Sunday, August 27, 2017

Un-tested drug evidence likely conceals false drug convictions in Hidalgo County

Houston PD has stopped using flawed field tests responsible for hundreds of false convictions, but in most other Texas jurisdictions, nobody has even checked similarly situated cases for possible errors. (Only five counties have Conviction Integrity Units in the District Attorney's office, and of those only Harris County's has focused on drug cases.)

That's why Grits was interested in this article from July 28 in the McAllen Monitor on the Texas Department of Public Safety's retraction of a legislatively mandated decision to begin charging for crime lab services. Hidalgo County Sheriff J.E. "Eddie" Guerra told the paper that "HCSO frequently uses field testing on suspected controlled substances and only sends samples to DPS for analysis when an individual does not plead guilty to possession."

That's exactly the circumstance under which they found so many false convictions in Harris County!

More than 300 false convictions based on faulty field tests have been uncovered so far in Houston, and nobody thinks that's all of them. The typical situation involved field tests falsely accusing someone, then that person couldn't make bail and so would plead guilty to a crime they didn't commit in order to get out of jail on a sentence of "time served."

The only reason these false convictions were discovered was that, eventually, the now-independent crime lab in Houston would test the evidence, anyway. But in Hidalgo County, that doesn't happen. The samples are never sent to DPS, meaning false convictions remain concealed.

Which brings us to the meat of the issue: In the interests of justice, somebody needs to be testing this evidence when it's going to be used to justify depriving someone of their liberty. Whether it's the state or the county that pays for it, who knows? If the government doesn't pay for testing, it should be done on a defense motion. And if nobody wants to pay, perhaps those cases shouldn't be prosecuted at all, plea bargain or no.

* * *

On a tangentially related topic, in the same article, state Rep. Oscar Longoria made the case for charging local governments for crime lab services, making him to my knowledge the only legislator from the budget conference committee to do so:
“You’re going to have an issue when everyone sends stuff (to the lab) — you’re naturally going to have a backlog,” Longoria said. 
DPS averaged 87,642 testing requests from 2,310 law enforcement agencies in 2013 and 2014, according to a January Legislative Budget Board Staff Report. 
“(The DPS lab) should really only be used for major crimes like murder, homicide and aggravated robbery,” Longoria said. “But when we send Class A and Class B misdemeanors, we’re overburdening the (lab) technicians.”
That's a provocative position to many in Texas law enforcement, some of whom feel particularly entitled to get these services for free, even though most larger jurisdictions pay for their own. Lubbock PD is the biggest DPS crime lab customer, if "customer" is the right word for somebody getting freebies.


Anonymous said...

Actually, Grits, most defendants plead guilty to dope cases because they believe it WAS dope--not because they just want to get out of jail.

To me, the argument you (and Rep. Longoria) are advancing is pretty inconsistent. On the one hand you want the counties to pay for the testing. On the other hand, you complain about counties not getting the dope tested. What do you expect to happen if DPS starts charging? Oh... wait... you're just hoping that many counties will let druggies walk, right? Well I'm sorry to inform you but that's not likely to happen. There's no law that requires a scientific analysis be done in order for there to be sufficient evidence to support a conviction in a drug case. Marijuana cases have been prosecuted without a test for eons. Dog sniffs, confessions, packaging labels, etc. have all been held by the courts to support a guilty verdict in dope cases. In those cases where it's turned out after the fact that the drugs were counterfeit, it sure as hell wasn't because the defendant didn't have the CRIMINAL INTENT to possess or sell drugs. By the way, what counties are using DPS for misdemeanor drug tests as suggested by Longoria? I'd really love to know.

At the end of the day, if you're truly in favor of conviction integrity as you suggest (as opposed to no conviction at all), you better hope that the state keeps adequately funding the labs. Otherwise the Hidalgo County experience will be the model for counties all over the state. By the way, I love how you've been constantly fostering this us against them attitude between the Lege and local governments. "Freebies," huh? LOL! I never figured you for much of a fan of the wisdom of the folks in the pink dome but any means to an end, right?

Gritsforbreakfast said...

First, I advocated for full funding of the labs on the blog, the Lege short-changed them without my input. So it's not a matter of what I want but simply dealing with reality.

And no, nobody's hoping "counties will let druggies walk." Rather, I'm thinking through here exactly what will happen instead of wasting time making up red herrings.

As for why defendants plea, what's your data source on that? Oh yeah, you made it up. I've been around that block already. Show proof or move on to another topic.

As to what should happen: In Houston, thanks to the bad field tests, they by rule began requiring lab testing be complete before a plea bargain is taken in drug cases. The Legislature has shown it's willing to pass laws based on legitimate innocence claims to prevent false convictions. If that's happening in Hidalgo and elsewhere, there's a strong argument to be made that the requirement for lab testing should be a statewide law instead of just a local Harris County policy.

That's a separate issue than who should pay for it.

Anonymous said...

The few times I've been involved with drug charges (my extended family is foster to adopt and foster kids are often hammered hard in any interaction with the justice system) the deal is usually set in concrete until the plaintiff's attorney asks for an independent lab test.

So far, at that point, the charges have been dismissed. The process is expensive but I've been able to cover the expense.

I doubt seriously any kid (or anyone for that matter) with a public defender has that option.

Anonymous said...


There is a rule similar to the Harris County rule (but much older) in Dallas County. It stems from the DPD fake drug scandal in 2001.

Gritsforbreakfast said...

Huh. If both Dallas and Houston already have such a rule, extending it by statute to the rest of the state may not be so heavy a lift after all.