Prosecutors Looking Into $2 Field Drug Tests After Investigation, Figure Defense Attorneys Should Do All The Work

from the THIS-NEEDS-TO-BE-FIXED...-by-other-people dept

Mon, Jan 9th 2017 2:49pm — Tim Cushing

The fallout from cheap field drug tests continues. The lab that does actual testing of seized substances for the Las Vegas PD had previously expressed its doubts about the field tests' reliability, but nothing changed. Officers continued to use the tests and defendants continued to enter into plea bargains based on questionable evidence.

The Las Vegas PD knew the tests were highly fallible. After all, the department had signed off on a report saying as much and handed it into the DOJ in exchange for federal grant money. But cops still used them and prosecutors still relied on them when pursuing convictions.

Nothing changed until ProPublica stepped in with its own investigation into the faulty drug tests. In response to this reporting, prosecutors are finally taking a closer look at the tests officers deploy hundreds of times a year.

The Clark County District Attorney’s Office in Nevada established a conviction review unit in October. In what appears to be one of its first efforts, the unit has been seeking information about problematic convictions resulting from one of the office’s routine practices: accepting guilty pleas in drug cases that rely largely on the results of field tests done by police that can be unreliable.

Unfortunately, this initial move is being handled poorly. Rather than have its prosecutors reexamine any cases relying on field-tested evidence, the DA's office is dumping the workload on already-burdened public defenders.

Daniel Silverstein, head of the newly formed unit, in November asked a statewide organization of defense lawyers for any information they had on cases that might have involved inaccurate field tests, and thus resulted in potentially wrongful convictions.

This isn't the defense attorneys' problem. While they're definitely interested in a solution, the wrongful convictions were pursued by the DA's office and its attorneys should be the ones looking for convictions that might need to be overturned. The DA's office has more resources and it is the entity that chose to continue pursuing cases against citizens based on nothing more than unreliable $2 test kits.

Howard Brooks, the Clark County Public Defender’s appellate director, called the district attorney request to defense attorneys “an absurd challenge.” Brooks argued it is the duty of prosecutors to verify the integrity of their convictions — both those that have already been won and those being brokered today in Clark County courts.

Then there's the fact that this examination process won't end up reversing many convictions. As ProPublica points out, seized evidence is routinely destroyed after convictions are obtained. And while lab tests are run on seized substances, that only happens if everyone coordinates to run the samples through as soon as possible. This is something that almost never happens.

Prosecutors routinely delay crime lab analysis to check results of field tests until the eve of trial, court records show. When defendants plead guilty at preliminary hearings, the alleged drugs rarely even reach the lab. In Clark County last year, according to court data, just eight of 4,633 drug convictions went to trial.

Add to that the fact that the PD itself has never tracked the failure rate of its field drug tests, despite having access to this data. It may have signed off on a damning report, but its discoveries about the tests' fallibility changed nothing about its day-to-day business. The drug tests remained in use by the police department and were treated as unquestionable evidence by the DA's office when pushing for plea deals.

About the only immediate positive result of this investigation is the higher bar prosecutors will have to clear before admitting field drug test results as evidence. The state's public defenders are planning to challenge every field drug test submission during evidentiary hearings. Of course, this assumes the judicial process will even make it this far.

For many of the accused, accepting plea deals nets them shorter sentences and a slightly less-awful future than going to trial might. Defendants often accept deals just to avoid actual jail time. On the prosecution scorecard, it still counts as a win. As a bonus, additional evidence possibly pointing to the field tests' abysmal accuracy rate vanishes, allowing cops, prosecutors, and sympathetic judges to continue lying to themselves about the tests' accuracy.

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Filed Under: $2 field tests, doj, drug tests, evidence, las vegas pd, nevada

31 Comments

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Hans, 9 Jan 2017 @ 3:14pm

The burden should be on the courts!
The real issue here is Judges accepting new technologies an methods as "evidence" without proof of its efficacy. The courts should fix this, or all the relevant cases should be tossed, with prejudice even.
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Anonymous Coward, 9 Jan 2017 @ 3:15pm

I smell a class action lawsuit
This sounds like exactly the kind of thing that could actually benefit from a class action lawsuit. It would drive flawed products like this out of existence and decrease the likelihood of similar ones from popping up in the future.
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Anonymous Coward, 9 Jan 2017 @ 3:18pm

Re: The burden should be on the courts!
Another thought would be to obtain identical kits and field test every item possible for local prosecutors that are depending on these pieces of crap for convictions. Maybe if they have to defend themselves from the same BS charges, they will stop using them as part of a tilted justice process.
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Christenson, 9 Jan 2017 @ 3:39pm

Rule 11 -- the part about the prosecutors standing behind filings!
Rule 11 has been clearly violated in all of these cases.

Justice requires that all convictions relying only on these test kits be overturned. ESPECIALLY now that Marijuana is at least partly legal in Nevada!
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madasahatter (profile), 9 Jan 2017 @ 4:31pm

Re: I smell a class action lawsuit
Federal civil rights would be more interesting but I doubt it will happen
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That Anonymous Coward (profile), 9 Jan 2017 @ 5:15pm

Perhaps they should use these tests to check out everyone in the prosecutors office.
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Anonymous Coward, 9 Jan 2017 @ 5:21pm

Plead Guilty when innocent?
Now I understand the whole risk a jury trial might be or maybe the expense of hiring a defense lawyer.

But there is no way in hell I'd plead guilty if I was innocent and the only evidence is a field drug test. I'd insist that a real lab test be performed.

Also, what kind of defense lawyer lets their client plead guilty based on a $2 test? An incompetent one?
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Anonymous Coward, 9 Jan 2017 @ 5:41pm

If pulled over and a test is requested, can a person demand an ambulance or ER visit in order to have a proper test performed?

Serious question
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Paul, 9 Jan 2017 @ 6:24pm

Re: Plead Guilty when innocent?
The problem is you can be held in jail for drug possession charges till your jury trial. There is a case of a women held for 30 days over a spoon with red stuff that turned out to be pasta. But she could only get out if she plead guilty to something.

If everyone took the moral high ground we could get real change, but today only money buys freedom.
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TripMN, 9 Jan 2017 @ 7:14pm

Re: Re: Plead Guilty when innocent?
This is especially exacerbated when a person is the sole bread-winner or solo parent and is living pay-check to pay-check. Any amount of time in jail waiting for a trial date will probably lose them their job and possibly cause great distress on their family and living situation.
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Anonymous Coward, 9 Jan 2017 @ 8:55pm

Re: Plead Guilty when innocent?
"Also, what kind of defense lawyer lets their client plead guilty based on a $2 test? An incompetent one?"

A public defender one.
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Anonymous Coward, 9 Jan 2017 @ 10:13pm

It's kind of off the subject but I have a question...
If the "scales of justice" are supposed to be fair and impartial why aren't public defenders offices funded to exactly the same level as public prosecutors offices?
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Paul, 9 Jan 2017 @ 11:29pm

Re:
Nope-

If the cops say it looks like meth residue your only defence is a lab test to prove otherwise.

Your choices are:
1) Refuse all searches
2) Demand to be let go at the earliest moment
3) Lock your car if ordered to get out (even if the cop orders you to get out.

Your going to be trapped in Jail till at least your bail hearing. Cops will say your trafficking in order to keep you in with out bail so your trapped for even longer.
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Ninja (profile), 10 Jan 2017 @ 4:50am

Slution: all cases where such unreliable tests were decisive to secure convictions should be overturned, records wiped clean from them and people in jail released with proper compensation depending on how many years they spent under arrest.

Make it hurt badly, financially and then maybe things will actually change. Of course chances of this happening are close to 0.
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Anonymous Coward, 10 Jan 2017 @ 5:05am

Re: It's kind of off the subject but I have a question...
Forgot the /s ?
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Anonymous Coward, 10 Jan 2017 @ 5:08am

Re:
And the private prisons which will suffer financially when all their drug convicts are let go, are not allowed to charge (IAW contract) the local municipality, state, fed or anyone for the loss.
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JMG, 10 Jan 2017 @ 5:09am

I'm sure there are many examples, but I recently saw this one on the news of some kitty litter testing positive as meth resulting in an arrest.

http://news10.com/2017/01/07/man-tries-to-clear-his-name-after-kitty-litter-was-mistaken-for- meth/
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ShadowNinja (profile), 10 Jan 2017 @ 5:52am

Re: The burden should be on the courts!
But judges don't even get much of a say on that when the defendant takes a plea deal, which is what happens in 99% of the court cases in the country.
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Anonymous Coward, 10 Jan 2017 @ 6:01am

"Congress shall make no law..."
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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killthelawyers (profile), 10 Jan 2017 @ 7:10am

Re: Rule 11 -- the part about the prosecutors standing behind filings!
First, the Rule 11 you are referring to is Civil Rule 11, not Criminal Rule 11. These are criminal cases, so that requirement is not there. That being said, being less than forthcoming with the courts is generally a bad thing.

Second, the issue being highlighted is that it isn't necessarily easy to figure out which convictions "relied" on these tests. The issue here is you can't just say "all cases involving field tests will be overturned" because there are likely many where drugs were actually recovered, witness statements were collected, and there was other evidence which alone may have been sufficient for a conviction. The end result is that this will be a labor intensive investigation.

Third, to counter the jist of this article, it's really not a bad thing for defense attorneys to conduct the review. The issue here is this - if you didn't trust the State to fairly adjudicate these cases the first time, why on earth would you trust them to clear people the second time? You do want a party who has a mandate to act in the best interests of their client to conduct the investigation because at least they have an incentive and ethical obligation to do so.

The real issue here, which has been confounded, is that public defenders are overworked and underfunded. While that has unfortunate and real consequences, the proffered solution in this article is not without fault.
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killthelawyers (profile), 10 Jan 2017 @ 7:12am

Re: Re: Re: Plead Guilty when innocent?
Criminal defense attorneys want their money up front, as well. Do you have $10,000 for the attorney, plus whatever the cost of the testing?
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Anonymous Coward, 10 Jan 2017 @ 8:13am

Re:
You are correct that trusting the State to get it right the second time is not good, but I would argue that there is a key difference between trusting them to get it right and requiring them to lend any aid. I would like to see it that the State is obligated to identify cases in which the faulty tests were used and enumerate those cases to the defense. Additionally, if the defense believes a case used the faulty test and the State did not so indicate, the defense still has the option of revisiting that case. To discourage the State from shirking its obligation, provide a fee shifting arrangement that cases the State should have tagged, but which were not tagged, have some substantial portion of the review expenses paid by the State, not the defense - even if the review concludes the conviction was valid. The fee shifting should depend solely on whether the State correctly identified that the case used the faulty test, not on the outcome of the review. With the right balance, it becomes cheaper for the State to enumerate the cases correctly than to bear the expense of paying for review in all the incorrectly omitted cases.
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killthelawyers (profile), 10 Jan 2017 @ 9:17am

Re: Re:
While I think that the general idea of your post sounds about right, I'm not sure how the fee shifting would work in practice. This really comes down to just hours worked during the case review and public defenders don't traditionally record hours worked. So this would only really work if public defenders were conducting review specifically for this purpose, otherwise it's going to be a rough guess. Additionally, I imagine the majority of the inadvertently discovered cases would be the result of a PD working on a present or future case, rather than working on this project. So, while I see the merits in providing an incentive for the state to provide complete records, I'm just not sure that this is a feasible or effective one.
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Wyrm (profile), 10 Jan 2017 @ 9:20am

Re: It's kind of off the subject but I have a question...
The balance is there: you are allowed to have a paid lawyer and to pay him as much as the prosecutor is. Of course, your being able to is another matter.
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killthelawyers (profile), 10 Jan 2017 @ 9:20am

Re: It's kind of off the subject but I have a question...
Obvious answer: the State prosecutes all cases, while public defenders do not represent all accused.

It's a fair point about the inequities of funding, but your choice of words was unfortunate.
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Anonymous Coward, 10 Jan 2017 @ 10:27am

Re:
You are more likely to get an ICBM to turn into a whale, without the Infinite Improbability Drive.
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Anonymous Coward, 10 Jan 2017 @ 1:11pm

Re: Re: Re: Re: Plead Guilty when innocent?
> Do you have $10,000 for the attorney, plus whatever the cost of the testing?

If you *did*, you probably won't after they seize your assets.
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Anonymous Coward, 10 Jan 2017 @ 1:11pm

Re: Re: It's kind of off the subject but I have a question...
> The balance is there: you are allowed to have a paid lawyer and to pay him as much as the prosecutor is. Of course, your being able to is another matter.

The best justice money can buy.
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AC720 (profile), 10 Jan 2017 @ 3:16pm

Also used in other countries
These field tests are also used in multiple other countries with exactly the same bogus results. So this is actually a GLOBAL problem where innocent people are being locked up for food crumbs and other things, and the resulting skewed arrest records make crime rates look worse than they actually are.

Which is good if you are a law enforcement agency who can point to increasing crime rates as you ask for more and more tax dollars. You don't want things to get better or else people might say they don't need so spend so much on policing.
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pffft///., 10 Jan 2017 @ 7:18pm

Re: Plead Guilty when innocent?
Think poor.
BAM! Conviction leading to another person ripe for exploitation. Guilty and Guilty are not the same things.
This is the United Police States of America in question. Democracy is not on the agenda. Justice is not available without money/power/connections. Or, a serious piece of luck.
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LoveTD, 12 Jan 2017 @ 12:58am

The Law
Seriously, everybody who ain't HURT someone else is going home if you call me as a JUROR.

The drug thing, go do the drugs, as long as you don't harm others.

The way forward is to make it so no Juror will prosecute. (yes I know jurors are not prosecutors, I mean from the JURY POOL)
by the way if your a democrat and haven't re-reg to the NPP (no political party) get busy.

PLUS! It's a great way to get into Jury Duty too!
Who knows maybe you can nullify a bad law for us?
(that's as honorable a serving as a war hero!)
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