Fault Lines
20 October 2017

Harris County Drug Lab Exonerations: The Good Spike

Feb. 16, 2016 (Mimesis Law) — In Thursday’s Washington Post, Radley Balko wrote an post focusing on the large number of exonerations in drug cases in Harris County, Texas.  Balko points out that in 2015, Harris County had exonerated 43 people for wrongful convictions, which constituted nearly a third of all exonerations nationwide, per The National Registry of Exonerations.  Noting that 42 of the 43 exonerations were drug cases, Balko points a finger at “Harris County’s perpetually troubled crime lab” as well as faulty field tests for being responsible for people being wrongfully convicted., and he compared the scenario to two notorious drug scandals in Texas:

In high-profile scandals such as those in Hearne and Tulia, Tex., we learned that police officers and informant told blatant brazen lies about buying and selling drugs to large numbers of the (mostly black) residents of those towns. Once the lies were exposed, we discovered that a not insignificant number of innocent people pleaded guilty to possession charges even though they were innocent . . .

It looks like that’s exactly what was happening in Harris County.

That may be overstating things somewhat. A closer look at the factors leading up to the wrongful convictions on the high amount of drug cases show things much less sinister than what happened in Tulia and Hearne. Chief of the Conviction Review Section, Inger Chandler, whom Balko commends in his article, sees it a little differently. Chandler, a friend of mine, graciously agreed to be interviewed about the current state of drug case exonerations:

I think the misleading aspect of it is the idea that something must be going terribly wrong with drug cases in Harris County, and I don’t think that is what’s going on. I think we are seeing the same amount of ‘No Controlled Substance’ lab results now that we’ve seen in years past, it’s just that the mechanism for correcting those convictions wasn’t streamlined in the past and it’s streamlined now.

That “mechanism in place” that Chandler refers to is a policy that she helped create within the Harris County District Attorney’s Office that is designed to expedite the remedy on those cases where a person has been wrongfully convicted for a possession or delivery of a controlled substance case.  The inspiration for the streamlining came when Chandler was contacted by Eric Dexheimer of the Austin-American Statesman, who was researching a case that had recently been overturned because of a finding of “No Controlled Substance.”

Chandler said that the case Dexheimer was profiling alarmed her:

When I found out that one of those cases involved a woman who was paid a $40,000 payout from the Texas Comptroller’s Office because she had served 6 months in State Jail on a drug case that turned out to not be a controlled substance, I got very concerned that we were going to bankrupt the state.

Chandler began examining the procedures for testing drugs after an individual had been arrested and found that “there were clogs at every decision point.”  Those clogs generally began with a defendant pleading guilty prior to receiving the lab results on their case.  Unlike some of the recent high-profile murder case exonerations, where a person had been wrongfully found guilty by a judge or jury, the drug cases were people signing away their rights voluntarily.

This is a unique subset of exonerations. I’m sure that getting that conviction overturned and getting that situation remedied is just as important to that person as your Michael Mortons or your Anthony Graves, but they are a different category.  These are individuals that pled guilty, pre-indictment, waived their right to a jury trial and were handed a destruction notice at the time of their plea, notifying them that the evidence in their case would be destroyed.

The reasons why a person would plead guilty without lab confirmation of whether the substance in question was illegal drugs was primarily motivated by one of two factors (or a combination of the two): either the Defendant actually believed that what he had possessed was, in fact, a controlled substance, or the plea bargain offer was so enticing that it overcame any incentive to fight the case.

I do believe that people who actually thought they had drugs make up a good portion of these cases, but there are also those who can’t make bond. Nearly all these cases were plea bargain cases [where the prosecutor’s recommendation] came in much lower than what that persons range of punishment was.  I don’t think these were cases where defense attorneys were in the back [holdover cells] begging their guys not to plead guilty because they had a colorable claim at trial.  Plea bargaining was their way out, whether they believed they possessed a controlled substance or not.

Prior to the implementation of the new policy, once a defendant pled guilty to a drug charge, the corresponding crime lab put analyzing his or her evidence on the backburner.

If [the Crime Lab] found out a case was disposed of, they moved it to the back of the line.  And frankly, that makes good business sense.  Nobody thought of it in the context of liberty or the context of felony convictions.  Now, those cases don’t lose their place in line even if a case has been disposed of.

Prior to the new policy, once the crime lab identified evidence as being “No Controlled Substance,” the confusion became even more pronounced as there was no formal protocol in place about whom to notify at the D.A.’s Office.

One lab was sending [notifications] to one email address and another was going to someone else.

Chandler stated that sometimes an email could slip through the cracks.  Once a prosecutor was aware of the “No Controlled Substance” finding, they would notify the District Court where the case had been pending.

The courts were really prompt on appointing lawyers [to represent the wrongfully convicted Defendant], but sometimes it was taking lawyers over a year to file the Writ and then it takes another six months or so before relief would be granted by the Court of Criminal Appeals.

 Under the new policy, the labs send notification to a solitary e-mail address monitored by Chandler’s division.  Once a “No Controlled Substance” finding comes in, the Court in question is notified and an attorney is appointed immediately to file a Writ of Habeas Corpus. Chandler works with that attorney in filing Agreed Findings of Fact and a recommendation to the Court of Criminal Appeals asking for the conviction to be overturned.

The process has begun working so efficiently that Chandler noted that sometimes the most difficult aspect of it was finding the defendant (who, in most instances, had already completed serving his sentence.) Chandler noted, “For reasons that still blow my mind, you can’t just reverse somebody’s case without telling them.” As if they would object.

This streamlining of the process is the actual reason behind the sudden significant number of drug case exonerations, Chandler argues and blaming the Harris County Institute of Forensic Science or the Houston Police Department Crime Lab is off target in this instance.

I don’t think it’s an indictment on the crime lab at all. In fact, they’ve been very helpful on solving things on their end.

Chandler also takes issue with the notion of faulty field tests being the epidemic described in Balko’s writing.

There are all kinds of studies that say that Jolly Ranchers field test positive, or Hershey Bars test positive or oregano tests positive. I’ve seen them and I’ve read them.  I’m tracking data to make sure that I don’t see any patterns that I should be concerned about, but we’re not seeing officers field testing something that looks like a Hershey bar.

I’d be interested in seeing a study of various white powdery substances or various crystalline substances and seeing how many of those field test positive. We’re seeing somewhere in the neighborhood of 1 and a half percent error rate.

Chandler noted that a 98.5% accuracy rate on field testing narcotics has the Harris County District Attorney’s Office comfortable enough to file charges based on their results.  However, the D.A.’s Office has also recently instituted a policy that effectively forbids prosecutors from agreeing to any plea bargain that involves incarceration unless an official lab confirmation has been made on the controlled substance in question.  A person charged with a possession case can still plead to probation, however. Chandler explained that Defendants on probation still fall under the jurisdiction of the trial court, which makes a subsequent “No Controlled Substance” finding much easier to remedy.

Ultimately, she believes that the high numbers of exonerations in 2015 were a spike caused by the new review policies. The review policy, coupled with the D.A.’s policy forbidding pen time pleas on unconfirmed drugs should ultimately drop drastically. Chandler noted:  “Once we work through the backlog, we’ll be seeing a lot fewer of them.”

Ironically, the spike of 2015 may be much more indicative of the System succeeding rather than failing.

6 Comments on this post.

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  • Jason Truitt
    16 February 2016 at 12:45 pm - Reply

    If, by “so enticing” she means “take this deal now or we’ll withdraw it and take you to trial”, sure. That is a heavy-handed enticement, though.

    While the drug lab is a problem, both in results and delays, the main factor in these cases is that Harris County forces people to come back over and over and incentivizes quick pleas. It’s the same old plea mill story, this time with actual innocence proven by lab tests.

    If they want these exonerations to stop, they should stop forcing quick pleas. They will not be able to fix the problems at the lab. But they can fix their own contribution to the problem.

  • Harris County’s High Exoneration Rate | Jason Truitt, Lawyer
    16 February 2016 at 2:51 pm - Reply

    […] Newman  has asked that question in a recent interview with a Harris County prosecutor, and here is his story rebutting the musings of others attempting to weigh in on the issue.  While I agree that Balko […]

  • Murray Newman
    16 February 2016 at 3:03 pm - Reply

    Jason,

    I don’t think that’s what Inger meant at all. It has been quite some time since I’ve gotten the “take this deal now or we’ll withdraw it” line.

    The reality is that most substance addicted clients are generally the first to suggest the idea of serving “county time” or asking to be sentenced under 12.44(a). I can honestly say, recommendations that come in significantly under the statutory minimum are not the ones that prosecutors try to force upon the accused.

    Even if prosecutors were the true culprits behind getting clients to plead to those deals, the new policy forbids that from occurring in the future. At least in Harris County.

    • Jason Truitt
      16 February 2016 at 4:23 pm - Reply

      And I wasn’t saying that with any ill will. The system is what the system is, and prosecutors are supposed to act like prosecutors. You mention the new policy, but from what I can see, the new policy simply deals with post-conviction review, not pre-plea test results.

      What I think should happen is that no plea takes place until the test results come back. That will prevent the need for exonerations in the same place.

      If they don’t want that to cause a huge delay, they should fund the personnel necessary to timely process the cases they make. Instead, the burden is on the Defendant to plead quickly. And I do agree that many defendants know the system and want to plead, or are in jail and want out, or any number of other things. But some frequent fliers wanting out should
      t excuse the whole system’s failures.

  • Murray Newman
    16 February 2016 at 4:29 pm - Reply

    I’m talking about the new policy that the D.A.’s Office will not make any pen time offers unless the lab results are in on the drug tests. That policy should stop the issue of them pleading guilty prematurely.

  • Jason Truitt
    16 February 2016 at 5:34 pm - Reply

    Ahh. For felonies, yes, that will work. Be nice to have that policy for misdemeanors or state jail felonies, or to apply if they otherwise plead down to county or state jail time.

    But I’m not trying to let the perfect be the enemy of the good. I’m glad they recognize there’s a problem and are working to address it, and had forgotten the pen-time policy.