Archive for the ‘criminal justice system’ Category

Disparity

According to a May 6, 2013 report from the Death Penalty Information Center (DPIC) that relies on data through January of this year, 30% of the executions in America take place as a result of death sentences imposed in just 15 of a total 3148 counties in the US. The study considers data from 1976 on, a period that is called the “modern era of capital punishment” (that is, post-Gregg v. Georgia).

To put it succinctly, one-third of all executions come from less than one-half of one percent of all of the counties in the United States. DPIC also reports that “Since the death penalty was reinstated in 1976 through to April 2013, almost 82% of the executions have been in the South.” Furthermore, even though death sentences are handed down as a result of convictions in only a handful of counties within a given state, the expense is shared by all of the taxpayers in that given state.

Each of the 37 states that still has capital punishment has only one death chamber, at the maximum security state prison. A state-by-state list is here. How much does it cost to kill someone in one of these chambers, and is it worth it, then? Consider the 2011 California study:

California

Assessment of Costs by Judge Arthur Alarcon and Prof. Paula Mitchell (2011, updated 2012)

The authors concluded that the cost of the death penalty in California has totaled over $4 billion since 1978:
$1.94 billion–Pre-Trial and Trial Costs
$925 million–Automatic Appeals and State Habeas Corpus Petitions
$775 million–Federal Habeas Corpus Appeals
$1 billion–Costs of Incarceration

The authors calculated that, if the Governor commuted the sentences of those remaining on death row to life without parole, it would result in an immediate savings of $170 million per year, with a savings of $5 billion over the next 20 years.

The 187-page California study begins by noting that California taxpayers have shelled out “roughly $4 billion” to fund “no more than 13 executions.” The study authors further point out that a severe backlog will delay more than 700 cases, for more than 20 years.

Since the money argument fails completely, what arguments are left? Surely, state-sanctioned homicide, given its immense expense, must be a deterrent, right? Actually, the data not only fails to support this theory, the opposite is true: murder rate decline occurs in regions where the death penalty is decreasing. According to a 2011 report released by the FBI:

On October 29, the U.S. Justice Department released the annual FBI Uniform Crime Report for 2011, indicating that the national murder rate dropped 1.5% from 2010. This decline occurred at a time when the use of the death penalty is also decreasing nationally. The Northeast region, which uses the death penalty the least, had the lowest murder rate of the 4 geographic regions, and saw a 6.4% further decrease in its murder rate in 2011, the largest decrease of any region. By contrast, the South, which carries out more executions than any other region, had the highest murder rate.

The top 15 counties for executions map is shown here.

Also, there have been 306 post-conviction DNA exonerations nationwide, and there is no question that innocent people have been executed in the US. Ray Krone is the 100th American to be sentenced to death and then later exonerated. To browse the profiles for DNA exonerations, go here.

Even though it is common knowledge that innocent people on death row have been exonerated through DNA test results, some prosecutors continue to try to deny access to this testing. Amazing, isn’t it, that prosecutors would push forward with a conviction and a death sentence, knowing that it may not only be wrongful, but that there is a likelihood that someone who did commit a violent crime remains free and will commit further violent crimes?

Related:

The Death Penalty in 2012: Year End Report

Defense argues against death penalty in shootings, claiming that the death penalty is arbitrary and unconstitutional.

Accused Aurora shooter James Holmes to plead not guilty by reason of insanity (Guardian)

Arkansas Republican endorses death penalty for children

Breaking News: Execution Stayed in Mississippi Willie Manning maintains his innocence. He was convicted on hair and ballistics testing. “This past week, the FBI notified the state that there were flaws in both the hair and ballistics evidence that was used to convict Manning. The FBI also agreed to do the DNA testing.”

[cross posted at Firedoglake.com MyFDL]

“What the fuck are you talking about?”

hat tip Xena at frederickleatherman.com for turning my attention to this.

This is the best documentary I have ever seen, that I never want to see again. For those who are not familiar with this film or with this case, it is heartbreaking, and yet it brings to light important issues in a flawed legal system. The film is also about love, survival and activism.

In 2001, Dr. Andrew Bagby was found murdered in his scrubs, in a park in Latrobe, PA. He was an only son of very loving parents. He had an astonishing extended family of friends and relatives, spanning the continent from California where he lived as a boy to Newfoundland, Canada, where he attended medical school. He had been shot five times, in the face, head and buttocks. Andrew Bagby was 28 years old.

Dr. Bagby had just ended a relationship with another doctor, Shirley Turner, who he had met in Newfoundland. Her possessiveness and inappropriate behavior had become burdensome. He put her on a plane back to her home in Iowa, but she immediately returned to Pennsylvania by car. Evidence quickly indicated Shirley Turner as the suspect in Andrew Bagby’s murder. Shirley Turner was 40 years old.

Shirley Turner fled to Canada, where she had initially met Andrew Bagby. In Canada, she was arrested on suspicion of pre-meditated first degree murder. She was also pregnant with Andrew Bagby’s child. She was released on bail immediately.

She had the child and named him Zachary. Zachary looked like Andrew had looked, when he was a baby. Andrew’s distraught parents began a heartbreaking fight for visitation and custody of Zachary. The grandparents loved the boy and endured the likes of strip searches for each cherished hour that they spent with him. They were forced to stomach a relationship with their son’s likely murderer, to have what few hours they did get with the boy.

Shirley Turner was arrested a second time and held pending extradition to the US to face the murder charge. She appealed the extradition and during the pendency of the appeal, she was awarded custody of the child and allowed to go free. The Canadian court found her to be neither a risk for flight nor a risk to the safety of her community.

What happened next was unimaginable.

Andrew Bagby’s close friend Kurt Kuenne, who was a filmmaker, made a documentary of this story. The National Board of Review of Motion Pictures named the film one of the five top documentaries of the year. Among those who named it one of the best films of 2008 were Time Out Chicago, The Oregonian, the Times Herald-Record, Slant Magazine, and WGN Radio Chicago.[7] The website Film School Rejects place the film in third place in their 30 Best Films of the Decade list.[8] The Film Vault included the film on their top 5 good movies you never want to see again.[9] Source.

The film’s trailer is here:

The full-length documentary film by Kurt Kuenne is here:

Despite an exculpatory crime lab toxicology result, I was convicted of a DUI (and other crimes dependent on the DUI) and sentenced to a lengthy prison term. This is the executive summary of a complaint that I will be filing with ASCLD/LAB (American Society of Crime Laboratory Directors/Laboratory Accreditation Board) and the National Institute of Justice (A branch of US DOJ that funds these laboratories through Paul Coverdell grants), with copies to other authorities. The reference list is extensive, as is the body of the complaint. This complaint has to do with improper testimony of a crime lab analyst, in a non-DNA toxicology case that resulted in conviction and sentence. I will share the link to the full body of the complaint, once it is completed.

Exculpatory evidence hidden.

To ASCLD/LAB

This is a formal complaint, regarding the trial testimony of a Kentucky lab analyst, during a jury trial on January 22, 2008. The analyst was, and still is, employed at a lab that was at the time of the testimony, and still is, under your purview. The analyst’s name is Ryan Johnson. He works in the Toxicology section of the Central Forensic Laboratory, a division of the Kentucky State Police (KSP), in Frankfort, KY. The Kentucky State Police and its labs are a division of the Kentucky government known as the Justice and Public Safety Department. Mr. Johnson is the current supervisor for the Toxicology division of this lab, although in 2008 when he testified, I do not believe he was a supervisor. The lab Director is Ms.Laura Sudkamp.

Posing as a clinical and pharmacology ‘expert witness,’ Mr. Johnson based his under-oath statements on, in some cases, information that did not exist, regarding the prescription benzodiazepine, clonazepam. In other instances he took a drastic departure from the FDA-regulated package insert and delivered exactly the opposite information to the jury, or delivered information and represented it as accepted fact, when such information did not exist. He misled the jury by claiming by inference that this product, since it happens to be a benzodiazepine, causes nystagmus, for example. In truth, clonazepam can be and has been, according to the peer-reviewed literature (more than a few sources), used to treat and alleviate pathological nystagmus and other problems related to vision. I will provide more detail in the body of this complaint. (References will be provided in the body of the complaint).

In addition, Mr. Johnson reported that he was “familiar with this drug” and that he had “read the literature” for this drug. His extensive review of the peer-reviewed clinical literature consisted of two articles, each written at least six years prior to the drug being marketed, available and regulated in the United States, and each published in countries outside the United States. On one article he presented information that was diametrically opposed to the article summary (related to eye movements). The other article discussed only ten volunteer healthy human subjects, only four of whom were women, none of them within ten years of my age. Mr. Johnson expanded the ten-volunteer-subject findings (again, done in a laboratory setting and not a clinical one) to include all humans taking therapeutic doses of the drug.

One resource he described relying on is called Courtroom Toxicology, which is not peer-reviewed by the clinical world, and is authored by a lawyer (likely a prosecutor). I will discuss the problematic clinical bibliography for this publication in the body of the complaint. The DRE (Drug Recognition Expert) non-peer-reviewed literature that he discusses relies, in pertinent part, on a study done on primates, in 1968, on a different drug, ten years before clonazepam was invented, 27 years before the drug was available, marketed and regulated in the United States, and 37 years before Mr. Johnson represented the information in the study as accepted scientific fact for all humans taking the drug at therapeutic doses. When I attempted to contact the author of the ape study, I learned that he is retired. That study is: 9 David A. Robinson, Eye Movement Control in Primates, 161 Science 1219 (Sept. 1968). The reference document is here.

Mr. Johnson gave a technically misleading description of the chemical structure of this drug, describing it as having a unique characteristic (an attached chlorine atom) that is, in fact common to most of the drugs in this class, and misrepresented an extraction and separation process of organic chemistry as a diagnostic quantification tool. He wrongly stated that “liquid-liquid extraction is incapable of pulling clonazepam out of the blood,” when, in fact, liquid-liquid extraction has been the gold standard for extracting this drug (and about 6,000 others) from the plasma into a pH-adjusted organic layer for years. He stated,

Basically, it’s a, it’s a drug like diazepam but they put a chlor, a chlor, a chlorine atom on it, and that ends up, um, making it so that the test that we run, it’s called a liquid-liquid extraction, um, that test is incapable of pulling clonazepam out of the blood.

The chemical name for clonazepam is 5-(2-chlorophenyl)-7-nitro-2,3-dihydro-1,4-benzodiazepin-2-one, and the chemical name for diazepam is 7-chloro-1,3-dihydro-1-methyl-5-phenyl-1,4-benzodiazepin-2(3H)-one. Both structures have chlorine atoms. Clonazepam is not utterly unique for having the chlorine atom attached to the phenyl group (a group attached to the diazepine ring that is closely related to benzene) of the benzodiazepine skeleton. Ativan (lorazepam), another common benzodiazepine, is also a chlorophenyl benzodiazepine, named, (RS)-9-chloro-6-(2-chlorophenyl)-4-hydroxy-2,5-diazabicyclo[5.4.0]undeca-5,8,10,12-tetraen-3-one.

Mr. Johnson misstated the drug’s time-span of therapeutic activity as well as its’ half-life (he did not bother to explain half-life to the jury), and compared it, wrongly, in milligram-to-milligram equivalency that he termed “potency” to another drug, valium.

He misrepresented rare adverse, uncommon adverse and in some cases, non-existent adverse events as common every-day effects that are part of the well-known therapeutic profile for the drug and commonly experienced by everyone who is taking the drug as prescribed. He lied about the ‘generally accepted’ purpose of the drug, agreeing with the prosecutor that clonazepam is “specifically designed to get the user high.” Ironically, clonazepam is listed in the Bureau of Prisons formulary. As the only benzodiazepine allowed in the prison system, one of its ten off-formulary approved uses is “**04. Detoxification for substance abuse**.” In some cases, Mr. Johnson represented rare adverse events associated with extreme serum toxicity of a different benzodiazepine as common effects related to intended therapy and prescription of clonazepam.

Mr. Johnson lied by deliberate omission about not having a specific request to test for the drug by name in my case, when in fact he did have a request, to ‘test for’ clonazepam, by name. That request was verified to me by Laura Sudkamp on the telephone last month. He failed to explain to the jury that forensic lab toxicology testing takes the unknown to the known in a two-pronged approach that involves presumptive screening followed by quantification if the screen is positive and a report of “no drugs detected” if the presumptive screen is negative. He failed to explain the limits of detection for his testing purposes. He failed to explain that, generally speaking, for all of the classes of drugs that they screen for, drugs that fall below the limits of detection are not reported because they represent no issue of toxicological or therapeutic interest.

Mr. Johnson left the jury with the impression that (1) the drug was present in my blood and (2) no matter how high the level of this drug may have been, ie., even if the blood he presumptively screened had contained blood from a deceased person who had died from a toxic overdose of clonazepam and clonazepam alone, he simply would have had no way in the world to figure that out, with the equipment he had, in his toxicology laboratory at the time.

Mr. Johnson’s written lab report is unambiguous and exculpatory, and without a single notation or even asterisk explaining, “We have no idea what this drug is,” or “We can’t test for this drug because we can’t extract it in our lab,” or “not tested- clonazepam,” or “Please give us a call if you have a problem with the fact that we cannot meet your explicit request,” or “Shall we save this blood until the day when we have the right machine, and that could be years from now?” or “The principles of Organic Chemistry do not work in our lab,” or “We don’t have any money, but if you send us some, we’ll get this tested at NMS Labs in Willow Grove, PA, a third party contract lab that we typically send mysterious blood samples to.”

Mr. Johnson, when confronted with his own exculpatory lab result that lacked an asterisked notation regarding clonazepam, misrepresented the same report as inculpatory, leaving the jury with the impression that there was not only clonazepam present in the blood, but the level was likely in the higher range for prescription therapy. He discussed, as would a licensed physician or clinical pharmacologist, the “normal dosages” at “normal dosage times” for this drug, even though he has, by his own admission, never seen it before in his life.

In addition to this discussion being outside the scope of Mr. Johnson’s practice as a lab tech, Mr. Johnson’s discussion contained a dearth of information that was not bogus. He gave his name. I will assume, for the sake of argument that he told the truth about that. I was not able to verify his stated course of education, however.

Mr. Johnson’s testimony has far-reaching potential impact on the citizens of Kentucky. I was convicted of a DUI (among other things that depended on the DUI conviction) with no drugs or alcohol in my blood, and without exhibiting any unlawful driving whatsoever. I appealed and my conviction was affirmed by the Kentucky Court of Appeals in a unanimous, 26-page published opinion. The opinion has ‘facts’ in it that are based on this man’s trial testimony. In other words, there is a published and binding affirming opinion in Kentucky that not only contains science fiction, but actually obviates the need for any lab testing at all. The Kentucky published opinion affirming is based on findings of fact that are not founded in any sort of clinical reality whatsoever, and are a direct result of Mr. Johnson’s testimony. The published opinion could potentially affect any and all drivers in Kentucky who are ever pulled over for any reason. Mr. Johnson’s problematic testimony can and likely will lead to future unfortunate litigation around future no-drugs-no-alcohol-no-improper-driving DUI convictions.

Mr. Johnson appears to enjoy his deliberate, false testimony, as he smiles and giggles throughout. Part one of his testimony follows. Since he was recorded on videotape, I will include an official court-reporter transcript, for ease of review. Mr. Johnson is unsafe and unfit to work in a laboratory and make decisions about what to do with the blood samples that he receives.

This is related to the Frog Gravy legal case.

This is part one of Kentucky crime lab analyst Ryan Johnson falsely testifying at trial by posing as a clinical expert and delivering information about this prescription drug that is false, misleading, totally unsupported anywhere in any literature on the planet, or a combination of all.

In the next few days, I will upload the rest, and then I will use this testimony as a the basis of a detailed complaint that I plan to file with the accreditation board and other authorities. At that time, I will go into gruesome detail, sentence by sentence beginning with the chemistry and going into information in the clinical literature. I will back each and every claim with the FDA-regulated package insert, the peer-reviewed literature, or a combination of both. I will provide detailed background based in known fact where appropriate, particularly regarding the organic chemistry as well as the clinical ‘effects’ of this drug.

He claims during the testimony (just to provide a teaser), that the lab had no idea it was supposed to look for this commonly prescribed benzodiazepine, and even if it did, the lab had no way of detecting the very presence of it. Problem is, and this is just one of his many problems here, he DID have that request, and he DID at least screen for the presence of benzodiazepines. Even though the lab can and does use outside competent labs for quantification, he did not send the blood to an outside lab, and that is likely because he did not detect the presence of a benzodiazepine in the blood in the first place, so there was no need for the second prong of the test, which would include quantification.

His clinical claims are false and bizarre.

As a result of this man’s false testimony, I was convicted of some crimes that I did not commit, and that includes a DUI with no drugs or alcohol in my blood, and without any bad driving or traffic violations. As a result of his false testimony, there is now a published opinion affirming in the Kentucky Court of Appeals, that contains a great deal of false information and science fiction. If you wish to lose IQ points, give it a read. Here is that opinion.

I will share the entire complaint with every appropriate related link, once I get the whole thing uploaded.

UPDATE: Here is the follow-along transcript for this portion. Second portion is being uploaded to YouTube and a transcript will be available for the whole testimony within a day or so. I will then share with my readers a sentence-by-sentence analysis of the false statements with backing literature.

Ryan Johnson (JOHNSON) is on the stand, under oath.

Chris McNeill (DEFENSE) is the defense attorney.

James A. Harris (COMMONWEALTH) is the prosecutor.

Hon. Judge Craig Z. Clymer (COURT) is the presiding trial court judge.

The testimony occurred on 1-22-2008, and was recorded on videotape. Here is that testimony.

COMMONWEALTH: (unintelligible)… Please, sir.

JOHNSON: Uh, my name is Ryan Johnson.

COMMONWEALTH: And how are you employed, Mr. Johnson?

JOHNSON: Um, I am a Forensic Science Specialist with the Kentucky State Police, um, Central Forensic Laboratory.

COMMONWEALTH: That’s in Frankfort.

JOHNSON: Yes, sir.

COMMONWEALTH: So you’ve got a four-hour drive to go home, lookin’ at you.

JOHNSON: (chuckles) Yes, sir.

COMMONWEALTH: Um. And, just summarize for our jury your training, and your education that qualifies you to practice in our lab.

JOHNSON: Um, I have a Biology and a Chemistry Bachelor of Science from (sounds like Pikeville College), (unintelligible) testing at the Kentucky State Police in Central Forensic Laboratory and I’ve had ongoing education approved for studying drug effects on human behavior, um and, the Society of Forensic Toxicology annual conferences (unintelligible).

COMMONWEALTH: You understand there are two subjects I want to ask you about (unintelligible) right to the blood sample that was sent to you, you can stipulate that there was a blood sample taken from Rachel Leatherman on the night of June 28, ’06, you did a blood test to see if there was any drugs in her blood, is that right?

JOHNSON: That’s correct, yes.

COMMONWEALTH: And your, what you test for came back “no drugs in her blood,” is that right?

JOHNSON: That’s correct, yes.

COMMONWEALTH: Okay. Now. This test that you run for drugs in her blood, does that test for clonazepam?

JOHNSON: No sir, it does not.

COMMONWEALTH: Why is that?

JOHNSON: Uh, clonazepam is a chloro-derivative benzodiazepine. Basically, it’s a, it’s a drug like diazepam but they put a chlor, a chlor, a chlorine atom on it, and that ends up, um, making it so that the test that we run, it’s called a liquid-liquid extraction, um, that test is incapable of pulling clonazepam out of the blood. So, it’s a, it’s a issue of, we need, um, the drug actually is, needs to be ran, to test for that drug, needs to be ran on, uh, what’s called liquid chromatography and with the budget the way it is right now we don’t have that instrument.

COMMONWEALTH: Um. (clears throat) Your test would have tested for heroin?

JOHNSON: Uh, we would have detected opiates.

COMMONWEALTH: You would have, would have, your test would have determined whether there was either rock or powder cocaine or its derivatives and (unintelligible) derivatives in the blood…

JOHNSON: Yes, sir.

COMMONWEALTH: And it came back negative on that.

JOHNSON: It was negative for cocaine and opia…

COMMONWEALTH: (interrupting) No heroin, no opiates, no forms of cocaine.

JOHNSON: That’s correct.

COMMONWEALTH: Can’t tell us about clonazepam.

JOHNSON: I couldn’t tell you if it had clonazepam in it.

COMMONWEALTH: As to her blood.

JOHNSON: As to her blood, yes.

COMMONWEALTH: Okay. Now I’m going to ask you about clonazepam. Are you familiar with it?

JOHNSON: Yes sir, I am.

COMMONWEALTH: Have you read the literature on it?

JOHNSON: Yes, sir, I have.

COMMONWEALTH: Including not only the, the uh, manufacturer’s um, data sheet, um, but also the other, uh, PDR-type references that describe clonazepam and its effects?

JOHNSON: Yes, sir, the general textbooks that we use are the PDR, which is the Physician’s Desk Reference, um, the Courtroom Toxicology, which is a database of drugs and their effects, um and how, how they can be detected, uh, ranges, and then another book, it’s called, um Drug Effects on Human Behavior, um, it’s just another book to tell us if there is any driving effects…

COMMONWEALTH: (interrupting) And since you don’t have a clonazepam test that you did on her blood, you can’t tell us about any clonazepam levels in her blood.

JOHNSON: That’s correct.

COMMONWEALTH: So I’m going to ask you to answer my questions based on normal dosages, okay?

JOHNSON: Yes, sir.

COMMONWEALTH: Uh, within a normal dosage time, okay?

JOHNSON: Yes, sir.

COMMONWEALTH: Um. First of all, taken in normal dosages, can you tell our jury whether clonazepam is generally what we would refer to as intoxicating?

JOHNSON: Um, for the most part, it’s considered a potent sedative, which would be intoxicating, yes, sir.

COMMONWEALTH: Potent, does that mean very intoxicating?

JOHNSON: Uh, yes, sir, it’s considered about, uh, according to the recent literature I’ve read, about twenty times more potent than valium.

COMMONWEALTH: Twenty times more potent than valium.

JOHNSON: Yeah, on a milligram-per-milligram basis.

COMMONWEALTH: And, what are the chemically, scientifically, pharmacologically recognized effects on vision of someone who is taking normal dosages of clonazepam?

JOHNSON: It can cause double vision, blurred vision.

COMMONWEALTH: Um, do you know anything about the HGN test?

JOHNSON: Um, according to what I’ve read, uh, the DRE, which is the Drug Recognition Expert, um, they recommend that benzodiazepines does cause HGN. I wasn’t for sure…

COMMONWEALTH: Causes the signs of HGN.

JOHNSON: Yes, um, after reading the literature that we have, it does say that nystagmus, either vertical or horizontal, are present, as a side effect.

COMMONWEALTH: A person taking clonazepam is likely to flunk the HGN test.

JOHNSON: That’s correct, yes.

COMMONWEALTH: And it would also be very intoxicating.

JOHNSON: It is possible, yes, sir.

COMMONWEALTH: Um, you say “possible.” Again, at normal dosages, based on all the literature that you’ve read, thought you said it was a potent, twenty times stronger than valium.

JOHNSON: Yes, sir. Um, the only reason I say possible, is that drugs do tend to have different effects on different people. A certain dosage for a person who is used to taking them might not actually be as potent as a drug, as, one that not been taken…

COMMONWEALTH: That’s not gonna, that’s not very scientific, Mr. Johnson, let me ask you this.

JOHNSON: (giggles)

COMMONWEALTH: Uh, given what you know about clonazepam, uh, if a person were taking clonazepam, would it be unusual if that person were to describe themselves as so whacked out they couldn’t remember?

JOHNSON: Uh, it could be, that would be consistent…

COMMONWEALTH: That would be consistent.

JOHNSON: That would be consistent with um, the things I’ve read about clonazepam, yes.

COMMONWEALTH: In terms of impairment, in terms of motor skills, and particularly those motor skills that we usually associate with being able to drive an automobile, would a person taking clonazepam in normal dosages be impaired?

JOHNSON: According to the pharmacy companies that produce clonazepam they do recommend that, um not driving a motor vehicle while taking the drug until you know exactly how it affects you, um, and from the studies that I’ve read it causes uh, degradation in mental ability to concentrate, uh, the fine motor skills, um, confusion, dizziness are all symptoms of clonazepam…

COMMONWEALTH: (unintelligible and interrupting)…about glassy eyes, is that something (unintelligible) recognized signs of use of clonazepam?

JOHNSON: I don’t recall (unintelligible)

COMMONWEALTH: That’s all I have. Thank you.

COURT: (unintelligible) defense?

DEFENSE: Uh, yes, Judge. (papers shuffling) Um. Mr. Johnson, even if you had found that there was clonazepam in her blood, that still wouldn’t be an indicator that she was quote under the influence of it, would it?

JOHNSON: I couldn’t testify to impairment based on (unintelligible)

DEFENSE: Right. Clonazepam can actually stay in your system for some period of time even after the effect of it wears off, right?

JOHNSON: The effects are usually given at six to eight hours and the half-life of the drug can be up to nineteen, twenty hours, twenty-seven hours.

DEFENSE: So, um, you can’t offer any testimony today about whether or not she was under the influence of clonazepam and/or impaired by the effects of clonazepam, can you.

JOHNSON: I couldn’t say, no, sir.

DEFENSE: Um. Now, you say that you all didn’t have the uh, the equipment to test for the presence of clonazepam in the blood. Uh, but, the Kentucky State Police Lab that you work for, sometimes they do send off materials for testing at other labs.

JOHNSON: Uh, we do use private labs for some things, yes, sir.

DEFENSE: Like, DNA, for example, sometimes, is that correct?

JOHNSON: Um, I’m not familiar with exactly DNA, but I know the toxicology section does do it, sometimes.

DEFENSE: Well, but, again, you’re familiar with some tests that the KSP Lab either doesn’t do or doesn’t have enough staff to do, they do contract out with labs who do do those tests, right?

JOHNSON: (giggling) It has been done, yes.

DEFENSE: Um, so certainly that would have been possible to test for clonazepam.

Tape ends here. Last part of tape is being uploaded, and will also be transcribed for follow-along convenience.

By now, most of us have heard of Massachusetts crime lab chemist Annie Dookhan. Ms. Dookhan was arrested in September for allegedly obstructing justice by falsifying her lab work, providing false testimony and lying about her credentials. The lab has shut down and the investigation is ongoing. Her fake work may have affected as many as 60,000 lab results involving as many as 34,000 accused. Many wrongfully convicted inmates have already been released. Ms. Dookhan faces 20 years in prison if she is convicted.

In my opinion, twenty years is a slap on the wrist, given the egregious amount of damage a wrongful conviction inflicts on a person’s life and family. A twenty-year sentence for a crime of nonviolence can in reality only amount to as little as three to four years served before parole eligibility. I am personally in favor of per se zero-tolerance laws regarding forensic fraud: Any time a lab analyst falsifies lab results, falsely claims not to have the ability to test for items, lies about education or credentials, presents fake, made-up science to juries, or passes him or herself off as an ‘expert’ in clinical medicine and presents inappropriate and false clinical testimony to juries, that person should be subject to life in prison without the possibility of parole. Such actions amount to nothing less than rape, under color of a white coat.

The Massachusetts lab scandal is anything but unique. Most of the media attention to forensic fraud thus far has been related to DNA technology and exonerations, however. Now it is time to look at non-DNA lab analyst fraud that, while it may not lead to a death sentence, it does lead to irreversible destruction of lives and careers.

Many of you know that I was convicted of a DUI in Kentucky with no bad driving and two exculpatory lab results, indicating 1) 0.00 alcohol content of blood and 2) “no drugs detected” in the blood. This DUI led to other charges and convictions related to a controlled substance the arresting officer supposedly ‘found’ in his cruiser after an hour-and-a-half long roadside search of my vehicle and my person revealed no illegal substances. I received an eight-year sentence.

At trial the prosecution advanced its theory: that I was dangerously impaired on my prescription medication, Klonopin. The dangerous impairment was obvious: I had supposedly “failed” a roadside HGN (horizontal gaze nystagmus) test. The reason the lab missed such a high level of this commonly prescribed medicine is that 1) the lab had no idea what to look for and 2) the lab had no way of testing for its presence and 3) if only the lab had known, it would have sent the blood to a third-party contract lab.

Six-and-one-half years after the arrest and affirmed convictions, I began looking at the trial testimony in my own case. I also made some inquiries. I learned, to my utter horror, that the lab did, in fact, have notification to look for this drug in my blood. I also learned that the crime labs typically do presumptive testing for substances. If nothing is detected during the preliminary testing, there is no need for confirmatory further identification and quantification because the drug in question was either 1) not present or 2) not present at any level of toxicological (or therapeutic) value or interest. I learned from a conversation with the maker of Klonopin that any trial testimony departure from the FDA-approved product insert is inappropriate.

At my trial, after misleading the jury in my case about the lab’s notification that this was indeed a drug to look for, as it was listed which as a valid prescription at the time of the arrest, the lab analyst put on his physician’s hat and provided a rather impressive false testimonial about 1) the drug’s “immediate effects” at therapeutic levels, including, but not limited to “both vertical and horizontal gaze nystagmus.” His testimony stands in stark contrast to the FDA-approved product insert (separating adverse events into two distinct and clear categories), the peer-reviewed PubMed literature, wherein at least fourteen articles discuss the use of this drug for therapeutic treatment of various types of pathological nystagmus, as well as at least one study specifically addressing impaired driving that found no correlation between HGN and Klonopin. All of these studies were completed and published before the lab analyst took the stand and provided the testimony that led to my convictions. To bolster his credibility and qualifications he offered a nonsensical explanation that sounded sort of technical nonetheless by stating that the “chlorine atom makes it so that liquid-liquid extraction is incapable of pulling [Klonopin] out of the blood.”* Having taken Organic Chemistry myself and having grown up with a father who co-founded a clinical laboratory in the Northwest, I was, to mildly understate, shocked to see these words come out of a lab worker’s mouth, when I reviewed the tapes.

If I get nothing else across in this post, I would like to convey some key concepts as follows. Forget CSI. Just because someone calls him or herself an ‘expert,’ a ‘chemist’ or an ‘analyst’ does not mean that they are. A white coat is meaningless. Crime labs are most often another police department and nothing more. Lab analysts are techs working for the prosecution and if they have to misrepresent an unambiguous exculpatory result as somehow inculpatory, they will. If they have to make up science, they will, just to get a conviction at all costs. With nothing more than a bachelor’s degree at most, crime lab analysts can and will misrepresent themselves and testify as clinical ‘experts,’ even if, as in my case, they have never seen or tested for the drug in question. Crime labs receive millions of dollars from the government (Paul Coverdell grants) with little or no oversight or accountability. When you give your blood in accordance with your state statutes, please, please, do not ever assume that you will be ‘cleared’ if the results come back negative. It is absolutely essential that you get extra tubes of blood drawn and sent to a competent clinical laboratory.

For further reading on this issue, please visit this University of Virginia Law Review article:

http://virginialawreview.org/content/pdfs/95/1.pdf

*During jury selection (voir dire) in my case, the prosecutor excused a prospective juror who was a chemical engineer because the prosecutor did not want someone with knowledge of chemistry to serve on my jury.

Scales of Justice
image by DonkeyHotey on creative commons, flickr

by Frederick Leatherman. For an ongoing discussion of the issues in the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog.

W9 is George Zimmerman’s cousin. On Monday, July 16th at 11 am, the prosecution released her tape recorded statements to the media in which she accused George Zimmerman and his family of being racially prejudiced against African Americans and George Zimmerman specifically of sexually molesting her multiple times during a 10-year period that began when she was 6 years old and he was 8. She is now 26 and he is 28. The two families have lived in the same community and socialized together often during that period.

She said the molestation incidents involved fondling and digital penetration of her vagina. She said she finally ended the sexual abuse by getting away from him and running out of the house. She told her parents and they told his parents. Due to pressure from her parents and because she feared Zimmerman would hurt her, she decided not to report the sexual abuse to the police. After that Zimmerman was no longer invited to family social events.

She first contacted the police anonymously two days after Zimmerman shot and killed Trayvon Martin, She told them he was racially prejudiced and capable of hurting people.

They interviewed her a second time after he was in jail charged with second degree murder. When they asked her why she had waited so long to report the sexual abuse, she said it was the first time she felt safe.

A virtual tsunami of outrage and disgust swept the country and the world after the media reported W9’s accusations and various news organizations posted her two tape recorded statements on their websites.

Anticipating the public furor that would follow the release of the tape recorded statements, Zimmerman’s defense attorney, Mark O’Mara, posted the following statement on his website:

The defense moved to block the public release of Witness #9’s statement in a motion filed on June 18, 2012 contending “The content of this statement is not relevant to the issues of this case, and it would not be admissible in the State’s case in chief.” The motion further contends that this irrelevant statement should be withheld from public dissemination [pursuant to Florida’s Sunshine Law] because of the substantial risk that public disclosure will lead to widespread hostile publicity which would substantially impair the Defendant’s fair trial rights, and would pose a serious threat to the administration of justice.

That request was denied on July 13, 2012 by Judge Lester. Because there is a [defense] Motion for Disqualification [of Judge Lester] pending, this morning [Monday, July 16th], we asked the prosecution not to release Witness #9’s statement until there was a ruling on the Motion for Disqualification. This is an appropriate request as, should the motion for disqualification be granted, reconsideration of recent rulings by the judge is appropriate. However, the prosecution elected to make the public disclosure anyway.

Did Mark O’Mara handle this matter appropriately, or did he fumble the ball?

For the following reasons, I contend that he fumbled the ball prejudicing his client.

Let’s review the facts, keeping in mind that W9 made two statements. Statement 1 was about race and Statement 2 was about sexual molestation.

1. 05/24/2012: State files a Request for a Protective Order seeking non-disclosure of W9’s statement;

2. 05/24/2012: Defendant’s concurrence;

3. 06/01/2012: Hearing on the Request for a Protective Order;

4. 06/13/2012: Order Denying Request for Protective Order;

5. 06/18/2012: Defendant’s Motion for Reconsideration specifically mentioning W9’s second statement (accusing defendant of sexual molestation), but not describing the subject matter;

6. 06/29/2012: State’s Response to Motion to Reconsider Disclosure;

7. 07/13/2012: Defendant’s Motion to Disqualify (filed at 11:20 am);

8. 0713/2012: Order Denying Motion for Reconsideration (filed @ 12:02 pm). Judge Lester says W9’s statement is admissible and should be released to the media because race may be an issue at trial;

9. 07/16/2012: Defendant’s Motion for Stay of Order Denying Reconsideration (filed at 10:56 am) arguing that the order must be stayed until the Motion to Disqualify is decided because it was filed first.

10. State releases W9’s two tape recorded statements at 11 am.

Keep in mind that neither side wanted to disclose the sex statement in a pleading that could be viewed by the public. Instead, O’Mara referred to statements 1 and 2, without clarifying that they involved different subject matter.

What we got here is . . . failure to communicate.

Judge Lester apparently thought both statements referred to race because he specifically said the statement might be admissible since race might be an issue. I am not surprised that he assumed both statements referred to race because the discovery released to date contains multiple recorded statements by witnesses concerning the same incident or subject matter.

The order was filed at 12:02 pm on Friday the 13th (oh, the irony), approximately 30 minutes after O’Mara filed his Motion to Disqualify. Therefore, he had Friday afternoon, the weekend, and Monday morning until 11 am to obtain an order directing the prosecution to hold off on releasing W9’s statement 2 until the matter could be reconsidered, but he did not git ‘r done.

He also did not appeal the order to the Court of Appeals.

The problem was further complicated by the judge going on vacation this past week and next week. Therefore, O’Mara had to act Friday afternoon. However, even if Judge Lester had been available Monday, he could not have acted on the motion to stop the release of W9’s statement before the prosecution released it, since the motion was filed only 4 minutes before the statement was released.

What should have been done?

An emergency oral motion and argument via conference telephone call on Friday afternoon seems to be the most obvious solution, but it did not happen. Alternatively, an emergency request for a stay before the presiding judge on Monday morning might have worked, or an emergency appeal to the Court of Appeals.

O’Mara did not attempt any of these options.

Will the evidence be admissible at trial?

Not during the State’s case in chief because it does not fall into one of the categories of admissible uncharged misconduct evidence that is admissible pursuant to Rule 404(b). If and only if the defendant were to open the door by introducing evidence that he has a law abiding, peaceful and non-violent nature, would the prosecution be able to march through the open door and confront him with W9’s accusation that he was a child molester. That is extremely unlikely to happen.

Therefore, there is no good reason to believe the evidence will be admitted at trial.

Should W9’s statement have been released to the media?

Probably not, under Florida Freedom Newspapers Inc., v. McCrary, 520 So.2d 32, 35 (Florida 1988) because:

(a) restricting public access to it was necessary to prevent a serious and imminent threat to the administration of justice;

(b) no alternative, other than a change of venue would protect Zimmerman’s right to a fair trial; and

(c) closure would be effective to protect Zimmerman’s right to a fair trial, without being broader than necessary to accomplish that purpose.

How much damage has been caused by the release of the statement?

How does one unring a bell rung round the world? The damage to Zimmerman’s defense is incalculable and the parties will not know how far and wide it may have spread until they attempt to select a jury.

Will they be able to select a jury?

Yes, I believe they will be able to eventually seat a jury of people who claim not to know about W9’s allegation or, if they do, they will claim to be able to disregard it in deciding whether the State has proven Zimmerman guilty of murder in the second degree beyond a reasonable doubt.

Sayin’ it’s so, don’t mean it’s so.

If he is convicted, will this be an issue on appeal?

Not likely. If they are able to seat such a jury and it convicts Zimmerman, a reviewing court will assume the jury followed the law and did not consider W9’s allegation in deciding the case.

If he is convicted, could this be an issue raised as an ineffective assistance of counsel claim in a state or federal habeas petition?

No, for the same reason.

Conclusion

This was an avoidable mishap that never should have happened. Mark O’Mara bears the responsibility for letting this issue slip through his fingers. But for being so busy cranking out his groundless Motion to Disqualify Judge Lester, he might have had the time and the energy to correct the problem before 11 am on Monday morning.

The convergence of coincidences is remarkable, however, almost as if this happened according to “God’s Plan.”