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 Manufacturers of these kits do not publish their own validation data, "thereby raising questions about the veracity of marketing statements."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.

However:

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.