Reported the Houston Press (Oct. 29), "In recent months the Harris County District Attorney's Office has sent out hundreds of notices to defendants convicted of drug offenses, telling them that forensic lab reports show they were 'convicted in error.'" The scope of the problem turns out to have been much greater than previously reported.
The letters, which were sent between July and September 2014, show hundreds of defendants who took plea deals for misdemeanor and felony drug possession charges were later cleared when evidence tested by an HPD crime lab analyst came up negative for a controlled substance. Court records show that while prosecutors were notified several years ago that those tests came back negative, defendants weren't told until months ago.Next up, Anderson needs to launch an internal investigation to identify and interview the prosecutors in all those cases to discover whether they knew about the contradictory lab results, if not why not, and if so, what if anything they did in response to that information. If ADAs knew defendants were sitting in prison based on false charges and never notified them, those prosecutors should be the subject of state bar grievances and I wouldn't lose any sleep if they were hounded out of the profession.
The Press is currently reviewing the cases, some of which date back as far as 2004. In some cases, the HPD crime lab notified the DA's office that there was no evidence of a controlled substance before a defendant even took a plea deal. Take, for example, a man who was charged on September 25, 2008 for possessing less than a gram of cocaine, a felony. Records indicate an HPD crime lab analyst sent prosecutors a letter on October 21, 2008 saying there was no evidence of a controlled substance. Still, the DA's office struck a plea deal with the man on October 26, 2008 -- one year in county jail. Anderson's office sent the defendant a letter on August 5, 2014, informing him that he had been convicted in error.
In most cases, it appears the negative lab reports came back months to a year after a defendant took a plea deal. Some defendants would go on to rack up multiple drug charges and other criminal convictions. However, district clerk's records show that for others, the faulty conviction was their only charge, one that sat on their record even though the DA's office for years had reports showing evidence in the case tested negative for drugs.
Finally, thank heavens Harris has a public defender office to provide an institutional counter-weight to the DA's office and a structural means to handle such a large number of similarly situated cases. As we've seen from the Jonathan Salvador fallout, where that infrastructure doesn't exist the DA's office runs the whole show and may have less incentive to do the right thing.
MORE: In an email, Nicolas Hughes of the Harris County Public Defender office said he thought the current DA administration had been "more than helpful" in resolving these cases, some of which involved "clients who possessed something, but not what they were convicted of." In the past, he said, Brady issues were handled at the DA's office on a case by case basis by trial-court chiefs instead of imposing a comprehensive policy on similar cases as they've done here. So good for Devon Anderson as far as that goes. Beyond Brady issues, wrote Hughes:
I believe there’s a greater issue that lurks behind these cases. The decision to plea is the clients’ decision alone. I am not saying that there are not lawyers, even many lawyers, that prematurely urge their clients to plea, but there is an incredible pressure placed on incarcerated defendant. This is not as big of an issue for clients on bond, but it takes a strong stomach to sit in jail for a couple of months on a weed case when you can get you with credit for time served in a couple of days. Currently, if you are lucky, lab results come back in a month or so, but that depends on the lab. As the length of time increases, so does the intestinal fortitude to stand on principle. Even when you’re on bond, awaiting trial is hardly an enjoyable process. There’s a lot of pressure to crater, and I think every lawyer has met clients that have pled guilty, against the lawyer’s recommendation, because of the pressure. I don’t know what to do about this issue. Perhaps longer docket settings for cases and greater availability of bonds?It's not clear we must wait to end drug prohibition to solve this problem, however. The idea of using "catch and release" - delaying arrest until a crime lab tests the evidence - would do the trick in most workaday cases. Meanwhile, there have been so many good arguments over the years as to why Harris County judges should issue more personal bonds that it seems doubtful this episode will change anybody's minds. But who knows? Maybe the scandal's scope and the specter of Brady violations for prosecutors could finally get people's attention.
What’s the ultimate solution? It would be good if significantly more personal bonds were granted, particular in these non-violent drug cases. It would be great if the police were to employ a “catch and release” process, submit an alleged CS for testing, and wait until the results were back before making an arrest. It would be greatest if simple drug crimes were treated as “diseases” and not crimes or were simply taxed and regulated in a manner that helped society “insure” against any ills the drugs might cause.
Which of these do I think is possible or palatable to the public at large? I’m unsure. Though there’s a groundswell of support for legalization of marijuana, I do not believe a significant portion of the public support a total repeal of drug prohibition.
I'm looking forward to seeing more local journalism on this story; it sounds like so far we've only scratched the surface.