On June 16 last year, Round Rock police responded to a Wal-Mart on the Interstate 35 frontage road, where they confronted 31-year-old Tommy James Johnson. He’d been recognized by the store’s loss prevention team, which had security tapes from a month earlier showing him stealing a computer.
As they talked to him, the officers noticed that Johnson had tracks on his arm — a possible sign of intravenous drug use — so they called the city’s canine unit. Hondo “alerted” on Johnson’s car. Inside was a backpack with syringes and a cotton ball soaked with a brown substance police believed to be heroin.
Johnson was charged with possession of less than a gram of the narcotic. After two months in the county jail — he was held without bail — he pleaded guilty and was sentenced to six months in prison. He was released Dec. 11.
In February — eight months after Johnson’s arrest and 10 weeks after he finished serving his time — the results of the test on the cotton ball finally came back from the Texas Department of Public Safety’s Austin crime lab. It was negative. Johnson had been locked up for half a year for no legal reason.
Johnson’s story is far from unique. It took 10 months from Austinite Joey Carabajal’s March 2013 arrest for DPS to return a negative test result on what Round Rock police — and Carabajal himself — thought was illegal codeine. Carabajal spent nearly a year behind bars for that noncrime.
In all, the American-Statesman has identified 21 such cases throughout Texas, including an exoneration granted this week for which limited information was available. All share the same template.
After the 14 men and seven women were arrested and charged — typically with possessing a small amount of drugs, many mere dustings — samples of the confiscated substances were sent to public labs for conclusive identification. Before the results came back, however, the defendants pleaded guilty, usually within days, and began serving their jail or prison sentences.
Because of lab backups or delays, the test results declaring them innocent didn’t arrive until months or, in a handful of cases, years later.
“We all — prosecutors, defense attorneys, judges, defendants — depend on rapid, competent forensic labs. But we have not had those in Texas for more than three decades,” said Patrick McCann, a Harris County public defender who represented Mario Martin in May 2008. Charged with possession of 1.09 grams of cocaine — about the weight of a paper clip — Martin was exonerated after Houston’s crime lab returned negative results on Feb. 11, 2010, well after his release.
Prosecutors say there are almost certainly more examples, although no one is keeping close count. (The University of Michigan Law School maintains a nationwide exoneree registry, but it is incomplete.) Though the false-positive drug cases date to 2005, their incidence has accelerated, with 14 of the wrongly convicted earning exonerations within the past two years.
Theirs are not the emotionally wrenching story of Michael Morton, who, because of prosecutorial misconduct, spent 25 years in prison for a Williamson County murder he did not commit, or the increasingly questionable case of Cameron Todd Willingham, who was executed in 2004 for killing his three children, a crime that new evidence and improved science now suggest he may not have committed. Rather, most were proclaimed guilt-free despite themselves.
Court records and interviews show many of the defendants were habitual offenders with established records of lawbreaking. Some almost certainly intended to possess illegal drugs when they were arrested.
After Conroe police arrested Israel Fuentes on Jan. 8, 2013, he faced four drug possession charges. In a plea deal, Montgomery County prosecutors agreed to drop two of them. When the results of the tests came back four months later, the two samples from the guilty plea charges were negative for illegal substances — and the two in the dropped cases were positive.
“Had we flip-flopped on the cases we pleaded to, we wouldn’t have had this problem,” said Assistant District Attorney Phil Grant. As it was, Fuentes was officially declared innocent of possessing illegal narcotics in June.
Nevertheless, like Morton and Willingham, all of the drug defendants identified by the Statesman were deprived of their liberty by the Texas legal system for crimes they were later found not to have committed. Several had long since finished serving their time before prosecutors were notified of the negative test results; others were kept behind bars for weeks even after testing proved their innocence because of administrative delays. For some defendants who quickly disappeared after their release, it’s likely that even today they don’t know their crimes were officially erased.
And, just like the more egregious examples of judicial error, the drug cases have cost taxpayers. Texas has paid out more than $100,000 in compensation to the drug exonerees.
The majority have not received any money. In some cases, subsequent crimes may have rendered them ineligible. In others, it’s because no one appears to have told them they can apply for it.
Six-year wait for result
Thirteen of the cases identified by the newspaper were handled by the Houston Police Department’s crime lab, which has a rocky history. A decade ago, it was forced to suspend DNA testing after a scathing state audit revealed its work was too unreliable to be used in court. More recently it had to pay a private lab to help clear up a massive backlog of untested rape kits.
In 2012, a technician named Jonathan Salvador was found to have faked drug test results. Investigators have identified about 5,000 cases he worked on, a number of which have already been successfully appealed. Earlier this month, the lab’s operations were transferred from the Police Department to an independent agency.
In one drug case handled by the Houston lab that resulted in an exoneration, it took six years to return a narcotic identification test. Another test took two years for results; another, four years. Lawyers say the results came back so late their clients still don’t know about them.
“I haven’t heard from (Mario Martin) since he got out the door,” McCann said.
Inger Hampton, the assistant district attorney in charge of Harris County’s Conviction Review Section, said defendants’ early guilty pleas can contribute to long waits for lab results. Because Houston’s lab carries an active caseload of about 2,500 drug cases, it must triage its work, “with their first priority being pending or active cases,” Hampton said. When a defendant pleads guilty, “the evidence from that case gets moved to a different pile.”
Eight of the cases used forensic testing facilities operated by the state Department of Public Safety. Depending on the facility, prosecutors said drug tests sent to DPS labs for analysis commonly take six months to complete.
Montgomery County has fielded two innocence claims in the past 18 months based on drug tests that took DPS technicians four and six months to process. “When we need a lab back quickly now, we send it to a private lab and pay for it,” said Grant, the prosecutor.
Mark Brunner, Williamson County’s first assistant district attorney, said he’s noticed the time it takes for the local DPS lab to process drug results “has been creeping back farther and farther. It started around six months. Now it’s closer to eight months.”
He added: “We love their work. We’ve never had a problem with accuracy, results, standards. (But) we sure would’ve liked to have known this in weeks instead of months. When we don’t know for five, six, seven months, there’s a financial, if not moral cost” when mistakes happen. That includes the price of incarcerating not-guilty defendants and hiring appellate attorneys to file writs, and time spent by prosecutors to unspool the criminal charges, not counting exoneration compensation.
Tom Vinger, a spokesman for DPS, said work at the agency’s 13 labs was slowed by a surge in blood alcohol tests related to no-refusal operations and a shortage of lab technicians. At the end of 2012, the average processing time for drug tests was nine months.
Last year, the Legislature authorized salaries to pay 11 more lab technicians. Thanks to that, and a new policy that limits testing in misdemeanor cases, Vinger said the average wait for drug test results is now down to five months.
McCann is unimpressed. “There is not a single forensic lab in the state that should be proud of their records,” he said. “Because they are abysmal.”
High bail an obstacle
Critics say it would be simplistic to lay the blame entirely on an overburdened forensic testing system. Defense lawyers complain that police share responsibility for making crimes out of inconsequential drug busts. More than half of the defendants identified by the newspaper were charged with possession of barely a gram — the size of a quarter of a teaspoon of sugar — or less of what were thought to be illegal drugs.
One of them, Raul Cantu, was stopped by Houston police on Feb. 23, 2005, because of an expired car registration sticker. During a pat-down they felt a “sharp metal object” in his pants pocket. On it were “white flakes” that a field test indicated contained cocaine.
The day after his arrest, Cantu was charged with possession of less than a gram of cocaine and sentenced to six months in state jail. He was released two months later, a month after the test came back showing the flakes were not cocaine.
Queen Esther Jordan was charged with possessing drugs after being arrested Oct. 7, 2008, by Houston police who found “white crumbs on the left side of her face,” according to the Harris County district attorney’s office. With several prior convictions, she was facing two to 10 years in prison.
So, a day after her arrest she, too, pleaded guilty to possession and was sentenced to six months in state jail. Jordan served six weeks before being sprung after a test found no evidence of cocaine.
After their arrests, a series of systemic pressures can combine to push defendants to quickly accept plea bargains before their guilt is definitively established by a forensic lab.
Several of the 21 defendants were unable to get out of jail pending their trials when they couldn’t raise bail money. Because the amount tends to be based on the accused’s rap sheet, habitual offenders can find themselves facing stiff bail requirements for even minor crimes.
Jordan’s bail was set at $15,000 because of her five prior drug possession offenses since 2001, her attorney, Michelle Beck, said. When Ennis police arrested Rhonda Gainus for possession of less than 4 grams of cocaine in July 2012, her bail was set at $100,000.
Galveston police arrested Eric Herrera on May 15, 2011, after a crack pipe fell out of his pants while they were talking to him. Although he was charged only with possession of less than a gram of cocaine, his bail was set at $20,000 because of his history. Three days later, he agreed to a plea bargain that gave him six months in the county jail.
“If you can get out on a (personal recognizance) bond, then I recommend waiting until the lab results come back,” said his attorney, Ben Sullivant. “But if he’s in jail and can’t get out and it’s a matter of waiting months for the lab, a lot of people are going to want to get out.”
Besides, he added: “At that time it was taking a good five months or more to get the labs back. They can serve their sentence easier than waiting for a lab result.” Herrera was released after three months, on Aug. 12, 2011. The DPS lab results came back less than a week after his departure: negative.
“One-day only” deals
Pressure from lawyers on both sides can also push cases to a plea bargain before evidence is returned. More than 98 percent of felony drug possession cases settle before trial, according to the state’s Office of Court Administration, thanks to such deals. Without them, the court system would become swamped and grind to a halt.
Prosecutors have a legal incentive to move what appear to be open-and-shut cases along quickly. When a defendant is held in jail, state law requires that cases be presented to a grand jury for indictment within 90 days. Most prosecutors prefer not to do that without a lab report.
“We encourage people to plead by giving them pretty good deals on the front end,” said Montgomery County’s Grant.
Yet that encouragement can veer into coercion. In November 2011, Brunner, who’d left the district attorney’s office for private practice (he became a prosecutor again in 2012), wrote a letter to the Round Rock Leader noting what he today describes as the former DA’s “bullying” tactics.
“It is common practice that many of those felony plea bargains are given to defense counsel and their clients on a ‘one-day only’ basis — meaning take it today, or the deal gets worse,” he wrote. “And that ‘today’ is often the first day the attorney and client have ever been in court … with the veiled warning that if a deal is not speedily taken, the stakes for the client could get much worse.”
The result: “They are made to choose between a plea bargain right now, when I have not had a chance to fully evaluate their case, or suffer a worse bargain later, after I have had the chance to do my ethical best to collect all the evidence in the state’s hands.”
On the other side, defense attorneys — often harried public defenders catching small-time drug offenses — are tempted to accept the deals quickly. “Sometimes, the earlier offers are the best you’re going to get, so you grab it before it gets to the grand jury,” said Cynthia Cline, who negotiated Rosa Sade Bates’ guilty plea in Harris County, 10 months before her drug test came back negative.
“We still get requests from defense attorneys to plead these cases out before we get lab results,” said Patrick Wilson, district attorney in Ellis County, where Gainus was kept locked up for nine months before a late drug test freed her. “If their clients really, really want to get out, our hands are tied.”
Indeed, some defendants, eager to get their punishment out of the way, push for a quick plea. “I tell them, ‘Look, you might want to wait for the lab,’ ” said Beck, the Houston defense lawyer. “But sometimes they just want to take the plea deal right then.”
Taken together — along with potentially long waits for lab results — “There’s an inordinate amount of pressure for the person to plead quickly, especially in state jail court cases” — where many lower-level drug possession cases end up, said Nicolas Hughes, a Harris County public defender. He represented Sherri Frederick, who spent almost six months in prison for possessing a quarter of a gram of a substance that tests returned five months into her sentence proved wasn’t cocaine.
$106,067 in compensation
In some of the cases, the injustice of being locked up for what turned out to be no legal reason was compounded by administrative errors. Houston police arrested Hien Juan Mai in June 2012. He was charged with possession of a half of a gram of cocaine, pleaded guilty three days later and was sentenced to 120 days in the Harris County Jail.
A month after his arrest, the test on the substance came back negative. Yet Mai wasn’t released for another four weeks.
“We all — state, defense — missed the fact that he was still in the Harris County Jail at the time we received the lab report,” said Hampton. She said her office is reviewing its policies to make sure such glitches don’t happen again.
In at least one other instance, the charge on which a defendant was later exonerated had a cascading effect, causing further harm. In his 2008 case, Harris County’s Martin was sentenced to 30 days in the county jail and four years’ probation for possession of a gram of cocaine. In December 2009, he was arrested for violating his probation and taken back into custody.
Lab test results returned two years after his arrest showed that Martin had not possessed an illegal drug — meaning his later probation violation wouldn’t have happened, either.
Texas has continued to loosen its exoneration compensation laws over the past decade. In 2001, lawmakers removed the requirement that defendants must have pleaded not guilty to be eligible for payments. Six years later they eliminated the compensation cap.
As of 2009, exonerees legally declared innocent can get a lump-sum payment of $80,000 for each year they were wrongfully imprisoned, plus an annuity. The state also will pay college tuition, missed child care support payments and some health care costs. According to the comptroller’s office, which administers the program, the total price tag has come to about $65 million paid to 94 exonerees as of mid-March.
Only two are drug exonerees. Gainus, from Ellis County, was serving a three-year sentence after pleading guilty to possessing less than 4 grams of cocaine. A negative test from DPS’s Garland lab arrived seven months after her arrest. Last September, the state cut her a $66,067 check for the nine months and 13 days she was locked up. On March 15, 2012, taxpayers handed Frederick $40,000 for wrongfully jailing her for five months and 28 days.
One reason for the limited number of drug exoneree payments is that the system was not designed for lower-level offenders. State law assigned the Texas Department of Criminal Justice responsibility for informing exonerated inmates of their rights and rewards. Yet some served their time in county jails, where the state agency has no jurisdiction.
And unlike higher-profile exonerees, the drug defendants don’t have advocates championing their cause. “We honestly have not seen any of these,” said Nick Vildas, executive director of the Texas Innocence Project. Prosecutors said they don’t tell defendants of their eligibility for state payments; defense attorneys said they weren’t familiar with the law.
“That’s outside of my field,”said Sullivant. “I don’t know anything about that.”
Legislators have also tried to limit payment of compensation to less savory exonerees. The exoneration statute calls for payments to be terminated if defendants are convicted of another felony. The comptroller’s office spokesman, R.J. DeSilva, said the prohibition would apply to new applicants, as well. Background checks show that several of the drug defendants committed crimes after their exonerations.
Others simply disappeared. Sullivant said he thought Herrera might have been due money, but “I remember trying to contact him and not being able to.” Corey Love’s Houston attorney, Tom Moran, said he, too, tried to find his former client when a drug test cleared him six years after his arrest.
“I don’t know where the hell he is,” Moran said.
WHY IT MATTERS
This report highlights not only how publicly funded labs’ delays of up to six years have created a hidden class of people locked up for crimes they didn’t commit, but also how it is costing taxpayers. The state has paid more than $100,000 in compensation, and more of the accused might be eligible.