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.