The Washington PostDemocracy Dies in Darkness

Opinion Faulty drug field tests bring false confessions, bad convictions

Earlier this week, we looked at how and why people falsely confess to serious crimes like rape or murder. In Houston, there’s an emerging story about people who confess to less serious crimes like drug possession. From the Texas branch of

In 2015, Harris County exonerated 43 people who had been wrongly convicted of crimes – nearly a third of all exonerations nationwide – according to a report published Wednesday by The National Registry of Exonerations.
One defendant had been sentenced to death for murder, and the other 42 had been convicted of possessing drugs that lab tests later proved were not drugs.

Oddly, according to the report, about a third of the 149 exonerations nationwide last year were for drug possession. But the total number of exonerations for drug possession across the entire country was 47. Over the past two years, the number of possession exonerations in Harris County was 73. How could one county in Texas account for 42 of the 47 false convictions for drug possession? The answer to that question requires a brief history lesson about Texas and Harris County.

Under Texas law, even a “trace” amount of an illicit substance — that is, an amount too small to be measured — can bring a felony charge. In most other jurisdictions, trace amounts could merit a misdemeanor, or lead to no charge at all. In Texas, whether or not to charge trace amounts as misdemeanors, felonies or not at all is left to the discretion of the state’s district attorneys. In 2008, a reform-minded judge named Pat Lykos was elected Harris County District Attorney. Lykos stopped charging felonies for trace amounts of drugs. But Lykos was a divisive figure, both for her personality and for her reforms. She was defeated in her reelection bid in 2012 by Mike Anderson, a sitting judge who ran an explicit law-and-order campaign. Anderson won endorsements from the county’s police organizations, in part because of his promise to resume charging felonies for trace amounts of drugs. He creamed Lykos in the Republican primary and went on to win the general election.

The policy not only puts added pressure on Harris County’s perpetually troubled crime lab, but it also gives prosecutors a lot more leverage with suspects. They can hang a felony over a suspect to induce him to plead to a misdemeanor. But when you add a bunch of low-level cases to the crime lab’s workload, you get a backlog. Months or years can pass before the results come back. In the meantime, the suspect has a felony charge hanging over his head. He may even be waiting in jail. A guilty plea to a misdemeanor starts to look pretty good, even if you’re innocent. In high-profiles scandals such as those in Hearne and Tulia, Tex., we learned that police officers and informants told blatant, brazen lies about buying and selling drugs to large numbers of the (mostly black) residents of those towns. Once the lies were exposed, we discovered that a not insignificant number of innocent people pleaded guilty to possession charges even though they were innocent. Some had provable alibis making it impossible for them to have bought or sold drugs at the times and places alleged. They did so because they were threatened with felony records, long prison terms, or the loss of their children.

It looks like that’s exactly what was happening in Harris County.

“In early 2014 Deputy District Attorney Inger Chandler, the newly assigned head of the Harris County District Attorney’s Post Conviction Review Section (the county CIU), noticed that her office was processing a steady trickle of cases in which defendants pled guilty to possession of illegal drugs, and then, months or years later, a report from the crime lab would reveal that the materials seized from the defendant contained no controlled substances. She investigated and found that there were many more such cases waiting in the wings, and that they were being handled haphazardly and slowly.”

But this raises another question. On what evidence were these people being charged in the first place? The answer is drug field tests. Yes, those field tests. The field tests that have notoriously high error rates, and have returned false positives for such disparate, not-remotely-anything-like-illegal-drugs items as chocolate cookies, motor oil, spearmint, soap, tortilla dough, deodorant, billiards chalk, patchouli, flour, eucalyptus, breath mints, Jolly Ranchers and, infamously, loose-leaf tea. Of the 73 false confessions for possession in Harris County over the past two years, 41 were based on false positives from field tests.

Then again, an innocent suspect might take a plea offer because the county’s crime lab can’t be trusted either. In 2013, a Harris County lab tech was found to have fabricated the results of countless drug tests. That technician alone was involved in nearly 5,000 drug cases. That story came after nearly two decades of scandals in the Harris County lab, including incompetent to corrupt analysts in serologyDNA testing, breath alcohol testing and forensic pathology; the discovery of hundreds of boxes of lost evidence from cases spanning 25 years (one of which contained a fetus); staff that was “woefully undertrained,” and “disregard for scientific integrity“; and a “near-total breakdown” in trust and competence. (And, of course, it isn’t just in Houston: Shortly before the 2013 revelations, Massachusetts lab analyst Annie Dookhan was indicted for fabricating the results of drug tests. Dookhan participated in over 50,000 cases. So far, more than 300 convictions have been overturned.)

Harris County DA Mike Anderson died of cancer in August 2013. Then-Gov. Rick Perry appointed Anderson’s wife, Devon — also a former judge and prosecutor — to replace him. To her credit, Devon Anderson no longer accepts guilty pleas in drug cases before the crime lab results are completed. It’s also a credit to her office that someone like Chandler has taken the time to look into all of these older cases. According to the National Registry of Exonerations report, Harris County is still processing another 200 cases in which a defendant pleaded guilty to possessing a substance that lab results later determined wasn’t illegal.

Devon Anderson hasn’t jettisoned her husband’s policies of charging felonies for trace amounts of alleged drugs. In fact, in her reelection campaign, she expressly rejected the notion that it ought to be discontinued. But she has also expressed some sentiment about emphasizing rehabilitation, avoiding harsh sentences for low-level offenses, and not saddling first-time offenders with felony records.

A felony charge for trace amounts of illicit drugs isn’t all that common outside of Texas. But overcharging, abuse of plea bargaining, reliance on field tests, threatening suspects with harsh sentences for low-level offenses, overburdened crime labs and public defender offices — none of these things are particularly unusual. I’m sure Harris County’s recent history and Texas drug laws are part of the reason the Houston area accounts for such a large portion of these exonerations. But it’s also at least in part because someone in the DA’s office gave enough of a damn to figure out what was going on. It’s a safe bet that if other DA’s offices around the country did similar investigations, the number of exonerations for drug possession would be orders of magnitude higher than 47.