Wednesday, March 05, 2014

Williamson County man actually innocent of drug possession where lab found no drugs existed: Habeas relief granted

Actual innocence claims come in a variety of stripes. Joey Ray Carabajal was convicted in Williamson County of possession of a controlled substance and sentenced to two years imprisonment. In an opinion issued February 26, the Court of Criminal Appeals granted habeas corpus relief, declaring:
After Applicant pleaded guilty and was sentenced, a lab report from the Department of Public Safety revealed that the substance Applicant possessed contained no controlled substances. Applicant alleges that the lab report shows that he is actually innocent of possession of a controlled substance.

The trial court determined that the lab report shows that the "thick purple liquid" Applicant possessed contained no controlled substances. The trial court concluded that Applicant established by clear and convincing evidence that no reasonable trier of fact would have convicted him in light of the new evidence, which demonstrates that he is actually innocent. The trial court recommends granting relief and the State does not oppose granting relief. Applicant is entitled to relief.
Maybe prosecutors ought to actually have the drugs tested before shipping defendants off to prison.


Shannon Edmonds said...

"Maybe prosecutors ought to actually have the drugs tested before shipping defendants off to prison."

That flippant comment is rather uninformed, Scott. The problem is much broader than that.

Texas received attention for leading the nation in exonerations in 2013, but what the media failed to report was that more than half of the 13 exonerations were these types of cases. Hardly the scandalous cases that are turned into made-for-TV movies, but still troubling, not least of all because the state will have to compensate these defendants the same as a Michael Morton or Anthony Graves, even though these defendants tried to commit a crime and thought they were guilty of a crime.

How's that, you ask? Here's how these cases often go: Defendant gets caught possessing or selling what he thinks are illegal drugs. A presumptive test may even confirm that impression. He gets arrested and the prosecutor files the case while the substance is sent to the lab. The judge sets the case and requires the prosecutor to make a plea offer to resolve the case (esp if the defendant is in jail). And if the prosecutor says he wants to wait for the lab results--which may take MONTHS--the judge puts the screws down to move the case, and/or the defendant wants to plead and start serving his time ASAP. So the plea deal is made, the defendant starts his sentence, and then months (or in some Harris Co cases, YEARS) later, the lab sends back a report to the prosecutor saying it wasn't what everyone thought it was. Then the prosecutor notifies the court and the defense attorney and defendant of the new information, the defendant gets brought back to court and has his case dismissed on a writ based on actual innocence (or ineffective assistance of counsel for pleading out an innocent client), and the state that was too cheap to provide an adequate $300 test up front is now on the hook for $80k/yr of wrongful incarceration + benefits.

In a perfect world, no prosecutor, defense lawyer, or judge would move a case before having all the testing completed, but that's not where we live. We recommend prosecutors not make offers on these cases until that time, but some admittedly can't stand the heat from a judge or defense attorney (or defendant!) who isn't on the same page and wants to deal on the case. So contrary to your ill-informed hip shot at prosecutors, this issue is a little more complicated than that. And it's one that has gotten little or no attention so far this interim, but we'd like to change that. Perhaps by highlighting the real causes of these errors you could contribute to a solution rather than use it as another excuse to take a cheap shot at the prosecutors who are actually freeing these defendants when the new information comes to light.

Anonymous said...

So, the judge is to blame in this case.

Maybe judges ought to actually have the drugs tested before shipping defendants off to prison.

Mr. Edmonds, what was your solution?

Anonymous said...

Obviously, DPS got the test results wrong.

Anonymous said...

Shannon are you saying "a shit eating dog was killed to save a prosecutor"?
No cheap shot at all. Prosecutors have taken the form of snakes, the lowest form of life on earth.
Matt Bingham and Jack Skeen, in Smith county, have DNA proof from DPS labs that Mr. Kerry Max Cook was not the killer. The evidence proves his innocents but the low life Bingham and Skeen will not clear his bogus conviction. All prosecutors care about is getting another conviction regardless. After 20 plus years in prison due to their perjury and false evidence Mr.Kerry Max Cook is entitled $1.6 million and counting. The longer they refuse to clear his record the $1.6 million is growing! The good people of Tyler,Smith County, Texas can afford their travesty of justice.

Gritsforbreakfast said...

Shannon, I do agree with you that pressure keep the plea mill churning forward contributes to false convictions. I also agree that the state doesn't invest enough in crime labs to handle the volume of drug cases being prosecuted, which leads to errors and delays that are entirely on the state, not the defendant.

Beyond that, though, there are several ways "these cases go," not all of which are as sympathetic to the state's position as you ascribe. E.g., frequently prosecutors will seek ridiculously long sentences to scare the defendant into taking a shorter deal - in this case two years - which their appointed lawyer tells them is the best they can get (partially because s/he won't fight the case aggressively for the pittance they receive to represent the client). Often, prosecutors have opposed personal bond and the defendant can't make bail, so they're sitting in jail while all this happens which increases the pressure to plea. Since police can lie to suspects about evidence, maybe they've been told the field tests confirmed there were drugs. So they think they're screwed either way, innocent or not, and take the deal. The Tulia and Dallas sheetrock cases included examples of innocent people pleading guilty under such circumstances.

I'm sorry if prosecutors ignore your association's sound advice and succumb to "pressure" that they think justifies overriding their mandate to seek justice, not convictions. That's unfortunate, but it doesn't completely excuse them.

doran said...

Mr. Edmonds' analysis is flawed in places. There are ways to deal with the problem, and avoid the situation endured by Mr. Carabajal and others.

For instance, some defendants want to plead, according to Mr. Edmonds, so they can start serving their time. But, if a defendant is in jail for a year awaiting test results, he is in effect serving time, as he will be given credit for time served upon being found guilty or pleading guilty.

District attorneys could implement local practice rules by which they dismiss cases if a test result is not forthcoming in a reasonably short period of time. If the test results are positive for drugs, and if limitations has not run, the defendant can be charged again.

A defendant awaiting test results could be released on a reasonable bond, or on PR.

The implication of Mr. Edmonds' rather testy response, is that it is just too bad if an actually innocent person spends time in prison, but that is just the way life is in Texas. Contrast that with the alternative: No positive test results in a reasonable amount of time, charges will be dismissed.

It is no mystery why people working with that mind-set send innocent people to prison, nor why they are held in low esteem.

Anonymous said...

I understand that following the Dallas sheet rock case, the Dallas County DA adopted the policy for Dallas PD drug cases that there would be no indictment (and hence no plea deal) until the lab tests were completed. So this approach is a workable solution to the problem.

RSO wife said...

I'm betting that if Mr Edmonds had to spend time in jail for something he didn't do, he'd be singing an entirely different tune.

DEWEY said...

"A defendant awaiting test results could be released on a reasonable bond, or on PR."
How many people without lots of money are released on PR ????

FleaStiff said...

Lab backlogs are not the defendant's fault. They are the fault of the lab directors.

Gritsforbreakfast said...

"They are the fault of the lab directors."

Or really, legislators who underfund the labs. Lab directors can't spin straw into gold.

I'd also reserve some blame, for example, for prosecutors as in Harris County charging "trace" cases as felonies instead of paraphernalia charges. Using their discretion to maximize charges boosts lab caseloads. Shannon mentioned that in Harris County it can take years to get back lab results, and that's one of the reasons why.

Bottom line: If the state wants to prosecute the drug war at the levels we do today, it costs more money than is being allotted for lab work.

Shannon E. said...

Scott, it sounds like we agree on more than we disagree here, which is encouraging. But don't let knee-jerk conclusions blind you to reality. For instance:

- the two-year sentence in this case could be the minimum under law if it was a 3rd-deg. felony amount
- unlike depictions on TV or in the movies, Texas prosecutors have ZERO role in pre-trial release on non-3g cases, so you can't blame them for a lack of bond; those decisions are made by the courts w/o input from prosecutors
- there is no evidence in any of these recent cases from the exoneration registry of foul play by law enforcement. None.

But we do know that it is taking months OR YEARS for this testing to be completed by the labs. Even if a person is out on bond, how is it just for someone to have charges hanging over their heads for that long when a simple test can resolve the issue one way or the other? I think everyone would agree it isn't, and that is my point. An ounce of prevention up front, in the form of more forensic testing capabilities, would save the pound of cure now required on the back end.

Shannon E. said...

(Looks like we were posting at the same time; I agree 100% with your concluding sentence at 9:02am.)

Anonymous said...

Anonymous 8:59--Surely you jest. The vast majority of prosecutors take these jobs because they truly believe in the criminal justice system. After fifteen years as an ADA, I can tell you that I listen to defense arguments, query cops about their probable cause, and always try to do the right thing--whether it is dismissing a case or sending someone away for life. I don't see years of incarceration as just numbers; I realise the seriousness of what we do. Although by nature, our jobs require us to rely on the integrity of officers, if something seems off, I will do everything I can to get to the truth. Generalizing all prosecutors the way that you have is akin to saying all defense attorneys are unethical. Neither one of these presumptions is true. I am proud of the job that I do, and I still haven't lost my idealism. And I am not alone.

Anonymous said...

Then what is your excuse for Bingham and Skeen?

Gritsforbreakfast said...

@Shannon, how about the paragraph before the concluding sentence @9:02?

Everybody Wins! said...

Shannon says "Even if a person is out on bond, how is it just for someone to have charges hanging over their heads for that long"

Right, so it's better to convict an innocent person, then when the test results come back Shannon can give prosecutors credit for "actually freeing these defendants when the new information comes to light."

Got it!

Anonymous said...

The defendant pled guilty, obviously the lab results were faulty.

Anonymous said...

That flippant comment is rather uninformed, Scott.

Uninformed? Because the system takes a long time but a plea can be coerced in minutes?

You get more ridiculous every time you write one of your prosecutorial apologies.

Shannon E. said...

Scott, I have no opinion on the trace policy in Harris Co.; I can argue it square or argue it round. I wouldn't be surprised to see legislation addressing that issue again next session, though.

Gritsforbreakfast said...

So Shannon, I asked Mike Ware - a defense attorney in Tarrant who was formerly head of the Dallas DA's Conviction Integrity Unit - about the veracity of your statement that "Texas prosecutors have ZERO role in pre-trial release on non-3g cases, so you can't blame them for a lack of bond; those decisions are made by the courts w/o input from prosecutors."

He replied that, "Truth is that there is almost nothing prosecutors don't have a say in." While acknowledging that larger counties have bond schedules, he continued, "I have never asked to have a bond reduced without judge soliciting prosecutor input. Usually I go to prosecutor first."

Perhaps you should doublecheck with your constituents, it doesn't sound like your perception of prosecutors' influence on bonds is entirely accurate.

Shannon E. said...


I'm glad to hear that Mr. Ware checks with prosecutors before seeking a bond reduction--that is not required by law in non-3g cases, but it is certainly the professional way to seek to lower bonds already set by a judge. But bond reductions are rare.

I've been talking about the initial bonds, the ones that apply to ~99% of offenders and which are established by judicially-determined bond schedules or set by individual judges themselves. Prosecutors have no say in those as far as I know (w/ one unique exception in El Paso applicable to certain cases). Now, Hollywood or Dick Wolf's Law & Order franchise may lead the public to conclude differently, but those movies and shows don't depict Texas law. That's why Texas prosecutors had to fight for legislative change about a decade ago to get the courtesy of notice and a right to a hearing before a judge reduced bonds in 3g (violent) cases. But that's never been extended to non-3gs, in part because nobody has the funding to pay for prosecutors to be at every bond hearing. So in Texas, initial bonds are set at magistration with no prosecutor (or defense lawyer, usually) present. Thus, I think you're going to have to lay that complaint at the judges' feet, not ours.

BTW, someone recently told me that Travis Co has perhaps the highest rate of pre-trial incarceration for low-level offenders. Is that so? That surprised me, having worked there in the past.

Gritsforbreakfast said...

Not required by law, Shannon, but required as a practical matter in the real world.

I blame judges, too, for not giving more personal bonds, and have done so often on this blog. But since my earlier comment was that prosecutors often oppose personal bond when the defendant can't make bail, I was referencing bail reductions as Ware was discussing and prosecutors do play a role in opposing those.

On Travis County, for a while they were using more personal bonds than other big counties. But checking the most recent commission on jail standards report just now, 31% of their local jail inmates are being held pretrial for misdemeanors and state jail felonies compared to 21% statewide, which surprised me. But I'd have to crunch the numbers for other jurisdictions to know if they're really the highest. May followup on that when I have some extra time. Thanks for the tip.

Shannon E. said...


For the sake of argument, even if prosecutors were successfully opposing bond reductions every time a reduction was requested, that still would be a very small fraction of overall pre-trial incarcerations for low-level drug cases. It would be statistically insignificant for your purposes.

IMO, the simplest explanation for why judges don't grant more pre-trial releases is that doing so represents the path of least resistance for them. But that's just my guess.

If you want to fault prosecutors for pleading out defendants for possessing what they themselves thought were drugs, I'm afraid you'll have to find another angle.

Gritsforbreakfast said...

Shannon, did defendants in the Dallas sheetrock cases plead out "for possessing what they themselves thought were drugs," or because they were threatened with such long sentences that the truth didn't matter?

As I said above, there is more than one way "these cases go."

Shannon E. said...

Scott, if you have any information indicating that fake drugs were planted on anyone in the cohort we are discussing, or that anyone in these recent exonerations was "set up," then by all means, share it.

If not, then it's merely a pointless ad hominem attack, and I would encourage you to resist the urge to fulfill Godwin's Law. I expect that of your anonymous comment trolls, but not you.

Gritsforbreakfast said...

Godwin's law? Who mentioned Nazis? Do you know what Godwin's Law is?

Otherwise, I was discussing the Dallas sheetrock scandal and yes, there is evidence fake drugs were planted there.

In the case described in this post, I only know of evidence that an innocent man was convicted before the facts were in. And as the commenter "Everybody Wins!" pointed out, you think prosecutors should get credit for both hurrying the false conviction so the charges won't be "hanging over their heads" and also for "freeing these defendants when the new information comes to light."

We can agree to disagree over whether that's a wise use of prosecutorial discretion. But invoking "Godwin's law" is just head-scratchingly inaccurate on your part.

Mike Godwin's an old friend of mine, BTW; editor at the Daily Texan when I ran their editorial page.

"Red" Merriweather Coast said...

I was going to make a joke about how no innocent person pleads guilty, but then I read the comments and saw that people were actually believing it.

Texas definitely needs to improve the crime lab situation (how many rape kits are on backlog? 20,000?), but I don't think that's a problem that can be solved by throwing more money at it. You need to ensure that the labs are doing quality work and that the science behind the testing is sound. Forensic science is a bit of a mess currently; it's probably a smarter move to spend more money on developing forensic science at this point.

On the other hand, getting more public defenders is a problem you can fix by throwing money at it. We have the lawyers! Just hire them.

"Red" Merriweather Coast said...

"there is no evidence in any of these recent cases from the exoneration registry of foul play by law enforcement. None."

Frankly, that makes me more upset, not less, that this happens. Foul play could mean a bad apple: one or two corrupt people in law enforcement cutting corners or setting people up. It could mean that an entire administration is corrupt from the mayors to the cops, like in Chicago.

If actually innocent people are being sent to jail with no evidence of misconduct on the part of law enforcement, that means that the system itself doesn't work.

(I know that the counter-argument is that wrongful convictions are extremely rare. But the only way to reliable estimate the number of wrongful convictions would be to take a random sample of convictions and check for actual innocence. As far as I'm aware, the nearest to this being done was the testing on the archived DNA in Virginia; that resulted in a 5% error rate for murder and sexual assault.

Gritsforbreakfast said...

@ Red, Several times over the years, on this blog and elsewhere, I've compiled and analyzed all the available estimates on the prevalence rates of false convictions. My personal best guess is that 1.5-2.5% of TDCJ inmates did not commit the crime for which they are incarcerated. The higher estimates often look at too-small cohorts and lower estimates tend to be mostly ideological-based wishful thinking, not data driven.

It's really not surprising when you think about it: People are convicted if guilt can be proven "beyond a reasonable doubt," not beyond any doubt. That means people can be and are convicted when there is still SOME doubt, and a 97.5-98.5% certainty rate more or less reflects that.

Shannon E. said...


Of course I know what Godwin's Law is. And just as that observation holds that people are more likely to play the Nazi card the longer discussions like this go on, it seems that you're resorting to playing the sheetrock card, not because anything like that happened in any of the recent drug-case exonerations, but merely as an ad hominem attack to discredit the person who is refusing to agree with you. And you're better than that. So let's not go there.

And for the record, I don't think prosecutors should get credit for pleading out these cases at all. But it's something of a Catch-22 and I understand why it happens, which is more than I can say for most people who immediately jump to uninformed conclusions (like you did). The problem is much more complicated and systemical than your initial dig at prosecutors. Frankly, that's true of almost everything that goes wrong in the CJ system, but as long as people want to shoot blame first and ask questions later, the problems won't ever get solved. And that's not something either side should want.

Anonymous said...

But Grits, in his book, "Failed Evidence: Why Law Enforcement Resists Science," David Harris estimates that "we should expect to see false confessions and statements by defendants in 25 percent of ALL cases."

That suggests that your estimate do 1.5-2.5 percent is a tad low, especially in your state, where prosecutors are especially ferocious.

Gritsforbreakfast said...

Shannon, I'm resorting to the "sheetrock card" because it's 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. You're claiming it never happens that innocent people plead out and that everyone in such situations thought the drugs were real. I'm pointing out a major, prominent example where that wasn't the case. How that relates to Godwin's law remains a mystery to me despite your (strange, convoluted) explanation.

The original post suggested prosecutors should have drugs tested BEFORE finalizing plea deals, a stance you've said your own organization endorses. Honestly I'm not sure what you're upset about, much less how you get to nazi analogies.

@3:16, all things considered, I think Harris' estimate is high. He's looking at the coterie of DNA exonerations, which for several reasons IMO don't extrapolate to ALL criminal cases. I've vetted the available estimates pretty carefully and the 1.5 to 2.5% is what I'm comfortable with. I know some have landed on higher estimates, one or two lower, but IMO the number most likely falls somewhere in the 1.5-2.5% range, or between 2,250 to 3,750 people currently in TDCJ.

Anonymous said...

This is quite an informed opinion on a very important topic. The point is that prosecutors especially in Harris county are quick to "score" a conviction and therefore overlook mitigating issues on the defense side. The result is the state ends up coughing up 80k. My question to you is how is this different from cases like improper photography where the DA keeps charging people knowing full well the law will be found unconstitutional. Is a conviction based on an unconstitutional law a case of actual innocence? How can you be guilty of a crime that doesnt exist?

Gritsforbreakfast said...

"Is a conviction based on an unconstitutional law a case of actual innocence?"

I'm not a lawyer, but IMO, yes.

Anonymous said...

Yes, Harris is extrapolating from DNA exoneration data, but given the point already made about how the trial penalty hammers people to take pleas or face very steep sentences, I don't think his estimate is off by much. Candace McCoy's research shows that the punishment for invoking your right to trial averages nine times the sentence obtained by a guilty plea.

Too often all parties in the courtroom work group assume that if a defendant has a criminal record, they are probably guilty of something.

In NYC some years back, young men of color were systematically framed by transit cops for "jostling" (essentially unconsummated pickpockting) or sexual abuse. The cops were just chasing the numbers to increase their chances for a promotion.

When the scandal was exposed, the prosecutors' office responded by saying, "well, if you look at their criminal records, you can see that the cops are arresting the right people."

"Red" Merriweather Coast said...

25% is quite outside all other data relating to false convictions, if he is talking about that and not false statements from defendants?

"Red" Merriweather Coast said...

Also, I'm sorry, I know you've been over this before; but I just recently read Scalia's concurrence in Kansas v. Marsh and my head just about exploded when he said that the wrongful conviction rate was .027 percent.

I know this is old news to you, but it's new to me!

Anonymous said...

Please help me out here Shannon because I'm having a real hard time understanding your explanation.

Do the prosecutors in these cases inform the grand jury that they have not gotten around to testing these substances?

This is just wierd....

"Ladies and gentlmen officer Obie found this little bag containing white powder and it sure looks like cocain. It might be sheetrock dust but we reckon it really is cocain and we're going to get around to testing it one of these days. In the meantime, I'd sure apriciate it you'd return a True Bill for possesion of cocain against Mr. Bojangles here so we can get this ball a roling"

Gritsforbreakfast said...

@Red, the fellow Scalia was relying upon for that .027% number was a DA from Oregon named Josh Marquis, who later revised his estimate upward after Scalia's opinion came out to .75% (see here). But he admits that's just a back-of-the-envelope estimate based on assumptions he pulled out of the air. Virtually all the data-driven estimates are twice as high or more.

Anonymous said...

In the "sheet rock" example Dallas (I believe that it was actually powdered pool cue chalk) there was testing performed in many of the cases. There was field testing that gave a positive result because the chalk had been spiked with a little cocaine, so that it would give a positive result on a color test. Samples sent to the DPS lab also also came back positive, because they were just running a qualitative test that also gave a positive result with a trace level of cocaine (any level of cocaine is illegal). It was testing by a non-DPS lab that performed quantitative testing that showed the material was just chalk spiked with a little cocaine.

Gritsforbreakfast said...

Actually, 12:41, in many instance in the sheetrock cases no tests had been done beyond field tests. The Dallas News reported at the time that when the Tulia statute requiring corroboration for undercover drug informants passed in 2001, they sent the drugs off for testing to corroborate the informant testimony and found they were fake. That's what ultimately caused the scandal to unravel.

Anonymous said...

In Harris County, we do not present drug cases to grand juries without a lab test. If defendants plea before indictment, that's where the issue lies.