Tuesday, December 18, 2018

TX forensic commission punts on drug-field test evaluation

The Texas Forensic Science Commission has completed its legislatively mandated report on the validity of field tests for controlled substances, and it was released today. Here's a first-cut look at what they found.

Let's be frank. Lynn Garcia has led the commission to perform some of the most able and erudite investigations of flawed forensic practices of anyone, anywhere in the United States. She is my friend and I am a fan of hers. This is not their best work.

In the past, when the Commission has been charged with evaluating junk science - e.g., arson, hair-and-fiber, bite marks, blood spatter - they have earned national praise for courageously confronting the problems instead of allowing flawed forensics to go unchallenged, as most jurisdictions choose to do.

In this instance, though, the FSC evaluated a brand of junk science so pervasive to how the justice system operates, and so heavily relied upon by law enforcement, they couldn't bring themselves to recommend it be discarded.

Field tests being used today were developed in the 1960s, we learn in the report. Despite having been around for more than a half century, however, "With respect to scientific reliability, there are very few published validation studies for field tests." Manufacturers of these kits do not publish their own validation data, "thereby raising questions about the veracity of marketing statements."

Indeed, the likelihood of error regarding these tests has been long known: "Under Texas law, confirmatory analysis performed by an accredited crime laboratory is required in order for the evidence to be admitted in a criminal action." Advocates around the country have been calling for a moratorium on their use for years.

The Texas Department of Public Safety and several other agencies no longer use them. However, in a survey conducted by the FSC, prosecutors reported that most agencies in most counties surveyed still used drug field tests.

Speaking of which, one wonders: Why only survey prosecutors? Since the FSC was tasked to evaluate the forensic source of a brand of false convictions - and since all they did for prosecutors is put a survey on a listserv - it couldn't have been that much more difficult to get input from the defense side.

The reason the FSC was asked to do this report is that hundreds of people in Harris County alone have been falsely convicted when they pled guilty in order to get out of jail, even though they would be exonerated many months later when forensic tests came back. People just didn't want to wait months in jail until the labs got around to their sample. One of the best backgrounders on the issue was actually done by a comedian. Check it out, it's worth watching:

In the FSC report, the euphemism for "innocent people falsely convicted" is "Unintended Adverse Consequences in Some Plea Cases." With that framing, they describe how:
The most significant unintended consequence of the widespread use of field drug tests is the extent to which they impact cases resolved by plea agreement.Of the approximately 55,000 seized drugs cases analyzed at the Texas Department of Safety (DPS) each year, examiners testify in less than 1% of the cases. This means the vast majority of cases submitted to the laboratory are resolved by plea.
The survey of prosecutors found that half of "large" jurisdictions (more than 100,000 population) took plea deals without a final lab report; a third of mid-sized agencies did so, while all of the small-county prosecutors entered plea deals based on field tests.

At root, these false convictions are slipping through the cracks because prosecutors push through plea deals without lab testing. Noted the report:
There is no statutory prohibition against accepting pleas without a laboratory test. There is no broad-based rule providing that a laboratory must complete instrumental analysis even where a plea has been reached.  DPS reports that policies with respect to this issue vary from jurisdiction to jurisdiction.  While many jurisdictions require DPS to complete testing even after a plea has been reached, this is not true in all cases.
Regrettably, the Commission declined to recommend such a "statutory prohibition" or "broad-based rule," even though that omission is the primary source of "Unintended Adverse Consequences in Some Plea Cases" (read: false convictions).

Indeed, we don't even know how many false convictions have occurred because "there is no central repository in Texas for drug pleas that were later overturned by contradictory laboratory testing."

Lamentably, DPS has a policy not to perform testing on controlled substances if a plea deal has been reached. "This is not because the DPS laboratory does not appreciate the reliability concerns surrounding the use of field drug tests, but rather as a necessary component of limited resource allocation."

So in precisely the circumstance most likely to produce a wrongful conviction, by policy the agency does not double-check to make sure there wasn't one. Statewide, 1,475 agencies rely on DPS for their forensic testing, according to the report.

Yes, it's because the agency is underfunded. That funding gap is why the Legislature authorized user fees, which the Governor rescinded. But that's cold comfort to the falsely accused person pressured to plead guilty in order to get out of jail.

Nor does the FSC recommend that DPS be required to test cases after plea deals have been reached, although they did advocate that the agency be given more resources.

Rather, the report pins the blame on a dysfunctional bail system rather than suggesting fixes involving the labs or standards of evidence. That's because:
for indigent defendants who cannot afford to post bail but do not pose a risk to public safety, the result of a policy requiring confirmatory testing can be a lengthy jail stays which have severe impacts on economic stability for affected families as well as unnecessary costs for local government.  
At the same time, the report operates under an odd pretense that these low-level drug offenders are themselves a serious safety threat, implying maybe they shouldn't be released pretrial:
Even more important to public safety are cases in which defendants pose a serious risk of re-offending but are released on personal recognizance (PR) bonds after 90 days because lab results are still pending and judges refuse to continue to hold the defendants.  TDCAA survey respondents describe circumstances where they “have defendants out on these PR bonds who commit new crimes because we haven't been able to get them into court.  This is very frustrating to prosecutors, law enforcement and most importantly to the citizens of our county.”
This may have been a moment in the report when the Commission might have benefited from a defense perspective, particularly if they were going to focus on policy concerns instead of scientific ones.

Regrettably, very few of the Commission's recommendations address the fundamental causes of junk-science-based false convictions in these cases, unless you count the suggestion to throw lots of money at crime labs. Grits agrees DPS crime labs need more funding - it's why your correspondent supported user fees passed last session - but money won't in and of itself solve the false-conviction issue.

One solution could be for agencies to simply stop using junk science this unproven forensic method:
In 2017, a number of Texas law enforcement agencies (e.g., Houston Police Department, Pasadena Police Department, DPS state troopers, etc.) announced they wouldno longer use field drug test kits.  These law enforcement agencies cited officer safety and concern over exposure to fentanyl, carfentanil and similarly dangerous substances as the primary rationale for discontinuing the practice. However, not all agencies that have discontinued the practice issued public statements announcing their decisions, making the total number of law enforcement agencies that have abandoned the practice difficult to assess.
For counties that have ended the practice of field drug testing, officers still must make an assessment of whether a particular substance encountered on the scene is likely to be a controlled drug. In Harris County, the criteria to replace field drug testing include but are not limited to: contraband color, contraband texture, the presence of drug-related paraphernalia, demeanor of the suspect, and prior arrests and convictions involving controlled substances of the suspect. It is important to note that relying on officer observations is not a perfect solution, as many of these criteria depend upon the training and experience of the officer.
So, rather than suggest law enforcement cease using junk science field tests, the Commission weakly opined that they should at least follow directions on the packaging. "To the extent field drug tests are still used," according to the report, "they should be subjected to basic quality standards. For example, agencies should ensure against the use of expired reagents, store the reagents in an appropriate environment, and require at least some baseline level of training."

But they knew even as they wrote it that even that would be too much to ask: "because Texas has approximately 1,750 law enforcement agencies of various size and resources, enforcement of these principles poses a particular challenge."

The Commission and law enforcement agencies using this junk science are hoping tech advancements will bail them out before they have to change practices.

There is technology on the horizon - dubbed Raman spectroscopy - that may eventually replace chemical field tests. The report recommended the FSC collaborate with a state bar committee convened by the president-elect of the state prosecutors association to explore it. This is not a perfect solution, the report emphasizes. E.g., the test cannot identify either heroin or pot. Most of its errors, though, are false negatives instead of false positives, according to the report, which is a plus from an innocence perspective.

The failure to condemn the use of inaccurate and unproven forensics is an off-brand misstep for the Commission. Their role is to evaluate science, not policy. Grits had expected more out of this report.


Anonymous said...

As far as I can tell, the FSC didn't do what was required from HB-34.

1. Evaluate the quality, accuracy, and reliability of drug field test kits

Wouldn't this require some kind of actual experimentation of the various field kits used against known drugs? Maybe some scientific blind testing?

The FSC Report only describes the NIK test kit ("the most popular"). Are there other field testing kits used in Texas? How many different kits are there? How accurate and reliable are these other field kits?

"With respect to scientific reliability, there are very few published validation studies for field tests."

No shit, Sherlock! This is what the FSC was supposed to do! Get the numbers! But thanks for pointing out the obvious, Lynn.

(2) Identify any common problems with drug field test kits

Again, some basic experimentation would have to be performed, which the FSC did not do. What non-drug substances cause false positives or false negatives? For which field kit is this most problematic?

Anyone? Bueller...?

There are 7 scientists in the Commission, each with their own funded academic lab and/or crime lab. It appears that not a single one of them stepped up to their responsibilities to address the requirements of HB-34. If they are not going to follow the law, then they don't need to be on the Commission.

Regarding the drug field tests, the FSC didn't report anything that we didn't already know.

Samantha Bee had more useful information.

This report was half-assed, incomplete, and a waste of time.

Anonymous said...

Whew.. boy that was a mouthful Grits!

Wanna know a conversation that you will NEVER hear in court? .... "My client thought they were drugs. My client wanted them to be drugs. My client intended to use them or sell them believing they were really drugs,... but let's hold off getting this case resolved to see if he gets lucky and wins the lottery and the lab results come back negative."

Anonymous said...

The FSC needs a leader with a science background as their leader instead of an Innocence Project puppet.

Landon H Thompson said...

Yes, this report was a disappointment and not up the FSC's usual standards.

However, the suggestion that "agencies should just stop using these tests" does not address the problems. Not using the tests will not stop officers from arresting a subject if "based on their training and experience" the substance looks/smells/tastes like contraband. In fact, it would probably increase the wrongful arrests because the few instances that the field test result is negative would be lost.

The report is actually correct that much of this problem is with the bail system; however, you are correct in observing that they did not do a good job of collecting input from all relevant stakeholders when they veered away from forensics and off into policy commentary. One example of misunderstandings is the comment about "judges refusing to keep defendants in jail after 90 days" - after 90 days without an indictment, judges are REQUIRED to reduce the bail to PR or something the defendant can make. Of course, even 90 days can be financially crippling to families living hand to mouth already.

To some extent, the "fixes" needed to the bail system are already in place - we just need judges and prosecutors to have the courage to use the discretionary tools that are already there, or failing that make the procedures mandatory. The problem with concerns about the risk of re-offending is that they are based on a presumption of guilt - you can't "re-offend" if you weren't committing an offense the first time. And generally committing a new offense is a condition that will get one's bond revoked. The reality is that the risk of future offenses is the necessary risk we must take to have a justice system properly balanced between protecting the innocent and convicting the offender.

Alternatively conditional pleading (i.e. no contest with testing to be completed and the right to an innocence writ retained) might address supposed concerns - though it's not quick or cheap and does not allow the instant finality of the plea that seems to be an end in itself to some. And those who protest that a person shouldn't plea to something they aren't guilty of don't fully understand the pressures the system puts on defendants.

Thanks for your coverage.

Anonymous said...


your first link "it was released today"...is a 404.

Frank, and don't call me Surely said...

@ Grits-

I'll be Frank. I have friends that are friendly. But I wouldn't trust them to walk my dog unless I want an empty leash returned.

I would have more respect for the FSC if Lynn Garcia was a furrier collecting Dalmatian puppies for a coat, but still following the literal interpretation of TCCP 38.01 rather than making things up ad hoc.

You do realize that her position doesn't exist within 38.01, don't you?

I don't think it's too much to ask that a scientist lead the Forensic Science Commission.

Anonymous said...

All evidence used to convict criminals must be opposed.

Anonymous said...

@7:26, boy did you ever hit the nail on the head! It sure seems like that's the no-accountability, no-one-ever-does-anything-wrong mentality of many of these "smart on crime" policy wonks who are so vocal these days.

Anonymous said...

Except no one is a criminal until after they've been convicted, and it's apparent the tools we use to seek and sometimes coerce convictions are flawed.

Unknown said...


FWIW, Garcia's position is one of the Commission's staff positions that is approved by the legislature in each budget cycle. She is not the chairperson of the Commission. That position is filled by appointment of the governor. The report under discussion was issued by the Commission as a whole. Its content, for good or bad, reflects the views of the appointed members of the Commission. From my experience observing the Commission over the years, the Commissioners absolutely rely on Garcia's opinions on legal issues, because she is the Commission's staff lawyer. Even on legal matters, however, her evaluations do not stand on their own, since there are two appointed attorneys on the Commission who have their own views on legal issues. On other non-legal matters - scientific evaluations and policy recommendations would fall into this category - the Commissioners do not defer to the opinions of the Commission's staff. Anyone who has actually observed the Commission work knows this So, again, this report - for good or bad - is the Commission's work product, discussed, voted on, and approved by the Commissioners.

Anonymous said...


Since there are 2 appointed attorneys on the FSC, why do they need Garcia? Are the two appointed attorney not knowledgeable of the law? Leigh Savage has been with the Commission longer than anyone, yet she is not a front-and-center spokesperson. Does she weigh in on legal matters?

So when the FSC disregards its own Policies and Procedures, who gets blamed?
When the FSC violates Conflict of Interest laws or Public Information Requests, who gets penalized?
When the FSC violates the law for withholding Brady material, who gets fired?
Is there accountability at the FSC for ignoring the parameters set forth in TCCP 38.01, KP-0055, and arguably HB-34?
Who is to blame for the latest "bad" report, and how do we prevent it from occurring again?

From MY experience observing and dealing with the Commission over the years, there is lack of accountability. You may fantasize that the Commission "as a whole" is responsible for "good" and "bad" studies, and that conceptually, all 9 members are to blame. But the only people who are actually penalized is the public - defendants and jurists.

This oversight agency needs oversight.

Anonymous said...


Believing you have drugs and having actual drugs are two different things. One is illegal, the other not. Corpus delicti -- the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime.

And then there is the other known phenomenon of false confessions. The defendant knows he doesn't have drugs but confesses because he/she believes the State will fabricate evidence has no faith in getting a fair trial.

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