Articles Posted in Wrongful Conviction

Today marks the 85th anniversary of the landmark Supreme Court case of Powell v. Alabama[1]. Powell[2] is one of the cases in which the Supreme Court laid out the basic due process requirements of a fair trial in state courts including right to effective appointed counsel in capital offenses, fair time to prepare for trial, and fair hearing. This case proved to be a monumental move for the Supreme Court, which signaled a progressive shift to expanding constitutional rights for defendants in criminal trials.

The Case[3]

The case behind the monumental decision of the Supreme Court required a monumental remedy. On March 25th, 1931, a fight broke out aboard a freight train between a group of poor black and white youth who both had not paid for the ride. All but one of the white youths was thrown from the train just over the Alabama state line, and these boys promptly reported the incident to local law enforcement. The nine-black youths Charlie Weems, Ozie Powell, Clarence Norris, Olen Montgomery, Willie Roberson, Haywood Patterson[4], Andrew (Andy) Wright, Leroy (Roy) Wright and Eugene Williams were detained when they reached the town of Scottsboro Alabama[5].

iStock_000020746027_ExtraSmall.jpgIn December of 2013, a 54-year-old Texas woman was traveling back from spending the Christmas holiday with a family friend in Ciudad Juarez, Mexico when she was stopped by federal agents at the Cordova Bridge border crossing in El Paso, Texas. As the unnamed woman was passing through the checkpoint, a police drug dog allegedly alerted on her, prompting U.S. Customs and Border Protection agents to select her for additional screening. The woman was quickly stripped searched and forced to undergo several body cavity searches at the crossing checkpoint, but the agents failed to turn up absolutely any evidence of drugs.

Regardless of this fact, the agents were determined to find some evidence of drugs and proceeded to transport the woman, handcuffed and against her will, to the University Medical Center of El Paso. At the hospital, doctors subjected the woman to an observed bowel movement, an expensive total body CT scan and numerous body cavity probes in a desperate attempt to find some trace of drugs. However, after enduring over six hours of demeaning and highly invasive searches, the agents were forced to admit the woman had committed no crime and released her with no charges. However, to add insult to injury, the woman soon received a $5,000 bill from the hospital for the exams she was wrongly forced to undergo.

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criminal background check.jpgWhen the Government charges a defendant with a crime, the defendant has a right to a fair trial. What defines a fair trial is a rather extensive topic that is subject to rigorous debate. Discovery, which is the part of the trial where evidence is examined and exchanged between the government and defense attorney, is a key element to a fair trial. Most often discovery can result in a plea bargain or the case being dismissed altogether. In a criminal case, discovery mostly imposes duties to disclose information upon the Government. There is very little the defense has to tell the government; for example, the defense may be required to disclose the use of expert witnesses or the use of an insanity defense.

When the defense cannot fully access or discover evidence, serious due process problems arise. Currently, the government sometimes employs a trial method that completely disguises and conceals critical evidence in drug cases. Across the Country, a secretive U.S. DEA unit is using intercepted phone calls, wirtetaps, informants and a massive database of telephone records to help prosecutors and law enforcement allegedly catch drug dealers. This unit is called the Special Operations Division (SOD) and it operates in a thick cloak of secrecy. The heightened confidentiality that SOD information receives is creating problematic situations that undermine the rights that a criminal defendant has to a fair trial.

When the prosecutor or other government officials receive SOD documents, they are marked with “Law Enforcement Sensitive”. This categorization keeps the documents confidential and prevents the defense attorneys from knowing that they exist. In fact, sometimes the prosecutor does not even know that SOD documents were used in the trial that he or she is prosecuting. Law enforcement covers up SOD documents with a process called “Parallel Construction”, and the following example will demonstrate how this works: a police officer receives a SOD document detailing when and where a drug transaction will occur. It lists the people involved and describes how they look and what they will be driving. But, the document notes that the police officers cannot make any mention of the received information, so the officers are supposed to monitor the situation and create other reasons to stop the suspects.

nursing certification.jpgA Massachusetts lab technician has admitted to faking results, tampering with evidence and routinely ignoring agency test protocols when processing tens of thousands of law enforcement lab tests. The technician, Annie Dookhan, was known for being the most productive chemist in the Massachusetts Department of Public Health laboratory and the go-to chemist for prosecutors trying criminal drug cases.

Prosecutors now believe that Dookhan’s stellar reputation was built on fraud. In 2012, the chemist informed Massachusetts state police that instead of properly testing all substances turned over by law enforcement, she would occasionally only test a fraction of the substances, yet verify that all of the substances were illicit drugs. Despite her admission, Dookhan has pleaded not guilty to all charges.

Dookhan’s fraudulent testing has led to more than 330 inmates being released from custody in the last year, while over 1,100 cases have been dismissed due to tainted evidence. In the wake of the scandal, one manager at the lab and the state’s public health commission have resigned, while another manager at the lab has been fired.

criminal background check.jpgThough whites and African-Americans reportedly use marijuana at similar rates, nationally, law enforcement officers are about 4 times more likely to arrest African-Americans. The ACLU report, which revealed this information, also found certain counties in Texas have disproportionate arrest records that are among the worst in the US. For example, officers in Van Zandt County are about 34 times more likely to arrest African-Americans for marijuana possession compared to the officers’ chances of arresting whites for possession. Numerous other Texas counties also arrest African-Americans for possession at rates ranging from 5 times higher to 20 times higher than arrests of whites for possession. In response to the ACLU report’s findings as they relate to Texas, ACLU executive director Terri Burke said “This data is clear evidence that police target blacks for marijuana use. And nowhere in Texas is this practice as prevalent as in a corridor stretching from Houston, up through East Texas, into the Dallas-Fort Worth area.” Shattering the notion that such disparate possession arrests are limited to Texas’ rural areas, the ACLU report revealed that Harris County ranks fourth in the US for the number of African-Americans arrested for possession.

Africans-Americans represent roughly 12% percent of the Texas population, but were targeted in over 25% of possession arrests in Texas as a whole. While this percentage (showing African-Americans are 2.3 times more likely to be arrested compared to whites) indicates disproportionate possession arrest rates of minorities in Texas is lower than the national average, understanding arrest reporting methods could explain further. Texas’ arrest reporting method does not count Hispanics separately from whites. The ACLU suspects the possession arrests of Hispanics is also disproportionality higher than whites, but cannot accurately analyze the data due to the reporting method. The ACLU further suspects, if the possession arrest records of whites alone could be analyzed, then the disparity between possession arrests of whites and minorities would be even worse than the ACLU report currently indicates.

Besides revealing racial inequality in law enforcement targeting in Texas, the ACLU report also informed readers on Texas’ wasteful policy of fighting the war on weed. The ACLU report showed that Texas has the second-highest number of possession arrests in the US. The ACLU report also discovered that possession arrests in Texas represent more than half of all drug arrests. This figure places Texas among the top states that waste the most resources and arrest the most people to enforce dubious marijuana policies. What is most striking about the report is that four decades of marijuana prohibition has cost U.S. taxpayers more than $1 trillion. In 2010 alone, the enforcement of prohibition cost the U.S. about $3.6 billion. In that same year, Texas’ marijuana law enforcement cost Texas taxpayers about $126 million. Furthermore, in 2010, judicial and correctional costs related to marijuana law enforcement totaled $85 million and $40 million respectfully. Because marijuana prohibition has caused racially biased arrests and monumental wastes in government resources, the ALCU report concludes that the legalization of marijuana is the best way to combat the devastating effects of marijuana prohibition.

iStock_000009135835_ExtraSmall.jpgPossession of marijuana charges are serious situations. Even the lightest charge, which would be a class B misdemeanor for possessing 2 ounces or less, can still have staggering consequences.. The best way to avoid the consequences of a charge is to not commit the crime. However, no system is perfect, and today’s law enforcement and judicial system is exemplary of this principle. The ACLU just released a report that said that minorities were 400% more likely be arrested for a marijuana offense. Lead author of the report, Ezekiel Edwards, told the New York Times. “We found that in virtually every county in the country, police have wasted taxpayer money enforcing marijuana laws in a racially biased manner.”

The raw data behind the reports is staggering. Each state had different numbers, but New York State had the most possession of marijuana arrests in 2010 with more than 100,000 arrests. Id. While New York State ranked highest in arrests, the highest population arrest rate belonged to Washington D.C., with 846 arrests per 100,000 residents. Id. Iowa earned a special note as having the “the most egregious racial disparity… where black residents were eight times more likely to be arrested for a marijuana-related charge than whites.” Id.

Why should this concern you? The answer lies in the concept of constructive possession. Constructive possession means controlling a piece of property, including contraband, without physically holding it. For example, when we leave our car parked in a parking lot, we are still exerting constructive possession over it. Or when we leave our house locked and we go out for the night, we are still exercising constructive possession of the house. Constructive possession appears in drug cases usually when there is contraband found in a car during a traffic stop. For example, if an officer pulls a car over for speeding and notices marijuana in the backseat, the question is “who is exercising constructive possession of this contraband”?

iStock_000005273638XSmall.jpgBlack Americans were nearly four times as likely as whites to be arrested for marijuana in 2010 despite the fact that both races use the drug at about the same rate, according to new federal data. Drawn from police records from all 50 states and the District of Columbia, the data, part of a report recently released by the American Civil Liberties Union, gives a comprehensive review of marijuana arrests by race and county. “We found that in virtually every county in the country, police have wasted taxpayer money enforcing marijuana laws in a racially biased manner,” said Ezekiel Edwards, the director of the ACLU’s Criminal Law Reform Project.

This disparity has grown steadily from a decade ago, and in some states, including Washington D.C., Iowa, Minnesota and Illinois, blacks were 7.5 to 8.5 times more likely than whites to be arrested for possessing pot. Experts stated that growing racial disparities in marijuana arrests were especially striking because they were so consistent, even across counties containing large or small minority populations. According to the New York Times, President Obama’s presence in office has done nothing to ease the racial disparity. Rather, arrests for marijuana possession have increased by about 5% since Obama took office from President Bush. In 2010 and 2011 roughly half of all drug-related arrests were for marijuana possession alone.

According to the ACLU report, federal law enforcement funding programs like the Edward Byrne Justice Assistance Grant Program often incentivize racial profiling by including arrest numbers in performance measures used to determine aid. University of California Los Angeles professor Phillip Goff explains that police often concentrate on poorer or minority neighborhoods to increase their arrest statistics by targeting multiple low-level offenses that are quicker, easier and cheaper than investigating serious crimes. “Whenever federal funding agencies encourage law enforcement to meet numerical arrest goals instead of public safety goals, it will likely promote stereotype-based policing and we can expect these sorts of racial gaps,” Professor Goff said.

iStock_000014481539_ExtraSmall.jpgA recent report titled “False Positives Equal False Justice” shows that the majority of marijuana field test kits used by law enforcement officers in the U.S. produce unacceptably high rates of false positives. This report, jointly released by former FBI chief scientist and narcotics officer Dr. Frederic Whitehurst and writer and forensic drug expert John Kelly, shows findings from a two-year joint legal and scientific investigation. While focusing on the most widely-used testing kit, the NIK NarcoPouch 908/Duquenois-Levine Reagent test kit, the study found that both the NIK and a majority of other testing kit brands used by law enforcement as a basis for arrest and prosecution had high rates of faulty results. This is of particular concern because the company that produces the kit has written that: “The results of a single test may or may not yield a valid result…There is no existing chemical reagent test, adaptable to field use that will continually eliminate the occurrence of an occasional invalid test results. A complete forensic laboratory would be required to qualitatively identify an unknown suspect substance.”

The consequences of a false positive on a law enforcement or probation-related drug testing kit are dire. Lengthy jail sentences, felon status, a suspended drivers license, ineligibility for government loans and an undeserved social stigma are all severe consequences to citizens.

Across the country, Kelly’s report is being backed by law enforcement officials, business owners and, especially, the victims of faulty drug testing kits. One business owner who has seen the risks of false positives firsthand is David Bronner, president of the popular organic soap line Dr. Bronner’s Magic Soaps. In 2007, the results of a NarcoPouch 928 field drug test were used to jail Don Bolles–drummer for the legendary punk-rock band the Germs–on charges of possession of the illegal drug GHB. Fortunately, Mr. Bolles fought back, contending that the alleged GHB was in fact nothing but Dr. Bronner’s castile soap. David Bronner and his company became involved, and both Dr. Bronner’s Magic Soaps and Mr. Bolles were exonerated shortly thereafter when a crime lab confirmed that the “GHB” was, in fact, soap.

iStock_000002633881XSmall.jpgThe highest criminal court in Texas recently set aside the judgment of Rolando Garcia, who had been convicted a third degree felony offense of possession of marijuana. Mr. Garcia’s judgment carried with it a prison sentence of three years. However, the only reason Mr. Garcia had pleaded guilty and accepted the plea deal of a three- year sentence was because the prosecutor had charged Mr. Garcia with the offense of felony possession. Despite the charge of felony possession, laboratory testing of the substance involved in Mr. Garcia’s case revealed that the prosecutor could not prove Mr. Garcia actually possessed a felony quantity of marijuana.

As a result of the revelation by the laboratory testing, the parties in this case agreed that Mr. Garcia would not have pleaded guilty in exchange for a three-year sentence if he had known that the prosecutor could only have proven Mr. Garcia possessed merely a misdemeanor quantity of marijuana. Mr. Garcia’s defense argued to the Texas Court of Criminal Appeals that Mr. Garcia’s guilty plea was involuntary because he is actually innocent of the felony offense to which he pleaded guilty.

In response to Mr. Garcia’s argument, the Texas Court of Criminal Appeals granted a writ based on actual innocence.