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Gabrielson writes: "The Clark County District Attorney's Office in Nevada established a conviction review unit in October. In what appears to be one of its first efforts, the unit has been seeking information about problematic convictions resulting from one of the office's routine practices: accepting guilty pleas in drug cases that rely largely on the results of field tests done by police that can be unreliable."

Las Vegas police officer Manuel Papazian uses a drug test kit to confirm for marijuana at the Las Vegas Police Department Downtown Area Command. (photo: Erik Verduzco/Las Vegas Review-Journal)
Las Vegas police officer Manuel Papazian uses a drug test kit to confirm for marijuana at the Las Vegas Police Department Downtown Area Command. (photo: Erik Verduzco/Las Vegas Review-Journal)

Vegas Prosecutors Seek Help in Identifying Convictions Won With Faulty Drug Tests

By Ryan Gabrielson, ProPublica and The Las Vegas Review-Journal

02 January 17


Request to defense attorneys suggests concern about integrity of guilty pleas won via $2 police tests known to be prone to error.

he Clark County District Attorney’s Office in Nevada established a conviction review unit in October. In what appears to be one of its first efforts, the unit has been seeking information about problematic convictions resulting from one of the office’s routine practices: accepting guilty pleas in drug cases that rely largely on the results of field tests done by police that can be unreliable.

Daniel Silverstein, head of the newly formed unit, in November asked a statewide organization of defense lawyers for any information they had on cases that might have involved inaccurate field tests, and thus resulted in potentially wrongful convictions. Police place suspicious material into a pouch of chemicals that are supposed to change color to indicate the possible presence of illegal drugs. The $2 tests are used by police departments nationwide, and over nearly 30 years in Clark County they have helped produce tens of thousands of drug convictions for the possession or sale of cocaine, methamphetamine and marijuana. In the vast majority of those cases, the field test results are never confirmed in a formal crime lab.

Earlier this fall, ProPublica reported that the district attorney’s office had long known that the tests were prone to error, and that the Las Vegas Metropolitan Police Department’s crime lab had produced a study in 2014 detailing the vulnerabilities of the tests. The district attorney’s office nonetheless continued to gain convictions in cases involving field tests, and collaborating with the Las Vegas police crime lab, even expanded their use to obtain convictions in cases of suspected heroin. The crime lab’s study was not shared with the judges who approve plea deals.

In October, the district attorney’s office declined to answer questions about its practices involving field tests, and officials would not be interviewed regarding the recent actions taken by the conviction review unit.

Silverstein, the conviction review director, responded by email: “At this time, I have no comment on this issue.”

Laurie Diefenbach, a veteran Las Vegas defense attorney, said the Nevada Attorneys for Criminal Justice has distributed Silverstein’s request to its members. The organization represents the state’s defense bar.

ProPublica’s reporting, done in partnership with the Las Vegas Review-Journal, prompted defense attorneys in Las Vegas to organize a committee aimed at exploring ways to formally challenge the routine use of the field tests in drug cases. The attorneys have said all parties in the local criminal justice system — judges, prosecutors, and they themselves — had a moral obligation to reform the reliance on unconfirmed field test results to underpin convictions.

In 2014, prosecutors in Harris County, Texas, discovered that hundreds of people had pleaded guilty to drug crimes based on what proved to be erroneous field tests. As a result, the district attorney’s office revised its policies so that no guilty pleas would be accepted in drug cases unless there had been confirmation of field-test results by the local crime lab.

Defense lawyers in Las Vegas reacted to the request for information on potentially wrongful convictions with disdain. Some attorneys questioned the vigor of the conviction unit’s efforts, saying it was virtually impossible for defense attorneys to know whether the field tests that had helped convict their clients were faulty.

Prosecutors routinely delay crime lab analysis to check results of field tests until the eve of trial, court records show. When defendants plead guilty at preliminary hearings, the alleged drugs rarely even reach the lab. In Clark County last year, according to court data, just eight of 4,633 drug convictions went to trial.

The police department destroys samples after convictions are entered and does not track how many of its field test results are confirmed. Drug arrest and lab testing data show the number could be as low as 10 percent.

Howard Brooks, the Clark County Public Defender’s appellate director, called the district attorney request to defense attorneys “an absurd challenge.” Brooks argued it is the duty of prosecutors to verify the integrity of their convictions — both those that have already been won and those being brokered today in Clark County courts.

“It’s about whether or not your convictions mean anything,” Brooks said.

Diefenbach said members of the Nevada Attorneys for Criminal Justice are preparing to challenge the test kits’ reliability and officers’ training during preliminary hearings.

Given the district attorney’s office’s refusal to discuss its efforts, it is unknown whether Silverstein’s unit has identified any drug convictions to scrutinize.

Phil Kohn, the Clark County public defender, said it was clearly time for all criminal drug evidence to be analyzed by forensic scientists to protect against wrongful convictions.

“How do you prevent the next one,” Kohn said, “when they won’t test all of them?”

For more reporting on the use of chemical field tests, see the series. your social media marketing partner


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0 # elizabethblock 2017-01-02 10:04
Is Las Vegas the only place that does this?
+3 # ReconFire 2017-01-02 10:32
No it's not and the fix is OVERTURN the convictions.
The D.A.'s don't want to talk about it because they will lose notches from their conviction belts. The sick bastards have known for years they have been convicting innocent people.
+2 # chemtex2611 2017-01-02 11:20
What could go wrong? ! You have untrained, uninterested folks out performing chemistry tests on the side of the road at night......
Courts should have thrown the tests and the testers out of court at the first opportunity. Now cities will spend millions undoing the mess these guys have made.

Right now it is going to cost City of Austin, Texas $15 million to run 10 years worth of untested rape kits. That doesn't include the social costs of not getting the rapists off the streets of Austin and the University of Texas. The City also has the problem that the head analyst was wedded to an out-dated DNA analysis scheme that now leaves the City open to paying out million$$ for wrongful conviction lawsuits. Maybe they will get out for $50 million .... or more.
+3 # Johnny 2017-01-02 13:01
So how does the government obtain "guilty" pleas from innocent people? Simple--the same way in Texas and all over the U.S. They just keep them in jail with no bail, or bail set so high the suspects can't pay it, until the victims will plead guilty to anything just to get out. Also, criminal defense lawyers tell their clients to plead "guilty" because it is cheaper and easier than paying the lawyers to try the cases; and court-appointed lawyers tell their clients to plead "guilty" because they know the state will pay for only a tiny fraction of the work required to try a case. It is the deep pockets of the government versus the indigence of innocent suspects with lazy, incompetent, or dishonest lawyers. Ever wonder why only poor people go to prison?
+3 # Vermont Grandma 2017-01-02 15:58
From my perspective, the disinterested response of Clark County defense attorneys is bizarre and unprofessional. They have now been informed 1)the $2 field test is unreliable and 2)the Las Vegas Metropolitan Police Department crime lab's 2014 study detailed the test's vulnerabilities and 3)the Clark County prosecutor's office long knew of the lack of integrity of the field tests.

Defense attorneys are ethically obliged to move to strike the conviction of ANY defendant they represented where no lab test was provided to the defense. Their files should easily show, "was there a lab test?" If the answer is "no," then the defense MUST file a motion to strike the conviction on the basis that the state induced a guilty plea by fraud and can't prove that the substance identified as an illegal drug is indeed illegal. Motion filed, prosecution does not object or joins in the motion. Conviction stricken.
The burden is ALWAYS on the prosecution to prove the essential elements of a crime which would include that the substance forming the basis of a criminal charge is, indeed, an illegal substance. Here it appears that the prosecutor has made it pretty clear that perhaps some 90% of guilty pleas to drug charges initiated by the field drug test are not supportable. Defense attorneys need to stop whining and promptly initiate court action to remove the burden of a false conviction from their clients' shoulders. This is part of zealously representing defendants as ethics require.

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