October 28, 2020 • 32 mins
Josh Dubin examines Roadside Drug Testing with Greg Glod, Criminal Justice Senior Policy Fellow.
Faulty tests, which cost police departments $2 a piece or less, are widely used across the United States, causing countless people to plead guilty to crimes they didn’t commit, despite scientific evidence that proves just how ineffective they really are.
Learn more and get involved.
http://www.wrongfulconvictionpodcast.com/junk-science
https://www.propublica.org/article/common-roadside-drug-test-routinely-produces-false-positives
https://www.propublica.org/article/unreliable-and-unchallenged
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
You're sitting in the passenger seat of your car, staring
out the window. Your boyfriend is driving, and you look
over at him. You can tell that he's getting tired.
It's been a long day. You left Louisiana five hours
ago and he's been driving the entire time. You're going
to Houston, where he has an interview for a job
(00:21):
on an oil rig. You find the monotony of the
drive to be somewhat calming. It's a big difference from
your usual day to day of running around doing your
job and taking care of your teenage son who has
special needs. Of course, you love your kids and your
job is great, but for the first time in a while,
(00:42):
you feel yourself really relaxing, and you're happy to have
nothing to do or worry about for the next couple
of days. When you finally get to the motel in Houston,
you're both exhausted. You dump your suit cases at the
foot of the bed, and you're tempted to skip dinner
and just stay in for the rest of the night,
(01:02):
but you don't want your boyfriend to go to bed
on an empty stomach, so you both get back in
the car, grab some hamburgers from a fast food drive
through and then start heading straight back to the motel.
Your boyfriend rubs his eyes when he changes lanes, and
out of nowhere you see blue and red lights flashing
(01:24):
behind your car and a siren blaring. You look up
and watching the rear view mirror as a police officer
slowly walks up to the driver's side window, license and registration.
(01:48):
You rummage in the glove compartment for the registration. Well,
what's the problem, officer, your boyfriend asked, no signal, will
changing lanes. You hand the registration to your boyfriend, who
in turn hands it to the officer. License. The officer
says again. Your boyfriend holds tight onto the steering wheel.
(02:10):
I don't I don't have a license, sir. Please step
out of the vehicle. Your boyfriend gets out, closing the
door behind him. The officer sticks his head into the
car window and looks around. He never makes eye contact
with you. Then the officer steps away from your car
(02:31):
and calls out to his partner, who's sitting in the
police car. There's a needle in here, the officer says,
excuse me, what are you talking about? You have no
idea what the officer thinks. He saw, but you certainly
did not have any kind of needle in your car.
(02:52):
The cop ignores your question and walks over to the
passenger window. Ma'am, I'm gonna need your consent to sir
to the car, and I'll tell you right now you
don't consent, we're going to be sitting here a long
time until we can get a canine out here to
sweep the car. You don't have anything to hide, so
you say, yeah, okay, go ahead. You stand on the
(03:14):
side of the road with your boyfriend in the thick
Texas heat while both officers search the car. A few
minutes later, the first officer stands up straight. It looks
like he's pinching something between his index finger and his thumb,
and he's holding it up to the moonlight. You can't
see what it is, but you see that. The officer
(03:35):
says something to his partner, who then comes over to you. Man,
we have reason to believe that there's crack cocaine in
your car, the officer says. He tells you both to
put your hands behind your back. He starts cuffing your boyfriend,
and your adrenaline starts pumping. You're sweating now, and you
(03:57):
can't tell if it's the ninety degree heat or if
it's pure nerves and anxiety. As the officer tightens the
cuffs painfully around your wrist, you have the wrong idea here.
I don't have drugs in my car. I don't do drugs.
I've never done drugs. One officer walks over to you
and then takes you to the police car. The other
(04:19):
one opens up the trunk. He takes out something that
looks like a ziplock baggy, then walks back over to you.
He opens the bag and pulls out a test tube.
Then he takes what he's been pinching between his fingers
and drops it into the tube. He shakes it around,
looks at it. Then he looks at you, and a
(04:41):
wide grin creeps across his face. He waves the tube
right in front of your nose. A liquid that seems
to change from red to blue and the flashing lights
is dangled in front of you. You're busted, ma'am, the
cops says. The take you to jail. Your boyfriend is
(05:02):
charged with driving without a license and is released soon after.
But you don't know that yet because you're placed in
a tiny holding cell with one other woman who tells
you that she murdered someone. You're feeling sick, and you
still haven't eaten all day. You're terrified, but you're not
just worried about yourself. You're really worried about your son.
(05:29):
Someone calls your name from a thick plastic window that
separates you from the people working at the jail. You
walk up to the window and see a tired looking
man on the other side. He introduces himself as the
court appointed defense attorney. He tells you you're being charged
for possession of crack cocaine. Look, this is a felony,
(05:50):
he says, and you're facing two years in state prison.
You're in disbelief. Jesus, how is this possible. The attorney
looks down at his papers and says, look, you have
a choice. It's not much of a choice, but you
do have a choice. The prosecutor is offering you a
(06:10):
plea deal. If you plead guilty, you'll get a forty
five days sentence in jail, and you'll probably only have
to serve half of that. You say, I'm innocent. I'm
not going to plead guilty to something I didn't do.
The defense attorney kind of leans in a little bit
and looks at you through his wire rim glasses and says, ma'am.
(06:33):
They tested the substance they found on the floor of
your car and it came up positive for crack cocaine.
So according to this test, there was crack in your car.
Now you can wait until the forensics lab runs another
test on it, but there's a huge backlog. You could
wait months for that test to come back. You begin
(06:54):
to physically shake. You're on the verge of bursting out
in tears right there in the middle of the jail.
You think about your options. Months in jail, waiting for
the evidence that will prove your innocent, two years in
prison if it doesn't, And can you even trust the
test if the one that they did on the side
(07:16):
of the road was clearly wrong. I mean there was
no crack in your car. You think about your youngest
son and you're terrified of what's going to happen if
you can't get out of your fast. He really needs you.
You work managing an apartment complex. Part of your compensation
is that you get to live in an apartment in
the building that you manage. It at least allows you
(07:38):
to stay close to your son at all times. Right
now he is with his dad. But if you're stuck
here for months or god forbid, years, you'll lose your job,
your home, the safety net for you and your kid.
The decision is basically made for you. You can't sit
in prison for months. You have to get out and
(08:00):
get out as quickly as you can. The next thing
you know, you're standing in front of a judge. You
can't stop trembling, You're weeping uncontrollably, you can barely breathe. Somehow,
When the judge asked you, how do you plead, you
(08:20):
force out the words I plead guilty. They take you
back to a cell where you'll serve twenty one days
of the forty five days sentence you were given. The
prosecutor files a motion for the evidence in your case
to be destroyed. After twenty one days, you're let out
(08:40):
of jail. Your worst fears have been realized. You've been fired,
you've been kicked out of your apartment. You don't know
where most of your belongings are, and you don't know
where to turn. The story you just heard is based
on the true events of Amy All Britain's wrongful conviction
(09:04):
that resulted from a roadside drug test. Somehow, the prosecutor's
order to destroy the evidence never got signed off on,
and that substance they found in her car that they
claim tested positive for crack cocaine, it turned out to
be a food crumb. Based on the junk science of
(09:27):
roadside drug testing, the steady life that Amy built for
herself and her family was completely turned upside down. And
Amy isn't the only one. I'm Josh Duben, civil rights
and criminal defense attorney, an innocent ambassador to the Innocence
Project in New York. Today, on Wrongful Conviction junk Science,
(09:52):
we explore roadside drug testing. Turns out these faulty tests,
which caused police departments two dollars a piece or less,
are widely used across the United States. They caused countless
people to plead guilty to crimes they didn't commit. These
tests continue to be used despite scientific evidence that proves
(10:15):
just how ineffective. They are. In three during the height
of the War on drugs in the United States, a
chemist by the name of L. J. Scott, Jr. Was
(10:37):
tasked with creating a test that could confirm the presence
of cocaine. Now Scott was already aware of one chemical
that was being used to test for cocaine, but the
problem was it was highly unreliable. This faulty test was
made up of a pink liquid, a chemical called cobalt thiocyanate,
(11:00):
and cocaine was added to this pink liquid, it turned blue,
and so the thinking went, whenever the pink liquid turns blue,
we could know if there's cocaine present. But the problem
was that it wasn't only cocaine, but plenty of other
substances that could also turn this pink chemical blue. So
(11:21):
Scott set out to work on creating a more accurate test.
He experimented with other chemicals, and finally he came up
with a three step test. Here's how it worked. A
small sealable bag contained three vials of chemicals. First, the
substance suspected to be cocaine was added to the first
(11:42):
vial that contained the same pink chemical as the original test,
cobalt thio cyanate. If that term blue, it meant the
substance might be cocaine. Then the vial was placed into
the small bag with the other two vials. The first
vial was broken open so the liquid contents would leave
(12:03):
the vial and sit at the bottom of the transparent back.
Then the second vial would be broken open. This vial
contained a second chemical, hydrochloric acid, that was supposed to
mix with the first chemical and turn the substance pink again.
Then the third vial would be broken. This final vial
(12:26):
was filled with chloroform. If the liquid mixture at the
bottom of the bag split into two layers so that
a pink liquid floated to the top and blue sank
to the bottom, Scott said this confirmed that the substance
being tested was indeed cocaine. After working on the test
for nine months, Scott was so sure of it that
(12:49):
he declared the method proposed here in is almost impossible
to misinterpret. It is highly sensitive and specific. Officers started
carrying these portable roadside drug tests on them while they
patrolled neighborhoods and pulled people over for traffic violations. They
started using the tests on people suspected of possessing drugs,
(13:12):
and the arrest started flooding in. But this test turned
out to be not quite as foolproof as Scott thought.
A study by toxicologists found that the three vile tests
would also show positive results for substances other than cocaine.
Light a cane, for example, a common numbing agent found
(13:33):
in many first aid kits used to soothe cuts and burns,
also tested positive. Nevertheless, Scott started his own company that
sold drug test kits to law enforcement. This company still
exists today, and interestingly enough, he stopped selling the kits
with the three vile process. Instead, he went back to
(13:56):
the one step process, the tests with just the pink
liquid that was already known to be faulty, and to
test positive for so many other substances. He did this
so that he could sell them for less money, and
they were a hit, and he expanded beyond cocaine tests.
(14:16):
His company also sells tests for opiates, m D, m A, marijuana, LSD,
bath salts, and meth amphetamine. His website boast that the
tests coming easy to use, cheap packaging that prevents officers
from cutting their fingers while breaking the vials. When interviewed
by reporters from Pro Publica, Scott said that he had
(14:38):
no idea that these tests alone could send people to prison,
but indeed they were countless innocent people, including Amy All Britton,
ended up convicted based on cheap, highly flawed roadside tests
just like these. Now, the problem with the drug hit
(15:02):
is that these things are incredibly unreliable, and so they
come up positive for things like chocolate, like cleaning supplies
like aspirin, like sugar, weight, gain powder, candle wax, drywall,
so sand. They all come back and test positive from narcotics.
Because these things are very unreliable and they're not supposed
to be used specifically for actually getting a conviction, but
(15:25):
many people plea in the system never get to a trial,
and these are used as the only evidence to actually
obtain a conviction. That's what happened in Amy's case. On
our show today, we're talking to Greg Glaud. Greg is
a policy fellow at Americans for Prosperity now Americans for
Prosperities of grassroots organization that educates citizens about policy issues
(15:49):
at the local, state, and national level. And one of
the issues that Greg works on is criminal justice reform.
So I want to go into detail about these drug
tests in kids, walk us through some of the issues
associated with these tests. It sounds like they're quite a
few of them. Oh yeah, I mean, so, there are
(16:10):
a variety of issues that go along with drug test kits.
And there's so many areas in that chain of sequence
from you know, finding the substance to actually testing it
that can go wrong. And so first and foremost is
actually training. And so it seems very easy. You drop
something in a vial and you test it and see
if it turns a different color, and if it does,
then it's supposed to be drugs. But it's not that simple, um,
(16:31):
And so officers have to be trained accordingly on how
these work. And the problem is a lot of different
substances actually change the color. And so the way that
the thought process is supposed to go about this is
if it's not a drug, the substance shouldn't change in there. However,
a lot of substances actually make that color go different,
and so you have these situations where officers aren't properly
trained on how to use them, they break the different
(16:52):
vials in the wrong way. It could be cold outside,
the temperature changes different things, um, the chemicals might expired
within them. There's a lot of different ways that this
can go wrong. But even if you do everything correctly,
everything right, the officer has been properly trained and he's
one of the best you know at actually utilizing this.
He was a former chemist. Let's just say the most
(17:13):
you know, crazy scenario where he knew exactly how to
do this. There are so many different non controlled substances
that actually test positive for drugs and change that substance
that look like narcotics that it makes it impossible to
really verify if this is a drug or not. And
let's be honest, most of these officers are not scientists
or chemists. And there are many other problems, including that
(17:36):
these tests just aren't that easy to read. One color
can easily be interpreted as another. So what are some
examples of this? For example, one test, it says that
LSD should turn all of black, but sugar turns dark brown. Now,
if you're on the side of the road pulling someone
over at night, there's lights flashing, things are going on,
(17:57):
it's noisy, it's hot, you're in you're in South Texas.
You're shaking this thing around and you're looking at it
and you're saying, is that dark brown or is that
all of black? I mean, it's it's a pretty ridiculous question.
But this can mean the difference between someone being arrested
or being let go uh free because of this slight
color change. And then another test, another very popular test.
(18:19):
Cocaine is supposed to be a deep orange yellow, while
salt is a strong orange. If you can explain to
me what a strong orange is compared to a deep
orange yellow, um, please let me know. So I'm thinking
(18:42):
of someone like Amy, who we talked about at the
beginning of this episode and whose story was actually published
in an article by pro Publica. And by the way,
if you're interested, you can find this article and others
about these roadside drug tests in our show notes. But
someone like Amy is taken to jail based on this
(19:03):
flawed roadside test, and she's told by her court appointed
defense attorney that there's another test that can verify the results.
Of course, that test is going to take quite some time,
but she's told that nonetheless, So tell us about that
second test, the lab test. Is it actually reliable and
and if it is reliable, why aren't they using it
(19:25):
to verify the results right away instead of having, you know,
people like Amy be presented with this very precarious um
circumstance in which they're made to wait around for a
while with all these drug test kits, you know. And
it says it right on the box that they should
be verified by a forensics lab. And so most jurisdictions
(19:48):
either have a state lab and then also for larger
cities they'll have their own labs. So essentially what they
do is take the substance, heat it up a lot,
break it down to its elements, and then you can
tell from that with you know, pretty much a undresent
certainty that what it is is either narcotics or not. However,
most of the time it's not getting to that point.
A lot of places, um you know in Texas Department
(20:09):
Public and Safety there just doesn't have the time and
bandwidth to actually verify a lot of these these cases.
Some jurisdiction, now Houston, after this story kind of broke,
is now not allowing for plea deals to be accepted
without that verification. But a lot of jurisdictions, particuting small jurisdictions,
we have these major backlogs. People are playing within a
couple of days, and then these things aren't being verified.
Back every case can't get tested. With the amount and
(20:33):
volume that we have, there's one point six million or
rest for drug offenses each and every year, and if
you try to verify and test all these substances, you
never get through it. And so those are the problems.
So the actual test, the actual science um that should
be used here is not being utilized because the criminal
process stops within a couple of days for most of
these individuals, and then the police happens. So let's pause
(20:56):
there for a second. Tell us about the police. Why
does so many innocent people end up pleading guilty once
they're charge based on these faulty roadside drug tests. So
a plea deal is a negotiation, and so what it
is is, hey, I can give you ten years on this,
or you can take to today instead of going to trial.
Let's settle this today. And so that is very attractive
(21:19):
for a lot of people that are facing so much time,
and it really does get to a point where is
quite coercive. Maybe they set your bail at five thousand dollars,
ten thousand dollars. You can't afford it. So you sit
in jail and you're claiming your innocence. You're claiming your innocence.
Now the prosecure delays your case again, delays your case again. Well,
accept a forty five day deal, or we can go
to trial and maybe you'll get two years, and you
(21:39):
have an overworked public defender who has a huge backlog
of cases on their own and can't give you the
time of day because you can't afford your own attorney,
And so they're telling you take the plea. You have
no chance to go through this, and you're still sitting
in jail, and sitting in jail and jail is not
a great place, and jail it's hot or it's freezing cold,
and you're with other people that are actually you know,
dangerous criminals in this place, and you're going through it,
(22:01):
and you start to think of this cost benefit analysis
of do I stay in here, take this and go,
or do I continue to fight this case of potentially
risk you know, multiple years, are staying in here for
another six to eight months. You know, the public defender
is telling you the backlog at the that lab is
twelve eighteen months. You know, you can't get out for
quite a while. You know, these are the types of
fears and risk and things people are going through in
(22:23):
this process. And so that's why folks like Amy and
thousands of others across the country have accepted plead deals
even when they're actually innocent. Yeah, and what's really tragic
is that once these innocent people plead guilty, whatever was
used to convict them, you know, whatever was taken from
their car and dropped in one of these biles that
(22:45):
the police are saying tested positive for a certain drug
um usually gets destroyed. So if they ever want to
get ahold of the evidence to try to demonstrate that
they actually pled guilty to something they didn't do, they
can't get it. You're actually right, you know, evidence in
a lot of these cases has been destroyed, and so
we really don't know how many people have been wrongfully
(23:06):
convicted because you may not be able to verify the results.
I know Pro publica UH did a study and they
they estimated about a hundred thousand people a year probably
plead guilty based upon drug test kits alone. And so
even if you have a small air rate there, I mean,
you're talking about thousands of people potentially each year that
actually had never done anything wrong playing guilty. And how
many of those cases do you actually have the destruction
(23:27):
of evidence? Luckily, for Amy, and it's tough to say
anything is lucky about her, her case was that, you know,
in Harris County, you had a forensics lab that didn't
want to destroy evidence, and you also had so much
volume that a motion to destroy evidence that at the
bottom of the barrel for a judge of signed, So
that motion was never signed in her case, and so
six months later this was actually tested and it was
(23:48):
a food crumb. So because of what was really an oversight,
the evidence in her case was never destroyed. So they
were able to retest the evidence and find out that
She's actually innocent, and they sent the letter to Amy's
house notifying her, but it took a long time to
actually get that letter, so Amy went a long time
(24:10):
not knowing that this evidence had ever been retested. Now,
the problem with that, and the problem in Amy's case,
is that she had moved from her original address at
that time. And so for a lot of folks, I mean,
this has been going on for years, they can't find everyone,
and so these criminal convictions continue to linger. Some of
these individuals were homeless, some of these are extreme poverty.
Some have moved out far away and don't understand that
(24:32):
this is going on, and so a lot of these
cases are still unresolved to this day. And that's exactly
what happened in Amy's case. I think her initial letter
was sent in two thousand and fourteen. It took until
you know, two reporters from New York Times to finally
get in touch with her, UM and finally found her,
you know, six years later after this happened, she had
already had the criminal conviction on her record. UM, she
(24:53):
had lost everything she was working at like a convenience
store and then kind of working for a slum lord
after that because she couldn't get a job with a
felony record. And of this entire woman's life is is
ruined based upon the evidence of this drug. Kid. Look,
I know exactly what you're talking about. I have so
many clients that when they get out, you know, there's
always you know, a celebration, um, and oftentimes it's covered
(25:16):
in the press. And UM, after that first, you know,
twenty four forty seventy two hours, UM, you know, a
different kind of nightmare begins for them. You know, trying
to assimilate back into society is just you know, very
very difficult. The psychological harm that has done, you know,
(25:40):
from somebody being in a combined space and having to
answer to someone, having to ask permission to do something,
you know, simple things like go to the bathroom or eat.
It's just it's hard to undo. And you know, this
stain of a wrongful incarceration and wrongful conviction really sticks
(26:02):
with you. You know the Internet, things don't leave there,
and so you have this arrest record on that, you
have these convictions on there, and those linger with you
for quite a while. It costs thousands of dollars to
get your case expunge, even if you're wrongfully convicted, and
even if you get that off your physical record, the
digital records still stays there. You have a mug shot
that's out there. You have this arrest record, you have
(26:25):
the plea. You have all these different documents and they
can be scrubbed from one thing, but they can pop
up on another. You'll have the same company have something
called mug shots dot com and then they'll have mug
shots with the z dot com and then you have
to pay to get it off of there. And so
you know, I'm sure if you looked up Amy all
Britton and criminal history on a lot of these different sites,
you probably still see that she was arrested charging convicted
(26:47):
for drug possession. And if you're trying to get a job,
you're trying to get public funding, public housing, apply to school,
all these different things that's gonna pop up, and sometimes
an employer or a college or something else will just
brush past you because that even though you were actually
exonerated of a crime. So if these tests are so problematic,
why is law enforcements still using them? Why are they
(27:09):
so so popular? Well, they're incredibly popular and and the
reason that they're so popular is because they're cheap and
they allow and I'm using this term loosely, for officers
and procedures to gather some sort of chemical evidence early
on in the trial and keep that churn of the
criminal justice system going. We had one point six million
arrests for drug offenses in two thousand eighteen. If everyone
(27:30):
went to trial on those things, you you'd never get through.
It would take decades to get through all the cases.
And so what a FIEL drug test kit does is
allows to exhibitite the criminal justice system and garner police
from individuals at the earliest stage in the process. So,
do you think there's anything that can prevent these roadside
drug tests from resulting in innocent people getting convicted because
(27:54):
of investigative stories like we had in Atlanta there was
an incredible one down there where they found that a
hundred and forty five life people just in two thousand
seventeen alone, we're wrongfully convicted of drug possession, and the
ones in Houston, and we had you know, certain cases
in in Arizona and Las Vegas. These investigative reports and
these types of podcasts that you guys are doing has
brought more information on the inaccuracies of these and actually
(28:16):
in Harris County they no longer allow for a plea
to be entered until it has been verified by a laboratory.
And so um, you are seeing changes across the country
on how these are utilized, but still in many jurisdictions,
particularly smaller jurisdictions, judges are taking these pleas and prosecutors
are driving these police without actually verifying the results. These
(28:37):
types of stories are extremely valuable, but the sad truth
is that these kinds of changes take a lot of
work and a lot of time. So in the meantime,
um for the immediate future, is there anything else that
can be done to stop these kinds of wrongful convictions?
If you're about to accept a plea based upon this alone,
(28:59):
do not. You do have newer technologies today that actually
are able to be more readily accurate and don't produce
as many false positives. But those are very expensive and
a lot of you know, smaller jurisdictions can't afford those,
and so that's a good thing, but that's gonna be
you know, a long ways out. And so you know,
these drug test kits are still very prevalence. They just
should not be used in the first place. It's likely
(29:25):
that stories like Amy's would have remained cloaked in silence
had it not been for journalists from Pro Publica and
The New York Times who did extensive reporting to understand
the depth of the problems that are associated with roadside
drug test kits. In fact, Amy likely wouldn't have learned
about the retesting of the evidence in her case, which
(29:46):
verified what she already knew that she was innocent, if
these reporters hadn't tracked her down. It's because of these
investigative journalists that the problems associated with drug test kits
came to light, and it's in a large part due
to their reporting that local municipalities across the country are
being pressured to change their regulations regarding roadside drug tests.
(30:11):
Oversight is being implemented to ensure that the work of
crime labs is reliable. There's an increased scrutiny of plea
deals for drug offenses where there isn't evidence to support
a person's guilt. This kind of reporting is extraordinarily important
for helping the Innocence Project and lawyers like me identify
(30:32):
cases where individuals were wrongfully convicted, and to bring these
cases to the public's attention. So subscribe to news out
with like Pro Publica, The Martial Project, the New York Times,
or wherever you see quality journalism that is focused on
exposing the shortcomings of our criminal justice system. We hear
(30:53):
this phrase fake news. Fake news. That's all fake news
carelessly tossed around to the point where people are actually
beginning to believe that they should be dismissive of anything
written by a journalist. This is so dangerous for reasons
that I think are obvious to listeners of this show.
(31:14):
This assault on our media makes support incredible news organizations
more important than ever, as it is often under the
microscope of their thorough investigative reporting that we uncover and
then prevent the junk science behind wrongful convictions. Next week
(31:38):
will explore the junk science of eyewitness identification with the
renowned psychologist and memory expert Elizabeth loftis Wrongful Conviction Junk
Science is a production of Lava for Good Podcasts in
association with Signal Company Number One. Thanks to our executive
producer Jason Flom and the team as Signal Company number
(31:58):
One execut and producer Kevin Wardas and senior producers Karen
korn Aber and Brit Spangler. Our music was composed by
Jay Ralph. You can follow me on Instagram at dubin Dot.
Josh followed the Wrongful Conviction podcast on Facebook and on
Instagram at Wrongful Conviction and on Twitter at wrong Conviction
You're sitting in the passenger seat of your car, staring
out the window. Your boyfriend is driving, and you look
over at him. You can tell that he's getting tired.
It's been a long day. You left Louisiana five hours
ago and he's been driving the entire time. You're going
to Houston, where he has an interview for a job
(00:21):
on an oil rig. You find the monotony of the
drive to be somewhat calming. It's a big difference from
your usual day to day of running around doing your
job and taking care of your teenage son who has
special needs. Of course, you love your kids and your
job is great, but for the first time in a while,
(00:42):
you feel yourself really relaxing, and you're happy to have
nothing to do or worry about for the next couple
of days. When you finally get to the motel in Houston,
you're both exhausted. You dump your suit cases at the
foot of the bed, and you're tempted to skip dinner
and just stay in for the rest of the night,
(01:02):
but you don't want your boyfriend to go to bed
on an empty stomach, so you both get back in
the car, grab some hamburgers from a fast food drive
through and then start heading straight back to the motel.
Your boyfriend rubs his eyes when he changes lanes, and
out of nowhere you see blue and red lights flashing
(01:24):
behind your car and a siren blaring. You look up
and watching the rear view mirror as a police officer
slowly walks up to the driver's side window, license and registration.
(01:48):
You rummage in the glove compartment for the registration. Well,
what's the problem, officer, your boyfriend asked, no signal, will
changing lanes. You hand the registration to your boyfriend, who
in turn hands it to the officer. License. The officer
says again. Your boyfriend holds tight onto the steering wheel.
(02:10):
I don't I don't have a license, sir. Please step
out of the vehicle. Your boyfriend gets out, closing the
door behind him. The officer sticks his head into the
car window and looks around. He never makes eye contact
with you. Then the officer steps away from your car
(02:31):
and calls out to his partner, who's sitting in the
police car. There's a needle in here, the officer says,
excuse me, what are you talking about? You have no
idea what the officer thinks. He saw, but you certainly
did not have any kind of needle in your car.
(02:52):
The cop ignores your question and walks over to the
passenger window. Ma'am, I'm gonna need your consent to sir
to the car, and I'll tell you right now you
don't consent, we're going to be sitting here a long
time until we can get a canine out here to
sweep the car. You don't have anything to hide, so
you say, yeah, okay, go ahead. You stand on the
(03:14):
side of the road with your boyfriend in the thick
Texas heat while both officers search the car. A few
minutes later, the first officer stands up straight. It looks
like he's pinching something between his index finger and his thumb,
and he's holding it up to the moonlight. You can't
see what it is, but you see that. The officer
(03:35):
says something to his partner, who then comes over to you. Man,
we have reason to believe that there's crack cocaine in
your car, the officer says. He tells you both to
put your hands behind your back. He starts cuffing your boyfriend,
and your adrenaline starts pumping. You're sweating now, and you
(03:57):
can't tell if it's the ninety degree heat or if
it's pure nerves and anxiety. As the officer tightens the
cuffs painfully around your wrist, you have the wrong idea here.
I don't have drugs in my car. I don't do drugs.
I've never done drugs. One officer walks over to you
and then takes you to the police car. The other
(04:19):
one opens up the trunk. He takes out something that
looks like a ziplock baggy, then walks back over to you.
He opens the bag and pulls out a test tube.
Then he takes what he's been pinching between his fingers
and drops it into the tube. He shakes it around,
looks at it. Then he looks at you, and a
(04:41):
wide grin creeps across his face. He waves the tube
right in front of your nose. A liquid that seems
to change from red to blue and the flashing lights
is dangled in front of you. You're busted, ma'am, the
cops says. The take you to jail. Your boyfriend is
(05:02):
charged with driving without a license and is released soon after.
But you don't know that yet because you're placed in
a tiny holding cell with one other woman who tells
you that she murdered someone. You're feeling sick, and you
still haven't eaten all day. You're terrified, but you're not
just worried about yourself. You're really worried about your son.
(05:29):
Someone calls your name from a thick plastic window that
separates you from the people working at the jail. You
walk up to the window and see a tired looking
man on the other side. He introduces himself as the
court appointed defense attorney. He tells you you're being charged
for possession of crack cocaine. Look, this is a felony,
(05:50):
he says, and you're facing two years in state prison.
You're in disbelief. Jesus, how is this possible. The attorney
looks down at his papers and says, look, you have
a choice. It's not much of a choice, but you
do have a choice. The prosecutor is offering you a
(06:10):
plea deal. If you plead guilty, you'll get a forty
five days sentence in jail, and you'll probably only have
to serve half of that. You say, I'm innocent. I'm
not going to plead guilty to something I didn't do.
The defense attorney kind of leans in a little bit
and looks at you through his wire rim glasses and says, ma'am.
(06:33):
They tested the substance they found on the floor of
your car and it came up positive for crack cocaine.
So according to this test, there was crack in your car.
Now you can wait until the forensics lab runs another
test on it, but there's a huge backlog. You could
wait months for that test to come back. You begin
(06:54):
to physically shake. You're on the verge of bursting out
in tears right there in the middle of the jail.
You think about your options. Months in jail, waiting for
the evidence that will prove your innocent, two years in
prison if it doesn't, And can you even trust the
test if the one that they did on the side
(07:16):
of the road was clearly wrong. I mean there was
no crack in your car. You think about your youngest
son and you're terrified of what's going to happen if
you can't get out of your fast. He really needs you.
You work managing an apartment complex. Part of your compensation
is that you get to live in an apartment in
the building that you manage. It at least allows you
(07:38):
to stay close to your son at all times. Right
now he is with his dad. But if you're stuck
here for months or god forbid, years, you'll lose your job,
your home, the safety net for you and your kid.
The decision is basically made for you. You can't sit
in prison for months. You have to get out and
(08:00):
get out as quickly as you can. The next thing
you know, you're standing in front of a judge. You
can't stop trembling, You're weeping uncontrollably, you can barely breathe. Somehow,
When the judge asked you, how do you plead, you
(08:20):
force out the words I plead guilty. They take you
back to a cell where you'll serve twenty one days
of the forty five days sentence you were given. The
prosecutor files a motion for the evidence in your case
to be destroyed. After twenty one days, you're let out
(08:40):
of jail. Your worst fears have been realized. You've been fired,
you've been kicked out of your apartment. You don't know
where most of your belongings are, and you don't know
where to turn. The story you just heard is based
on the true events of Amy All Britain's wrongful conviction
(09:04):
that resulted from a roadside drug test. Somehow, the prosecutor's
order to destroy the evidence never got signed off on,
and that substance they found in her car that they
claim tested positive for crack cocaine, it turned out to
be a food crumb. Based on the junk science of
(09:27):
roadside drug testing, the steady life that Amy built for
herself and her family was completely turned upside down. And
Amy isn't the only one. I'm Josh Duben, civil rights
and criminal defense attorney, an innocent ambassador to the Innocence
Project in New York. Today, on Wrongful Conviction junk Science,
(09:52):
we explore roadside drug testing. Turns out these faulty tests,
which caused police departments two dollars a piece or less,
are widely used across the United States. They caused countless
people to plead guilty to crimes they didn't commit. These
tests continue to be used despite scientific evidence that proves
(10:15):
just how ineffective. They are. In three during the height
of the War on drugs in the United States, a
chemist by the name of L. J. Scott, Jr. Was
(10:37):
tasked with creating a test that could confirm the presence
of cocaine. Now Scott was already aware of one chemical
that was being used to test for cocaine, but the
problem was it was highly unreliable. This faulty test was
made up of a pink liquid, a chemical called cobalt thiocyanate,
(11:00):
and cocaine was added to this pink liquid, it turned blue,
and so the thinking went, whenever the pink liquid turns blue,
we could know if there's cocaine present. But the problem
was that it wasn't only cocaine, but plenty of other
substances that could also turn this pink chemical blue. So
(11:21):
Scott set out to work on creating a more accurate test.
He experimented with other chemicals, and finally he came up
with a three step test. Here's how it worked. A
small sealable bag contained three vials of chemicals. First, the
substance suspected to be cocaine was added to the first
(11:42):
vial that contained the same pink chemical as the original test,
cobalt thio cyanate. If that term blue, it meant the
substance might be cocaine. Then the vial was placed into
the small bag with the other two vials. The first
vial was broken open so the liquid contents would leave
(12:03):
the vial and sit at the bottom of the transparent back.
Then the second vial would be broken open. This vial
contained a second chemical, hydrochloric acid, that was supposed to
mix with the first chemical and turn the substance pink again.
Then the third vial would be broken. This final vial
(12:26):
was filled with chloroform. If the liquid mixture at the
bottom of the bag split into two layers so that
a pink liquid floated to the top and blue sank
to the bottom, Scott said this confirmed that the substance
being tested was indeed cocaine. After working on the test
for nine months, Scott was so sure of it that
(12:49):
he declared the method proposed here in is almost impossible
to misinterpret. It is highly sensitive and specific. Officers started
carrying these portable roadside drug tests on them while they
patrolled neighborhoods and pulled people over for traffic violations. They
started using the tests on people suspected of possessing drugs,
(13:12):
and the arrest started flooding in. But this test turned
out to be not quite as foolproof as Scott thought.
A study by toxicologists found that the three vile tests
would also show positive results for substances other than cocaine.
Light a cane, for example, a common numbing agent found
(13:33):
in many first aid kits used to soothe cuts and burns,
also tested positive. Nevertheless, Scott started his own company that
sold drug test kits to law enforcement. This company still
exists today, and interestingly enough, he stopped selling the kits
with the three vile process. Instead, he went back to
(13:56):
the one step process, the tests with just the pink
liquid that was already known to be faulty, and to
test positive for so many other substances. He did this
so that he could sell them for less money, and
they were a hit, and he expanded beyond cocaine tests.
(14:16):
His company also sells tests for opiates, m D, m A, marijuana, LSD,
bath salts, and meth amphetamine. His website boast that the
tests coming easy to use, cheap packaging that prevents officers
from cutting their fingers while breaking the vials. When interviewed
by reporters from Pro Publica, Scott said that he had
(14:38):
no idea that these tests alone could send people to prison,
but indeed they were countless innocent people, including Amy All Britton,
ended up convicted based on cheap, highly flawed roadside tests
just like these. Now, the problem with the drug hit
(15:02):
is that these things are incredibly unreliable, and so they
come up positive for things like chocolate, like cleaning supplies
like aspirin, like sugar, weight, gain powder, candle wax, drywall,
so sand. They all come back and test positive from narcotics.
Because these things are very unreliable and they're not supposed
to be used specifically for actually getting a conviction, but
(15:25):
many people plea in the system never get to a trial,
and these are used as the only evidence to actually
obtain a conviction. That's what happened in Amy's case. On
our show today, we're talking to Greg Glaud. Greg is
a policy fellow at Americans for Prosperity now Americans for
Prosperities of grassroots organization that educates citizens about policy issues
(15:49):
at the local, state, and national level. And one of
the issues that Greg works on is criminal justice reform.
So I want to go into detail about these drug
tests in kids, walk us through some of the issues
associated with these tests. It sounds like they're quite a
few of them. Oh yeah, I mean, so, there are
(16:10):
a variety of issues that go along with drug test kits.
And there's so many areas in that chain of sequence
from you know, finding the substance to actually testing it
that can go wrong. And so first and foremost is
actually training. And so it seems very easy. You drop
something in a vial and you test it and see
if it turns a different color, and if it does,
then it's supposed to be drugs. But it's not that simple, um,
(16:31):
And so officers have to be trained accordingly on how
these work. And the problem is a lot of different
substances actually change the color. And so the way that
the thought process is supposed to go about this is
if it's not a drug, the substance shouldn't change in there. However,
a lot of substances actually make that color go different,
and so you have these situations where officers aren't properly
trained on how to use them, they break the different
(16:52):
vials in the wrong way. It could be cold outside,
the temperature changes different things, um, the chemicals might expired
within them. There's a lot of different ways that this
can go wrong. But even if you do everything correctly,
everything right, the officer has been properly trained and he's
one of the best you know at actually utilizing this.
He was a former chemist. Let's just say the most
(17:13):
you know, crazy scenario where he knew exactly how to
do this. There are so many different non controlled substances
that actually test positive for drugs and change that substance
that look like narcotics that it makes it impossible to
really verify if this is a drug or not. And
let's be honest, most of these officers are not scientists
or chemists. And there are many other problems, including that
(17:36):
these tests just aren't that easy to read. One color
can easily be interpreted as another. So what are some
examples of this? For example, one test, it says that
LSD should turn all of black, but sugar turns dark brown. Now,
if you're on the side of the road pulling someone
over at night, there's lights flashing, things are going on,
(17:57):
it's noisy, it's hot, you're in you're in South Texas.
You're shaking this thing around and you're looking at it
and you're saying, is that dark brown or is that
all of black? I mean, it's it's a pretty ridiculous question.
But this can mean the difference between someone being arrested
or being let go uh free because of this slight
color change. And then another test, another very popular test.
(18:19):
Cocaine is supposed to be a deep orange yellow, while
salt is a strong orange. If you can explain to
me what a strong orange is compared to a deep
orange yellow, um, please let me know. So I'm thinking
(18:42):
of someone like Amy, who we talked about at the
beginning of this episode and whose story was actually published
in an article by pro Publica. And by the way,
if you're interested, you can find this article and others
about these roadside drug tests in our show notes. But
someone like Amy is taken to jail based on this
(19:03):
flawed roadside test, and she's told by her court appointed
defense attorney that there's another test that can verify the results.
Of course, that test is going to take quite some time,
but she's told that nonetheless, So tell us about that
second test, the lab test. Is it actually reliable and
and if it is reliable, why aren't they using it
(19:25):
to verify the results right away instead of having, you know,
people like Amy be presented with this very precarious um
circumstance in which they're made to wait around for a
while with all these drug test kits, you know. And
it says it right on the box that they should
be verified by a forensics lab. And so most jurisdictions
(19:48):
either have a state lab and then also for larger
cities they'll have their own labs. So essentially what they
do is take the substance, heat it up a lot,
break it down to its elements, and then you can
tell from that with you know, pretty much a undresent
certainty that what it is is either narcotics or not. However,
most of the time it's not getting to that point.
A lot of places, um you know in Texas Department
(20:09):
Public and Safety there just doesn't have the time and
bandwidth to actually verify a lot of these these cases.
Some jurisdiction, now Houston, after this story kind of broke,
is now not allowing for plea deals to be accepted
without that verification. But a lot of jurisdictions, particuting small jurisdictions,
we have these major backlogs. People are playing within a
couple of days, and then these things aren't being verified.
Back every case can't get tested. With the amount and
(20:33):
volume that we have, there's one point six million or
rest for drug offenses each and every year, and if
you try to verify and test all these substances, you
never get through it. And so those are the problems.
So the actual test, the actual science um that should
be used here is not being utilized because the criminal
process stops within a couple of days for most of
these individuals, and then the police happens. So let's pause
(20:56):
there for a second. Tell us about the police. Why
does so many innocent people end up pleading guilty once
they're charge based on these faulty roadside drug tests. So
a plea deal is a negotiation, and so what it
is is, hey, I can give you ten years on this,
or you can take to today instead of going to trial.
Let's settle this today. And so that is very attractive
(21:19):
for a lot of people that are facing so much time,
and it really does get to a point where is
quite coercive. Maybe they set your bail at five thousand dollars,
ten thousand dollars. You can't afford it. So you sit
in jail and you're claiming your innocence. You're claiming your innocence.
Now the prosecure delays your case again, delays your case again. Well,
accept a forty five day deal, or we can go
to trial and maybe you'll get two years, and you
(21:39):
have an overworked public defender who has a huge backlog
of cases on their own and can't give you the
time of day because you can't afford your own attorney,
And so they're telling you take the plea. You have
no chance to go through this, and you're still sitting
in jail, and sitting in jail and jail is not
a great place, and jail it's hot or it's freezing cold,
and you're with other people that are actually you know,
dangerous criminals in this place, and you're going through it,
(22:01):
and you start to think of this cost benefit analysis
of do I stay in here, take this and go,
or do I continue to fight this case of potentially
risk you know, multiple years, are staying in here for
another six to eight months. You know, the public defender
is telling you the backlog at the that lab is
twelve eighteen months. You know, you can't get out for
quite a while. You know, these are the types of
fears and risk and things people are going through in
(22:23):
this process. And so that's why folks like Amy and
thousands of others across the country have accepted plead deals
even when they're actually innocent. Yeah, and what's really tragic
is that once these innocent people plead guilty, whatever was
used to convict them, you know, whatever was taken from
their car and dropped in one of these biles that
(22:45):
the police are saying tested positive for a certain drug
um usually gets destroyed. So if they ever want to
get ahold of the evidence to try to demonstrate that
they actually pled guilty to something they didn't do, they
can't get it. You're actually right, you know, evidence in
a lot of these cases has been destroyed, and so
we really don't know how many people have been wrongfully
(23:06):
convicted because you may not be able to verify the results.
I know Pro publica UH did a study and they
they estimated about a hundred thousand people a year probably
plead guilty based upon drug test kits alone. And so
even if you have a small air rate there, I mean,
you're talking about thousands of people potentially each year that
actually had never done anything wrong playing guilty. And how
many of those cases do you actually have the destruction
(23:27):
of evidence? Luckily, for Amy, and it's tough to say
anything is lucky about her, her case was that, you know,
in Harris County, you had a forensics lab that didn't
want to destroy evidence, and you also had so much
volume that a motion to destroy evidence that at the
bottom of the barrel for a judge of signed, So
that motion was never signed in her case, and so
six months later this was actually tested and it was
(23:48):
a food crumb. So because of what was really an oversight,
the evidence in her case was never destroyed. So they
were able to retest the evidence and find out that
She's actually innocent, and they sent the letter to Amy's
house notifying her, but it took a long time to
actually get that letter, so Amy went a long time
(24:10):
not knowing that this evidence had ever been retested. Now,
the problem with that, and the problem in Amy's case,
is that she had moved from her original address at
that time. And so for a lot of folks, I mean,
this has been going on for years, they can't find everyone,
and so these criminal convictions continue to linger. Some of
these individuals were homeless, some of these are extreme poverty.
Some have moved out far away and don't understand that
(24:32):
this is going on, and so a lot of these
cases are still unresolved to this day. And that's exactly
what happened in Amy's case. I think her initial letter
was sent in two thousand and fourteen. It took until
you know, two reporters from New York Times to finally
get in touch with her, UM and finally found her,
you know, six years later after this happened, she had
already had the criminal conviction on her record. UM, she
(24:53):
had lost everything she was working at like a convenience
store and then kind of working for a slum lord
after that because she couldn't get a job with a
felony record. And of this entire woman's life is is
ruined based upon the evidence of this drug. Kid. Look,
I know exactly what you're talking about. I have so
many clients that when they get out, you know, there's
always you know, a celebration, um, and oftentimes it's covered
(25:16):
in the press. And UM, after that first, you know,
twenty four forty seventy two hours, UM, you know, a
different kind of nightmare begins for them. You know, trying
to assimilate back into society is just you know, very
very difficult. The psychological harm that has done, you know,
(25:40):
from somebody being in a combined space and having to
answer to someone, having to ask permission to do something,
you know, simple things like go to the bathroom or eat.
It's just it's hard to undo. And you know, this
stain of a wrongful incarceration and wrongful conviction really sticks
(26:02):
with you. You know the Internet, things don't leave there,
and so you have this arrest record on that, you
have these convictions on there, and those linger with you
for quite a while. It costs thousands of dollars to
get your case expunge, even if you're wrongfully convicted, and
even if you get that off your physical record, the
digital records still stays there. You have a mug shot
that's out there. You have this arrest record, you have
(26:25):
the plea. You have all these different documents and they
can be scrubbed from one thing, but they can pop
up on another. You'll have the same company have something
called mug shots dot com and then they'll have mug
shots with the z dot com and then you have
to pay to get it off of there. And so
you know, I'm sure if you looked up Amy all
Britton and criminal history on a lot of these different sites,
you probably still see that she was arrested charging convicted
(26:47):
for drug possession. And if you're trying to get a job,
you're trying to get public funding, public housing, apply to school,
all these different things that's gonna pop up, and sometimes
an employer or a college or something else will just
brush past you because that even though you were actually
exonerated of a crime. So if these tests are so problematic,
why is law enforcements still using them? Why are they
(27:09):
so so popular? Well, they're incredibly popular and and the
reason that they're so popular is because they're cheap and
they allow and I'm using this term loosely, for officers
and procedures to gather some sort of chemical evidence early
on in the trial and keep that churn of the
criminal justice system going. We had one point six million
arrests for drug offenses in two thousand eighteen. If everyone
(27:30):
went to trial on those things, you you'd never get through.
It would take decades to get through all the cases.
And so what a FIEL drug test kit does is
allows to exhibitite the criminal justice system and garner police
from individuals at the earliest stage in the process. So,
do you think there's anything that can prevent these roadside
drug tests from resulting in innocent people getting convicted because
(27:54):
of investigative stories like we had in Atlanta there was
an incredible one down there where they found that a
hundred and forty five life people just in two thousand
seventeen alone, we're wrongfully convicted of drug possession, and the
ones in Houston, and we had you know, certain cases
in in Arizona and Las Vegas. These investigative reports and
these types of podcasts that you guys are doing has
brought more information on the inaccuracies of these and actually
(28:16):
in Harris County they no longer allow for a plea
to be entered until it has been verified by a laboratory.
And so um, you are seeing changes across the country
on how these are utilized, but still in many jurisdictions,
particularly smaller jurisdictions, judges are taking these pleas and prosecutors
are driving these police without actually verifying the results. These
(28:37):
types of stories are extremely valuable, but the sad truth
is that these kinds of changes take a lot of
work and a lot of time. So in the meantime,
um for the immediate future, is there anything else that
can be done to stop these kinds of wrongful convictions?
If you're about to accept a plea based upon this alone,
(28:59):
do not. You do have newer technologies today that actually
are able to be more readily accurate and don't produce
as many false positives. But those are very expensive and
a lot of you know, smaller jurisdictions can't afford those,
and so that's a good thing, but that's gonna be
you know, a long ways out. And so you know,
these drug test kits are still very prevalence. They just
should not be used in the first place. It's likely
(29:25):
that stories like Amy's would have remained cloaked in silence
had it not been for journalists from Pro Publica and
The New York Times who did extensive reporting to understand
the depth of the problems that are associated with roadside
drug test kits. In fact, Amy likely wouldn't have learned
about the retesting of the evidence in her case, which
(29:46):
verified what she already knew that she was innocent, if
these reporters hadn't tracked her down. It's because of these
investigative journalists that the problems associated with drug test kits
came to light, and it's in a large part due
to their reporting that local municipalities across the country are
being pressured to change their regulations regarding roadside drug tests.
(30:11):
Oversight is being implemented to ensure that the work of
crime labs is reliable. There's an increased scrutiny of plea
deals for drug offenses where there isn't evidence to support
a person's guilt. This kind of reporting is extraordinarily important
for helping the Innocence Project and lawyers like me identify
(30:32):
cases where individuals were wrongfully convicted, and to bring these
cases to the public's attention. So subscribe to news out
with like Pro Publica, The Martial Project, the New York Times,
or wherever you see quality journalism that is focused on
exposing the shortcomings of our criminal justice system. We hear
(30:53):
this phrase fake news. Fake news. That's all fake news
carelessly tossed around to the point where people are actually
beginning to believe that they should be dismissive of anything
written by a journalist. This is so dangerous for reasons
that I think are obvious to listeners of this show.
(31:14):
This assault on our media makes support incredible news organizations
more important than ever, as it is often under the
microscope of their thorough investigative reporting that we uncover and
then prevent the junk science behind wrongful convictions. Next week
(31:38):
will explore the junk science of eyewitness identification with the
renowned psychologist and memory expert Elizabeth loftis Wrongful Conviction Junk
Science is a production of Lava for Good Podcasts in
association with Signal Company Number One. Thanks to our executive
producer Jason Flom and the team as Signal Company number
(31:58):
One execut and producer Kevin Wardas and senior producers Karen
korn Aber and Brit Spangler. Our music was composed by
Jay Ralph. You can follow me on Instagram at dubin Dot.
Josh followed the Wrongful Conviction podcast on Facebook and on
Instagram at Wrongful Conviction and on Twitter at wrong Conviction
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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