Monday, April 21, 2014

Crime lab delays, plea mill culture contribute to drug-war innocence cases

The Court of Criminal Appeals last week granted habeas corpus relief in yet another actual innocence case in which a man named Geary Wilkins from Harris County pled guilty to drug possession only to have a crime lab later find "that the substance Applicant possessed contained no controlled substances." In a report in Sunday's Austin Statesman ("Lab delays create Texas' unknown exonerees") Eric Dexheimer reported on finding 21 such cases in recent years, including Wilkins. In those cases:
After the 14 men and seven women were arrested and charged — typically with possessing a small amount of drugs, many mere dustings — samples of the confiscated substances were sent to public labs for conclusive identification. Before the results came back, however, the defendants pleaded guilty, usually within days, and began serving their jail or prison sentences.

Because of lab backups or delays, the test results declaring them innocent didn’t arrive until months or, in a handful of cases, years later. ...
Prosecutors say there are almost certainly more examples, although no one is keeping close count. (The University of Michigan Law School maintains a nationwide exoneree registry, but it is incomplete.) Though the false-positive drug cases date to 2005, their incidence has accelerated, with 14 of the wrongly convicted earning exonerations within the past two years.
Notably, "Thirteen of the cases identified by the newspaper were handled by the Houston Police Department’s crime lab," Dexheimer reported, while "Eight of the cases used forensic testing facilities operated by the state Department of Public Safety." Though labs are understaffed and wait times can be long - in some of these cases lab results didn't come back for two, four, or even six years, that's not the only driver of this phenomenon. Wrote Dexheimer:
Critics say it would be simplistic to lay the blame entirely on an overburdened forensic testing system. Defense lawyers complain that police share responsibility for making crimes out of inconsequential drug busts. More than half of the defendants identified by the newspaper were charged with possession of barely a gram — the size of a quarter of a teaspoon of sugar — or less of what were thought to be illegal drugs.
Some of these cases involved people arrested for trace amounts scraped from paraphernalia, and in one case a woman was arrested because police thought white crumbs on her face were cocaine. In some cases defendants thought they were guilty and in others, they plead out to avoid spending more time incarcerated, particularly in lower level state-jail cases. Defendants are under tremendous additional pressure to plead out when they're sitting in jail pretrial - particularly if labs may take months or years to come back with results. Wrote Dexheimer:
“If you can get out on a (personal recognizance) bond, then I recommend waiting until the lab results come back,” said his attorney, Ben Sullivant. “But if he’s in jail and can’t get out and it’s a matter of waiting months for the lab, a lot of people are going to want to get out.” ...

Pressure from lawyers on both sides can also push cases to a plea bargain before evidence is returned. More than 98 percent of felony drug possession cases settle before trial, according to the state’s Office of Court Administration, thanks to such deals. Without them, the court system would become swamped and grind to a halt.
Prosecutors have a legal incentive to move what appear to be open-and-shut cases along quickly. When a defendant is held in jail, state law requires that cases be presented to a grand jury for indictment within 90 days. Most prosecutors prefer not to do that without a lab report.

“We encourage people to plead by giving them pretty good deals on the front end,” said Montgomery County’s [Assistant District Attorney Phil] Grant.

Yet that encouragement can veer into coercion. In November 2011, Brunner, who’d left the district attorney’s office for private practice (he became a prosecutor again in 2012), wrote a letter to the Round Rock Leader noting what he today describes as the former DA’s “bullying” tactics.

“It is common practice that many of those felony plea bargains are given to defense counsel and their clients on a ‘one-day only’ basis — meaning take it today, or the deal gets worse,” he wrote. “And that ‘today’ is often the first day the attorney and client have ever been in court … with the veiled warning that if a deal is not speedily taken, the stakes for the client could get much worse.”

The result: “They are made to choose between a plea bargain right now, when I have not had a chance to fully evaluate their case, or suffer a worse bargain later, after I have had the chance to do my ethical best to collect all the evidence in the state’s hands.”

On the other side, defense attorneys — often harried public defenders catching small-time drug offenses — are tempted to accept the deals quickly. “Sometimes, the earlier offers are the best you’re going to get, so you grab it before it gets to the grand jury,” said Cynthia Cline, who negotiated Rosa Sade Bates’ guilty plea in Harris County, 10 months before her drug test came back negative.
There's a lot going on here. (In March we had a good discussion of many of these issues with Shannon Edmonds of the state prosecutors' association in the comments to this Grits post.) While much of the blame may be rightly placed on underfunded crime labs which can't process so many drug cases, and no doubt some of these defendants may have thought they possessed drugs, IMO the main culprit is the plea mill system through which low-level drug cases are processed. The system simply is not resourced - either the labs, indigent counsel, or the courts - to process the massive volume of drug war cases it's currently required to handle in a way that rigorously vets for innocence or protects defendants' rights.

The Dallas "sheetrock scandal" in 2001 was the most prominent Texas example of multiple defendants being convicted via plea deals even though the drug evidence was never tested and turned out to be fake. In that case, nearly two dozen defendants pled guilty faced with absurdly long sentences for possession of large amounts of cocaine that turned out to be fake drugs used by corrupt cops and paid confidential informants to intentionally set up innocent people. While Dexheimer found no overt police corruption in the 21 cases examined by the Statesman, the same pressures described above contributed to that high-profile fiasco.

There are a few potential legislative fixes that might help. For starters, as a number of Harris County judges have long advocated - these less-than-a-gram drug cases shouldn't be felonies, anyway. They clog up the courts and contribute little to public safety. But if they're going to be felonies, perhaps the Lege should require that plea deals not be finalized until lab results come back. Indeed, if lab results take longer than a couple of months on low-level drug cases, the courts should be required to release defendants on personal bond. The urgency to plea these cases out before all the evidence is in stems mainly from the fact that defendants are sitting in jail for months on end pretrial waiting for the evidence to wend its way through the crime lab backlog.

If the state's not going to adequately fund crime labs - and they've massively expanded crime lab capacity in recent years without getting a handle on the problem - then they need to look to relieve pressure on the system in other ways. These 21 cases are symptoms of a much more pernicious disease - drug war overreach. If Texas wants to prosecute the drug war at the levels we do today, it must pay for sufficient resources to handle the volume. At the moment, not just in these innocence cases but generally, the state's drug-war reach exceeds its grasp.

MORE: Dexheimer followed up on this story with a blog post on the Geary Wilkins case.


John David Galt said...

The really disturbing part of this story is not the performance of the testing labs (at least they got the right answer, even if too slowly) but the fact that all those innocent defendants found it necessary to plead guilty. For that to happen, the prosecutors must have been able to threaten them with way-out-of-proportion punishments.

The only right answer is to ban all plea bargains and require a trial for every single case. (The fact that it's expensive is a feature, not a bug, since it may be the only thing that slows down the trend of overcriminalizing all sorts of behavior.)

Any system that sends people to prison "like an assembly line" is not justice.

Anonymous said...

For starters, as a number of Harris County judges have long advocated - these less-than-a-gram drug cases shouldn't be felonies, anyway.

well then, they should PR them out until the results come back. Judges using bonds, pre-trial incarceration, and the revolving door to bring defendants back for needless settings are the primary drivers of the plea mill in Harris County. They are all 100% within the discretion of the judges to change. But they are ruled by disposition numbers, so they won't.

The only right answer is to ban all plea bargains and require a trial for every single case.



Gritsforbreakfast said...

Rage, I agree on both counts.

Anonymous said...

Why couldn't LE shop around for the crime labs with the fastest turn-around time (not sacrificing quality of analysis, of course)?

The crime labs know how big their backlogs are and how long it will take to get results back out to the LE. Once the evidence is submitted, start the clock and penalize those agencies that fail to meet the deadlines given.

Gritsforbreakfast said...

@9:58, it's because demand for services has outpaced supply and agencies don't have budgets to outsource everything to private labs. DPS processes evidence for free and if Houston PD wants the results quicker, they'd have to pay a private contractor. They can do that occasionally but most don't have the budget to do it in every case. Neither police agencies nor lab directors can spin straw into gold and resources have to come from somewhere.

I've often thought DPS should charge a fee for crime lab services, to reduce the burden on the state and cause agencies to be more judicious about how much evidence they send.

Anonymous said...

Plea bargains are often a joke. Not being able to prove cocaine is cocaine until 6 months to a year later is a joke. But, that is what we have. But, it is very important to mention some of these incarcerated folks are really guilty of a whole lot more than they have been charged with, they just didn't get caught with what they are really doing. So, PR bonding a dude without an indictment after 90 days can cause more trouble for the community because that dude is going to pick up where he left off, providing drugs to kids. Just because he got caught with a state jail amount doesn't mean he doesn't usually engage in behavior constituting a first degree. It's catching these people doing what they are really guilty of that is difficult.

Anonymous said...

Texas is cheap. Provide the funds to the labs so they can test the drugs. Of course, that will never happen. So, cases will continue to age, offenders won't get what they need in a timely manner whether that be treatment, punishment, or both. Prosecutors will continue to intimidate. Defense attorneys will continue to give bad advice. It will never stop. It's the system. It is so broken. It's broken because of lack of funds, lack of funds for all criminal justice professionals.

Thomas R. Griffith said...

Yo there 7:12 in the PM shadows, while you are sorta on point, allow me to correct an assumption that it's the system and there's nothing that can be done due to it being Broken and Broke.

Webster's D&T version indicates quite clearly that 'Broke' is defined as being penniless, completely without money. Texas is rolling in cash and something tells me that you already knew that. 'Broken' simply depicts something being separated violently into parts. Sorry but the criminal justice system is 'not' and has 'never' been Broken. You simply got caught up in repeating catch phrase(s) you've heard over time and that's excusable.

Now that you are aware of this tidbit, allow me to direct you to a word that better describes the problem as a whole. (Please let me know when you see a so called blogger, blawger, reporter, or politician use the following description when describing a system that obtains 95% and up convictions, without anyone being Mirandized, devoid of jury trials all the way to verdicts & multiple defendants pleading side-by-side.)

*'Rigged' - to manipulate dishonesty for personal gain.
In order for a false arrest to morph into a gross injustice (wrongful conviction) all of the entities must be in on it. That includes: the Arresting Agency and the Supervisors signing off on reports / supplemental reports, the Detectives (aka: Un-Detectives), the ADA in the DA's INTAKE, the ADA assigned to the case, the fake unqualified and / or real attorney assigned to, or retained by the suspect turned defendant, the presiding judge (aka: enabler), the Court Reporter, the Exhibits Clerk, & the Probation Officer (if on probation at time of arrest on a new unrelated charge). It truly takes a Team Effort.

If just one individual were to go on record that he / she refuses to participate in a conspiracy to convict the innocent defendant, the case would be disposed of prior to charges being sought and, that's that. Those that refuse to remove themselves will find that their names are listed on these Reports and Case files forever & ever. Those seeking the elusive Full Pardon - for / based on innocence, will be required to purchase copies of these documents and many will see proof of corruption yet find that they don't qualify due to the type of evidence, the date of conviction and ridiculous requirement to obtain Letters of Recommendations from the original three trial officials.