Thursday, June 30, 2022

Raymond Bailey: Australia; False confession case: Author and investigative journalist Stephen Bishop decries South Australia's refusal to decline a posthumous pardon for this man hanged after an investigation by a now deceased detective who has been exposed as, "one of Queensland’s Rat Pack of corrupt police."..."In December 1957 police issued the description of a grey Ford Zephyr seen near the murder scene. Bailey had a black, 1938 DeSoto when arrested. Bailey signed a confession in Mt Isa police station after several days of questioning. He later claimed he signed the confession because he could hear his wife weeping in another room while police questioned her. Bailey told the court: “They (detectives) also said: ‘do you love you wife?’ I said, ‘yes I do’ and they said: ‘then sign it and we will leave her alone’.” The alleged confession said the victims died when shot while running from the murderer but that contradicted the facts. “The description of the murder of Thyra Bowman in the alleged confession is completely and utterly untrue,’’ Mr Bishop said. “The post mortems revealed she and her daughter had been bashed unconscious before they were shot. They were definitely not shot as they ran in an upright position.”

PUBLISHER'S NOTE: This Blog is interested in false confessions because of the disturbing number of exonerations in the USA, Canada and multiple other jurisdictions throughout the world, where, in the absence of incriminating forensic evidence the conviction is based on self-incrimination – and because of the growing body of scientific research showing how vulnerable suspects (especially young suspects) are to widely used interrogation methods such as the notorious ‘Reid Technique.’ As all too many of this Blog's post have shown, I also recognize that pressure for false confessions can take many forms, up to and including inducement. deception (read ‘outright lies’) physical violence, and even physical and mental torture.

Harold Levy: Publisher; The Charles Smith Blog:

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PASSAGE OF THE DAY; "In February 2013, Mr Bishop appealed to SA Governor Kevin Scarce to grant a posthumous pardon for Bailey but on advice from Attorney-General John Rau and the Solicitor-General the Governor decided he would “not take action”. “It is clear that Queensland detective Glen Hallahan engineered a massive miscarriage of justice at Bailey’s trial and that his conviction should be reversed and a posthumous pardon granted,’’ Mr Bishop said. “The alleged confession, which bears Bailey’s signature, does not tally with other evidence given by the prosecution at the trial.’’ A clear fault in prosecution evidence, Mr Bishop says, was that footprints found at the murder scene, and believed to belong to the killer, came from shoes estimated as size “7, 7½, 8 or even 10”. However, it was left to Bailey, in an unsworn statement, to reveal at the end of the trial: “I take size 5½ shoe or if I can’t get that size, I wear a size 6.”

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STORY: "Justice sought for hanged man Raymond John Bailey — 57 years later," by Reporter Doug Robertson, published by Adelaide Now on June 6, 2022.

SUB-HEADING: "The State Government is refusing to re-examine a 57-year-old triple-murder case despite evidence suggesting the convicted man, who was later hanged in Adelaide Gaol, did not commit the crime."

GIST: "Author and investigative journalist Stephen Bishop claims that rogue Queensland detective Glen Patrick Hallahan, now deceased, lied on oath and in records of police interviews with Raymond John Bailey.

Hallahan was later described as one of Queensland’s Rat Pack of corrupt police who were exposed by the Fitzgerald inquiry in the late 1980s.

His evidence led to Bailey’s conviction and hanging in 1958 for shooting Sally (Thyra) Bowman, 43, her daughter Wendy Bowman, 14, and friend Thomas Whelan, 22, at the isolated Sundown Station, in Far North South Australia, in December 1957.

In his book — The Most Dangerous Detective: The Outrageous Glen Patrick Hallahan — Mr Bishop says a re-examination of evidence given in court would prove Bailey could not have committed the Sundown murders.

In February 2013, Mr Bishop appealed to SA Governor Kevin Scarce to grant a posthumous pardon for Bailey but on advice from Attorney-General John Rau and the Solicitor-General the Governor decided he would “not take action”.

“It is clear that Queensland detective Glen Hallahan engineered a massive miscarriage of justice at Bailey’s trial and that his conviction should be reversed and a posthumous pardon granted,’’ Mr Bishop said.

“The alleged confession, which bears Bailey’s signature, does not tally with other evidence given by the prosecution at the trial.’’

A clear fault in prosecution evidence, Mr Bishop says, was that footprints found at the murder scene, and believed to belong to the killer, came from shoes estimated as size “7, 7½, 8 or even 10”. However, it was left to Bailey, in an unsworn statement, to reveal at the end of the trial: “I take size 5½ shoe or if I can’t get that size, I wear a size 6.”

A spokeswoman for Attorney-General John Rau said that “for legal reasons” he would not comment on specific cases.

Mr Bishop also appealed to the SA Ombudsman Wayne Lines to re-examine the evidence.

Hallahan arrested Bailey, 26, on suspicion of false pretences and possession of an unlicensed firearm, on January 21, 1958, at Mt Isa, where the NSW carpenter was working and living in a caravan with his wife, 22, and son, 4. Bailey was later charged with murder and extradited to Adelaide.

SA Police had issued a nationwide alert for suspects after Aboriginal trackers found three bodies about 34km south of the NT border on Sundown Station. They were beaten about the head then shot.

The murder weapon was never found but casings from a Huntsman .22 calibre rifle — that Bailey had taken from David Iles, at Wirrulla, matched cartridges found at the murder scene.

In court, Bailey said he sold the rifle before the murders to a “dark-skinned fellow’’ near Coober Pedy.

In December 1957 police issued the description of a grey Ford Zephyr seen near the murder scene. Bailey had a black, 1938 DeSoto when arrested. Bailey signed a confession in Mt Isa police station after several days of questioning. He later claimed he signed the confession because he could hear his wife weeping in another room while police questioned her.

Bailey told the court: “They (detectives) also said: ‘do you love you wife?’ I said, ‘yes I do’ and they said: ‘then sign it and we will leave her alone’.”

The alleged confession said the victims died when shot while running from the murderer but that contradicted the facts.

“The description of the murder of Thyra Bowman in the alleged confession is completely and utterly untrue,’’ Mr Bishop said.

“The post mortems revealed she and her daughter had been bashed unconscious before they were shot. They were definitely not shot as they ran in an upright position.”

A Freedom of Information request for documents generated during the AG’s considerations failed to explain why Mr Bishop’s application for mercy was denied.

Mr Bishop is still waiting to know what he has wrong."

The entire story can bee read at:

https://www.adelaidenow.com.au/news/south-australia/justice-sought-for-hanged-man-raymond-john-bailey--57-years-later/news-story/39511ec6a71c6afcd49bc3fa20079196

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/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;

SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!

Christina Swarns: Executive Director: The Innocence Project

Wednesday, June 29, 2022

Technology: (Mis)uses thereof in the criminal justice system: Tim Cushing, an awesome observer of the (mis)uses of technology in criminal justice systems, explains in 'Techdirt' why an artificial intelligence (AI) tool used in some U.S. states to initiate child welfare investigations have com under close scrutiny..."There’s plenty of human work to be done, but there never seems to be enough humans to do it. When things need to be processed in bulk, we turn it over to hardware and software. It isn’t better. It isn’t smarter. It’s just faster. We can’t ask humans to process massive amounts of data because they just can’t do it well enough or fast enough. But they can write software that can perform tasks like this, allowing humans to do the other things they do best… like make judgment calls and deal with others humans. Unfortunately, even AI can become mostly human, and not in the sentient, “turn everyone into paperclips” way it’s so often portrayed in science fiction. Instead, it becomes an inadvertent conduit of human bias that can produce the same results as biased humans, only at a much faster pace while being whitewashed with the assumption that ones and zeroes are incapable of being bigoted. But that’s the way AI works, even when deployed with the best of intentions. Unfortunately, taking innately human jobs and subjecting them to automation tends to make societal problems worse than they already are. Take, for example, a pilot program that debuted in Pennsylvania before spreading to other states. Child welfare officials decided software should do some of the hard thinking about the safety of children. But when the data went in, the usual garbage came out. According to new research from a Carnegie Mellon University team obtained exclusively by AP, Allegheny’s algorithm in its first years of operation showed a pattern of flagging a disproportionate number of Black children for a “mandatory” neglect investigation, when compared with white children. Fortunately, humans were still involved, which means not everything the AI spit out was treated as child welfare gospel. The independent researchers, who received data from the county, also found that social workers disagreed with the risk scores the algorithm produced about one-third of the time. But if the balance shifted towards more reliance on the algorithm, the results would be even worse."

PASSAGE OF THE DAY: "But Oregon officials have decided to ditch this following the AP investigation published in April (as well as a nudge from Senator Ron Wyden). Oregon’s Department of Human Services announced to staff via email last month that after “extensive analysis” the agency’s hotline workers would stop using the algorithm at the end of June to reduce disparities concerning which families are investigated for child abuse and neglect by child protective services. “We are committed to continuous quality improvement and equity,” Lacey Andresen, the agency’s deputy director, said in the May 19 email.

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COMMENTARY: "Oregon State officials dump AI tool used to initiate welfare investigations," by Tim Cushing, Techdirt's awesome commentator on the (mis)uses of technology, published on June 17, 2022.

GIST: "There’s plenty of human work to be done, but there never seems to be enough humans to do it. When things need to be processed in bulk, we turn it over to hardware and software. It isn’t better. It isn’t smarter. It’s just faster.

We can’t ask humans to process massive amounts of data because they just can’t do it well enough or fast enough. But they can write software that can perform tasks like this, allowing humans to do the other things they do best… like make judgment calls and deal with others humans.

Unfortunately, even AI can become mostly human, and not in the sentient, “turn everyone into paperclips” way it’s so often portrayed in science fiction.

Instead, it becomes an inadvertent conduit of human bias that can produce the same results as biased humans, only at a much faster pace while being whitewashed with the assumption that ones and zeroes are incapable of being bigoted.

But that’s the way AI works, even when deployed with the best of intentions.

Unfortunately, taking innately human jobs and subjecting them to automation tends to make societal problems worse than they already are.

Take, for example, a pilot program that debuted in Pennsylvania before spreading to other states. Child welfare officials decided software should do some of the hard thinking about the safety of children. But when the data went in, the usual garbage came out.

According to new research from a Carnegie Mellon University team obtained exclusively by AP, Allegheny’s algorithm in its first years of operation showed a pattern of flagging a disproportionate number of Black children for a “mandatory” neglect investigation, when compared with white children.

Fortunately, humans were still involved, which means not everything the AI spit out was treated as child welfare gospel.

The independent researchers, who received data from the county, also found that social workers disagreed with the risk scores the algorithm produced about one-third of the time.

But if the balance shifted towards more reliance on the algorithm, the results would be even worse.

If the tool had acted on its own to screen in a comparable rate of calls, it would have recommended that two-thirds of Black children be investigated, compared with about half of all other children reported, according to another study published last month and co-authored by a researcher who audited the county’s algorithm.

There are other backstops that minimize the potential damage caused by this tool, which the county relies on to handle thousands of neglect decisions a year.

Workers are told not to use algorithmic output alone to instigate investigations.

As noted above, workers are welcome to disagree with the automated determinations.

And this only used to handle cases of potential neglect or substandard living conditions, rather than cases involving more direct harm like physical or sexual abuse.

Allegheny County isn’t an anomaly. More locales are utilizing algorithms to make child welfare decisions.

The state of Oregon’s tool is based on the one used in Pennsylvania, but with a few helpful alterations.

Oregon’s Safety at Screening Tool was inspired by the influential Allegheny Family Screening Tool, which is named for the county surrounding Pittsburgh, and is aimed at predicting the risk that children face of winding up in foster care or being investigated in the future. It was first implemented in 2018. Social workers view the numerical risk scores the algorithm generates – the higher the number, the greater the risk – as they decide if a different social worker should go out to investigate the family.

But Oregon officials tweaked their original algorithm to only draw from internal child welfare data in calculating a family’s risk, and tried to deliberately address racial bias in its design with a “fairness correction.”

But Oregon officials have decided to ditch this following the AP investigation published in April (as well as a nudge from Senator Ron Wyden).

Oregon’s Department of Human Services announced to staff via email last month that after “extensive analysis” the agency’s hotline workers would stop using the algorithm at the end of June to reduce disparities concerning which families are investigated for child abuse and neglect by child protective services.

“We are committed to continuous quality improvement and equity,” Lacey Andresen, the agency’s deputy director, said in the May 19 email.

There’s no evidence Oregon’s tool resulted in disproportionate targeting of minorities, but the state obviously feels it’s better to get out ahead of the problem, rather than dig out of a hole later. It appears, at least from this report, the immensely important job of ensuring children’s safety will still be handled mostly by humans.

And yes, humans are more prone to bias than software, but at least their bias isn’t hidden behind a wall of inscrutable code and is far less efficient than the slowest biased AI."

The entire commentary can be read at:

https://www.techdirt.com/user/capitalisliontamer/

SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

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Christina Swarns: Executive Director: The Innocence Project;

Tuesday, June 28, 2022

Criminalizing reproduction: Scott Henson - one of my favourite U.S. criminal justice gurus - takes us back more than a century to a time when, "both obtaining and assisting with an abortion were crimes for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves."..."Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854, before being updated to include the word "abortion" in 1907 and then codified into the Penal Code in 1925. Attorney Doug Gladden goes through that statutory history here. Gladden identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren't frequently enforced. What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year old girl. In 1907, a physician was prosecuted in Haskell, TX, for performing an abortion on his 13-year old sister-in-law, who had been raped. In El Paso, Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. She was a rich society lady who wore fashionable gowns and diamonds while incarcerated in the county jail. The earliest case I found reported in Texas newspapers was n 1890 in Comanche, when a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify. Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed HB 235 making that official, requiring license cancellation by the state medical board for any physician found to have given a criminal abortion. The Amarillo Globe News in 1960 cited local physicians' concerns that the abortion ban forced women to have "do it yourself" abortions, and reported that most women seeking the procedure were married. Forbidding safe abortions didn't mean women wouldn't pursue unsafe ones, en masse. By the time of Roe v. Wade, the practice had become widespread. According to the Fort Worth Star-Telegram, in 1966 an estimated one million women had criminal abortions, and 8,000 of them died as a result."

CRIMINALIZING REPRODUCTION: (Attacks on Science, Medicine and the Right To Choose): In recent years, I have taken on the theme of criminalizing reproduction - a natural theme for a Blog concerned with flawed science in its myriad forms - as I am utterly opposed to the current movement in the United States (and some other countries) embodied by the overturning of Roe Versus Wade, towards imprisoning women and their physicians and others who help them secure a safe abortion, on the basis of sham science (or any other basis). I can’t remember the source, but agree totally with the sentiment that control over their reproductive lives is far too important to women in America - or anywhere else - so they can participate equally in the economic and social life of their nations without fear for loss their freedom at the hands of political opportunists and fanatics. (Far too many of those those around these days.)

Harold Levy: Publisher; The Charles Smith Blog.

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PASSAGE ONE OF THE DAY: "By contrast, in 2021, the Guttmacher Institute estimates about 930,000 women had safe, medical abortions, though the US population is much larger than in 1966. So legalizing abortion empirically didn't make their number increase; it only made things safer and less threatening for women and the nurses and physicians brave enough to help them. If it's true that abortions were more prevalent under a criminal sanctions regime, from a policy perspective, re-criminalizing greatly increases the harm without achieving the desired result."

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PASSAGE TWO OF THE DAY: "The other big intersection of criminal law and abortion rights in the wake of the Dobbs opinion arises for women under supervision of the justice system: Either out on bail or on probation or parole. Whether these women will be allowed to leave their jurisdiction to get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some never will. This will create a patchwork of policies as well as massive incentive for defendants to lie to the courts and abscond."

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POST: Grits for Breakfast: ("Criminal justice) reform Movement Poorly Positioned to Confront Re-Criminalized Abortion)," by Scott Henson, in his top-notch Blog 'Grits for Breakfast,' published on July 4, 2022. (I love this Blog's motto: "Welcome to Texas justice. You might beat the rap, but you don't beat the ride.

GIST: "During my three decades working on criminal-justice reform, when abortion came up, your correspondent always took the attitude, "That's someone else's job." Not anymore. As of last week, abortion became a criminal-justice issue in Texas, full stop.

The US Supreme Court's abandonment of Roe vs. Wade -- combined with a decision last year by Greg Abbott and the Texas Legislature to re-affirm criminal statutes on abortion from the 1925 Penal Code, if and when Roe ever fell -- suddenly have dumped the abortion question back into the realm of criminal law.

SCOTUS decided Roe v. Wade when I was four years old, so I've never known a world in which the criminal courts managed women's reproductive choices. Thus it's easy to forget that the Wade in Roe v. Wade was Henry Wade, the Dallas County District Attorney,* and that for a century-plus before that, both obtaining and assisting with an abortion were crimes for which people were arrested by police, charged by prosecutors, sentenced by juries, and imprisoned in the same facilities as murderers and thieves.

Statutes banning assisted or intentional miscarriages were on the books in Texas from at least 1854, before being updated to include the word "abortion" in 1907 and then codified into the Penal Code in 1925. Attorney Doug Gladden goes through that statutory history here.

Gladden identified 40 abortion convictions in Texas appellate records: 24 before 1925, 16 of which were reversed, and 16 from 1925 to 1971, of which five were reversed. Some cases may not have been appealed, and records may not be complete, but even so, this tells us abortion statutes weren't frequently enforced.

What they did do was prevent most legitimate, trained doctors from performing them. In Greenville, for example, in 1905, a black doctor was arrested for performing an abortion on an 18-year old girl. In 1907, a physician was prosecuted in Haskell, TX, for performing an abortion on his 13-year old sister-in-law, who had been raped. In El Paso, Dr. Andrea Reum, whose husband was also a medical doctor, was prosecuted after performing an abortion on a young black woman. She was a rich society lady who wore fashionable gowns and diamonds while incarcerated in the county jail.

The earliest case I found reported in Texas newspapers was n 1890 in Comanche, when a medical doctor was arrested for performing an abortion. Charges were later dismissed when the victim refused to testify.

Such episodes were widely publicized in the press and sent a message to physicians that performing abortions would cost them their licenses. In 1919, the Legislature passed HB 235 making that official, requiring license cancellation by the state medical board for any physician found to have given a criminal abortion.

The Amarillo Globe News in 1960 cited local physicians' concerns that the abortion ban forced women to have "do it yourself" abortions, and reported that most women seeking the procedure were married.

Forbidding safe abortions didn't mean women wouldn't pursue unsafe ones, en masse. By the time of Roe v. Wade, the practice had become widespread. According to the Fort Worth Star-Telegram, in 1966 an estimated one million women had criminal abortions, and 8,000 of them died as a result.

By contrast, in 2021, the Guttmacher Institute estimates about 930,000 women had safe, medical abortions, though the US population is much larger than in 1966. So legalizing abortion empirically didn't make their number increase; it only made things safer and less threatening for women and the nurses and physicians brave enough to help them.

If it's true that abortions were more prevalent under a criminal sanctions regime, from a policy perspective, re-criminalizing greatly increases the harm without achieving the desired result.

The other big intersection of criminal law and abortion rights in the wake of the Dobbs opinion arises for women under supervision of the justice system: Either out on bail or on probation or parole. Whether these women will be allowed to leave their jurisdiction to get an abortion will be decided on a judge-by-judge basis: Some will routinely allow it; some never will. This will create a patchwork of policies as well as massive incentive for defendants to lie to the courts and abscond.

Presently, because this hasn't been an issue the criminal-justice system dealt with in more than a half century, there's no criminal-justice reform group obviously well-situated to confront these questions. The ACLU will step up, one assumes, but they're being pulled in a million directions and don't have a winning track record on these topics. Meanwhile, abortion-rights groups who one would anticipate would be most aggressive haven't dealt with the justice system in a half century and will have a steep learning curve. Grits fears that neither the abortion rights movement nor the #cjreform movement are well-positioned to confront what's coming next."

The entire post can be read at:

https://gritsforbreakfast.blogspot.com/2022/07/cjreform-movement-poorly-positioned-to.html

SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

—————————————————————————————————

Christina Swarns: Executive Director: The Innocence Project;

Flawed drug tests: Tim Cushing, who rewrites brilliantly on the (Mis)uses of Technology for Techdirt - one of my favourite scribes - exposes yet another drug test relied on by law enforcement, noting that it is wrong nearly 30% of the time...Yikes. HL..."Any test that doesn’t involve a lab should be considered suspect. (And even lab results are far from impeachable…) But government agencies are often more interested in doing their own thing than ensuring rights aren’t violated and the lives of those paying their salaries aren’t senselessly (and often permanently) disrupted. A contractor providing drug test services to hundreds of family courts, drug treatment programs, and probation/parole offices has been found to be generating garbage results on a far too regular basis. (h/t Michael Vario) Averhealth’s former lab director Sarah Riley testified during a family court case last year that up to 30 percent of the company’s test results submitted to the state of Michigan were wrong, including both false positives and false negatives, according to a court transcript obtained by VICE News through a Freedom of Information Act request. “Did you say 30 percent, ma’am?” the judge asked her. “Three zero,” Riley replied."

PASSAGE OF THE DAY: "Averhealth has responded by vaguely threatening legal action over “defamation” and claiming Riley is nothing more than a disgruntled employee with an ax to grind. But Averhealth can’t explain away failures that are documented by its own communications with state agencies — ones that include a clerical error by a lab tech resulting in 13 results being attributed to the wrong people and 139 people testing negative for substances they’d actually used due to bugs in the processing software. Averhealth is the extremely exposed tip of the iceberg. Saliva swab tests are gaining popularity because they’re easier and less intrusive than other methods, like the ever-popular urine drug screens everyone from potential employees to parolees have been subjected to for decades. But with longevity comes established protocols, baselines, and remedies for false positives. Saliva swabs are still relatively unknown and, even as the user base for this method grows, its reliability continues to be questioned. “Easier” and “cheaper” almost never mean “better.” But what government agencies desire are cheaper, easier methods that ease workloads and are more likely to survive budget reviews. The collateral damage to people’s lives appears to be an acceptable tradeoff in far too many cases. And companies like Averhealth that pretend they’re not part of the problem are just going to keep screwing up until the problem is too big to ignore. But by the time that happens, countless people will have had their lives destroyed."

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COMMENTARY: Another Drug Test Relied On By Law Enforcement Is Wrong Nearly 30 Percent Of The Time, published by Tim Cushing of 'Techdirt' on June 16, 2022, under the heading, "(Mis)uses of technology.

GIST: "Field drug tests are notoriously unreliable. False positives abound. But law enforcement agencies still use them. First and foremost, they use them because no court, policy, or legislation has told them they can’t.

But they also use them because they’re cheap (~$2/per), portable, and, most importantly, prone to producing false positives that allow cops to do the things they really want to, like perform warrantless searches, affect warrantless arrests, and seize cash and personal property.

Anything from doughnut crumbs to honey to bird poop can be viewed as an illicit substance, provided the faulty tests do their job as poorly as cops hope and turn the solution to a color that says “adios, constitutional rights!”

That these substances often turn out to be innocuous when subjected to lab tests doesn’t matter to cops. It’s the initial positive that gives them permission to start destroying lives. It may ultimately matter to courts, but by the time charges are tossed, plenty of damage has already been done.

Any test that doesn’t involve a lab should be considered suspect. (And even lab results are far from impeachable…) But government agencies are often more interested in doing their own thing than ensuring rights aren’t violated and the lives of those paying their salaries aren’t senselessly (and often permanently) disrupted.

A contractor providing drug test services to hundreds of family courts, drug treatment programs, and probation/parole offices has been found to be generating garbage results on a far too regular basis. (h/t Michael Vario)

Averhealth’s former lab director Sarah Riley testified during a family court case last year that up to 30 percent of the company’s test results submitted to the state of Michigan were wrong, including both false positives and false negatives, according to a court transcript obtained by VICE News through a Freedom of Information Act request.
“Did you say 30 percent, ma’am?” the judge asked her. “Three zero,” Riley replied.

That’s just in Michigan. According to the report from Alicia Hines for Motherboard, Averhealth has contracts in 34 states and runs up to 8,000 tests a day. That’s over 2,000 potential blown calls every day, year after year. Michigan has finally ditched Averhealth — at least for the time being — but that only happened after a year of testimony and internal complaints from Michigan government employees about the unreliability of swab tests Health and Human Services performed.

Blown calls mean the state’s DHHS could separate parents from their kids and send children to foster homes. But Averhealth also contracts with probation officers and drug treatment courts, which means not only can people lose contact with their children, they can lose their jobs, homes, and freedom even if they’re not using illegal substances.

Averhealth — like others in the field (others who also have the same reliability problems) — utilizes a two-step process for drug testing. The first test involves a saliva sample that it mixed with a reagent that then reacts to chemicals in the saliva to guess what substances (illegal or otherwise) may be present in the person’s body. Averhealth then follows this up with a better test — a mass spectrometer examination of the same sample that is far more accurate.

The problem is that many entities utilizing services like Averhealth rarely wait to take action until the lab results are in. Initial screenings are when things start going wrong for innocent people. Averhealth isn’t an anomaly. It’s just another symptom of a problem that is nationwide and involves multiple government contractors.

That’s all standard practice in the industry, even outside Averhealth. But an otherwise foolproof process becomes less so when steps are skipped, and scandals are more common than you might think. In New York State prisons, an investigation published in 2022 found that inmates were being punished and put into solitary confinement because initial screening results came back positive for the opiate buprenorphine. As it turned out, the test maker had failed to disclose internal research showing over-the-counter cold medicine, antacid, and even stevia could trigger false positive results. At the same time, prison managers were skipping spectrometry confirmation altogether. A court-watching nonprofit found a similar situation in New Orleans in 2018, when only immunoassays were used. Neither of the scandals involved Averhealth.

What does make Averhealth stand out is that this high level of inaccuracy isn’t limited to the quick-and-dirty saliva swab tests. Its lab work is equally suspect. Quality control in the lab appeared to have been nearly nonexistent. Variables that should have been checked and double-checked with blind tests and other control methods weren’t, resulting in the generation of more false positives and negatives.

Riley, who has a Ph.D. in biochemistry and molecular biology, explained during her testimony obtained by VICE News that spectrometry instruments are only accurate if properly calibrated. Temperature and many other tiny and constantly changing environmental variables can shift results, so machines are constantly checked with so-called “quality controls.”
But Averhealth was trusting the results even when the quality control tests failed—and reporting erroneous results to the state of Michigan, according to Riley.

What should have made lab techs second-guess results was treated like a speed bump on the route toward results. Tests that failed to confirm positive saliva swab tests were ignored. The original — more questionable — result was reported to Michigan’s Department of Health and Human Services as lab-confirmed results indicating illegal drug use.

Averhealth has responded by vaguely threatening legal action over “defamation” and claiming Riley is nothing more than a disgruntled employee with an ax to grind. But Averhealth can’t explain away failures that are documented by its own communications with state agencies — ones that include a clerical error by a lab tech resulting in 13 results being attributed to the wrong people and 139 people testing negative for substances they’d actually used due to bugs in the processing software.

Averhealth is the extremely exposed tip of the iceberg. Saliva swab tests are gaining popularity because they’re easier and less intrusive than other methods, like the ever-popular urine drug screens everyone from potential employees to parolees have been subjected to for decades. But with longevity comes established protocols, baselines, and remedies for false positives. Saliva swabs are still relatively unknown and, even as the user base for this method grows, its reliability continues to be questioned.

“Easier” and “cheaper” almost never mean “better.” But what government agencies desire are cheaper, easier methods that ease workloads and are more likely to survive budget reviews. The collateral damage to people’s lives appears to be an acceptable tradeoff in far too many cases. And companies like Averhealth that pretend they’re not part of the problem are just going to keep screwing up until the problem is too big to ignore. But by the time that happens, countless people will have had their lives destroyed."

The eire commentary can be read at:

another-drug-test-relied-on-by-law-enforcement-is-wrong-nearly-30-percent-of-the-time

SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

—————————————————————————————————

Christina Swarns: Executive Director: The Innocence Project

Monday, June 27, 2022

The perfect drug bust (Gone terribly, terribly wrong): Vincente Dominguez, Elena Dominguez, 27, Claudia Escardna, Pedro Cortez; Knoxville, Tennessee: Troubling story, headed 'Beans mistaken for dope cost four people their freedom, is by J.J. Stambaugh of 'Hard Knox Wire'..."The three officers soon began turning up items that both aroused their suspicions and provided — in the legalese used in courtrooms across the country — numerous sources of “probable cause” for them to believe that the carload of people before them were criminals, records show. Wallace’s canine partner “alerted” to the presence of narcotics. The officers found $5,575 in cash that was wrapped in rubber bands in a bag belonging to Dominguez’s wife. Then, in a purse belonging to Escardna, they found another $4,500 in multiple bundles of twenty-dollar bills that were also “rubber banded.” “A search of the vehicle located multiple deodorizing agents and air fresheners throughout the interior cabin of the car, the trunk, and inside luggage which is consistent of masking agents used to cover up the smell of narcotics,” wrote Cloyd. “Inside the trunk was a large brown bag which contained a black plastic bag, odor masking agents, and two cell phones as well as a green bag which contained multiple clear plastic baggies filled with a brown powdery substance believed to be heroin,” he alleged. Specifically, there were “six clear bags” filled with 1,253 grams of a “brown powdery substance consistent with heroin,” the warrant states. It’s important to note that the officers weren’t allowed to field test the suspected heroin due to fears that it might contain fentanyl, an extremely potent narcotic that many law enforcement experts believe may pose a danger to first responders. Instead, a specially trained drug investigator came to the scene and tried to analyze the powder with an electronic drug-detecting device, but the machine gave an inconclusive result, records show. Despite the inconclusive reading from the electronic drug-sniffer, the officers concluded they had more than enough probable cause to arrest all four of the Kia’s occupants on heroin trafficking charges. They also seized the vehicle and all its contents, including the cash."

QUOTE OF THE DAY: The one exception (to defence lawyers who would not talk to reporter Stambaugh) was lawyer Mike Whalen, who represented Elena Dominguez during her two-week incarceration. To call Whalen “outraged” at how the case unfolded would be an understatement of grandiose proportions. “Of course they say the system worked,” Whalen said. “It worked out okay for the cops, they’ll face no repercussions. But she sure as hell has. She lost her husband over some beans.” As far as Whalen is concerned, the entire case was a disaster from the beginning and an abject lesson in why the Fourth Amendment was included in the U.S. Constitution. Unfortunately, he said, it shows how easy it is for the government to ignore the freedoms enumerated in the nation’s governing document. “The cops decided what they had based on what they wanted to see, and when they made the decision to arrest it didn’t matter what the testing showed or didn’t show, they were going to move forward,” he said. “Then they say, ‘Sorry we screwed up and put you in jail, got two people wrongfully deported, stole $10,000 and a car … This is what the Fourth Amendment was instituted to protect against.” According to Whalen, the two women went to Atlanta, Ga., to stay with some relatives after they were freed. His said his client is “in shock” from the whole experience and still awaiting the return of her money… and her spouse. “He’s gone. That’s all we know,” Whalen said. “I assume he’s going to Louisiana, that’s where they usually end up eventually, but it takes weeks and weeks. In the meantime, he doesn’t have any money on his account to make any phone calls, that’s for sure — they stole that.”

-------------------------------------------------------------

GIST: "It looked like a perfect drug bust.

A routine traffic stop with suspicious occupants in the car? Check.

Multiple types of probable cause? Check.

Nearly $10,000 in multiple bundles secured by rubber bands? Check.

Six plastic bags containing more than 1,250 grams of brown powder that looked like heroin? Check.

Faced with all that evidence, Knoxville Police Department officers arrested two married couples from Guatemala on charges of heroin trafficking on April 23.

After spending two weeks behind bars, however, all criminal charges against the two men and their wives were dropped after authorities learned there was actually no heroin in their vehicle.

In fact, the brown powder had turned out to be nothing more than crushed, dried beans.

The women have since been freed from jail, authorities are preparing to refund their money, and KPD officials have made it clear they want to do everything they can to make things right.

But the two men have disappeared into the bowels of the federal prison system due to a controversial agreement between the Knox County Sheriff’s Office and U.S. Immigrations and Customs Enforcement (ICE).

No one seems able to say when they will be freed — or even if they will ever see their families in the United States again — as the question of their innocence is legally irrelevant under immigration law.

According to KPD and the Knox County District Attorney General’s Office, the case is an example of the criminal justice system working as it should.

They point out the police officers followed all the rules and — when it became clear that the purported heroin was actually bean powder — they acted swiftly to have the charges dropped.

Unsurprisingly, critics believe the case shows that the criminal justice system is deeply flawed and allows grotesque Constitutional violations to occur on a routine basis.

Following too closely leads to arrests:

The unfortunate saga began a few minutes before 11 a.m. on Saturday, April 22, on Interstate 40 in West Knoxville, according to arrests warrants filed in Knox County General Sessions Court.

KPD Officer Andrew Cloyd was going westbound between I-640 and Papermill Drive when he spotted a maroon Kia Forte with Florida tags. The Kia was “following too closely to a gray SUV in front of it,” wrote Cloyd in the warrants he later issued for the vehicle’s occupants.

Legally, the officer’s opinion that the Kia was too close to another vehicle was all the reason that Cloyd needed to pull the car over. It turned out there were four people inside the Kia, which was driven by 31-year-old Vincente Dominguez, according to court records.

The passengers were identified as Dominguez’s wife, Elena Dominguez, 27, as well as 30-year-old Claudia Escardna and Pedro Cortez, 34, who were also married.

Dominguez handed Cloyd a Guatemalan ID but had no driver’s license, prompting the officer to have him step outside the car. Dominguez allegedly provided conflicting stories about where the carload full of Hispanic men and women were going and why before giving Cloyd permission to search the vehicle.

Cloyd was soon joined by two other officers: Anthony Bradley and K-9 Officer Richard Wallace.

The three officers soon began turning up items that both aroused their suspicions and provided — in the legalese used in courtrooms across the country — numerous sources of “probable cause” for them to believe that the carload of people before them were criminals, records show.

Wallace’s canine partner “alerted” to the presence of narcotics. The officers found $5,575 in cash that was wrapped in rubber bands in a bag belonging to Dominguez’s wife. Then, in a purse belonging to Escardna, they found another $4,500 in multiple bundles of twenty-dollar bills that were also “rubber banded.”

“A search of the vehicle located multiple deodorizing agents and air fresheners throughout the interior cabin of the car, the trunk, and inside luggage which is consistent of masking agents used to cover up the smell of narcotics,” wrote Cloyd.

“Inside the trunk was a large brown bag which contained a black plastic bag, odor masking agents, and two cell phones as well as a green bag which contained multiple clear plastic baggies filled with a brown powdery substance believed to be heroin,” he alleged.

Specifically, there were “six clear bags” filled with 1,253 grams of a “brown powdery substance consistent with heroin,” the warrant states.

It’s important to note that the officers weren’t allowed to field test the suspected heroin due to fears that it might contain fentanyl, an extremely potent narcotic that many law enforcement experts believe may pose a danger to first responders.

Instead, a specially trained drug investigator came to the scene and tried to analyze the powder with an electronic drug-detecting device, but the machine gave an inconclusive result, records show.

Despite the inconclusive reading from the electronic drug-sniffer, the officers concluded they had more than enough probable cause to arrest all four of the Kia’s occupants on heroin trafficking charges. They also seized the vehicle and all its contents, including the cash.

For the next 13 days, the four suspects would be prisoners in the Knox County jail system.

As criminal defendants, they each were appointed a lawyer to represent them through the court system. When Elena Dominguez was assigned to veteran defense attorney Mike Whalen, she told him the bags in the trunk had contained only “frijoles,” which is the Spanish word for “beans.”

Whalen then notified prosecutors from the Knox County District Attorney General’s Office, who in turn asked the Tennessee Bureau of Investigation (TBI) to expedite testing of the suspicious brown powder.

The testing soon revealed that Dominguez had told the truth — the bags were full of dried, powdered beans instead of deadly narcotics.

Prosecutors, with the full support of KPD, dropped all the charges against the group on May 6, court records show.

“We asked the TBI lab to rush the testing of what KPD seized and dismissed the case as soon as the lab confirmed it was not heroin. Our obligation as prosecutors is to seek the truth. Our duty to dismiss charges to protect the innocent is as important as our duty to pursue charges against the guilty,” said DA spokesperson Sean McDermott.

A federal question:

The two women were quickly released from jail and allowed to go on their way. But when it came time to release their husbands, they learned the two men had been transferred to federal custody under a controversial federal program that targets undocumented immigrants.

As a result, even though Vincente Dominguez and Pedro Cortez are no longer accused of breaking the law in Knox County, it remains uncertain when or how they might leave the federal detention system.

On May 10 — four days after the charges against them were dismissed — Dominguez and Reyes were turned over to U.S. Immigrations and Customs Enforcement (ICE) under the 287g Program, which allows local police agencies to collaborate with the federal government to enforce immigration laws.

KPD has never been a participant in the 287g Program, but KPD doesn’t operate any jails in Knox County. In Knox County, every person who is arrested is booked into a correctional facility owned and operated solely by the Knox County Sheriff’s Office, regardless of which police agency arrests them.

Unlike KPD, which falls under the authority of left-of-center Mayor Indya Kincannon, the Sheriff’s Office answers to only one authority, Sheriff Tom Spangler, a Republican and enthusiastic participant in the 287g Program. His department has repeatedly come under fire from critics who contend that most of the people targeted by the program don’t pose a threat to the community, but Spangler has never budged in his support for the program and has instead promised to renew it indefinitely.

In the case of Dominguez and Cortez, their fates were sealed from the moment they were booked into Knox County’s jail and therefore placed into KCSO custody. The two men apparently couldn’t prove they were either citizens or had immigrated legally into the U.S., which meant they became legitimate ICE targets regardless of their guilt or innocence of the charges they were accused of.

“Once they were arrested and not able to provide proof of their identity, it is then that ICE steps in,” explained KCSO Kimberly Glenn. “If they were found to be here illegally, ICE has jurisdiction over that. Therefore, there is nothing the Sheriff’s Office can do at that point. We are also not informed on whether or not the individual(s) are found to have other outstanding charges in any other state or country. That would be a federal question.”

Hard Knox Wire contacted the spokesperson for the U.S. Attorney’s Office in Knoxville, but they referred all questions to immigration authorities. ICE officials, in turn, couldn’t be reached for comment about this story or to provide information about the men’s whereabouts.

Officials haven’t said why the men weren’t released from custody as soon as the charges against them were dismissed.

It also wasn’t clear why ICE targeted the two men but not their wives.

“Unfortunate” is probably not a strong enough word

While KPD officials hardly consider the bust to be one of their department’s proudest moments, they also take pains to point out that every step the officers took was 100 percent legal and consistent with not only the policies of KPD but also with those of police departments across the country.

“It’s really an unfortunate situation but, as we’ve said before, it’s a hard balancing act,” said KPD spokesperson Scott Erland. “Actually, ‘unfortunate’ is probably not a strong enough word. We support our officers who are doing drug interdiction work, but we also support the dismissal of these charges.”

Erland ticked off the “multiple layers of probable cause” the officers had to make the arrests, from the bundled-up cash to the “deodorizers” and the fact that a drug dog “alerted” at the scene.

“There was certainly no malicious intent,” he continued. “The officers acted in good faith…

They were acting on the information that they had.”

He paused, then added: “It was complicated. I hope people don’t miss the fact that the officers were put in a predicament there and had to make a choice …. That’s how drugs are packaged, there were large amounts of cash…That’s the totality of facts that our officers had.”

According to Erland, the case was an example of the criminal justice system working as it’s supposed to. After all, the criminal charges were dismissed soon after they were filed because both the police and prosecutors agreed to have the testing speeded up.

“We got expedited lab results and it turned out it wasn’t heroin, but it was reasonable for our officers to believe there was probable cause,” he said.

He stressed that KPD has nothing to do with the 287g Program and there was nothing they could do for the men once ICE had targeted them as allegedly undocumented immigrants, even once their charges were dropped.

“We wouldn’t arrest somebody for being an illegal immigrant,” he added.

When asked if there was anything the DA’s Office could do to possibly intervene on the men’s behalf, McDermott replied: “The State has no authority over federal immigration proceedings.”

“She lost her husband over some beans”:

Elena Dominguez and Claudia Escardna couldn’t be reached for comment, and numerous attempts to interview most of the defense attorneys who were involved in the case were unsuccessful.

The one exception was lawyer Mike Whalen, who represented Elena Dominguez during her two-week incarceration.

To call Whalen “outraged” at how the case unfolded would be an understatement of grandiose proportions.

“Of course they say the system worked,” Whalen said. “It worked out okay for the cops, they’ll face no repercussions. But she sure as hell has. She lost her husband over some beans.”

As far as Whalen is concerned, the entire case was a disaster from the beginning and an abject lesson in why the Fourth Amendment was included in the U.S. Constitution. Unfortunately, he said, it shows how easy it is for the government to ignore the freedoms enumerated in the nation’s governing document.

“The cops decided what they had based on what they wanted to see, and when they made the decision to arrest it didn’t matter what the testing showed or didn’t show, they were going to move forward,” he said. “Then they say, ‘Sorry we screwed up and put you in jail, got two people wrongfully deported, stole $10,000 and a car … This is what the Fourth Amendment was instituted to protect against.”

According to Whalen, the two women went to Atlanta, Ga., to stay with some relatives after they were freed. His said his client is “in shock” from the whole experience and still awaiting the return of her money… and her spouse.

“He’s gone. That’s all we know,” Whalen said. “I assume he’s going to Louisiana, that’s where they usually end up eventually, but it takes weeks and weeks. In the meantime, he doesn’t have any money on his account to make any phone calls, that’s for sure — they stole that.”

Because Dominguez and Escardna couldn’t be reached for comment it wasn’t known if they planned to sue over their ordeal."

https://www.hardknoxwire.com/new-beans-mistaken-for-dope-cost-four-people-their-freedom/

SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:

https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985

Lawyer Radha Natarajan:

Executive Director: New England Innocence Project;

—————————————————————————————————

Christina Swarns: Executive Director: The Innocence ProjecT.