Archives for the ‘News’ Category

Field Drug Tests Defective

 

This stunning YouTube Video prepared with the help of Dr. Bronner’s soaps is a legal basis for throwing out a commonly used field test by hundreds of police agencies across the country called NarcoPouch.

In fact, it was instrumental in dropping charges against a band member in Southern California who was wrongly prosecuted based on the false presumption that his liquid soap was GHB. The false positive in the street field test led to his arrest. The crime lab’s testing eventually exonerated the accused musician.

It appears that the testing equipment utilized to ascertain GHB, a controlled substance, also tests positive for ANY natural or organic soap, such as Dr. Bronner’s Hemp-Pure Castille soap, readily available at Whole Foods markets locally. Further testing subsequently revealed that the popular NarcoPouch unit also tests positive on many colognes and perfumes.

Like the Intoxilyzer machines that have fallen under scrupulous legal review, if you can successfully show in a pre-trial motion that field-testing equipment is inherently compromised, the arrest itself can fail. Last week, the UK Guardian reported that a popular street side test for marijuana has also been compromised.

Known as the Duquenois-Levine, or D-L Test, it is produced by various for-profit manufacturers, and the standards to create the product are not exactly supervised by health agencies or homeland security. Not to be sarcastic, but you have to persuade a court that these companies have their own best pecuniary interests at heart, not the public good. We need to get the courts to presume fallibility.

Many of us already remember what happened to Robin Rae Brown on March 20, 2009, in Weston, here in Broward County, Florida. She parked her pickup truck and went for a hike off the beaten path along a remote canal and into the woods to bird watch and commune with nature. “I saw a bobcat and an osprey,” she recalls. “I stopped once in a nice spot beneath a tree, sat down and gave prayers of thanksgiving to God.”

Robin had packed a clay bowl and a “smudge stick,” a stalk-like bundle of sage, sweet grass, and lavender that she had bought at an airport gift shop in Albuquerque, New Mexico. Under the tree, she lit the end of the smudge stick and nestled it inside the bowl. She waved the smoke up toward her heart and over her head and prayed.

Spiritual people from many cultures, including Native Americans, consider smoke to be sacred, and believe it can carry their prayers to the heavens. Law enforcement does not so abide. I learned that on Star Island in the 1980′s counseling members of the Ethiopian Coptic Church, whose daily rituals of religious marijuana use were not accepted by the DEA, who raided and arrested them, chasing them from Florida.

Robin Brown’s bird watch became a nightmare leading to an illegal arrest. When she returned to her pickup truck, a Broward deputy and a Florida Fish and Wildlife lieutenant confronted her. One spotted her incense and asked if he could see it. He took the bowl and incense, asking whether it was marijuana.

Robin told the police it was her ‘smudge.’ “Smells like marijuana to me,” said the deputy, who admitted he had never heard of a smudge stick. He then took the incense back to his car and conducted a D-L field test, which proved ‘positive for marijuana.’ She was eventually arrested.

Robin’s case has gained notoriety because she later learned that her incense had never been subjected to a confirmatory lab test. The Broward state attorney negligently filed a criminal charge without the subsequent testing, and was sued after the charges against her were dropped. Robin’s lawyers so far have not prevailed based on statutory immunity. Sadly, the state is immune from its carelessness, but innocent citizens go to jail because of it.

The test itself works fine. The problem is that, in addition to identifying marijuana or hashish, the D-L test frequently reads positive for tea, nutmeg, sage, and dozens of other chemicals—including ‘resorcinols,’ a family of over-the-counter medicines, which, includes Sucrets throat lozenges.

In a 2008 article for the Texas Tech Law Review, Frederic Whitehurst, Executive Director for the Forensic Justice Project and formerly with the FBI, concluded: “We are arresting vast numbers of citizens for possession of a substance that we cannot identify by utilizing the forensic protocol that is presently in use in most crime labs in the United States.”

As renowned drug expert author, John Kelley, has pointed out in Alternet articles, there are many flaws emerging with these tests. In fact, the problem of “false positives” in drug tests isn’t just limited to substances that appear to resemble marijuana or GHB. In Canada, the owners of a family-based chocolatier business were fingered as dangerous drug dealers by a Duquenois field test and found themselves in jail. Incarceration by Chocolate!

The test, as shown in the Bronner soap video, above, is a simple chemical color reagent test. To administer the test, you simply break a seal on a tiny micropipette of chemicals, and insert a particle of the suspected substance. If the chemicals turn purple or green or a particular color, this indicates the possibility of marijuana or maybe GHB. But ‘possibility’ is not automatically, ‘reliability.’

As scientific examiners unearth new drug testing techniques, the defense bar needs to maximize ways to bust them for their fallibility.

Don’t walk your clients to the plea counter. Plead their case instead with pre trial motions that require the state to authenticate the drug testing sources that provided the basis for the initial arrest. You may have the fruits of a poisonous tree. Suck it dry for everything it is worth.

Norm Kent

Originally published, August, 2012

 

How Judges Disgrace the Bench

All across this country, from small counties to large cities, judges are being exposed as every bit as corruptible as the public they preside over. They are frail. They are weak. They are foolish. They are human. There are 800,000 stories in the Naked City. These are just some of them.

Isolated incidents that would normally never be noticed from state to state now come together because of the breadth of the Internet and its spontaneous dissemination of news and information. The picture it creates forever tarnishes the credibility of our courts. The fears that our justices have about attorneys destroying our courts by open criticism of our judiciary can be put to rest. The judges are doing themselves in without any help from counsel.

Let’s begin in Pennsylvania, the shocking case where two jurists were arrested for taking kickbacks from a private firm paid to run juvenile justice detention centers, compensated by the corporation each time they sent a kid into custody, whether he needed to be there or not. They pled guilty and are headed to jail. It is as disgusting a betrayal of a robe as we will ever see anywhere.

Of course, there is a United States District Judge from Texas facing federal sex crime charges, and he added to his woes by getting indicted last week for obstruction of justice as well. That is more serious than the judge in Alaska who was suspended after he decided to play a game of ex parte during a trial, passing only one of the parties’ notes to aid his litigation. And the note was not about shooting a moose from a helicopter.

There is a Texas county court judge fighting a DUI where she was pulled over for going 92 mph in a residential community. The Commission on Judicial Performance is accusing another judge of leaving work too early, too often, contending that he frequently departed the courthouse halfway through the day. Better than this groveling judge though, begging for mercy on a video cam after being pulled over for a DUI. Here is that link: http://www.youtube.com/watch?v=wLWI6zy1pAg

In New Jersey, a former judge has been suspended from his law practice for three months for an incident in which he allegedly told police officers who had arrested him on a drunken driving charge to “get the Vaseline out and bend over.” Is that better or worse than the retired Broward County judge who pulled citizens over at gunpoint while he was drunk ? That was years ago. I am writing now only about things which have just happened in the thirty days since I started blogging.

Of course, Broward County, Florida has created a comfortable niche for itself, populated by a battery of judges whose words and deeds this past year have been highly improvident. At least five separate county and circuit court judges have been humiliated for either inexcusably or inadvertently denigrating courthouse service personnel, gays, African Americans, and other lawyers. One was accused of taking kickbacks from an attorney for assigning him cases, another accused of snaking money from the elderly, and another went to a judicial conference sober but came home disrobed.

Meanwhile, the Mississippi Supreme Court has reprimanded a former judge for derogatory public comments he made about “white folks.” How does that compare to the NY federal bankruptcy judge who was popped for a domestic violence charge last week after slapping around his wife of 20 plus years?

In St. Petersburg, Florida an Appeals court judge resigned his seat after admitting to helping a stripper he ‘befriended’ conceal assets from judgment creditors. Well, that is a little bit better than the newly elected judge just south of Seattle who ‘befriended’ and then threatened male prostitutes, and now is being investigated by county prosecutors. In Boca Raton, a lawyer who was suspended from the practice of law managed to win a judicial seat from the jurist who had filed the disbarment proceedings against him. But the Supreme Court has barred the newly elected jurist from serving. Is this a soap opera or not?

As an embryonic blogger, my net-surfacing these past 30 days has enabled me to criss-cross the Blawgosphere the way an astronaut speedily circles around a planet. I have stumbled upon a collage of articles on popular legal blawgs and sites like the ABA Journal and Law.com., exposing these judicial foibles. Clearly, I have found lawyers too whose transgressions are outrageous and many. I have written about those too. But there are what, 500 lawyers for every judge? If the Legion of Judicial Disgraces continues at this pace, they are going to have their own comic books. It almost seems like the Obama Administration vetted judicial candidates.

The bottom line is that the judiciary is not above questioning. Behind those many colored robes are some seriously dysfunctional individuals. It thus becomes the burden of every litigator to stand their ground, make their case, and advocate zealously for their client. The judge’s duty is to be impartial, but first we must guarantee they are credible and competent. Lawyers and litigators must hold them to their tasks.

There is a denigrating joke a senior partner in a big white collar law firm about the candidates they promote for judicial office: “Well, if they can’t generate their weight in billable hours, we make them judges.” Yes, they wear robes and ought to be honored for the office they hold. Many come to the bench to crown a lifetime of achievement and honor. Still, no one should get a free ride.

Judges too must be held accountable. Apparently, around the country, some are. Not enough, I think. It is the tip of the iceberg. Sadly, from what I have seen so far, the judicial ship they are piloting is called the Titanic.