#167 Wrongful Conviction: Junk Science - Roadside Drug Test Evidence

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, 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, 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

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. 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.

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 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. 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 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 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 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

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 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 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.

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, 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 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. 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

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 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 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 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 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 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

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 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, 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 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 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, 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 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 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 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

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 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, 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 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 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. 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 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 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 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

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 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, 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 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 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 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, 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. 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 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 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 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 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 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 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

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 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 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, 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 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 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 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

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 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 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 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 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 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, 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

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

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

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

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 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 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 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 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,

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 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 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. 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 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 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. 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 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 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