Thursday, October 30, 2014

Harris DA delayed notice to hundreds of drug defendants 'convicted in error,' some of them for many years

Apparently the plea mills that constitute the Harris County criminal court system have become so efficient they can secure convictions even without evidence; the accusation in and of itself appears to be sufficient to coerce a plea, and the local defense bar does such a crappy job that nobody ever calls them on it.

According to the Houston Press (Oct. 29), "In recent months the Harris County District Attorney's Office has sent out hundreds of notices to defendants convicted of drug offenses, telling them that forensic lab reports show they were 'convicted in error.'" The scope of the problem turns out to have been much greater than previously reported.
The letters, which were sent between July and September 2014, show hundreds of defendants who took plea deals for misdemeanor and felony drug possession charges were later cleared when evidence tested by an HPD crime lab analyst came up negative for a controlled substance. Court records show that while prosecutors were notified several years ago that those tests came back negative, defendants weren't told until months ago.

The Press is currently reviewing the cases, some of which date back as far as 2004. In some cases, the HPD crime lab notified the DA's office that there was no evidence of a controlled substance before a defendant even took a plea deal. Take, for example, a man who was charged on September 25, 2008 for possessing less than a gram of cocaine, a felony. Records indicate an HPD crime lab analyst sent prosecutors a letter on October 21, 2008 saying there was no evidence of a controlled substance. Still, the DA's office struck a plea deal with the man on October 26, 2008 -- one year in county jail. Anderson's office sent the defendant a letter on August 5, 2014, informing him that he had been convicted in error.

In most cases, it appears the negative lab reports came back months to a year after a defendant took a plea deal. Some defendants would go on to rack up multiple drug charges and other criminal convictions. However, district clerk's records show that for others, the faulty conviction was their only charge, one that sat on their record even though the DA's office for years had reports showing evidence in the case tested negative for drugs.
Next up, Anderson needs to launch an internal investigation to identify and interview the prosecutors in all those cases to discover whether they knew about the contradictory lab results, if not why not, and if so, what if anything they did in response to that information. If ADAs knew defendants were sitting in prison based on false charges and never notified them, those prosecutors should be the subject of state bar grievances and I wouldn't lose any sleep if they were hounded out of the profession.

Finally, thank heavens Harris has a public defender office to provide an institutional counter-weight to the DA's office and a structural means to handle such a large number of similarly situated cases. As we've seen from the Jonathan Salvador fallout, where that infrastructure doesn't exist the DA's office runs the whole show and may have less incentive to do the right thing.

MORE: In an email, Nicolas Hughes of the Harris County Public Defender office said he thought the current DA administration had been "more than helpful" in resolving these cases, some of which involved "clients who possessed something, but not what they were convicted of." In the past, he said, Brady issues were handled at the DA's office on a case by case basis by trial-court chiefs instead of imposing a comprehensive policy on similar cases as they've done here. So good for Devon Anderson as far as that goes. Beyond Brady issues, wrote Hughes:
I believe there’s a greater issue that lurks behind these cases. The decision to plea is the clients’ decision alone. I am not saying that there are not lawyers, even many lawyers, that prematurely urge their clients to plea, but there is an incredible pressure placed on incarcerated defendant. This is not as big of an issue for clients on bond, but it takes a strong stomach to sit in jail for a couple of months on a weed case when you can get you with credit for time served in a couple of days. Currently, if you are lucky, lab results come back in a month or so, but that depends on the lab. As the length of time increases, so does the intestinal fortitude to stand on principle. Even when you’re on bond, awaiting trial is hardly an enjoyable process. There’s a lot of pressure to crater, and I think every lawyer has met clients that have pled guilty, against the lawyer’s recommendation, because of the pressure. I don’t know what to do about this issue. Perhaps longer docket settings for cases and greater availability of bonds?

What’s the ultimate solution? It would be good if significantly more personal bonds were granted, particular in these non-violent drug cases. It would be great if the police were to employ a “catch and release” process, submit an alleged CS for testing, and wait until the results were back before making an arrest. It would be greatest if simple drug crimes were treated as “diseases” and not crimes or were simply taxed and regulated in a manner that helped society “insure” against any ills the drugs might cause.

Which of these do I think is possible or palatable to the public at large? I’m unsure. Though there’s a groundswell of support for legalization of marijuana, I do not believe a significant portion of the public support a total repeal of drug prohibition.
It's not clear we must wait to end drug prohibition to solve this problem, however. The idea of using "catch and release" - delaying arrest until a crime lab tests the evidence - would do the trick in most workaday cases. Meanwhile, there have been so many good arguments over the years as to why Harris County judges should issue more personal bonds that it seems doubtful this episode will change anybody's minds. But who knows? Maybe the scandal's scope and the specter of Brady violations for prosecutors could finally get people's attention.

I'm looking forward to seeing more local journalism on this story; it sounds like so far we've only scratched the surface.


He's Innocent said...

While this is an encouraging report, this is an all too common occurrence in Texas and the US.

The pressure to plead out is enormous. My spouse was charged with a crime that now makes him a registered citizen. He is now subject to a Williamson county probation officer stating to both me and him that she is CERTAIN he committed the offense he was convicted of. After all, she said, "Who in their right mind would plead guilty to a crime if they didn't commit a crime?"

Indeed, who in their right mind? That's just the crux of the issue. The pressure is so intense, the false promises of the prosecution for leniency so reassuring, and the desperation to relieve the family of the incredible stress is extremely hard to withstand. We know. We fought for nearly 4 years. Our reward? Much harsher sentencing than if we'd taken the plea deal they offered. The offer of 2 years flat prison time, and lifetime registration. We fought, he got 3 years, and 10 years probation in lieu of prison (which he can be "revoked" at any time in those 10 years and sent back to serve the ENTIRE 10). 10 years of $70/mo PO fees, $35/week "therapy" fees, $250 lie detector tests upon demand, and of course, housing restrictions and employment restrictions. These are only the beginning of his restrictions. With the initial offer? Zero oversight but once a year report at the level of risk he was professionally assessed at before leaving TDCJ. His PO has deemed him "high risk", stating that the TDCJ assessment does not apply.

We just hope that the reason this has happened to him will one day reveal itself. Hopefully in the form of our story helping someone else before they too are drawn into the vortex of a false criminal conviction.

These defendants are super lucky they've been told at all. Perhaps they will eventually get real justice and their names cleared although the damage is forever.

Texas, where You May Beat the Rap, But You Don't Beat the Ride. So utterly true.

Anonymous said...

Coming this close to the elections, this definitely qualifies as a "hit job" on DA Anderson. I have a lot of disagreements bur I like many other Harris county residents will vote for her for this shallow reason--she is "easy on the eye".

Jefe said...

You spun this a bit more than The Press. The bulk of the cases preceded Devon Anderson. This is a problem that has been around for years, including under Lykos. If Devon did anything wrong it was not to get out in front of it and take credit before Wayne Dolcefino ran with it as if it was a scandal created by the current administration.

Anonymous said...

I agree with 9:01. The timing of this report wreaks of a political hit piece. And the headline here just reinforces it. So the problem testing occurred during prior DA administrations, and Anderson, who has taken the affirmative step of notifying all of the affected defendants is being made to look negligent or at fault? This stinks, Grits, and shame on you for being a party to it.

Gritsforbreakfast said...

@Jefe, do you think the prosecutors who worked these cases left their jobs when Lykos left, or are most of them still there? I'm betting many if not most of them are still around. Otherwise, I didn't say Devon did anything wrong. In fact, I quoted Nicolas Hughes commending her and echoed his sentiments in my own words. But going forward, she should take the next step and identify who knew what when, etc., then report misconduct if she finds it.

Also, of course it's coming out now because of the election! The press wouldn't have reported it otherwise, though I think we can all agree it's news and you'd have no beef if it came out in the political off season. That's just not how the world works. Without opposition research in campaigns, this stuff would never come out. Would that be your preference?

Seaamy said...

Texas tops the nation with the highest amount of exonerations for wrongful convictions and that's just the cases that are corrected. For each exoneration there are dozens if not more that never see their cases overturned and end up spending years and sometimes even the rest of their lives in prison for crimes they did not commit. My loved one included. 22 years into a life sentence for a murder he is not guilty of. Too many times the Prosecution is interested in just one thing only... a conviction! A conviction at all cost...regardless of whether or not they are convicting the actual guilty. Meanwhile the victims never see true justice...

Walt Weaver said...

I agree that there are some bad defense counsel. That being said, it is every defense attorney's duty to relay plea offers to the client that are made by the prosecution. As a previous writer said, it is hard to turn down an immediate release from jail in exchange for a plea of guilty. Most people don't have months of savings within in which to pay their rent and feed the family, while waiting for the drug test result. Oh, and here in the Panhandle, it's not months waiting for a result, it is almost 9 months to a year. We really need to revisit the necessity of bond (as opposed to PR Bonds) in these small drug cases.

Anonymous said...

Good for Anderson in pushing this matter to the front of her agenda. Others would have conveniently buried it for the remaining weeks before the election, her signs of leadership appreciated.

Anonymous said...

All the DA wants is another conviction another notch in there belts, my son was charged with a crime with no evidence that it was him but he had to take the plea agreement, he had a charge of shoplifting but the case is a robbery charge, and less than a gram. way less, now has a drug charge, was going to give him 99 to life he had to take the plea deal of 7 years he has been in prison almost 5 years now. please stop playing with peoples life TX.