brady v. United States, supra, at 397 U. S. 751; North Carolina v. Alford, 400 U. S. 25. While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable" -- and permissible -- "attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, at 412 U. S. 31. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty. It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had, in fact, been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion. Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not, in itself, a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U. S. 448, 368 U. S. 456. To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion, may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S. at 431 U. S. 76. There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse. And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment. See also United States v. Ruiz, 536 U.S. 622 (2002): In this case we primarily consider whether the Fifth and Sixth Amendments require federal prosecutors, before entering into a binding plea agreement with a criminal defendant, to disclose "impeachment information relating to any informants or other witnesses." App. to Pet. for Cert. 46a. We hold that the Constitution does not require that disclosure. Re increased sentencing for those who avail themselves of their right to trial and lose, see United States v. Rodriguez, 162 F.3d 135 (1st Cir. 1998) Defendants Rosario and Famania argue that they should be resentenced because their sentences were significantly higher than those of their co-conspirators who pled guilty rather than choosing to go to trial. They claim that the disparity in sentencing constituted an impermissible burden on their Sixth Amendment right to a jury trial and violated the Due Process and Equal Protection Clauses of the Constitution. The government indicted six defendants, charging all of them with engaging in the same conspiracy to distribute crack cocaine. The district court found this conspiracy accountable for the distribution of approximately 5,000 grams of crack cocaine over a 36-week period. At sentencing, the court held Rosario and Famania accountable for all 5,000 grams of the crack cocaine. In contrast, the district court accepted the agreement of the three defendants who had pled guilty--Carvajal, De Jess, and Villafane--which was based on responsibility only for the amount of drugs which each had personally handled. Carvajal, for example, was held accountable for 5 to 20 grams of crack cocaine. This disparity in the drug-quantity attribution led to an even more striking disparity in sentencing, which is the subject of the defendants' complaint. Carvajal was sentenced to the time he had already served, De Jess to 17 months of imprisonment, and Villafane to 60 months of imprisonment. Famania was sentenced to 235 months of imprisonment, and Rosario to 262 months of imprisonment. Rodriguez, who was also charged with engaging in a continuing criminal enterprise, was sentenced to life imprisonment. [...] We begin, as we must, with the government's jurisdictional objection. It is settled that "we have no appellate jurisdiction to review a sentence within the applicable sentencing guidelines range if that range was correctly determined." United States v. Panet-Collazo, 960 F.2d 256, 261 (1st Cir. 1992). The defendants' argument is focused on the argued unconstitutional effects of the practices that led to the imposition of such disparate sentences. They do not say that their sentences were improperly calculated. Instead, they claim that the pleabargaining practice of the U.S. Attorney's Office puts undue pressure on defendants, such as Rosario and Famania, to waive their right to a trial and violates Due Process and Equal Protection principles. Because there is no jurisdictional barrier to such an argument, we evaluate the defendants' argument. [...] The fact that those who plead generally receive more lenient treatment, or at least a government recommendation of more lenient treatment than co-defendants who go to trial, does not in and of itself constitute an unconstitutional burden on one's right to go to trial and prove its case. See Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978) (noting that every burden on the exercise of a constitutional right is not invalid and that there is no per se rule against encouraging guilty pleas, even where those pleas promise the certainty of a lesser penalty). To be sure, the differential which resulted here exacts a high price from those who exercise their constitutional right to trial, but the price is not high enough to constitute a constitutional violation. Severe sentences after trial are the norm. This is a serious impetus for defendants to accept plea agreements and sign away constitutional and appeal rights. Arnold Enker, Perspectives on Plea Bargaining, within Task Force Report: The Courts, Task Force on Admnistration of Justice, The President's Commission on Law Enforcement and Administration of Justice (1971) Thus far we have examined plea bargaining from the impersonal perspective of the "system." Some additional perspective can be gained by viewing the practice from the defendant's point of view. A prominent defense lawyer has put it thusly: The negotiated plea is a way by which prosecutors can make value judgments. They can take some of the inhumanity out of the law in certain situations. . . And, further: Viewed from this perspective, the negotiated plea is not solely a corrupting inducement offered defendants to waive their constitutional rights but is also a device by which defendants and their counsel can manipulate an imperfect system to mitigate its harshness and excesses. It is all too easy to assert that "there is no such thing as a beneficial sentence for an innocent defendant." There is also no such thing as a beneficial conviction for an innocent man. But innocent men may be convicted at trial as well. The possibility that innocent defendants might be induced to plead guilty in order to avoid the possibility of a harsh sentence should they be convicted after trial is obviously cause for concern. Because of the emotional potential of this problem, it is easy to overstate. The truth is that we just do not know how common such a situation is. Indeed, this may be the very vice of the current system of plea negotiation. Because of the invisible, negotiated, consensual nature of the handling of the case in terms which avoid exploration of those factors deemed relevant by the law, we do not really know whether there is in fact cause for concern or not. It is this very uncertainty about such serious consequences that creates uneasiness. Still, perhaps the problem can be put in a better perspective. In the first place, trials, too, may not always result in truthful or accurate verdicts. It is interesting to note that disposition by trial and by negotiated plea are similar in that in neither instance do we have any relatively accurate idea of the incidence of mistaken judgments. On one level, then, the significant question is not how many innocent people are induced to plead guilty but is there a significant likelihood that innocent people who would be (or have a fair chance of being) acquitted at trial might be induced to plead guilty? Further, concern over the possibility that a negotiated plea can result in an erroneous judgment of conviction assumes a frame of reference by which the accuracy of the judgment is to be evaluated. It assumes an objective truth existing in a realm of objective historical fact which it is the sole function of our process to discover. Some, but by no means all, criminal cases fit this image. For example, this is a relatively accurate description of the issues at stake in a case in which the defendant asserts a defense of mistaken identity. If all other issues were eliminated from the case, there would still exist a world of objective historical fact in which the accused did or did not perpetrate the act at issue. And if he did not, a negotiated guilty plea would represent an erroneous judgment. In this instance, then, the issue suggested is the comparative likelihood of such erroneous decisions as between trial and negotiation. But not all criminal cases fit the above picture. The conventional dichotomy between adjudication and disposition in which the adjudication process is thought of as one of fact determination tends to obscure the non-factual aspect of much of the adjudication process. Much criminal adjudication concerns the passing of value judgments on the accused's conduct as is obvious where negligence, recklessness, reasonable apprehension of attack, use of unnecessary force, and the like are at issue. Although intent is thought of as a question of fact, it too can represent a judgment of degrees of fault, for example, in cases where the issue is whether the defendants entertained intent to defraud or intent to kill. In many of these cases, objective truth is more ambiguous, if it exists at all. Such truth exists only as it emerges from the fact-determining process, and accuracy in this context really means relative equality of results as between defendants similarly situated and relative congruence between the formal verdict and our understanding of society's less formally expressed evaluation of such conduct. The negotiated plea can, then, be an accurate process in this sense. So long as the judgment of experienced counsel as to the likely jury result is the key element entering into the bargain, substantial congruence is likely to result. Once we recognize that what lends rationality to the factfinding process in these instances lies not in an attempt to discover objective truth but in the devising of a process to express intelligent judgment, there is no inherent reason why plea negotiation need be regarded any the less rational or intelligent in its results. Indeed, it may be that in some instances plea negotiation leads to more "intelligent" results. A jury can be left with the extreme alternatives of guilty of a crime of the highest degree or not guilty of any crime, with no room for any intermediate judgment. And this is likely to occur in just those cases where an intermediate judgment is the fairest and most "accurate" (or most congruent). Clearly, the line between responsibility and irresponsibility due to insanity is not as sharp as the alternatives posed to a jury would suggest. It may be that such a dividing line exists in some world of objective reality and that the ambiguity arises from the difficulties of accurate factfinding. It is more realistic, however, to view responsibility as a matter of degree at best only roughly expressed in the law's categories of first and second degree murder, manslaughter, etc. The very visibility of the trial process may be one factor that prevents us from offering the jury this compromise in order to preserve the symbolism of uniform rules evenly applied. The low visibility of the negotiated plea allows this compromise which may be more rational and congruent than the result we are likely to arrive at after a trial. While the desire to protect the symbolism of legality and the concern over lay compromises may warrant limiting the jury to extreme alternative, it does not follow that to allow the defendant to choose such a compromise is an irrational or even a less rational procedure. There is, moreover, a significant difference between conviction upon trial and by consent that merits further consideration; that relates to the role of defense counsel. Despite defense counsel's best efforts, his innocent client may be convicted at trial. But he cannot be convicted on a plea of guilty without defense counsel's participation and consent. Defendant's consent is also necessary for a guilty plea, but that provides less of an independent check on inaccurate pleas since defendant's prime interest is in minimizing unpleasant consequences. Counsel, on the other hand, as an officer of the court, has a duty to preserve the integrity of the process as well. When the system operates as it is supposed to, defense counsel's control over the plea affords added assurance that the plea is accurate. We are safe in assuming that the system still works less than ideally. Waiver of counsel is still common in guilty plea cases, and even when the defendant is formally represented, his representation is often perfunctory. But Professor Newman also reports increased inquiry into the factual basis for guilty pleas in all three States studied. This suggests that judges accepting such pleas, if alert to the problem, can exercise greater control by refusing to accept waivers and by careful selection of assigned counsel, particularly in those cases in which some lingering doubt as to the defendant's guilt remains. There is, however, another side to the participation of counsel in the guilty plea. Even counsel may see the occasional practical wisdom of pleading an innocent man guilty. Sworn to uphold the law and at the same time to serve his client's best interests, counsel may be faced with an insoluble human and professional conflict. While such a compromise may serve the defendant's interest in making the best of a bad situation, it can never serve the lawyer's interest in protecting his professional integrity and self-image. At present we have no idea of the extent of this role conflict and its consequences to the profession. Thus far I have suggested that for those cases in which the key determinant of the plea bargain is experienced counsel's assessment of the chances of conviction, plea bargaining is not likely to impair the accuracy of the guilt determining process. This assumption, of course, does not always prevail. Additional factors may enter into the bargain. Probably the most significant factor is the possibility that the defendant may be convicted of a crime which carries a mandatory nonsuspendible sentence. Where the sentencing judge retains complete discretion in the imposition of sentence, defense counsel is under less pressure to negotiate a plea and is under little pressure to give up a triable defense. If the defense has sufficient merit so that some doubt may linger even after conviction, there may be a fair chance that such doubt will be reflected in the judge's sentence. Because of the rules relating to cross-examination of a defendant, defense counsel are usually of the view that a defendant ordinarily stands little chance of acquittal unless he has a relatively unblemished background. Where sentencing discretion prevails, such a, background is likely to result in a light sentence upon conviction. Under such circumstances, a plea bargain has the effect of changing a substantial probability of leniency to a certainty, hardly a sufficient inducement for a man to plead guilty to a crime he has not committed. This becomes even more certain in the case of the defendant with an unblemished background, where the conviction is probably more damaging than any sentence he is likely to receive. The removal of sentencing discretion by the enactment of mandatory sentences alters the picture completely. Once the defendant has been convicted, lingering doubts as to guilt and the defendant's exemplary prior life can no longer be considered. Under such circumstances, the defendant may be forced to give up a fair chance of acquittal by pleading guilty to a different, usually a lesser, charge upon which the judge can impose a more lenient sentence. The impact of legislatively mandated sentences on plea negotiations was suggested some time ago by prominent writers. Professor Newman's book reports that there was a far greater incidence of bargaining and charge reduction in Michigan, which has legislatively mandated sentences for certain crimes, and in Kansas, whose statutes do not permit the sentencing judge to impose probation as an alternative to a prison term for some crimes, than in Wisconsin, where the legislative sentencing structure leaves judges considerably greater discretion. An additional extraneous factor influencing counsel's judgment was suggested above, namely, the fear of conviction of a crime carrying a label suggesting abnormality or perversion, and even the fear of going to trial in such a case with its ensuing publicity. Mandatory minimum sentences can be eliminated; adverse publicity of this sort probably cannot. It is difficult to say with confidence that an innocent defendant's plea of guilty ti disorderly conduct in such a case is never in the defendant's best interest if he is innocent. It is presumably not in the best interests of the criminal process, but I would hesitate to insist to a client that he owes the system a duty to defend himself and besmirch his family and reputation. In any event, we can encourage greater judicial sensitivity to this problem and closer judicial supervision of the plea in such cases. New Rule 11 of the Federal Rules of Criminal Procedure and the practice in some courts of holding postpiea hearings or investigations to develop the facts relating to the offense provide methods for such control. The discussion in this section has not been designed to suggest that there is no reason for concern over the possibility that innocent persons might be induced to plead guilty by a system of plea negotiations. Rather, my purpose has been to place the problem in what appears to me to be its proper perspective, to demonstrate that there is nothing inherent in such a system that would increase the risks of inaccuracy beyond those present in adjudication by trial, to suggest that plea negotiation has possibilities for more intelligent and more humane disposition of many cases than are available in trial disposition, and to indicate that the problem is not beyond effective judicial control. And what of Albritton's waiver of her right to appeal? The Federal Rules bless this type of waiver. https://www.law.cornell.edu/rules/frcrmp/rule_11 [...] (b) Considering and Accepting a Guilty or Nolo Contendere Plea. (1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following: [...] (N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; Texas bakes in into plea agreements. http://www.texasappellateprocedurerules.com/section2.html (2) Of the Defendant. A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal each time it enters a judgment of guilt or other appealable order. In a plea bargain case – that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant – a defendant may appeal only: (B) after getting the trial court's permission to appeal. In Albritton's case, she must get permission from the trial court in order to file an appeal.
#17. To: nolu chan (#16)
How I remember this so well. In Albritton's case, she must get permission from the trial court in order to file an appeal. In the federal courts only Final Orders are appealable. In cases where such a case is tried in "piece-meal", what usually happens is some parties are dismissed in the case leaving others still at issue. When the injured party tries to appeal from a matter that is not final, the appellate courts will tell them they have no jurisdiction to hear the appeal as the Notice of Appeal from the party appealing from the district court decision was an interlocutary order or judgment and is not appealable.
When the facts are against you, pound on the law. When the law is against you pound on the facts. When both the facts and the law are against you, pound on the lectern. I'll pound on this fact and this fact is very clear. You can pour out all kinds of arguments about how it wasn't the system's fault. But it won't change the fact that the system failed to dispense justice in this case. I can understand that such a bitter pill is hard for you to swallow as you seem to regard the legal system with something akin to religious piety. But the cold shower lesson is this: The system failed this woman. Period.
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
#13. To: nolu chan (#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.
#14. To: Pinguinite (#13)
the legal system FAILED. It FAILED. With a capital F. Okay. It didn't work.
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.
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.
A state jail felony is punishable by confinement in a state jail for any term of not more than 2 years or less than 180 days and by a fine not to exceed $10,000.
Realities of the Right to a Speedy Trial
Posted November 10, 2015 In Criminal
#15. To: nolu chan (#14)
#16. To: Pinguinite (#15)
An innocent woman got saddled with a felony conviction.
We have recently had occasion to observe:
"Whatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system.
JUSTICE BREYER delivered the opinion of the Court.
C. Disparate Sentencing/Prosecutorial Discretion Claim
III. THE RISK THAT INNOCENT DEFENDANTS MAY PLEAD GUILTY
These plea bargains perform a useful function. We have to remember that our sentencing laws are for the most part savage, archaic, and make very little sense. The penalties they set are frequently far too tough. . . .
If a man is guilty, and the prosecution has a good case, there is little satisfaction to the lawyer or his client in trying conclusions, and getting the maximum punishment. A great deal of good can be done in the plodding everyday routine of the defense lawyer, by mitigating punishment in this manner. Anyone who has ever spent a day in a prison and . experienced, even vicariously, the indignity and suffering that incarceration entails realizes full well that the difference between a three-year sentence and a five-year sentence is tremendous, not only for the wrongdoer who is being punished, but for the innocent members of his family who love him, and who suffer humiliation and worse while he is away. This is something that the criminal lawyer can rightfully and usefully do for the "guilty" man. In this regard, the criminal lawyer is daily fulfilling a useful function in our society.
Rule 11. Pleas
25.2. Criminal Cases
(a) Rights to Appeal.
(1) Of the State. The State is entitled to appeal a court's order in a criminal case as provided by Code of Criminal Procedure article 44.01
(A) those matters that were raised by a written motion filed and ruled on before trial, or
Replies to Comment # 16. When the facts are against you, pound on the law. When the law is against you pound on the facts. When both the facts and the law are against you, pound on the lectern.
#18. To: nolu chan (#16)
She was innocent of the crime she was accused of committing, and for which she received a felony conviction.
End Trace Mode for Comment # 16.
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