STORY: "Unreliable and unchallenged," by reporter Ryan Gabrielson, published by ProPublic on October 28, 2016. "Ryan Gabrielson is a reporter for ProPublica covering the U.S. justice system. In 2013, his stories for the Center for Investigative Reporting on violent crimes at California’s board-and-care institutions for the developmentally disabled were a finalist for the Pulitzer Prize for Public Service." This story was co-published with the Las Vegas Review-Journal.
SUB-HEADING: "Years after the Las Vegas crime lab wanted to replace faulty police drug kits, they are still used in thousands of convictions.".
SUB-HEADING: "Tens of thousands of people every year are sent to jail based on the results of a $2 roadside drug test. Widespread evidence shows that these tests routinely produce false positives. Why are police departments and prosecutors still using them?"
GIST: "At the outset of the 1990s, the Las Vegas Metropolitan Police Department began making thousands of arrests every year using inexpensive test kits meant to detect illegal drugs. Officers simply had to drop suspected cocaine or methamphetamine — taken from someone’s pocket or the floorboards of their car — into a pouch of chemicals and watch for telltale changes in colors. Known as “field tests,” police embraced them as essential in busting drug users and dealers. Local judges became sold on the kits’ usefulness and prosecutors relied on them to quickly secure guilty pleas — hundreds upon hundreds, year after year..........All along, though, police and prosecutors knew the tests were vulnerable to error, and by 2010, the police department’s crime lab wanted to abandon its kits for methamphetamine and cocaine. In a 2014 report that Las Vegas police submitted to the U.S. Department of Justice under the terms of a federal grant, the lab detailed how the kits produced false positives. Legal substances sometimes create the same colors as illegal drugs. Officers conducting the tests, lab officials acknowledged, misinterpreted results. New technology was available — and clearly needed to protect against wrongful convictions. Yet to this day, the kits remain in everyday use in Las Vegas. In 2015, the police department made some 5,000 arrests for drug offenses, and the local courts churned out 4,600 drug convictions, nearly three-quarters of them relying on field test results, according to an analysis of police and court data. Indeed, the department has expanded the use of the kits, adding heroin to the list of illegal drugs the tests can be used to detect. There’s no way to quantify exactly how many times the field tests were wrong or how many innocent people pleaded guilty based on the inaccurate results, or to assess the damage to their lives. To be sure, most field tests are accurate and most drug defendants who take plea deals are guilty. But — just as certainly — there have been some number of convictions based on false positives. How many? The department maintains it has never established an error rate. The department destroys samples after pleas are entered and does not track how many of its field test results are re-checked. Drug arrest and lab testing data show the number could be as low as 10 percent. What is clear is that even as they continue to employ field tests to secure arrests and gain convictions, neither the Las Vegas Metropolitan Police Department nor the Clark County district attorney’s office has informed local judges of the long-standing knowledge of their unreliability. And neither has taken any additional steps to prevent mistakes. Informed recently of the findings reported to the Justice Department, Joe Bonaventure, chief judge of the Las Vegas Justice Court, expressed concern about the flaws but did not say whether he plans to change his court’s regard for the tests. “These are tests that have been accepted for years,” said Bonaventure, who became a judge in 2004. “They’re not being challenged.” Kim Murga, the director of the Las Vegas police crime lab, said the department still wants to stop using chemical field tests in arrests for methamphetamine and cocaine. “We don’t turn a blind eye” to the risk of false positives, Murga said. But she acknowledged that the lab had not tried to more effectively eliminate errors. In 2014, the same year the Las Vegas lab’s report to the DOJ detailed misgivings about the reliability of field tests, prosecutors in Houston identified more than 300 cases in which innocent people took plea deals largely based on field test results that proved wrong. Unlike in Las Vegas, Houston’s lab hung on to evidence even after defendants pleaded guilty. Lab tests later proved that the alleged drugs were not controlled substances. By that time, though, many people had spent time in jail or prison. Some were saddled for years with felony convictions that devastated their lives. The district attorney’s office in Harris County, the jurisdiction where Houston is, no longer accepts guilty pleas based on field tests. Drug evidence must be confirmed by the crime lab for prosecutors to obtain a conviction.........In some respects, people arrested for drug offenses based on field tests in Las Vegas find themselves in more dire circumstances than they might elsewhere. People allegedly possessing even small amounts of a drug like cocaine can be charged with trafficking and thus be exposed to stiff sentences and steep bail amounts; Prosecutors routinely resist efforts to have drug evidence quickly retested in the lab, often keeping those who fight the charges in jail longer; Police and prosecutors have made presentations to judges vouching for the reliability of field tests. Defense attorneys say such proceedings leave judges predisposed to accept field test results as authoritative. Judge Joe Bonaventure, chief of the Las Vegas Justice Court, says defense attorneys have not challenged the reliability of drug field tests. (Ronda Churchill/Las Vegas Review-Journal) Phil Kohn, chief of the Las Vegas public defender’s office, acknowledged that the prospect of serious prison time has the effect of strong-arming pleas. “If you’re wondering why the public defender is pleading these cases, it’s because the alternative is horrific,” Kohn said. Chemical field tests were first widely deployed by law enforcement in the 1960s amid the early skirmishes of the war on drugs. Today, they are used by hundreds of police agencies across the country, from the giant New York Police Department to far smaller departments throughout rural America. In 2011, the Department of Justice hired a private research firm for a national survey, and every jurisdiction it contacted used field tests for drug arrests. The tests are cheap — $2 apiece or less — and they are enormously convenient for police. Over the years, numerous studies have concluded that they are legitimate tools to establish probable cause to make an arrest. But those studies have always emphasized the limits of the tests. For instance, they ought never be seen as definitive evidence of illegal drugs. Federal guidelines say all drugs in criminal cases must be identified by a qualified lab. Kevin Lothridge, head of the National Forensic Science Technology Center, said scientists’ position has been that field tests could provide only “an indication something might be there.” Courts across the country have repeatedly refused to admit field test results as evidence at trial. The Safariland Group, which produces the brand of tests purchased by Las Vegas police and is the largest manufacturer of the test kits, said in a statement last week that “field tests are specifically not intended to be used as a factor in the decision to prosecute or convict a suspect.” Nonetheless, in jurisdictions of all sizes and in all corners of the country, unconfirmed field tests are being used to help extract guilty pleas..........David LaBahn, president of the Washington-based Association of Prosecuting Attorneys, said the hundreds of wrongful convictions in Houston had effectively put the nation’s criminal justice system on notice. Jurisdictions still accepting guilty pleas based on field tests were playing with fire. “It’s sloppy work,” he said. “If they haven’t heard about Houston, people better start paying attention.” Perhaps no jurisdiction in the country is as equipped to understand the risk of wrongful convictions as Las Vegas. The unreliability of field tests, after all, is not theoretical here. Their shortcomings were painstakingly memorialized in the 2014 report that called for the tests to be replaced. Yet Las Vegas police continue to arrest people using field tests, and the volume of drug pleas continues largely unabated......... Asked about the use of field tests in heroin arrests and prosecutions, Christopher Lalli, an assistant district attorney for Clark County, said they are “sufficiently reliable for the purpose (they are) being utilized (for).” He then asserted that the tests are authorized for this use in jurisdictions in at least eight other states. Lothridge, the head of the National Forensic Science Technology Center, said the tests’ shortcomings are less about science and more about their use by the justice system. “Science can do some things,” Lothridge said. “But if the legal community chooses to go another way and allows people to plead without additional testing or those kinds of things, that’s not a science problem. That’s really the legal system’s issue.”"
The entire story can be found at:
See Radley Balko post (Washington Post) at the link below: "This should be a massive scandal. If police and prosecutors are knowingly using drug test kits known to have a high false positive rate, and then using the results of those tests to put people in prison, they are knowingly violating the constitutional rights of those people. Not only do a lot of people need to be fired, but there also ought to be a criminal investigation."
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/