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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: 8644
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.
#10. To: Pinguinite (#9)
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.
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.
Replies to Comment # 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.
End Trace Mode for Comment # 9.
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