WEBVTT - #406 Wrongful Conviction: Junk Science - Roadside Drug Test Evidence 0:00:01.440 --> 0:00:04.160 Hey, folks, Kate Judson here. I'm a lawyer and the 0:00:04.200 --> 0:00:07.760 executive director of the Center for Integrity and Forensic Sciences. 0:00:09.520 --> 0:00:12.720 We're back with another episode of Junk Science, a series 0:00:12.720 --> 0:00:16.000 we first released in twenty twenty, but these stories are 0:00:16.160 --> 0:00:20.160 just as relevant as ever. This week's episode focuses on 0:00:20.320 --> 0:00:24.360 roadside drug tests, a highly unreliable method of drug testing. 0:00:25.239 --> 0:00:28.400 The testing kits most police departments use cost about two 0:00:28.480 --> 0:00:32.200 dollars apiece and are far from reliable. They often turn 0:00:32.280 --> 0:00:35.760 up false positives and are used to coerce people to 0:00:35.760 --> 0:00:42.640 plead guilty to crimes they did not commit. Like many 0:00:42.680 --> 0:00:45.320 of the other junk sciences we've learned about in the series, 0:00:45.600 --> 0:00:49.360 roadside drug tests are often thought of as valid and reliable, 0:00:49.680 --> 0:00:52.400 but they just aren't. And these cases are a little 0:00:52.400 --> 0:00:56.280 different because they're not being used as evidence at trial, 0:00:56.720 --> 0:01:01.200 where it's slightly but not very much easier for lawyers 0:01:01.240 --> 0:01:05.720 to challenge that conviction after the fact. Instead, they're used 0:01:05.760 --> 0:01:10.160 to coerce. Please. That's because folks who are locked up 0:01:10.280 --> 0:01:13.080 and desperate to get out might take a plead of 0:01:13.160 --> 0:01:17.480 probation so they can regain their freedom when the alternative 0:01:17.520 --> 0:01:20.320 is waiting in jail to go to trial. You'll hear 0:01:20.360 --> 0:01:23.680 in this episode how even a short jail stay can 0:01:23.880 --> 0:01:27.679 ruin someone's life. If we care about justice and we 0:01:27.800 --> 0:01:31.200 care about the truth, we can't use junk science to 0:01:31.280 --> 0:01:35.120 lock people up. And that's especially true for folks who 0:01:35.240 --> 0:01:39.360 haven't yet had trials, folks who are presumed innocent. 0:01:46.160 --> 0:01:49.280 You're sitting in the passenger seat of your car, staring 0:01:49.320 --> 0:01:52.760 out the window. Your boyfriend is driving in. You look 0:01:52.800 --> 0:01:55.680 over at him. You can tell that he's getting tired. 0:01:55.720 --> 0:01:59.960 It's been a long day. You left Louisiana five hours ago, 0:02:00.360 --> 0:02:04.840 and he's been driving the entire time. You're going to Houston, 0:02:04.960 --> 0:02:06.880 where he has an interview for a job on an 0:02:06.920 --> 0:02:10.120 oil rig. You find the monotony of the drive to 0:02:10.160 --> 0:02:14.400 be somewhat calming. It's a big difference from your usual 0:02:14.480 --> 0:02:17.720 day to day of running around doing your job and 0:02:17.800 --> 0:02:21.000 taking care of your teenage son who has special needs. 0:02:21.720 --> 0:02:24.840 Of course, you love your kids and your job is great, 0:02:24.919 --> 0:02:28.000 but for the first time in a while, you feel 0:02:28.040 --> 0:02:31.960 yourself really relaxing, and you're happy to have nothing to 0:02:32.000 --> 0:02:34.680 do or worry about for the next couple of days. 0:02:35.680 --> 0:02:38.280 When you finally get to the motel in Houston, You're 0:02:38.280 --> 0:02:42.440 both exhausted. You dump your suitcases at the foot of 0:02:42.480 --> 0:02:45.440 the bed, and you're tempted to skip dinner and just 0:02:45.600 --> 0:02:48.320 stay in for the rest of the night, but you 0:02:48.360 --> 0:02:50.160 don't want your boyfriend to go to bed on an 0:02:50.200 --> 0:02:53.359 empty stomach, so you both get back in the car, 0:02:53.840 --> 0:02:56.680 grab some hamburgers from a fast food drive through, and 0:02:57.160 --> 0:03:02.200 then start heading straight back to the motel. Your boyfriend 0:03:02.280 --> 0:03:05.640 rubs his eyes when he changes lanes, and out of 0:03:05.680 --> 0:03:10.400 nowhere you see blue and red lights flashing behind your 0:03:10.440 --> 0:03:24.000 car and a siren blaring. You look up and watching 0:03:24.080 --> 0:03:27.359 the rear view mirror as a police officer slowly walks 0:03:27.440 --> 0:03:33.680 up to the driver's side window, license and registration. You 0:03:33.800 --> 0:03:37.360 rummage in the glove compartment for the registration. Well, what's 0:03:37.400 --> 0:03:42.280 the problem, officer, your boyfriend asks, no signal wall changing lanes, 0:03:43.440 --> 0:03:46.680 You hand the registration to your boyfriend, who in turn 0:03:46.760 --> 0:03:51.080 hands it to the officer. License. The officer says again, 0:03:52.240 --> 0:03:58.440 your boyfriend holds tight onto the steering wheel. I don't 0:03:58.480 --> 0:04:03.000 have a license, sir. Please step out of the vehicle. 0:04:03.960 --> 0:04:08.080 Your boyfriend gets out, closing the door behind him. The 0:04:08.120 --> 0:04:10.920 officer sticks his head into the car window and looks around. 0:04:11.720 --> 0:04:15.960 He never makes eye contact with you. Then the officer 0:04:16.080 --> 0:04:19.000 steps away from your car and calls out to his partner, 0:04:19.240 --> 0:04:22.680 who's sitting in the police car. There's a needle in here, 0:04:23.000 --> 0:04:29.279 the officer says, excuse me, what are you talking about. 0:04:30.160 --> 0:04:33.320 You have no idea what the officer thinks he saw, 0:04:34.320 --> 0:04:36.680 but you certainly did not have any kind of needle 0:04:36.720 --> 0:04:41.200 in your car. The cop ignores your question and walks 0:04:41.240 --> 0:04:44.280 over to the passenger window. Ma'am, I'm going to need 0:04:44.320 --> 0:04:47.440 your consent to search the car, and I'll tell you 0:04:47.520 --> 0:04:50.040 right now. You don't consent, we're gonna be sitting here 0:04:50.040 --> 0:04:52.479 a long time until we can get a canine out 0:04:52.480 --> 0:04:56.039 here to sweep the car. You don't have anything to hide, 0:04:56.279 --> 0:05:00.159 so you say, yeah, okay, go ahead. You stand on 0:05:00.200 --> 0:05:02.120 the side of the road with your boyfriend in the 0:05:02.200 --> 0:05:06.880 thick Texas heat while both officers search the car. A 0:05:06.920 --> 0:05:10.480 few minutes later, the first officer stands up straight. It 0:05:10.520 --> 0:05:14.080 looks like he's pinching something between his index finger and 0:05:14.120 --> 0:05:17.240 his thumb, and he's holding it up to the moonlight. 0:05:18.080 --> 0:05:19.960 You can't see what it is, but you see that. 0:05:20.040 --> 0:05:23.400 The officer says something to his partner, who then comes 0:05:23.440 --> 0:05:27.280 over to you. Man, we have reason to believe that 0:05:27.360 --> 0:05:31.760 there's crack cocaine in your car, the officer says. He 0:05:31.839 --> 0:05:35.159 tells you both to put your hands behind your back. 0:05:36.279 --> 0:05:40.239 He starts cuffing your boyfriend, and you're adrenaline starts pumping. 0:05:40.760 --> 0:05:43.640 You're sweating now, and you can't tell if it's the 0:05:43.880 --> 0:05:47.640 ninety degree heat or if it's pure nerves and anxiety. 0:05:47.960 --> 0:05:51.359 As the officer tightens the cuffs painfully around your wrist. 0:05:52.360 --> 0:05:55.160 You have the wrong idea here. I don't have drugs 0:05:55.160 --> 0:05:58.480 in my car. I don't do drugs. I've never done drugs. 0:05:59.560 --> 0:06:02.880 One off walks over to you and then takes you 0:06:02.960 --> 0:06:06.480 to the police car. The other one opens up the trunk. 0:06:07.200 --> 0:06:10.120 He takes out something that looks like a ziplock baggie, 0:06:10.160 --> 0:06:13.560 then walks back over to you. He opens the bag 0:06:13.600 --> 0:06:17.440 and pulls out a test tube. Then he takes what 0:06:17.480 --> 0:06:20.159 he's been pinching between his fingers and drops it into 0:06:20.200 --> 0:06:24.680 the tube. He shakes it around, looks at it. Then 0:06:24.720 --> 0:06:28.679 he looks at you, and a wide grin creeps across 0:06:28.680 --> 0:06:32.719 his face. He waves the tube right in front of 0:06:32.760 --> 0:06:36.960 your nose. A liquid that seems to change from red 0:06:37.000 --> 0:06:39.600 to blue and the flashing lights is dangled in front 0:06:39.640 --> 0:06:45.720 of you. You're busted, ma'am, the cop says. The cops 0:06:45.760 --> 0:06:49.240 take you to jail. Your boyfriend has charged with driving 0:06:49.279 --> 0:06:53.159 without a license and is released soon after. But you 0:06:53.200 --> 0:06:55.680 don't know that yet because you're placed in a tiny 0:06:55.720 --> 0:06:58.919 holding cell with one other woman who tells you that 0:06:59.000 --> 0:07:03.600 she murdered someone. You're feeling sick and you still haven't 0:07:03.640 --> 0:07:08.080 eaten all day. You're terrified, but you're not just worried 0:07:08.120 --> 0:07:15.400 about yourself. You're really worried about your son. Someone calls 0:07:15.440 --> 0:07:18.800 your name from a thick plastic window that separates you 0:07:18.840 --> 0:07:21.600 from the people working at the jail. You walk up 0:07:21.640 --> 0:07:24.280 to the window and see a tired looking man on 0:07:24.320 --> 0:07:28.240 the other side. He introduces himself as the court appointed 0:07:28.280 --> 0:07:32.880 defense attorney. He tells you you're being charged for possession 0:07:32.920 --> 0:07:36.280 of crack cocaine. Look, this is a felony, he says, 0:07:36.640 --> 0:07:43.440 and you're facing two years in state prison. You're in disbelief. Jesus, 0:07:44.200 --> 0:07:47.880 how is this possible. The attorney looks down at his 0:07:47.960 --> 0:07:51.680 papers and says, look, you have a choice. It's not 0:07:51.880 --> 0:07:54.040 much of a choice, but you do have a choice. 0:07:54.600 --> 0:07:57.600 The prosecutor is offering you a plea deal. If you 0:07:57.680 --> 0:08:00.800 plead guilty, you'll get a forty five five day sentence 0:08:00.840 --> 0:08:02.960 in jail, and you'll probably only have to serve half 0:08:03.000 --> 0:08:07.440 of that. You say, I'm innocent. I'm not going to 0:08:07.480 --> 0:08:12.040 plead guilty to something I didn't do. The defense attorney 0:08:12.480 --> 0:08:15.120 kind of leans in a little bit and looks at 0:08:15.120 --> 0:08:19.320 you through his wire rim glasses and says, ma'am, they 0:08:19.600 --> 0:08:22.000 tested the substance they found on the floor of your 0:08:22.040 --> 0:08:25.240 car and it came up positive for crack cocaine. So 0:08:25.880 --> 0:08:29.080 according to this test, there was crack in your car. 0:08:29.680 --> 0:08:32.920 Now you can wait until the forensics lab runs another 0:08:33.000 --> 0:08:36.080 test on it, but there's a huge backlog. You could 0:08:36.120 --> 0:08:39.679 wait months for that test to come back. You begin 0:08:39.800 --> 0:08:43.560 to physically shake. You're on the verge of bursting out 0:08:43.640 --> 0:08:46.160 in tears right there in the middle of the jail. 0:08:47.600 --> 0:08:51.760 You think about your options. Months in jail, waiting for 0:08:51.840 --> 0:08:55.920 the evidence that will prove your innocent, two years in 0:08:55.960 --> 0:08:59.560 prison if it doesn't, And can you even trust the 0:08:59.640 --> 0:09:02.000 tests if the one that they did on the side 0:09:02.040 --> 0:09:04.320 of the road was clearly wrong. I mean there was 0:09:04.360 --> 0:09:08.280 no crack in your car. You think about your youngest son, 0:09:08.520 --> 0:09:11.280 and you're terrified of what's going to happen if you 0:09:11.320 --> 0:09:15.720 can't get out of your fast. He really needs you. 0:09:15.720 --> 0:09:19.559 You work managing an apartment complex. Part of your compensation 0:09:19.880 --> 0:09:21.480 is that you get to live in an apartment in 0:09:21.520 --> 0:09:24.360 the building that you manage. It at least allows you 0:09:24.440 --> 0:09:27.920 to stay close to your son at all times. Right now, 0:09:27.960 --> 0:09:30.640 he's with his dad. But if you're stuck here for 0:09:30.760 --> 0:09:35.480 months or god forbid, years, you'll lose your job, your home, 0:09:36.000 --> 0:09:39.520 the safety net for you and your kid. The decision 0:09:39.559 --> 0:09:42.960 is basically made for you. You can't sit in prison 0:09:43.000 --> 0:09:46.480 for months. You have to get out and get out 0:09:46.520 --> 0:09:50.520 as quickly as you can. The next thing you know, 0:09:51.320 --> 0:09:55.040 you're standing in front of a judge. You can't stop trembling, 0:09:56.080 --> 0:10:02.679 You're weeping uncontrollably. You can barely breathe. Somehow, When the 0:10:02.760 --> 0:10:06.679 judge asks you, how do you plead, you force out 0:10:06.720 --> 0:10:13.600 the words I plead guilty. They take you back to 0:10:13.640 --> 0:10:16.720 a cell where you'll serve twenty one days of the 0:10:16.760 --> 0:10:20.760 forty five day sentence you were given. The prosecutor files 0:10:20.760 --> 0:10:23.360 a motion for the evidence in your case to be destroyed. 0:10:24.440 --> 0:10:28.120 After twenty one days, you're let out of jail. Your 0:10:28.160 --> 0:10:32.840 worst fears have been realized. You've been fired, you've been 0:10:32.960 --> 0:10:36.040 kicked out of your apartment. You don't know where most 0:10:36.080 --> 0:10:39.679 of your belongings are, and you don't know where to turn. 0:10:43.960 --> 0:10:46.480 The story you just heard is based on the true 0:10:46.559 --> 0:10:50.600 events of Amy Albritton's wrongful conviction that resulted from a 0:10:50.760 --> 0:10:56.240 roadside drug test. Somehow, the prosecutor's order to destroy the 0:10:56.320 --> 0:11:01.720 evidence never got signed off. On substance they found in 0:11:01.760 --> 0:11:05.479 her car that they claim tested positive for crack cocaine, 0:11:06.400 --> 0:11:11.000 It turned out to be a food crumb. Based on 0:11:11.120 --> 0:11:16.040 the junk science of roadside drug testing, the steady life 0:11:16.040 --> 0:11:19.920 that Amy built for herself and her family was completely 0:11:20.000 --> 0:11:26.920 turned upside down, and Amy isn't the only one. I'm 0:11:27.000 --> 0:11:30.920 Josh Dubin, civil rights and criminal defense attorney, an innocent 0:11:31.040 --> 0:11:35.000 ambassador to the Innocence Project in New York. Today, on 0:11:35.120 --> 0:11:42.080 wrongful Conviction junk Science, we explore roadside drug testing. Turns out, 0:11:42.480 --> 0:11:46.480 these faulty tests, which cost police departments two dollars a 0:11:46.480 --> 0:11:50.640 piece or less, are widely used across the United States. 0:11:51.400 --> 0:11:54.480 They cause countless people to plead guilty to crimes they 0:11:54.520 --> 0:11:59.480 didn't commit. These tests continue to be used despite scientific 0:11:59.559 --> 0:12:15.040 evidence that proves just how ineffective they are. In nineteen 0:12:15.160 --> 0:12:18.200 seventy three, during the height of the War on Drugs 0:12:18.240 --> 0:12:21.559 in the United States, a chemist by the name of L. J. 0:12:21.800 --> 0:12:25.840 Scott Jr. Was tasked with creating a test that could 0:12:25.880 --> 0:12:30.920 confirm the presence of cocaine. Now, Scott was already aware 0:12:31.080 --> 0:12:34.520 of one chemical that was being used to test for cocaine, 0:12:34.720 --> 0:12:39.240 but the problem was it was highly unreliable. This faulty 0:12:39.320 --> 0:12:42.240 test was made up of a pink liquid, a chemical 0:12:42.320 --> 0:12:47.800 called cobalt thiocyanate. When cocaine was added to this pink liquid, 0:12:48.040 --> 0:12:52.080 it turned blue. And so the thinking went, whenever the 0:12:52.120 --> 0:12:55.079 pink liquid turns blue, we can know if there is 0:12:55.160 --> 0:13:00.360 cocaine present. But the problem was that it wasn't only cocaine, 0:13:00.440 --> 0:13:03.960 but plenty of other substances that could also turn this 0:13:04.120 --> 0:13:08.120 pink chemical blue. So Scott set out to work on 0:13:08.160 --> 0:13:12.559 creating a more accurate test. He experimented with other chemicals, 0:13:12.720 --> 0:13:15.800 and finally he came up with a three step test. 0:13:16.880 --> 0:13:21.160 Here's how it worked. A small sealable bag contained three 0:13:21.280 --> 0:13:26.479 vials of chemicals. First, the substance suspected to be cocaine 0:13:26.960 --> 0:13:29.920 was added to the first vial that contained the same 0:13:30.040 --> 0:13:35.199 pink chemical as the original test, cobalt thiocyanate. If that 0:13:35.360 --> 0:13:40.400 term blue it meant the substance might be cocaine. Then 0:13:40.800 --> 0:13:43.480 the vial was placed into the small bag with the 0:13:43.520 --> 0:13:47.480 other two vials. The first vial was broken open so 0:13:47.600 --> 0:13:50.679 the liquid contents would leave the vial and sit at 0:13:50.720 --> 0:13:55.160 the bottom of the transparent bag. Then the second vial 0:13:55.160 --> 0:13:59.280 would be broken open. This vial contained a second chemical, 0:14:00.040 --> 0:14:03.920 hydrochloric acid, that was supposed to mix with the first 0:14:04.000 --> 0:14:08.760 chemical and turn the substance pink again. Then the third 0:14:08.840 --> 0:14:13.800 vial would be broken. This final vial was filled with chloroform. 0:14:14.120 --> 0:14:16.480 If the liquid mixture at the bottom of the bag 0:14:16.800 --> 0:14:20.680 split into two layers so that a pink liquid floated 0:14:20.720 --> 0:14:24.400 to the top and blue sank to the bottom, Scott 0:14:24.440 --> 0:14:30.360 said this confirmed that the substance being tested was indeed cocaine. 0:14:30.440 --> 0:14:33.480 After working on the test for nine months, Scott was 0:14:33.600 --> 0:14:37.160 so sure of it that he declared the method proposed 0:14:37.200 --> 0:14:42.200 herein is almost impossible to misinterpret. It is highly sensitive 0:14:42.280 --> 0:14:47.920 and specific. Officers started carrying these portable roadside drug tests 0:14:47.960 --> 0:14:51.200 on them while they patrolled neighborhoods and pulled people over 0:14:51.280 --> 0:14:55.520 for traffic violations. They started using the tests on people 0:14:55.560 --> 0:14:59.640 suspected of possessing drugs, and the arrest started flooding in. 0:15:00.880 --> 0:15:03.840 But this test turned out to be not quite as 0:15:03.880 --> 0:15:08.680 full proof as Scott thought. A study by toxicologists found 0:15:08.720 --> 0:15:12.640 that the three vile tests would also show positive results 0:15:12.720 --> 0:15:18.080 for substances other than cocaine. Lytocane, for example, a common 0:15:18.160 --> 0:15:21.320 numbing agent found in many first aid kits used to 0:15:21.360 --> 0:15:27.240 soothe cuts and burns, also tested positive. Nevertheless, Scott started 0:15:27.280 --> 0:15:30.680 his own company that sold drug test kits to law enforcement. 0:15:31.400 --> 0:15:36.560 This company still exists today, and interestingly enough, he stopped 0:15:36.600 --> 0:15:40.800 selling the kits with the three vile process. Instead, he 0:15:40.880 --> 0:15:44.080 went back to the one step process, the test with 0:15:44.440 --> 0:15:48.040 just the pink liquid that was already known to be faulty, 0:15:48.440 --> 0:15:52.200 and to test positive for so many other substances. He 0:15:52.360 --> 0:15:55.600 did this so that he could sell them for less money, 0:15:56.160 --> 0:16:01.000 and they were a hit, and he expanded beyond cocaine tests. 0:16:01.680 --> 0:16:07.360 His company also sells tests for opiates, MDMA, marijuana, LSD, 0:16:07.720 --> 0:16:11.920 bath salts, and meth amphetamine. His website boasts that the 0:16:11.960 --> 0:16:15.840 tests coming easy to use, cheap packaging that prevents officers 0:16:15.840 --> 0:16:20.400 from cutting their fingers while breaking the bials. When interviewed 0:16:20.400 --> 0:16:23.720 by reporters from Pro Publica, Scott said that he had 0:16:23.840 --> 0:16:27.440 no idea that these tests alone could send people to prison, 0:16:28.280 --> 0:16:34.760 but indeed they were countless innocent people, including Amy Albritton, 0:16:35.400 --> 0:16:40.560 ended up convicted based on cheap, highly flawed roadside tests 0:16:41.080 --> 0:16:42.040 just like these. 0:16:46.200 --> 0:16:48.200 Now, the problem with the drug kit is that these 0:16:48.240 --> 0:16:52.720 things are incredibly unreliable, and so they come up positive 0:16:52.840 --> 0:16:57.800 for things like chocolate, like cleaning supplies like aspirin, like sugar, 0:16:58.040 --> 0:17:02.720 weight gain powder, candle, wax, drywall, so sand. They all 0:17:02.720 --> 0:17:05.120 come back and test positive for narcotics. Because these things 0:17:05.119 --> 0:17:07.280 are very unreliable and they're not supposed to be used 0:17:07.359 --> 0:17:12.480 specifically for actually getting a conviction, but many people plead 0:17:12.640 --> 0:17:14.480 in the system to never get to a trial, and 0:17:14.520 --> 0:17:17.439 these are used as the only evidence to actually obtain 0:17:17.440 --> 0:17:19.840 a conviction. That's what happened in Amy's case. 0:17:20.680 --> 0:17:24.080 On our show today, we're talking to Greg Gloud. Greg 0:17:24.280 --> 0:17:29.439 is a policy fellow at Americans for Prosperity Now. Americans 0:17:29.440 --> 0:17:34.200 for Prosperity is a grassroots organization that educates citizens about 0:17:34.359 --> 0:17:38.320 policy issues at the local, state, and national level, and 0:17:38.440 --> 0:17:41.320 one of the issues that Greg works on is criminal 0:17:41.480 --> 0:17:44.600 justice reform. So I want to go into detail about 0:17:44.680 --> 0:17:48.320 these drug testing kits, walk us through some of the 0:17:48.440 --> 0:17:51.919 issues associated with these tests. It sounds like there are 0:17:52.040 --> 0:17:53.560 quite a few of them. 0:17:54.080 --> 0:17:56.960 Oh yeah, I mean so, there are a variety of 0:17:57.000 --> 0:17:59.000 issues that go along with drug test kits, and there's 0:17:59.000 --> 0:18:02.239 so many areas in that chain of sequence, from you know, 0:18:02.359 --> 0:18:05.240 finding the substance to actually testing it that can go wrong. 0:18:05.760 --> 0:18:08.159 And so first and foremost is actually training. And so 0:18:08.880 --> 0:18:11.080 it seems very easy. You drop something in a vial 0:18:11.160 --> 0:18:12.560 and you test it and see if it turns a 0:18:12.560 --> 0:18:14.200 different color, and if it does, then it's supposed to 0:18:14.240 --> 0:18:17.760 be drugs. But it's not that simple, and so officers 0:18:17.760 --> 0:18:20.640 have to be trained accordingly on how these work. And 0:18:21.119 --> 0:18:23.840 the problem is a lot of different substances actually change 0:18:23.840 --> 0:18:25.719 the color. And so the way that the thought process 0:18:25.720 --> 0:18:27.520 is supposed to go about this is if it's not 0:18:27.560 --> 0:18:30.440 a drug, the substance shouldn't change in there. However, a 0:18:30.480 --> 0:18:33.399 lot of substances actually make that color go different, and 0:18:33.440 --> 0:18:36.520 so you have these situations where officers aren't properly trained 0:18:36.560 --> 0:18:38.760 on how to use them, they break the different vials 0:18:38.760 --> 0:18:41.600 in the wrong way. It could be cold outside, the 0:18:41.640 --> 0:18:46.800 temperature changes different things, the chemicals might be expired within them. 0:18:46.960 --> 0:18:48.680 There's a lot of different ways that this can go wrong. 0:18:48.760 --> 0:18:51.480 But even if you do everything correctly, everything right. The 0:18:51.520 --> 0:18:54.080 officer has been properly trained, and he's one of the 0:18:54.080 --> 0:18:56.639 best you know at actually utilizing this. He was a 0:18:56.680 --> 0:18:59.719 former chemist, let's just say, the most you know crazy 0:18:59.720 --> 0:19:02.160 since area where he knew exactly how to do this. 0:19:02.520 --> 0:19:06.320 There are so many different non controlled substances that actually 0:19:06.400 --> 0:19:09.080 test positive for drugs and change that substance that look 0:19:09.119 --> 0:19:12.040 like narcotics that it makes it impossible to really verify 0:19:12.119 --> 0:19:13.199 if this is a drug or not. 0:19:13.880 --> 0:19:16.399 And let's be honest, most of these officers are not 0:19:16.640 --> 0:19:21.800 scientists or chemists. And there are many other problems, including 0:19:21.800 --> 0:19:25.320 that these tests just aren't that easy to read. One 0:19:25.400 --> 0:19:28.720 color can easily be interpreted as another. So what are 0:19:28.720 --> 0:19:29.720 some examples of this? 0:19:30.840 --> 0:19:33.960 For example, one test, it says that LSD should turn 0:19:34.000 --> 0:19:37.000 all of black, but sugar turns dark brown. Now, if 0:19:37.040 --> 0:19:39.960 you're on the side of the road pulling someone over 0:19:40.080 --> 0:19:44.120 at night, there's lights flashing, things are going on, it's noisy, 0:19:44.280 --> 0:19:47.400 it's hot. You're in South Texas, You're shaking this thing 0:19:47.440 --> 0:19:49.680 around and you're looking at it and you're saying, is 0:19:49.720 --> 0:19:52.199 that dark brown or is that all of black? I mean, 0:19:52.640 --> 0:19:55.480 it's a pretty ridiculous question, but this can mean the 0:19:55.520 --> 0:20:00.639 difference between someone being arrested or being let go because 0:20:00.640 --> 0:20:03.720 of this slight color change. And then another test, another 0:20:03.840 --> 0:20:06.520 very popular test, cocaine is supposed to be a deep 0:20:06.560 --> 0:20:10.680 orange yellow, while salt is a strong orange. If you 0:20:10.680 --> 0:20:12.679 can explain to me what a strong orange is compared 0:20:12.720 --> 0:20:15.639 to a deep orange yellow, please let me know. 0:20:26.560 --> 0:20:29.840 So I'm thinking of someone like Amy, who we talked 0:20:29.840 --> 0:20:33.399 about at the beginning of this episode and whose story 0:20:33.520 --> 0:20:36.800 was actually published in an article by Pro Publica. And 0:20:36.840 --> 0:20:39.080 by the way, if you're interested, you can find this 0:20:39.240 --> 0:20:42.600 article and others about these roadside drug tests in our 0:20:42.680 --> 0:20:47.119 show notes. But someone like Amy is taking to jail 0:20:47.240 --> 0:20:52.680 based on this flawed roadside test, and she's told by 0:20:52.720 --> 0:20:56.399 her court appointed defense attorney that there's another test that 0:20:56.440 --> 0:20:59.600 can verify the results. Of course, that test is going 0:20:59.640 --> 0:21:03.159 to take quite some time, but she's told that nonetheless, 0:21:03.200 --> 0:21:05.960 So tell us about that second test, the lab test. 0:21:06.680 --> 0:21:10.200 Is it actually reliable And if it is reliable, why 0:21:10.240 --> 0:21:13.240 aren't they using it to verify the results right away 0:21:13.320 --> 0:21:16.720 instead of having, you know, people like Amy be presented 0:21:16.760 --> 0:21:21.679 with this very precarious circumstance in which they're made to 0:21:21.720 --> 0:21:23.280 wait around for a. 0:21:23.280 --> 0:21:26.879 While with all these drug test kits, you know, and 0:21:26.920 --> 0:21:29.440 it says it right on the box, they should be 0:21:29.600 --> 0:21:34.040 verified by a forensics lab. And so most jurisdictions either 0:21:34.080 --> 0:21:37.240 have a state lab and then also for a larger cities, 0:21:37.240 --> 0:21:39.760 they'll have their own lab. So essentially what they do 0:21:40.000 --> 0:21:42.440 is take the substance, heat it up a lot, break 0:21:42.520 --> 0:21:44.160 it down to its elements, and then you can tell 0:21:44.160 --> 0:21:46.920 from that with you know, pretty much one hundredercent certainty 0:21:46.960 --> 0:21:49.720 that what it is is either narcotics or not. However, 0:21:50.080 --> 0:21:52.280 most of the time it's not getting to that point. 0:21:52.640 --> 0:21:55.680 A lot of places, you know in Texas Department Public 0:21:55.720 --> 0:21:58.520 and Safety there just doesn't have the time and bandwidth 0:21:58.560 --> 0:22:01.639 to actually verify a lot of the these cases. Some jurisdiction, 0:22:01.720 --> 0:22:04.480 now Houston, after this story kind of broke, is now 0:22:04.520 --> 0:22:08.000 not allowing for plea deals to be accepted without that verification. 0:22:08.080 --> 0:22:10.520 But a lot of jurisdictions, preticuting small jurisdictions, we have 0:22:10.600 --> 0:22:13.440 these major backlaws. People are playing within a couple of days, 0:22:13.480 --> 0:22:16.600 and then these things aren't being verified. Back every case 0:22:16.640 --> 0:22:19.680 can't get tested. With the amount and volume that we have. 0:22:19.880 --> 0:22:22.600 There's one point six million arrests for drug offenses each 0:22:22.680 --> 0:22:25.119 and every year, and if you try to verify and 0:22:25.200 --> 0:22:27.399 test all these substances, you never get through it. And 0:22:27.480 --> 0:22:30.159 so those are the problems. So the actual test, the 0:22:30.200 --> 0:22:33.960 actual science that should be used here is not being 0:22:34.040 --> 0:22:37.879 utilized because the criminal process stops within a couple of 0:22:37.920 --> 0:22:40.280 days for most of these individuals, and then the plea happens. 0:22:40.960 --> 0:22:43.720 So let's pause there for a second. Tell us about 0:22:43.760 --> 0:22:47.120 the plea. Why does so many innocent people end up 0:22:47.240 --> 0:22:51.440 pleading guilty once they're charged based on these faulty roadside 0:22:51.520 --> 0:22:52.320 drug tests. 0:22:53.119 --> 0:22:55.959 So plea deal is a negotiation, and so what it 0:22:56.040 --> 0:22:58.880 is is, hey, I can give you ten years on this, 0:22:59.000 --> 0:23:01.679 or you can take two instead of going to trial, 0:23:01.840 --> 0:23:04.760 let's settle this today. And so that is very attractive 0:23:04.800 --> 0:23:06.840 for a lot of people that are facing so much time, 0:23:07.119 --> 0:23:09.000 and it really does get to a point where it's 0:23:09.119 --> 0:23:13.160 quite coercive. Maybe they set your bail at five thousand dollars, 0:23:13.200 --> 0:23:15.120 ten thousand dollars, you can't afford it, so you sit 0:23:15.200 --> 0:23:18.199 in jail, and you're claiming your innocence. You're claiming your innocence. 0:23:18.240 --> 0:23:21.080 Now the prosecute delays your case again, delays your case again. 0:23:21.359 --> 0:23:23.080 We'll accept a forty five day deal, or we can 0:23:23.119 --> 0:23:24.760 go to trial and maybe you'll get two years. And 0:23:24.800 --> 0:23:27.720 you have an overworked public defender who has a huge 0:23:27.760 --> 0:23:29.800 backlog of cases on their own and can't give you 0:23:29.840 --> 0:23:31.960 the time of day because you can't afford your own attorney, 0:23:32.280 --> 0:23:34.080 and so they're telling you take the plea, you have 0:23:34.160 --> 0:23:37.040 no chance go through this, and you're still sitting in jail, 0:23:37.080 --> 0:23:39.119 and sitting in jail, and jail's not a great place, 0:23:39.200 --> 0:23:42.080 and jail it's hot or it's freezing cold, and you're 0:23:42.119 --> 0:23:45.320 with other people that are actually, you know, dangerous criminals 0:23:45.480 --> 0:23:47.520 in this place, and you're going through it, and you 0:23:47.560 --> 0:23:50.399 start to think of this cost benefit analysis of do 0:23:50.520 --> 0:23:52.359 I stay in here, take this and go, or do 0:23:52.440 --> 0:23:55.000 I continue to fight this case of potentially risk You know, 0:23:55.080 --> 0:23:58.040 multiple years are staying in here for another six to 0:23:58.119 --> 0:24:00.359 eight months. You know the public defenders selling you the 0:24:00.440 --> 0:24:03.399 backlog at that lab is twelve to eighteen months. You 0:24:03.400 --> 0:24:05.600 know you can't get out for quite a while. You 0:24:05.600 --> 0:24:07.399 know these are the types of fears and risk and 0:24:07.440 --> 0:24:10.240 things people are going through in this process. And so 0:24:10.280 --> 0:24:12.879 that's why folks like Amy and thousands of others across 0:24:12.920 --> 0:24:16.800 the country have accepted plead deals even when they're actually innocent. 0:24:17.880 --> 0:24:21.880 Yeah, and what's really tragic is that once these innocent 0:24:21.880 --> 0:24:25.840 people plead guilty, whatever was used to convict them, you know, 0:24:25.920 --> 0:24:29.679 whatever was taken from their car and dropped in one 0:24:29.720 --> 0:24:33.560 of these biles that the police are saying tested positive 0:24:33.600 --> 0:24:37.679 for a certain drug usually gets destroyed. So if they 0:24:37.720 --> 0:24:39.679 ever want to get a hold of the evidence to 0:24:39.760 --> 0:24:42.720 try to demonstrate that they actually pled guilty to something 0:24:42.760 --> 0:24:44.159 they didn't do, they can't get it. 0:24:45.160 --> 0:24:47.200 You're exactly right, you know, evidence in a lot of 0:24:47.240 --> 0:24:50.200 these cases has been destroyed, and so we really don't 0:24:50.240 --> 0:24:52.520 know how many people have been wrongfully convicted because you 0:24:52.560 --> 0:24:55.000 may not be able to verify the results. I know 0:24:55.080 --> 0:24:58.159 Pro Publica did a study and they estimated about one 0:24:58.240 --> 0:25:01.560 hundred thousand people a year probably plead guilty based upon 0:25:01.640 --> 0:25:04.080