Nonetheless, in jurisdictions of all sizes and in all corners of the country, unconfirmed field tests are being used to help extract guilty pleas. The national study commissioned by the Justice Department found that prosecutors in nine of the 10 jurisdictions surveyed accepted guilty pleas using unconfirmed field tests. Even a modest error rate, then, could produce hundreds or even thousands of wrongful convictions. Jurisdictions still accepting guilty pleas based on field tests were playing with fire. 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 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. The police made some 13, arrests involving cocaine, methamphetamine or marijuana offenses from through More than 10, convictions resulted from these drug arrests and 99 percent of them were achieved through guilty pleas, court data show. The records establish that some 70 percent of the pleas came at the earliest possible moment, during preliminary hearings and before any lab retesting.
During the s, as the population of Las Vegas exploded, the number of drug arrests did, too. As in other U. Las Vegas patrol officers aggressively searched out small-time sellers and users on and around the Strip, eager to safeguard residents and tourists alike. The department budgeted for fewer than three full-time scientists to test the huge volume of drug evidence. As a result, hundreds of suspects waited out the eight days and were released.
Field tests were an appealing answer to the problem. The police were there as well. Company officials demonstrated how the tests could be used to detect cocaine and how officers would perform the tests. The benefits would be multiple: preliminary positive results would be enough to hold defendants longer in jail; pleas could happen in the interim; and the lab would need to retest the alleged drugs only in cases where the accused maintained their innocence and proceeded toward trial.
The judges on the Justice Court were assured by police, prosecutors and the manufacturer that the chance for mistakes was microscopic, less than one in 4,, according to a November article in the Las Vegas Review-Journal. Individual judges then held formal evidentiary hearings and signed off, allowing the tests to be used first in cocaine prosecutions and then in methamphetamine and marijuana cases as well. Over time, though, preliminary hearings became just about the only hearings taking place in criminal drug cases in Las Vegas. Last year, for example, just eight of 4, drug cases that resulted in convictions went to trial, according to court data.
Plea deals sealed the rest. The explosion in the use of field tests by police and their increasingly decisive role in criminal convictions have received scant attention over the years. An array of anecdotal accounts describe arrests based on what later turned out to be soap or doughnut crumbs or grains of sand. Field tests have received a similar lack of scrutiny from government and law enforcement.
No central agency, for instance, regulates the manufacture or sale of the tests, and no comprehensive records are kept about their use. While DOJ standards for the last 40 years have called for qualified labs to re-examine all field test results, the agency has made no effort to insist that happens or to install other protections against mistakes and the wrongful convictions that could result.
And the destruction of field tests after guilty pleas is hardly limited to Las Vegas. In some jurisdictions, defendants accepting guilty pleas agree as a term of the arrangement that the evidence against them will be destroyed. In others, the alleged evidence is simply discarded over time. As a result, officers on the street almost never know whether there are problems with the accuracy of the tests and thus have little reason for skepticism.
As far as they know, the system works. Throughout, the manufacturers of the tests have pushed them as an indispensable and effective tool for catching and punishing drug users. Currently, at least nine different companies sell tests to identify cocaine, heroin, marijuana, methamphetamine, LSD, MDMA and more than two dozen other drugs.
Officers, at least in theory, were required to check off boxes indicating they had followed every step in the testing process and interpreted the results correctly. But Las Vegas has remained a customer, almost without exception buying nothing but the brand for close to two decades. Murga, the police forensics director, said the department purchases only those tests deemed acceptable by the lab and supported by the Justice Court. Between and , the Las Vegas police purchased more than 42, test kits.
The brand is owned today by the Safariland Group, based in Ontario, California. But he said he had no reason to find fault with the use of the tests. It was up to defense lawyers to challenge their reliability.
Defense attorneys are the most obvious protection against unreliable field tests leading to wrongful convictions. In Las Vegas, there is considerable evidence that defense attorneys have been derelict in that duty.
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In , the association said problems with sheer indifference had lessened, but the quality of representation remained unimpressive. Furthermore, cases that would be low-level possession prosecutions in the rest the country are counted as trafficking offenses in Nevada. By comparison, federal law requires grams of powder cocaine for a trafficking charge, grams of heroin or 50 grams of methamphetamine.
The expense of posting bail and the risk of going to trial, Kohn said, can make plea offers knocking felonies down to misdemeanors more attractive even though misdemeanors can bring up to days in jail and tough probation terms. All I want is out. Laurie Diefenbach, a former public defender who is now a private defense attorney in Las Vegas, said even clients inclined to fight frequently choose to take a conviction in the belief that it is less harmful than months lost to a jail cell.
Putting a human face on the innocent in Las Vegas who might have pleaded guilty in such circumstances is close to impossible, given the routine destruction of the alleged evidence against them. The hundreds of wrongful convictions in Houston came to light only because the lab retested every field test that had produced a conviction. Among those wrongly convicted in Houston, even some of those who avoided much time behind bars lost jobs and the chance at future employment.
One pleaded guilty after a grain of sand had tested positive for cocaine. Another after caffeine had done the same. The innocent, the Houston data show, pleaded guilty quickly, on average within four days of being arrested and well before the lab ever had a chance to confirm the field test results. Scores of them had never been convicted of anything prior to being jailed on erroneous drug charges, according to court records.
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They had families to get back to, careers to try to save. In Las Vegas, the clearest evidence of faulty field test results emerges from the tiny number of cases in which defendants have gone to trial to challenge drug evidence.
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In several cases, the defendants were seasoned street hustlers, dealers of phony drugs to tourists along the Strip. Such embarrassing outcomes happened dozens of times between and , police and court records show. He had small knotted baggies that held six grams of off-white powder. He had 21 grams of powder in plastic bags. In both cases, prosecutors charged the defendants with crimes punishable by a dozen years in state prison based in large part on positive field tests of the suspected drugs.
In both cases, the evidence was not cocaine but the numbing agent lidocaine, packaged to look like the illegal stimulant.
The Las Vegas police crime lab proved the first man innocent eight months after his arrest, analysis records show. ProPublica interviewed more than a dozen defense lawyers and public defenders in Las Vegas, and they all said prosecutors delayed having field tests retested in a lab until the eve of trial. By , the Las Vegas Police Department was ready to move on from chemical field tests. The tests had produced more than 50, arrests and scores of convictions. The defense bar was not up in arms.
The judges had long ago accepted their value. But new technology was available: spectrometers that shine a laser on suspicious material and reveal its chemical makeup. The crime lab saw the technology as the future. And so Stephanie Larkin, a forensic scientist in the Las Vegas lab, set about making the case for spectrometers, securing funding from the Department of Justice to do research. Over the next several years, she and others did testing they said showed the spectrometers performed well. Occasionally, when the device failed to identify illegal drugs, the manufacturer made adjustments.
Larkin, though, did not just document the ostensible strengths of the spectrometers.
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Again and again, in the page report she finalized in , she explicitly documented the shortcomings of the field tests her department had been using for decades. Larkin also worried openly about issues of contamination, noting that given the problems with conducting the tests cleanly and competently, defense attorneys might raise doubts about their integrity. A considerable number of chemical field tests performed in a formal lab setting during her years of study had produced what are known as false negatives, a failure to identify what were indeed illegal drugs. Larkin could have sought to answer the questions that judges and defendants might have found most valuable: Just how flawed were the tests?
Just how often were mistakes happening? He also works on challenges to state-court convictions in federal habeas corpus cases.