Latest / Wrongful Conviction / #406 Wrongful Conviction: Junk Science - Roadside Drug Test Evidence

Transcript

#406 Wrongful Conviction: Junk Science - Roadside Drug Test Evidence · Wrongful Conviction

0:01
Speaker 1: Hey, folks, Kate Judson here. I'm a lawyer and the
0:04
Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
0:09
Speaker 1: We're back with another episode of Junk Science, a series
0:12
Speaker 1: we first released in twenty twenty, but these stories are
0:16
Speaker 1: just as relevant as ever. This week's episode focuses on
0:20
Speaker 1: roadside drug tests, a highly unreliable method of drug testing.
0:25
Speaker 1: The testing kits most police departments use cost about two
0:28
Speaker 1: dollars apiece and are far from reliable. They often turn
0:32
Speaker 1: up false positives and are used to coerce people to
0:35
Speaker 1: plead guilty to crimes they did not commit. Like many
0:42
Speaker 1: of the other junk sciences we've learned about in the series,
0:45
Speaker 1: roadside drug tests are often thought of as valid and reliable,
0:49
Speaker 1: but they just aren't. And these cases are a little
0:52
Speaker 1: different because they're not being used as evidence at trial,
0:56
Speaker 1: where it's slightly but not very much easier for lawyers
1:01
Speaker 1: to challenge that conviction after the fact. Instead, they're used
1:05
Speaker 1: to coerce. Please. That's because folks who are locked up
1:10
Speaker 1: and desperate to get out might take a plead of
1:13
Speaker 1: probation so they can regain their freedom when the alternative
1:17
Speaker 1: is waiting in jail to go to trial. You'll hear
1:20
Speaker 1: in this episode how even a short jail stay can
1:23
Speaker 1: ruin someone's life. If we care about justice and we
1:27
Speaker 1: care about the truth, we can't use junk science to
1:31
Speaker 1: lock people up. And that's especially true for folks who
1:35
Speaker 1: haven't yet had trials, folks who are presumed innocent.
1:46
Speaker 2: You're sitting in the passenger seat of your car, staring
1:49
Speaker 2: out the window. Your boyfriend is driving in. You look
1:52
Speaker 2: over at him. You can tell that he's getting tired.
1:55
Speaker 2: It's been a long day. You left Louisiana five hours ago,
2:00
Speaker 2: and he's been driving the entire time. You're going to Houston,
2:04
Speaker 2: where he has an interview for a job on an
2:06
Speaker 2: oil rig. You find the monotony of the drive to
2:10
Speaker 2: be somewhat calming. It's a big difference from your usual
2:14
Speaker 2: day to day of running around doing your job and
2:17
Speaker 2: taking care of your teenage son who has special needs.
2:21
Speaker 2: Of course, you love your kids and your job is great,
2:24
Speaker 2: but for the first time in a while, you feel
2:28
Speaker 2: yourself really relaxing, and you're happy to have nothing to
2:32
Speaker 2: do or worry about for the next couple of days.
2:35
Speaker 2: When you finally get to the motel in Houston, You're
2:38
Speaker 2: both exhausted. You dump your suitcases at the foot of
2:42
Speaker 2: the bed, and you're tempted to skip dinner and just
2:45
Speaker 2: stay in for the rest of the night, but you
2:48
Speaker 2: don't want your boyfriend to go to bed on an
2:50
Speaker 2: empty stomach, so you both get back in the car,
2:53
Speaker 2: grab some hamburgers from a fast food drive through, and
2:57
Speaker 2: then start heading straight back to the motel. Your boyfriend
3:02
Speaker 2: rubs his eyes when he changes lanes, and out of
3:05
Speaker 2: nowhere you see blue and red lights flashing behind your
3:10
Speaker 2: car and a siren blaring. You look up and watching
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Speaker 2: the rear view mirror as a police officer slowly walks
3:27
Speaker 2: up to the driver's side window, license and registration. You
3:33
Speaker 2: rummage in the glove compartment for the registration. Well, what's
3:37
Speaker 2: the problem, officer, your boyfriend asks, no signal wall changing lanes,
3:43
Speaker 2: You hand the registration to your boyfriend, who in turn
3:46
Speaker 2: hands it to the officer. License. The officer says again,
3:52
Speaker 2: your boyfriend holds tight onto the steering wheel. I don't
3:58
Speaker 2: have a license, sir. Please step out of the vehicle.
4:03
Speaker 2: Your boyfriend gets out, closing the door behind him. The
4:08
Speaker 2: officer sticks his head into the car window and looks around.
4:11
Speaker 2: He never makes eye contact with you. Then the officer
4:16
Speaker 2: steps away from your car and calls out to his partner,
4:19
Speaker 2: who's sitting in the police car. There's a needle in here,
4:23
Speaker 2: the officer says, excuse me, what are you talking about.
4:30
Speaker 2: You have no idea what the officer thinks he saw,
4:34
Speaker 2: but you certainly did not have any kind of needle
4:36
Speaker 2: in your car. The cop ignores your question and walks
4:41
Speaker 2: over to the passenger window. Ma'am, I'm going to need
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Speaker 2: your consent to search the car, and I'll tell you
4:47
Speaker 2: right now. You don't consent, we're gonna be sitting here
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Speaker 2: a long time until we can get a canine out
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Speaker 2: here to sweep the car. You don't have anything to hide,
4:56
Speaker 2: so you say, yeah, okay, go ahead. You stand on
5:00
Speaker 2: the side of the road with your boyfriend in the
5:02
Speaker 2: thick Texas heat while both officers search the car. A
5:06
Speaker 2: few minutes later, the first officer stands up straight. It
5:10
Speaker 2: looks like he's pinching something between his index finger and
5:14
Speaker 2: his thumb, and he's holding it up to the moonlight.
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Speaker 2: You can't see what it is, but you see that.
5:20
Speaker 2: The officer says something to his partner, who then comes
5:23
Speaker 2: over to you. Man, we have reason to believe that
5:27
Speaker 2: there's crack cocaine in your car, the officer says. He
5:31
Speaker 2: tells you both to put your hands behind your back.
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Speaker 2: He starts cuffing your boyfriend, and you're adrenaline starts pumping.
5:40
Speaker 2: You're sweating now, and you can't tell if it's the
5:43
Speaker 2: ninety degree heat or if it's pure nerves and anxiety.
5:47
Speaker 2: As the officer tightens the cuffs painfully around your wrist.
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Speaker 2: You have the wrong idea here. I don't have drugs
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Speaker 2: in my car. I don't do drugs. I've never done drugs.
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Speaker 2: One off walks over to you and then takes you
6:02
Speaker 2: to the police car. The other one opens up the trunk.
6:07
Speaker 2: He takes out something that looks like a ziplock baggie,
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Speaker 2: then walks back over to you. He opens the bag
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Speaker 2: and pulls out a test tube. Then he takes what
6:17
Speaker 2: he's been pinching between his fingers and drops it into
6:20
Speaker 2: the tube. He shakes it around, looks at it. Then
6:24
Speaker 2: he looks at you, and a wide grin creeps across
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Speaker 2: his face. He waves the tube right in front of
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Speaker 2: your nose. A liquid that seems to change from red
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Speaker 2: to blue and the flashing lights is dangled in front
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Speaker 2: of you. You're busted, ma'am, the cop says. The cops
6:45
Speaker 2: take you to jail. Your boyfriend has charged with driving
6:49
Speaker 2: without a license and is released soon after. But you
6:53
Speaker 2: don't know that yet because you're placed in a tiny
6:55
Speaker 2: holding cell with one other woman who tells you that
6:59
Speaker 2: she murdered someone. You're feeling sick and you still haven't
7:03
Speaker 2: eaten all day. You're terrified, but you're not just worried
7:08
Speaker 2: about yourself. You're really worried about your son. Someone calls
7:15
Speaker 2: your name from a thick plastic window that separates you
7:18
Speaker 2: from the people working at the jail. You walk up
7:21
Speaker 2: to the window and see a tired looking man on
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Speaker 2: the other side. He introduces himself as the court appointed
7:28
Speaker 2: defense attorney. He tells you you're being charged for possession
7:32
Speaker 2: of crack cocaine. Look, this is a felony, he says,
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Speaker 2: and you're facing two years in state prison. You're in disbelief. Jesus,
7:44
Speaker 2: how is this possible. The attorney looks down at his
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Speaker 2: papers and says, look, you have a choice. It's not
7:51
Speaker 2: much of a choice, but you do have a choice.
7:54
Speaker 2: The prosecutor is offering you a plea deal. If you
7:57
Speaker 2: plead guilty, you'll get a forty five five day sentence
8:00
Speaker 2: in jail, and you'll probably only have to serve half
8:03
Speaker 2: of that. You say, I'm innocent. I'm not going to
8:07
Speaker 2: plead guilty to something I didn't do. The defense attorney
8:12
Speaker 2: kind of leans in a little bit and looks at
8:15
Speaker 2: you through his wire rim glasses and says, ma'am, they
8:19
Speaker 2: tested the substance they found on the floor of your
8:22
Speaker 2: car and it came up positive for crack cocaine. So
8:25
Speaker 2: according to this test, there was crack in your car.
8:29
Speaker 2: Now you can wait until the forensics lab runs another
8:33
Speaker 2: test on it, but there's a huge backlog. You could
8:36
Speaker 2: wait months for that test to come back. You begin
8:39
Speaker 2: to physically shake. You're on the verge of bursting out
8:43
Speaker 2: in tears right there in the middle of the jail.
8:47
Speaker 2: You think about your options. Months in jail, waiting for
8:51
Speaker 2: the evidence that will prove your innocent, two years in
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Speaker 2: prison if it doesn't, And can you even trust the
8:59
Speaker 2: tests if the one that they did on the side
9:02
Speaker 2: of the road was clearly wrong. I mean there was
9:04
Speaker 2: no crack in your car. You think about your youngest son,
9:08
Speaker 2: and you're terrified of what's going to happen if you
9:11
Speaker 2: can't get out of your fast. He really needs you.
9:15
Speaker 2: You work managing an apartment complex. Part of your compensation
9:19
Speaker 2: is that you get to live in an apartment in
9:21
Speaker 2: the building that you manage. It at least allows you
9:24
Speaker 2: to stay close to your son at all times. Right now,
9:27
Speaker 2: he's with his dad. But if you're stuck here for
9:30
Speaker 2: months or god forbid, years, you'll lose your job, your home,
9:36
Speaker 2: the safety net for you and your kid. The decision
9:39
Speaker 2: is basically made for you. You can't sit in prison
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Speaker 2: for months. You have to get out and get out
9:46
Speaker 2: as quickly as you can. The next thing you know,
9:51
Speaker 2: you're standing in front of a judge. You can't stop trembling,
9:56
Speaker 2: You're weeping uncontrollably. You can barely breathe. Somehow, When the
10:02
Speaker 2: judge asks you, how do you plead, you force out
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Speaker 2: the words I plead guilty. They take you back to
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Speaker 2: a cell where you'll serve twenty one days of the
10:16
Speaker 2: forty five day sentence you were given. The prosecutor files
10:20
Speaker 2: a motion for the evidence in your case to be destroyed.
10:24
Speaker 2: After twenty one days, you're let out of jail. Your
10:28
Speaker 2: worst fears have been realized. You've been fired, you've been
10:32
Speaker 2: kicked out of your apartment. You don't know where most
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Speaker 2: of your belongings are, and you don't know where to turn.
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Speaker 2: The story you just heard is based on the true
10:46
Speaker 2: events of Amy Albritton's wrongful conviction that resulted from a
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Speaker 2: roadside drug test. Somehow, the prosecutor's order to destroy the
10:56
Speaker 2: evidence never got signed off. On substance they found in
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Speaker 2: her car that they claim tested positive for crack cocaine,
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Speaker 2: It turned out to be a food crumb. Based on
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Speaker 2: the junk science of roadside drug testing, the steady life
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Speaker 2: that Amy built for herself and her family was completely
11:20
Speaker 2: turned upside down, and Amy isn't the only one. I'm
11:27
Speaker 2: Josh Dubin, civil rights and criminal defense attorney, an innocent
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Speaker 2: ambassador to the Innocence Project in New York. Today, on
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Speaker 2: wrongful Conviction junk Science, we explore roadside drug testing. Turns out,
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Speaker 2: these faulty tests, which cost police departments two dollars a
11:46
Speaker 2: piece or less, are widely used across the United States.
11:51
Speaker 2: They cause countless people to plead guilty to crimes they
11:54
Speaker 2: didn't commit. These tests continue to be used despite scientific
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Speaker 2: evidence that proves just how ineffective they are. In nineteen
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Speaker 2: seventy three, during the height of the War on Drugs
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Speaker 2: in the United States, a chemist by the name of L. J.
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Speaker 2: Scott Jr. Was tasked with creating a test that could
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Speaker 2: confirm the presence of cocaine. Now, Scott was already aware
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Speaker 2: of one chemical that was being used to test for cocaine,
12:34
Speaker 2: but the problem was it was highly unreliable. This faulty
12:39
Speaker 2: test was made up of a pink liquid, a chemical
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Speaker 2: called cobalt thiocyanate. When cocaine was added to this pink liquid,
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Speaker 2: it turned blue. And so the thinking went, whenever the
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Speaker 2: pink liquid turns blue, we can know if there is
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Speaker 2: cocaine present. But the problem was that it wasn't only cocaine,
13:00
Speaker 2: but plenty of other substances that could also turn this
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Speaker 2: pink chemical blue. So Scott set out to work on
13:08
Speaker 2: creating a more accurate test. He experimented with other chemicals,
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Speaker 2: and finally he came up with a three step test.
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Speaker 2: Here's how it worked. A small sealable bag contained three
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Speaker 2: vials of chemicals. First, the substance suspected to be cocaine
13:26
Speaker 2: was added to the first vial that contained the same
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Speaker 2: pink chemical as the original test, cobalt thiocyanate. If that
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Speaker 2: term blue it meant the substance might be cocaine. Then
13:40
Speaker 2: the vial was placed into the small bag with the
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Speaker 2: other two vials. The first vial was broken open so
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Speaker 2: the liquid contents would leave the vial and sit at
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Speaker 2: the bottom of the transparent bag. Then the second vial
13:55
Speaker 2: would be broken open. This vial contained a second chemical,
14:00
Speaker 2: hydrochloric acid, that was supposed to mix with the first
14:04
Speaker 2: chemical and turn the substance pink again. Then the third
14:08
Speaker 2: vial would be broken. This final vial was filled with chloroform.
14:14
Speaker 2: If the liquid mixture at the bottom of the bag
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Speaker 2: split into two layers so that a pink liquid floated
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Speaker 2: to the top and blue sank to the bottom, Scott
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Speaker 2: said this confirmed that the substance being tested was indeed cocaine.
14:30
Speaker 2: After working on the test for nine months, Scott was
14:33
Speaker 2: so sure of it that he declared the method proposed
14:37
Speaker 2: herein is almost impossible to misinterpret. It is highly sensitive
14:42
Speaker 2: and specific. Officers started carrying these portable roadside drug tests
14:47
Speaker 2: on them while they patrolled neighborhoods and pulled people over
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Speaker 2: for traffic violations. They started using the tests on people
14:55
Speaker 2: suspected of possessing drugs, and the arrest started flooding in.
15:00
Speaker 2: But this test turned out to be not quite as
15:03
Speaker 2: full proof as Scott thought. A study by toxicologists found
15:08
Speaker 2: that the three vile tests would also show positive results
15:12
Speaker 2: for substances other than cocaine. Lytocane, for example, a common
15:18
Speaker 2: numbing agent found in many first aid kits used to
15:21
Speaker 2: soothe cuts and burns, also tested positive. Nevertheless, Scott started
15:27
Speaker 2: his own company that sold drug test kits to law enforcement.
15:31
Speaker 2: This company still exists today, and interestingly enough, he stopped
15:36
Speaker 2: selling the kits with the three vile process. Instead, he
15:40
Speaker 2: went back to the one step process, the test with
15:44
Speaker 2: just the pink liquid that was already known to be faulty,
15:48
Speaker 2: and to test positive for so many other substances. He
15:52
Speaker 2: did this so that he could sell them for less money,
15:56
Speaker 2: and they were a hit, and he expanded beyond cocaine tests.
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Speaker 2: His company also sells tests for opiates, MDMA, marijuana, LSD,
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Speaker 2: bath salts, and meth amphetamine. His website boasts that the
16:11
Speaker 2: tests coming easy to use, cheap packaging that prevents officers
16:15
Speaker 2: from cutting their fingers while breaking the bials. When interviewed
16:20
Speaker 2: by reporters from Pro Publica, Scott said that he had
16:23
Speaker 2: no idea that these tests alone could send people to prison,
16:28
Speaker 2: but indeed they were countless innocent people, including Amy Albritton,
16:35
Speaker 2: ended up convicted based on cheap, highly flawed roadside tests
16:41
Speaker 2: just like these.
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Speaker 3: Now, the problem with the drug kit is that these
16:48
Speaker 3: things are incredibly unreliable, and so they come up positive
16:52
Speaker 3: for things like chocolate, like cleaning supplies like aspirin, like sugar,
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Speaker 3: weight gain powder, candle, wax, drywall, so sand. They all
17:02
Speaker 3: come back and test positive for narcotics. Because these things
17:05
Speaker 3: are very unreliable and they're not supposed to be used
17:07
Speaker 3: specifically for actually getting a conviction, but many people plead
17:12
Speaker 3: in the system to never get to a trial, and
17:14
Speaker 3: these are used as the only evidence to actually obtain
17:17
Speaker 3: a conviction. That's what happened in Amy's case.
17:20
Speaker 2: On our show today, we're talking to Greg Gloud. Greg
17:24
Speaker 2: is a policy fellow at Americans for Prosperity Now. Americans
17:29
Speaker 2: for Prosperity is a grassroots organization that educates citizens about
17:34
Speaker 2: policy issues at the local, state, and national level, and
17:38
Speaker 2: one of the issues that Greg works on is criminal
17:41
Speaker 2: justice reform. So I want to go into detail about
17:44
Speaker 2: these drug testing kits, walk us through some of the
17:48
Speaker 2: issues associated with these tests. It sounds like there are
17:52
Speaker 2: quite a few of them.
17:54
Speaker 3: Oh yeah, I mean so, there are a variety of
17:57
Speaker 3: issues that go along with drug test kits, and there's
17:59
Speaker 3: so many areas in that chain of sequence, from you know,
18:02
Speaker 3: finding the substance to actually testing it that can go wrong.
18:05
Speaker 3: And so first and foremost is actually training. And so
18:08
Speaker 3: it seems very easy. You drop something in a vial
18:11
Speaker 3: and you test it and see if it turns a
18:12
Speaker 3: different color, and if it does, then it's supposed to
18:14
Speaker 3: be drugs. But it's not that simple, and so officers
18:17
Speaker 3: have to be trained accordingly on how these work. And
18:21
Speaker 3: the problem is a lot of different substances actually change
18:23
Speaker 3: the color. And so the way that the thought process
18:25
Speaker 3: is supposed to go about this is if it's not
18:27
Speaker 3: a drug, the substance shouldn't change in there. However, a
18:30
Speaker 3: lot of substances actually make that color go different, and
18:33
Speaker 3: so you have these situations where officers aren't properly trained
18:36
Speaker 3: on how to use them, they break the different vials
18:38
Speaker 3: in the wrong way. It could be cold outside, the
18:41
Speaker 3: temperature changes different things, the chemicals might be expired within them.
18:46
Speaker 3: There's a lot of different ways that this can go wrong.
18:48
Speaker 3: But even if you do everything correctly, everything right. The
18:51
Speaker 3: officer has been properly trained, and he's one of the
18:54
Speaker 3: best you know at actually utilizing this. He was a
18:56
Speaker 3: former chemist, let's just say, the most you know crazy
18:59
Speaker 3: since area where he knew exactly how to do this.
19:02
Speaker 3: There are so many different non controlled substances that actually
19:06
Speaker 3: test positive for drugs and change that substance that look
19:09
Speaker 3: like narcotics that it makes it impossible to really verify
19:12
Speaker 3: if this is a drug or not.
19:13
Speaker 2: And let's be honest, most of these officers are not
19:16
Speaker 2: scientists or chemists. And there are many other problems, including
19:21
Speaker 2: that these tests just aren't that easy to read. One
19:25
Speaker 2: color can easily be interpreted as another. So what are
19:28
Speaker 2: some examples of this?
19:30
Speaker 3: For example, one test, it says that LSD should turn
19:34
Speaker 3: all of black, but sugar turns dark brown. Now, if
19:37
Speaker 3: you're on the side of the road pulling someone over
19:40
Speaker 3: at night, there's lights flashing, things are going on, it's noisy,
19:44
Speaker 3: it's hot. You're in South Texas, You're shaking this thing
19:47
Speaker 3: around and you're looking at it and you're saying, is
19:49
Speaker 3: that dark brown or is that all of black? I mean,
19:52
Speaker 3: it's a pretty ridiculous question, but this can mean the
19:55
Speaker 3: difference between someone being arrested or being let go because
20:00
Speaker 3: of this slight color change. And then another test, another
20:03
Speaker 3: very popular test, cocaine is supposed to be a deep
20:06
Speaker 3: orange yellow, while salt is a strong orange. If you
20:10
Speaker 3: can explain to me what a strong orange is compared
20:12
Speaker 3: to a deep orange yellow, please let me know.
20:26
Speaker 2: So I'm thinking of someone like Amy, who we talked
20:29
Speaker 2: about at the beginning of this episode and whose story
20:33
Speaker 2: was actually published in an article by Pro Publica. And
20:36
Speaker 2: by the way, if you're interested, you can find this
20:39
Speaker 2: article and others about these roadside drug tests in our
20:42
Speaker 2: show notes. But someone like Amy is taking to jail
20:47
Speaker 2: based on this flawed roadside test, and she's told by
20:52
Speaker 2: her court appointed defense attorney that there's another test that
20:56
Speaker 2: can verify the results. Of course, that test is going
20:59
Speaker 2: to take quite some time, but she's told that nonetheless,
21:03
Speaker 2: So tell us about that second test, the lab test.
21:06
Speaker 2: Is it actually reliable And if it is reliable, why
21:10
Speaker 2: aren't they using it to verify the results right away
21:13
Speaker 2: instead of having, you know, people like Amy be presented
21:16
Speaker 2: with this very precarious circumstance in which they're made to
21:21
Speaker 2: wait around for a.
21:23
Speaker 3: While with all these drug test kits, you know, and
21:26
Speaker 3: it says it right on the box, they should be
21:29
Speaker 3: verified by a forensics lab. And so most jurisdictions either
21:34
Speaker 3: have a state lab and then also for a larger cities,
21:37
Speaker 3: they'll have their own lab. So essentially what they do
21:40
Speaker 3: is take the substance, heat it up a lot, break
21:42
Speaker 3: it down to its elements, and then you can tell
21:44
Speaker 3: from that with you know, pretty much one hundredercent certainty
21:46
Speaker 3: that what it is is either narcotics or not. However,
21:50
Speaker 3: most of the time it's not getting to that point.
21:52
Speaker 3: A lot of places, you know in Texas Department Public
21:55
Speaker 3: and Safety there just doesn't have the time and bandwidth
21:58
Speaker 3: to actually verify a lot of the these cases. Some jurisdiction,
22:01
Speaker 3: now Houston, after this story kind of broke, is now
22:04
Speaker 3: not allowing for plea deals to be accepted without that verification.
22:08
Speaker 3: But a lot of jurisdictions, preticuting small jurisdictions, we have
22:10
Speaker 3: these major backlaws. People are playing within a couple of days,
22:13
Speaker 3: and then these things aren't being verified. Back every case
22:16
Speaker 3: can't get tested. With the amount and volume that we have.
22:19
Speaker 3: There's one point six million arrests for drug offenses each
22:22
Speaker 3: and every year, and if you try to verify and
22:25
Speaker 3: test all these substances, you never get through it. And
22:27
Speaker 3: so those are the problems. So the actual test, the
22:30
Speaker 3: actual science that should be used here is not being
22:34
Speaker 3: utilized because the criminal process stops within a couple of
22:37
Speaker 3: days for most of these individuals, and then the plea happens.
22:40
Speaker 2: So let's pause there for a second. Tell us about
22:43
Speaker 2: the plea. Why does so many innocent people end up
22:47
Speaker 2: pleading guilty once they're charged based on these faulty roadside
22:51
Speaker 2: drug tests.
22:53
Speaker 3: So plea deal is a negotiation, and so what it
22:56
Speaker 3: is is, hey, I can give you ten years on this,
22:59
Speaker 3: or you can take two instead of going to trial,
23:01
Speaker 3: let's settle this today. And so that is very attractive
23:04
Speaker 3: for a lot of people that are facing so much time,
23:07
Speaker 3: and it really does get to a point where it's
23:09
Speaker 3: quite coercive. Maybe they set your bail at five thousand dollars,
23:13
Speaker 3: ten thousand dollars, you can't afford it, so you sit
23:15
Speaker 3: in jail, and you're claiming your innocence. You're claiming your innocence.
23:18
Speaker 3: Now the prosecute delays your case again, delays your case again.
23:21
Speaker 3: We'll accept a forty five day deal, or we can
23:23
Speaker 3: go to trial and maybe you'll get two years. And
23:24
Speaker 3: you have an overworked public defender who has a huge
23:27
Speaker 3: backlog of cases on their own and can't give you
23:29
Speaker 3: the time of day because you can't afford your own attorney,
23:32
Speaker 3: and so they're telling you take the plea, you have
23:34
Speaker 3: no chance go through this, and you're still sitting in jail,
23:37
Speaker 3: and sitting in jail, and jail's not a great place,
23:39
Speaker 3: and jail it's hot or it's freezing cold, and you're
23:42
Speaker 3: with other people that are actually, you know, dangerous criminals
23:45
Speaker 3: in this place, and you're going through it, and you
23:47
Speaker 3: start to think of this cost benefit analysis of do
23:50
Speaker 3: I stay in here, take this and go, or do
23:52
Speaker 3: I continue to fight this case of potentially risk You know,
23:55
Speaker 3: multiple years are staying in here for another six to
23:58
Speaker 3: eight months. You know the public defenders selling you the
24:00
Speaker 3: backlog at that lab is twelve to eighteen months. You
24:03
Speaker 3: know you can't get out for quite a while. You
24:05
Speaker 3: know these are the types of fears and risk and
24:07
Speaker 3: things people are going through in this process. And so
24:10
Speaker 3: that's why folks like Amy and thousands of others across
24:12
Speaker 3: the country have accepted plead deals even when they're actually innocent.
24:17
Speaker 2: Yeah, and what's really tragic is that once these innocent
24:21
Speaker 2: people plead guilty, whatever was used to convict them, you know,
24:25
Speaker 2: whatever was taken from their car and dropped in one
24:29
Speaker 2: of these biles that the police are saying tested positive
24:33
Speaker 2: for a certain drug usually gets destroyed. So if they
24:37
Speaker 2: ever want to get a hold of the evidence to
24:39
Speaker 2: try to demonstrate that they actually pled guilty to something
24:42
Speaker 2: they didn't do, they can't get it.
24:45
Speaker 3: You're exactly right, you know, evidence in a lot of
24:47
Speaker 3: these cases has been destroyed, and so we really don't
24:50
Speaker 3: know how many people have been wrongfully convicted because you
24:52
Speaker 3: may not be able to verify the results. I know
24:55
Speaker 3: Pro Publica did a study and they estimated about one
24:58
Speaker 3: hundred thousand people a year probably plead guilty based upon
25:01
Speaker 3: drug test kits alone. And so even if you have
25:04
Speaker 3: a small air rate there, I mean, you're talking about
25:06
Speaker 3: thousands of people potentially each year that actually had never
25:09
Speaker 3: done anything wrong pleading guilty, and how many of those
25:11
Speaker 3: cases do you actually have the destruction of evidence. Luckily,
25:14
Speaker 3: for Amy, and it's tough to say Anything's lucky about
25:17
Speaker 3: her case was that, you know, in Harris County, you
25:20
Speaker 3: had a forensics lab that didn't want to destroy evidence,
25:23
Speaker 3: and you also had so much volume that a motion
25:26
Speaker 3: to destroy evidence is about at the bottom of the
25:28
Speaker 3: barrel for a judge of signed. So that motion was
25:30
Speaker 3: never signed in her case. And so six months later
25:33
Speaker 3: this was actually tested and it was a food crump.
25:35
Speaker 2: So because of what was really an oversight, the evidence
25:39
Speaker 2: in her case was never destroyed. So they were able
25:42
Speaker 2: to retest the evidence and find out that she's actually innocent,
25:47
Speaker 2: and they sent a letter to Amy's house notifying her,
25:51
Speaker 2: but it took a long time to actually get that letter,
25:54
Speaker 2: so Amy went a long time not knowing that this
25:57
Speaker 2: evidence had ever been retested.
26:00
Speaker 3: Now, the problem with that, and the problem in Amy's case,
26:03
Speaker 3: is that she had moved from her original address at
26:05
Speaker 3: that time. And so for a lot of folks, I mean,
26:07
Speaker 3: this has been going on for years. They can't find everyone,
26:10
Speaker 3: and so these criminal convictions continue to linger. Some of
26:12
Speaker 3: these individuals were homeless, Some of these are extreme poverty.
26:15
Speaker 3: Some of them moved out far away and don't understand
26:17
Speaker 3: that this is going on. And so a lot of
26:19
Speaker 3: these cases are still unresolved to this day. And that's
26:22
Speaker 3: exactly what happened to Amy's case. I think her initial
26:24
Speaker 3: letter was sent in twenty fourteen. It took until you know,
26:28
Speaker 3: two reporters from the New York Times to finally get
26:30
Speaker 3: in touch with her and finally found her, you know,
26:33
Speaker 3: six years later after this happened, she had already had
26:35
Speaker 3: the criminal conviction on her record, She had lost everything
26:39
Speaker 3: she was working at, like a convenience store, and then
26:41
Speaker 3: kind of working for a slumlord after because she couldn't
26:43
Speaker 3: get a job with a felony record. And so this
26:45
Speaker 3: entire woman's life is ruined based upon the evidence of
26:49
Speaker 3: this drug kit.
26:50
Speaker 2: Look, I know exactly what you're talking about. I have
26:53
Speaker 2: so many clients that when they get out, you know,
26:56
Speaker 2: there's always you know, a celebration, and oftentimes it's covered
27:02
Speaker 2: in the press. And after that first you know, twenty
27:07
Speaker 2: four forty eight seventy two hours, you know, a different
27:12
Speaker 2: kind of nightmare begins for them. You know, trying to
27:15
Speaker 2: assimilate back into society is just you know, very very difficult.
27:21
Speaker 2: The psychological harm that is done, you know, from somebody
27:26
Speaker 2: being in a combined space and having to answer to
27:30
Speaker 2: someone having to ask permission to do something, you know,
27:33
Speaker 2: simple things like go to the bathroom or eat. It's
27:36
Speaker 2: just it's hard to undo. And you know, this stain
27:43
Speaker 2: of a wrongful incarceration, a wrongful conviction really sticks with you.
27:50
Speaker 3: You know the Internet, things don't leave there, and so
27:52
Speaker 3: you have this arrest record on that. You have these
27:54
Speaker 3: convictions on there, and those linger with you for quite
27:57
Speaker 3: a while. It costs thousands of dollars to get your
28:00
Speaker 3: six sponge even if you're wrongfully convicted, And even if
28:03
Speaker 3: you get that off your physical record, the digital record
28:06
Speaker 3: still stays there. You have a mug shot that's out there.
28:08
Speaker 3: You have this arrest record, you have the plea. You
28:11
Speaker 3: have all these different documents and they can be scrubbed
28:13
Speaker 3: from one thing, but they can pop up on another.
28:15
Speaker 3: You'll have the same company have something called mugshots dot
28:19
Speaker 3: com and then they'll have mugshots with the z dot
28:22
Speaker 3: com and then you have to pay to get it
28:23
Speaker 3: off of there. And so you know, I'm sure if
28:25
Speaker 3: you looked up Amy Albritton and criminal history on a
28:28
Speaker 3: lot of these different sites, you probably still see that
28:30
Speaker 3: she was arrested, charge and convicted for a drug possession.
28:33
Speaker 3: And if you're trying to get a job, you're trying
28:35
Speaker 3: to get public funding, public housing, apply to school, all
28:39
Speaker 3: these different things that's going to pop up, and sometimes
28:41
Speaker 3: an employer or a college or something else will just
28:45
Speaker 3: brush past you because that even though you were actually
28:47
Speaker 3: exonerated of a crime.
28:49
Speaker 2: So if these tests are so problematic, why is law
28:52
Speaker 2: enforcement still using them? Why are they so so popular?
28:57
Speaker 3: Well, they're incredibly popular. And the reason that they're so
29:00
Speaker 3: pppler is because they're cheap and they allow and I'm
29:02
Speaker 3: using this term loosely, for officers and proseures to gather
29:05
Speaker 3: some sort of chemical evidence early on in the trial
29:08
Speaker 3: and keep that churn of the criminal justice system going.
29:11
Speaker 3: We had one point six million arrests for drug offenses
29:14
Speaker 3: in twenty eighteen. If everyone went to trial on those things,
29:17
Speaker 3: you'd never get through. It would take decades to get
29:19
Speaker 3: through all the cases. And so what a field drug
29:22
Speaker 3: test kit does is allow us to exhibitize the criminal
29:25
Speaker 3: justice system and garner police from individuals at the earliest
29:28
Speaker 3: stage in the process.
29:30
Speaker 2: So do you think there's anything that can prevent these
29:33
Speaker 2: roadside drug tests from resulting in innocent people getting convicted.
29:39
Speaker 3: Because of investigative stories like we had in Atlanta, there
29:42
Speaker 3: was an incredible one down there where they found that
29:44
Speaker 3: one hundred and forty five people just in twenty seventeen
29:47
Speaker 3: alone were wrongfully convicted of drug possession, and the ones
29:51
Speaker 3: in Houston, and we had, you know, certain cases in
29:53
Speaker 3: Arizona and Las Vegas. These investigative reports and these types
29:57
Speaker 3: of podcasts that you guys are doing has brought more
30:00
Speaker 3: information on the inaccuracies of these and actually inherit count.
30:02
Speaker 3: They no longer allow for a plea to be entered
30:06
Speaker 3: until it has been verified by a laboratory, and so
30:10
Speaker 3: you are seeing changes across the country on how these
30:12
Speaker 3: are utilized, But still in many jurisdictions, particularly smaller jurisdictions,
30:16
Speaker 3: judges are taking these pleas and prosecutors are driving these
30:20
Speaker 3: pleas without actually verifying the results.
30:22
Speaker 2: These types of stories are extremely valuable, but the sad
30:27
Speaker 2: truth is that these kinds of changes take a lot
30:30
Speaker 2: of work and a lot of time. So in the meantime,
30:34
Speaker 2: for the immediate future, is there anything else that can
30:37
Speaker 2: be done to stop these kinds of wrongful convictions.
30:41
Speaker 3: If you're about to accept a plea based upon this alone,
30:44
Speaker 3: do not. Now, you do have newer technologies today that
30:48
Speaker 3: actually are able to be more readily accurate and don't
30:51
Speaker 3: produce as many false positives, but those are very expensive
30:54
Speaker 3: and a lot of you know, smaller jurisdictions can't afford those,
30:57
Speaker 3: and so that's a good thing, but that's going to
30:59
Speaker 3: be you know, a long ways out, and so you know,
31:02
Speaker 3: these drug test kits are still very prevalent. So this
31:04
Speaker 3: just should not be used in the first place.
31:10
Speaker 2: It's likely that stories like Amy's would have remained cloaked
31:13
Speaker 2: in silence had it not been for journalists from Pro
31:16
Speaker 2: Publica and The New York Times who did extensive reporting
31:20
Speaker 2: to understand the depth of the problems that are associated
31:23
Speaker 2: with roadside drug test kits. In fact, Amy likely wouldn't
31:28
Speaker 2: have learned about the retesting of the evidence in her case,
31:31
Speaker 2: which verified what she already knew that she was innocent,
31:34
Speaker 2: if these reporters hadn't tracked her down. It's because of
31:38
Speaker 2: these investigative journalists that the problems associated with drug test
31:43
Speaker 2: kits came to light, and it's in a large part
31:46
Speaker 2: due to their reporting that local municipalities across the country
31:51
Speaker 2: are being pressured to change their regulations regarding roadside drug tests.
31:56
Speaker 2: Oversight is being implemented to ensure that the work of
32:00
Speaker 2: labse is reliable. There's increased scrutiny of plea deals for
32:04
Speaker 2: drug offenses where there isn't evidence to support a person's guilt.
32:10
Speaker 2: This kind of reporting is extraordinarily important for helping the
32:14
Speaker 2: Innocence Project and lawyers like me identify cases where individuals
32:19
Speaker 2: were wrongfully convicted, and to bring these cases to the
32:23
Speaker 2: public's attention. So subscribe to news outlets like Pro Publica,
32:28
Speaker 2: the Marshall Project, the New York Times, or wherever you
32:31
Speaker 2: see quality journalism that is focused on exposing the shortcomings
32:36
Speaker 2: of our criminal justice system. We hear this phrase fake news,
32:41
Speaker 2: fake news. It's all fake news carelessly tossed around to
32:46
Speaker 2: the point where people are actually beginning to believe that
32:49
Speaker 2: they should be dismissive of anything written by a journalists.
32:53
Speaker 2: This is so dangerous for reasons that I think are
32:56
Speaker 2: obvious to listeners of this show. Dissult on our media
33:01
Speaker 2: makes support incredible news organizations more important than Ever, as
33:06
Speaker 2: it is often under the microscope of their thorough investigative
33:10
Speaker 2: reporting that we uncover and then prevent the junk science
33:15
Speaker 2: behind wrongful convictions. Next week, we'll explore the junk science
33:25
Speaker 2: of eyewitness identification with the renowned psychologist and memory expert
33:30
Speaker 2: Elizabeth Loftis. Wrongful Conviction Junk Science is a production of
33:35
Speaker 2: Lava for Good Podcasts and association with Signal Company Number One.
33:40
Speaker 2: Thanks to our executive producer Jason Flahm and the team
33:43
Speaker 2: at Signal Company Number One executive producer Kevin Wartis and
33:47
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