Teacher, former Big Brother and foster parent, charged with molestation
Curt Edward Carson
By JARREL WADE World Staff Writer
Published: 7/27/2010 9:27 PM
Last Modified: 7/27/2010 9:27 PM
Prosecutors have charged a Union Public Schools special education teacher and former Big Brothers Big Sisters mentor of molesting a 13-year-old boy in 2002.
Curt Edward Carson, 49, of Broken Arrow was arrested July 9 at a Starbucks coffee shop at 71st Street and Garnett Road by officers from the Tulsa Police Department’s Sex Crimes Unit.
He was released from the Tulsa Jail on $50,000 bail later that day, jail records show.
Carson was charged on Tuesday with the lewd molestation of a 13-year-old boy between July 2002 and August 2003, court records show.
During that time, Carson was a teacher for Tulsa Public Schools and was a mentor for Big Brothers Big Sisters. He also has been a foster parent, Cpl. Clay Asbill said.
Carson was hired by Union Public Schools in 2005. He worked at Union Intermediate High School as a special education teacher for three years before he was transferred to Union’s Sixth and Seventh Grade Center as a special education teacher.
He has worked at the Sixth and Seventh Grade Center for the last two years, the school district reported.
A news release from the district on the day he was arrested states, “In light of his arrest this morning, Union Public Schools has suspended Carson with pay, as required by law, pending the outcome of the investigation and will fully cooperate with Tulsa police in the investigation.”
Carson taught in Tulsa at Clinton Middle School from 2001 to 2004 and worked at Hamilton Middle School until he resigned in 2005, Tulsa Public Schools spokeswoman Tami Marler said.
By JARREL WADE World Staff Writer
Read more from this Tulsa World article at http://www.tulsaworld.com/webextra/content/2010/crimesite/article.aspx?subjectid=450&articleid=20100727_11_0_Prosec662141
Isabella Brooke Knightly and Austin Gamez-Knightly
In Memory of my Loving Husband, William F. Knightly Jr. Murdered by ILLEGAL Palliative Care at a Nashua, NH Hospital
Wednesday, July 28, 2010
State agency reports shortcomings in child abuse probe
State agency reports shortcomings in child abuse probe
By JOSÉ PATIÑO GIRONA | The Tampa Tribune
Published: July 27, 2010
A month after 2-year-old Deondray Ashe of Lakeland died from alleged child abuse, the Florida Department of Children and Families released its internal review of the agency's handling of the case while the boy's family was under investigation.
The routine internal evaluation, which was completed July 19, listed some positive aspects but more areas of where improvement is needed.
The agency was investigating Ashe's mom, Ina Ashe, and his stepfather, Marcus Brown, after a March 26 allegation of child abuse where the boy suffered fractured ribs. The case, which was closed May 25, was ruled unsubstantiated, said Ann Berner, DCF's administrator for Circuit 10, which includes Polk County.
The report cites that no one from the agency visited the child and his family from April 6, when he was discharged from St. Joseph's Hospital, until May 24. Berner said there should have been regular visits in between, although the family had been reached by telephone.
The report said staff also should have continued weight checks to see whether Ashe was continuing to gain weight. There should have been further investigation to learn whether there was weight loss and if it was caused by illness of neglect, the report states.
In addition, that staff should have prepared a more detailed safety plan pointing out sleeping arrangements and proper supervision of Ashe's 4-year-old sibling.
The report recommends that the child protection investigation staff attend a safety planning training.
On June 14, less than a month after the child abuse allegation was deemed unsubstantiated, Deondray Ashe was dead. Brown was arrested June 16 and charged with first-degree murder in his stepson's death.
Earlier this month, Ina Ashe was charged with aggravated manslaughter on a child and two counts of aggravated child neglect in Deondray's death.
Berner said that during the investigation support groups were put in place to assist the family and the family was cooperative with investigators.
The family had never been investigated for child abuse. Ina Ashe was a nurse. Though Brown did have a criminal history, they were minor offenses that did not involve violence, Berner said.
"I don't think any of those recommendations would have given us a different outcome," Berner said.
Berner added that no one in the agency who worked on this case will receive a reprimand or is in jeopardy of losing their job.
Reporter José Patiño Girona can be reached at (813) 259-7659.
http://www2.tbo.com/content/2010/jul/27/state-agency-reports-shortcomings-child-abuse-prob/news-breaking/
By JOSÉ PATIÑO GIRONA | The Tampa Tribune
Published: July 27, 2010
A month after 2-year-old Deondray Ashe of Lakeland died from alleged child abuse, the Florida Department of Children and Families released its internal review of the agency's handling of the case while the boy's family was under investigation.
The routine internal evaluation, which was completed July 19, listed some positive aspects but more areas of where improvement is needed.
The agency was investigating Ashe's mom, Ina Ashe, and his stepfather, Marcus Brown, after a March 26 allegation of child abuse where the boy suffered fractured ribs. The case, which was closed May 25, was ruled unsubstantiated, said Ann Berner, DCF's administrator for Circuit 10, which includes Polk County.
The report cites that no one from the agency visited the child and his family from April 6, when he was discharged from St. Joseph's Hospital, until May 24. Berner said there should have been regular visits in between, although the family had been reached by telephone.
The report said staff also should have continued weight checks to see whether Ashe was continuing to gain weight. There should have been further investigation to learn whether there was weight loss and if it was caused by illness of neglect, the report states.
In addition, that staff should have prepared a more detailed safety plan pointing out sleeping arrangements and proper supervision of Ashe's 4-year-old sibling.
The report recommends that the child protection investigation staff attend a safety planning training.
On June 14, less than a month after the child abuse allegation was deemed unsubstantiated, Deondray Ashe was dead. Brown was arrested June 16 and charged with first-degree murder in his stepson's death.
Earlier this month, Ina Ashe was charged with aggravated manslaughter on a child and two counts of aggravated child neglect in Deondray's death.
Berner said that during the investigation support groups were put in place to assist the family and the family was cooperative with investigators.
The family had never been investigated for child abuse. Ina Ashe was a nurse. Though Brown did have a criminal history, they were minor offenses that did not involve violence, Berner said.
"I don't think any of those recommendations would have given us a different outcome," Berner said.
Berner added that no one in the agency who worked on this case will receive a reprimand or is in jeopardy of losing their job.
Reporter José Patiño Girona can be reached at (813) 259-7659.
http://www2.tbo.com/content/2010/jul/27/state-agency-reports-shortcomings-child-abuse-prob/news-breaking/
Antonovich calls for audit of county's child protection safety net
Antonovich calls for audit of county's child protection safety net
Source: Supervisor Michael D. Antonovich
Los Angeles County Board of Supervisors, Fifth District
Posted: July 27, 2010 3:59 p.m.
Updated: July 27, 2010 5:00 p.m.
Related Content
This story is posted in The Signal's SCV Raw section. Click here for more information about SCV Raw.
LOS ANGELES COUNTY -- "Recent tragedies are the failure of a coordinated protocol of County departments who come into contact with abused and neglected children and their families," said Supervisor Michael D. Antonovich, who with Supervisor Don Knabe, introduced a motion ordering an independent audit and recommendations to protect these children.
"Ensuring the safety, permanency and self-sufficiency of abused and neglected children requires the coordination of the Department of Children and Family Services as well as other departments that touch the life of that child or family during a child abuse investigation including Health Services, Public Health, Mental Health and Public Social Services," he said.
http://www.the-signal.com/section/114/article/31546/
Source: Supervisor Michael D. Antonovich
Los Angeles County Board of Supervisors, Fifth District
Posted: July 27, 2010 3:59 p.m.
Updated: July 27, 2010 5:00 p.m.
Related Content
This story is posted in The Signal's SCV Raw section. Click here for more information about SCV Raw.
LOS ANGELES COUNTY -- "Recent tragedies are the failure of a coordinated protocol of County departments who come into contact with abused and neglected children and their families," said Supervisor Michael D. Antonovich, who with Supervisor Don Knabe, introduced a motion ordering an independent audit and recommendations to protect these children.
"Ensuring the safety, permanency and self-sufficiency of abused and neglected children requires the coordination of the Department of Children and Family Services as well as other departments that touch the life of that child or family during a child abuse investigation including Health Services, Public Health, Mental Health and Public Social Services," he said.
http://www.the-signal.com/section/114/article/31546/
Foster father guilty of fondling girl
Foster father guilty of fondling girl
NZPA
July 27, 2010, 7:48 am
A foster father who fondled a 14-year-old sleeping girl after drinking has avoided a prison sentence.
Graham Pihema pleaded guilty just before trial to doing an indecent act on a young person and was sentenced in New Plymouth District Court yesterday to 350 hours' community work and nine months' supervision, The Taranaki Daily News reported.
Judge Gordon Whiting said it was no excuse that Pihema had been drinking the night of the offending and could not remember it.
"Disgusting behaviour on young children is not appropriate." It was only the support of his former partner that had saved him from jail.
The woman told the court that he was a good husband and provider and had successfully raised his own daughter and three children through government agencies.
http://nz.news.yahoo.com/a/-/top-stories/7651284/foster-father-guilty-of-fondling-girl/
NZPA
July 27, 2010, 7:48 am
A foster father who fondled a 14-year-old sleeping girl after drinking has avoided a prison sentence.
Graham Pihema pleaded guilty just before trial to doing an indecent act on a young person and was sentenced in New Plymouth District Court yesterday to 350 hours' community work and nine months' supervision, The Taranaki Daily News reported.
Judge Gordon Whiting said it was no excuse that Pihema had been drinking the night of the offending and could not remember it.
"Disgusting behaviour on young children is not appropriate." It was only the support of his former partner that had saved him from jail.
The woman told the court that he was a good husband and provider and had successfully raised his own daughter and three children through government agencies.
http://nz.news.yahoo.com/a/-/top-stories/7651284/foster-father-guilty-of-fondling-girl/
Ohio Supreme Court: Rights of Biological Parents ‘Precious and Fundamental’
Ohio Supreme Court: Rights of Biological Parents ‘Precious and Fundamental’Posted on July 27th, 2010 by Glenn Sacks in All News, Ohio News, US NewsRead 331 times.
The following is an article by Fathers & Families Board Member, Robert Franklin, Esq.:
This case out of the Ohio Supreme Court does little but suggests much (Leagle, 7/22/10). Reading the court’s dicta, i.e. the verbal embroidery with which it decorates its actual holding, fathers’ rights in adoption cases just got a huge boost.Back in July 2005, Susan Tuttle gave birth to a child. She was married to Jeremy Tuttle at the time and his name was placed on the birth certificate. The court’s recitation of facts leaves us to guess at just how and why certain events transpired, but, a month later, DNA testing on the baby had been performed. It showed that Tuttle was not the child’s father; Gary Otten was. Just who asked for the testing to be done is anyone’s guess. Whether Otten requested the testing or whether he even knew it had been done, the court doesn’t tell us.Whatever the case, not surprisingly, Jeremy Tuttle divorced Susan in November of that year. A little over a year later, Gary Otten filed a suit to establish his paternity rights and presumably to get some sort of a custodial order. But then Susan married another man, Kevin Crooks, who filed a petition to adopt the child who was then almost two years old. In order for Crooks to adopt the child, Otten’s parental rights would have had to be terminated by the probate court.At this point, it’s a good idea to recognize an important fact. There are two types of adoptions - stranger adoptions and non-stranger adoptions. Stranger adoptions are the kind most people tend to think about when they think about adoption. They’re the ones in which a couple adopts a child they don’t know, a child, in other words, who is a stranger to them.
Crooks wanted to do the other type of adoption. He knew Susan Tuttle’s child; he was married to Tuttle and wanted to formally recognize his parental relationship with her child and tie himself legally to the child should the pair ever divorce. That’s a non-stranger adoption.
In the United States, there are about 125,000 adoptions completed each year. Of those, about 75,000 are stranger adoptions and about 50,000 are the non-stranger variety.
Why does it matter what kind of adoption this was? If a stranger adoption doesn’t go through, it may well be that the child will have no parents at all, or at best a single parent. The child may sit unnoticed in an orphanage. If a non-stranger adoption doesn’t go through because the biological father asserts his rights, the child will still have two parents - a mother and a father - the same as if it had gone through. From the child’s standpoint, then, nothing is lost by allowing the dad to assert his rights.
When it comes to terminating fathers’ rights, the adoption industry often likes to pretend that all adoptions are alike, and therefore that if we allow the biological dad to prevail, the child will miss out on having two parents. That can be true in a stranger adoption case, but not in a non-stranger one. It’s an important distinction that those who make money off of completed adoptions often prefer to overlook.
Back to the case. The Ohio Supreme Court held that, because Otten is the biological father, Crooks can’t adopt the child (and terminate Otten’s rights) unless he can show that Otten is unfit.
One important thing about that holding is that Otten had never registered with the Ohio Putative Father Registry. So according to that law, he wasn’t entitled to notice of the adoption proceeding. The Court of Appeals held that his failure to register foreclosed his paternity suit. The Supreme Court said that’s not so. Essentially, a biological father who’s asserting his parental rights can stop the adoption of his child whether he’s filed with the Putative Father Registry or not.
It’s hard to overemphasize the importance of the court’s language in this case. First, it focuses on core principles of parental rights - principles long acknowledged but often ignored. For many years now, I’ve written of my astonishment at the U.S. Supreme Court’s calling parental rights “far more precious than property rights” and then approving the most bald-faced deprivations of due process in cases construing the rights of fathers. Significantly, those are often in cases involving putative father registries.
Here’s some of the court’s dicta:
[T]he right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law…
Few consequences of judicial action are so grave as the severance of natural family ties…
[W]e have held that any exception to the requirement of parental consent (to adoption) must be strictly construed so as to protect the right of natural parents to raise and nurture their children.
Finally! Here’s a court that sees the obvious - that the rights of biological fathers have legal importance, and that courts and legislatures must respect them for the welfare of all concerned. Not only that, as important as parental rights are, in termination proceedings, states’ rights are virtually nil until a parent has been proven to be unfit.
the parent’s interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State’s interest in finding the best home for the child does not arise until the parent has been found unfit.
Second, I believe that the Ohio Supreme Court is signalling a change of direction in adoption matters. That’s because in two instances it cites, not the majority in U.S. Supreme Court cases, but dissents. That suggests to me that Ohio court is ready to break with the past. I believe that it is ready to turn away from the notion, clung to for so long by so many jurisdictions, that any adoption is a good adoption even though it’s unnecessary. When a fit father wants to be a parent to his child, there is no legitimate state interest in denying him his parental rights.
This case can be viewed as extremely limited and many will argue for that reading of it. But courts often prefer to obscure the full impact of important cases. Judges fear being tagged “judicial activist.” Given the language of the case, I would not be surprised to find it holding unconstitutional Ohio’s Putative Father Registry law at some time in the not too distant future. Either that or so limiting its scope as to render it all but impotent.
And let’s not forget that, just last month, right next door in Kentucky the state Supreme Court ruled that biological parents rights were “inherent and equitable.” Here’s my piece on that case. It too suggested a significant expansion of parental rights based solely on biology.
It’s important to understand what this case does not do. Somehow, Otten learned about his child and was able to assert his rights. Thus the case deals only with a father who was able to make a timely claim. This case does little or nothing to protect a father from whom a mother successfully keeps his child. What if Otten had found out he was the father, not a year later, but five years later? Could he have asserted his rights then? The case doesn’t say because that’s not what happened.
Some day, that case will come before the court and it will have an opportunity to decide whether a father’s rights can be prejudiced by the fraud of the mother. That happens frequently in adoption cases as I’ve reported on before. But this is a court that says it respects the rights of biological parents. We’ll see how far that goes.
But remember that Kentucky case. That’s exactly the issue it ruled on and it held that a father who’d been kept in the dark about his paternity until the child was three years old, could not be denied his parental rights.
As Bob Dylan once said, “the times they are a-changin.’”
Robert Franklin, Esq., is a board member of Fathers & Families, America’s largest family court reform organization. To learn more, see www.fathersandfamilies.org.
http://www.bloggernews.net/124988
The following is an article by Fathers & Families Board Member, Robert Franklin, Esq.:
This case out of the Ohio Supreme Court does little but suggests much (Leagle, 7/22/10). Reading the court’s dicta, i.e. the verbal embroidery with which it decorates its actual holding, fathers’ rights in adoption cases just got a huge boost.Back in July 2005, Susan Tuttle gave birth to a child. She was married to Jeremy Tuttle at the time and his name was placed on the birth certificate. The court’s recitation of facts leaves us to guess at just how and why certain events transpired, but, a month later, DNA testing on the baby had been performed. It showed that Tuttle was not the child’s father; Gary Otten was. Just who asked for the testing to be done is anyone’s guess. Whether Otten requested the testing or whether he even knew it had been done, the court doesn’t tell us.Whatever the case, not surprisingly, Jeremy Tuttle divorced Susan in November of that year. A little over a year later, Gary Otten filed a suit to establish his paternity rights and presumably to get some sort of a custodial order. But then Susan married another man, Kevin Crooks, who filed a petition to adopt the child who was then almost two years old. In order for Crooks to adopt the child, Otten’s parental rights would have had to be terminated by the probate court.At this point, it’s a good idea to recognize an important fact. There are two types of adoptions - stranger adoptions and non-stranger adoptions. Stranger adoptions are the kind most people tend to think about when they think about adoption. They’re the ones in which a couple adopts a child they don’t know, a child, in other words, who is a stranger to them.
Crooks wanted to do the other type of adoption. He knew Susan Tuttle’s child; he was married to Tuttle and wanted to formally recognize his parental relationship with her child and tie himself legally to the child should the pair ever divorce. That’s a non-stranger adoption.
In the United States, there are about 125,000 adoptions completed each year. Of those, about 75,000 are stranger adoptions and about 50,000 are the non-stranger variety.
Why does it matter what kind of adoption this was? If a stranger adoption doesn’t go through, it may well be that the child will have no parents at all, or at best a single parent. The child may sit unnoticed in an orphanage. If a non-stranger adoption doesn’t go through because the biological father asserts his rights, the child will still have two parents - a mother and a father - the same as if it had gone through. From the child’s standpoint, then, nothing is lost by allowing the dad to assert his rights.
When it comes to terminating fathers’ rights, the adoption industry often likes to pretend that all adoptions are alike, and therefore that if we allow the biological dad to prevail, the child will miss out on having two parents. That can be true in a stranger adoption case, but not in a non-stranger one. It’s an important distinction that those who make money off of completed adoptions often prefer to overlook.
Back to the case. The Ohio Supreme Court held that, because Otten is the biological father, Crooks can’t adopt the child (and terminate Otten’s rights) unless he can show that Otten is unfit.
One important thing about that holding is that Otten had never registered with the Ohio Putative Father Registry. So according to that law, he wasn’t entitled to notice of the adoption proceeding. The Court of Appeals held that his failure to register foreclosed his paternity suit. The Supreme Court said that’s not so. Essentially, a biological father who’s asserting his parental rights can stop the adoption of his child whether he’s filed with the Putative Father Registry or not.
It’s hard to overemphasize the importance of the court’s language in this case. First, it focuses on core principles of parental rights - principles long acknowledged but often ignored. For many years now, I’ve written of my astonishment at the U.S. Supreme Court’s calling parental rights “far more precious than property rights” and then approving the most bald-faced deprivations of due process in cases construing the rights of fathers. Significantly, those are often in cases involving putative father registries.
Here’s some of the court’s dicta:
[T]he right of a natural parent to the care and custody of his children is one of the most precious and fundamental in law…
Few consequences of judicial action are so grave as the severance of natural family ties…
[W]e have held that any exception to the requirement of parental consent (to adoption) must be strictly construed so as to protect the right of natural parents to raise and nurture their children.
Finally! Here’s a court that sees the obvious - that the rights of biological fathers have legal importance, and that courts and legislatures must respect them for the welfare of all concerned. Not only that, as important as parental rights are, in termination proceedings, states’ rights are virtually nil until a parent has been proven to be unfit.
the parent’s interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State’s interest in finding the best home for the child does not arise until the parent has been found unfit.
Second, I believe that the Ohio Supreme Court is signalling a change of direction in adoption matters. That’s because in two instances it cites, not the majority in U.S. Supreme Court cases, but dissents. That suggests to me that Ohio court is ready to break with the past. I believe that it is ready to turn away from the notion, clung to for so long by so many jurisdictions, that any adoption is a good adoption even though it’s unnecessary. When a fit father wants to be a parent to his child, there is no legitimate state interest in denying him his parental rights.
This case can be viewed as extremely limited and many will argue for that reading of it. But courts often prefer to obscure the full impact of important cases. Judges fear being tagged “judicial activist.” Given the language of the case, I would not be surprised to find it holding unconstitutional Ohio’s Putative Father Registry law at some time in the not too distant future. Either that or so limiting its scope as to render it all but impotent.
And let’s not forget that, just last month, right next door in Kentucky the state Supreme Court ruled that biological parents rights were “inherent and equitable.” Here’s my piece on that case. It too suggested a significant expansion of parental rights based solely on biology.
It’s important to understand what this case does not do. Somehow, Otten learned about his child and was able to assert his rights. Thus the case deals only with a father who was able to make a timely claim. This case does little or nothing to protect a father from whom a mother successfully keeps his child. What if Otten had found out he was the father, not a year later, but five years later? Could he have asserted his rights then? The case doesn’t say because that’s not what happened.
Some day, that case will come before the court and it will have an opportunity to decide whether a father’s rights can be prejudiced by the fraud of the mother. That happens frequently in adoption cases as I’ve reported on before. But this is a court that says it respects the rights of biological parents. We’ll see how far that goes.
But remember that Kentucky case. That’s exactly the issue it ruled on and it held that a father who’d been kept in the dark about his paternity until the child was three years old, could not be denied his parental rights.
As Bob Dylan once said, “the times they are a-changin.’”
Robert Franklin, Esq., is a board member of Fathers & Families, America’s largest family court reform organization. To learn more, see www.fathersandfamilies.org.
http://www.bloggernews.net/124988
Has the Most Common Marijuana Test Resulted in Tens of Thousands of Wrongful Convictions?
Has the Most Common Marijuana Test Resulted in Tens of Thousands of Wrongful Convictions?
More than 800,000 people are arrested on marijuana charges each year in the United States, many on the basis of an error-prone test.
July 28, 2010 |
Raised in Montana and a resident of Alaska for 18 years, Robin Rae Brown, 48, always made time to explore in the wilderness. On March 20, 2009, she parked her pickup truck outside Weston, Florida, and hiked 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.” For that purpose, 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, she told me, and believe that it can carry their prayers to the heavens.
As darkness approached, she returned to her pickup truck to find Broward County’s Deputy Sheriff Dominic Raimondi and Florida Fish and Wildlife’s Lieutenant David Bingham looking inside the cab. The two men asked what she was doing and when she said she had been bird watching, Bingham asked whether she had binoculars. As she opened her knapsack, Officer Raimondi spotted her incense and asked if he could see it. He took the bowl and incense, asking whether it was marijuana. “No,” she recalls saying. “It’s my smudge, which is a blend of sage, sweet grass, and lavender.” “Smells like marijuana to me,” said Raimondi, who admitted he had never heard of a smudge stick. He then ordered Robin to stand by her truck, while he took the incense back to his car and conducted a common field test, known as a Duquenois-Levine, or D-L, test. The result was positive for marijuana.
Robin protested, telling them the smudge was available for purchase online for about $7 and gave them the name of a Web site that sold it — information Officer Bingham used his laptop to verify. But the men still searched her truck. After an hour and a half they finally allowed Robin to go home and told her that if a lab test confirmed the field test results, a warrant would be issued for her arrest.
Exactly 90 days later, Robin was arrested at the spa in Weston, Florida where she has worked as a massage therapist for three years. She was handcuffed in front of clients and co-workers, and charged with felony possession of marijuana. She was brought to a local police precinct in the town of Davie where she was booked and held for three hours. Unable to post the $1,000 bail because she was not allowed to call her boyfriend Michael, she was transferred to the Women’s Correctional Facility in Pompano Beach. At no time was she read her rights.
Five hours after her arrest, she was finally allowed a brief phone call and left a message for Michael to post her bail. At the jail, a female officer came in and told Robin to take off all her clothes. She had already been searched at the precinct station and had her shoes, socks and bra confiscated. “I’m on my period,” she said. “I don’t care,” said the officer, who ordered her to pull her underwear down to her ankles, squat over the floor drain and cough. The following morning at 4:30 a.m. she was released onto the streets of Pompano Beach with no idea where she was.
The next day, Robin found a lab and submitted to voluntary hair and urine tests. These came back clean. She had previously worked for 16 years as a transportation systems specialist with the Federal Aviation Administration, a job that required airport security clearances, so drug tests were nothing new to her. During those years, she was frequently required to pass random drug and alcohol tests.
She later learned that her incense had never been subjected to a confirmatory lab test. She had been arrested and jailed solely on the basis of her positive D-L test results.
The Preferred Test for Marijuana
The Duquenois test was developed in the late 1930s by a French pharmacist, Pierre Duquénois, while he was working for the United Nations division of narcotics. In 1950, he completed a study for the UN which claimed that his test was “very specific” for marijuana; it was adopted by the UN and crime labs around the world as the preferred test for marijuana.
After undergoing several modifications, including the use of chloroform, the test became known as the Duquenois-Levine test, and became widely popular. Though scientists would show in the 1960s and 1970s that the D-L test was nonspecific, meaning it rendered false positives, it remains today the most commonly used test for marijuana — used in many of the 800,000 marijuana arrests that take place each year.
The test is a simple chemical color reagent test, easy to perform but difficult to interpret. To administer the test, a police officer simply has to break a seal on a tiny micropipette of chemicals, and insert a particle of the suspected substance; if the chemicals turn purple, this indicates the possibility of marijuana. But the color variations can be subtle, and readings can vary by examiner.
The field test kits are produced by a variety of manufacturers, the most popular brands being NIK and ODV. Literature about the D-L from NIK’s makers states that it is only a “screening” test that “may or may not yield a valid result” and may produce “false positive results.” Yet, since at least 1990, arresting officers, with the support of prosecutors, have regularly bypassed lab analysts and have purported to identify marijuana at hearings and trials only on the basis of visual inspection and the nonspecific D-L field test. And the manufacturers have taken note.
In 1998, ODV reported in its newsletter with seeming satisfaction that a growing number of police departments were using its D-L field test, marketed as the NarcoPouch, as “their sole method of testing and identifying Marihuana [sic]… To have Officers properly trained in identifying Marijuana and taking the Crime Lab out of the loop is a tremendous cost saving venture for the State…and gives the individual Officers testing the material a greater sense of satisfaction in completing their own cases” (emphasis added). NIK, too, argued that depending exclusively on D-L field tests saves time and money. “Crime laboratories are so busy that drug tests take too long,” NIK states on its website. “With the cooperation of the Prosecuting Attorney, many police agencies have turned to presumptive drug testing. If the results indicate that an illegal substance is present, criminal charges may be filed.
In June 2006, the Virginia legislature went so far as to pass “emergency regulations” permitting law-enforcement officers to testify at trial for simple possession of marijuana cases solely on the basis of a D-L field test. Prior to these regulations, officers had to send suspected material to an approved lab for testing. Nothing in the new legislation specified that the field tests used had to be specific, or even accurate. Frederic Whitehurst, a North Carolina-based defense attorney and former FBI special agent with a doctorate in chemistry, considers the law to be an unconstitutional usurpation of the authority of the courts to determine what test results can be admitted as valid evidence.
The trend toward police officers using the D-L as a confirmatory test has been encouraged by the National Institute of Justice, an agency of the Department of Justice which has funded programs to transform police officers into court experts, based on their use of these faulty field tests. One such ongoing program for the Utah police claims to offer, in four days, “the necessary training” to positively identify marijuana, which would allow officers to serve as “expert witnesses in the courtroom setting.” The program briefly covers the “botany, chemistry and analysis of marijuana preparations,” after which police officers, including street detectives and crime scene lab personnel, “will assume responsibility for all of their agency’s marijuana submissions.” By the end of 2005, such submissions became the exclusive provenance of the Utah officers who had attended the training, and suspected marijuana samples were no longer accepted at the state lab for processing.
In 2009, the Georgia Bureau of Investigation trained more than 1,600 police officers in the use of the D-L test, resulting in a 98 percent reduction in the use of marijuana lab tests. This troubling program garnered the bureau a 2009 Vollmer Excellence in Forensic Science Award by the International Association of Chiefs of Police.
Test 'Should Never Be Relied Upon'
Despite its widespread use, as early as the 1960s, the D-L test had been proven incapable of definitively identifying the presence of marijuana in a seized substance. A 1968 article in the Chemistry and Pharmacy Bulletin of Japan reported that the D-L tests “lack in adequate specificity.” In 1969, M. J. de Faubert Maunder, a chemist in the Ministry of Technology, a UK government agency, documented the unreliability of the D-L test in an article in the Bulletin on Narcotics, noting that test results depended heavily on the subjective judgment of the analyst — and thus could easily vary dramatically from lab to lab. “[A] positive test is not recorded until this colour has been identified,” he wrote, “and because it is almost impossible to describe in absolute terms it is best recognised by experience.” Moreover, he reported finding twenty-five plant substances that would produce a D-L test result barely distinguishable from that of Cannabis and cautioned that the D-L test “should never be relied upon as the only positive evidence.”
Several articles in the Journal of Forensic Sciences further disproved any claims that the test could specifically identify marijuana. A 1969 study in the journal reported false positive results from “a variety of vegetable extracts.” A 1972 study found that the D-L test would test positive for many commonly occurring plant substances known as resorcinols, which are found in over-the-counter medicines. For instance, Sucrets lozenges tested positive for marijuana. This study concluded that the D-L test is useful only as a “screen” test and was not sufficiently selective to be relied upon for “identification.” Still another study, in 1974, showed that 12 of 40 plant oils and extracts studied gave positive D-L test results.
In 1975, Dr. Marc Kurzman at the University of Minnesota, in collaboration with fourteen other scientists, published a study in The Journal of Criminal Defense that concluded: “The microscopic and chemical screening tests presently used in marijuana analysis are not specific even in combination for ‘marijuana’ defined in any way.” In the 35 years since that study was published, no one has ever refuted this finding.
Indeed, recent research has confirmed Kurzman’s findings. In 2008, Whitehurst, the chemist and former FBI agent, substantiated Kurzman’s findings in an article in the Texas Tech Law Review. That same year, Dr. Omar Bagasra, director of the South Carolina Center for Biotechnology, conducted experiments in his lab also demonstrating that the D-L test is nonspecific and renders false positives. Bagasra, too, has impeccable credentials — he’s a leading pathologist and a board-certified forensic examiner.
A number of high courts have been persuaded by this evidence, and have found that the D-L test does not prove the presence of marijuana in a seized substance. In 1973, the Supreme Court of Wisconsin ruled that the D-L test “standing alone is not sufficient to meet the burden of proving the identity of the substance beyond a reasonable doubt.” The court specifically noted that the D-L field tests used in this marijuana possession case “are not exclusive or specific for marijuana.”
Similarly, in 1979, a trial judge in North Carolina blocked the marijuana conviction of Richard Tate, which was to be based on positive D-L test results. In this case, too, the trial judge found that the D-L test was “not specific for marijuana” and had “no scientific acceptance as a reliable and accurate means of identifying the controlled substance marijuana.” On that basis, the judge allowed the defendant to suppress the use of the test results as evidence. This finding was upheld by the North Carolina Supreme Court, which found that D-L test “was not scientifically acceptable because it was not specific for marijuana” and thus “the test results were properly suppressed.”
Also in 1979, the U.S. Supreme Court in Jackson v. Virginia ruled that the results of nonspecific tests could not be the basis for prosecution or conviction. In other words, if the only evidence is a positive D-L test, then the case must be dismissed.
As noted, even the test’s manufacturers do not claim that their product can definitively identify marijuana. The literature accompanying NIK’s NarcoPouch 908 cautions, “The results of a single test may or may not yield a valid result… There is no existing chemical reagent system, adaptable to field use, that will completely eliminate the occurrence of an occasional invalid test results [sic]. A complete forensic laboratory would be required to qualitatively identify an unknown suspect substance.”
Shoddy Science
Shoddy science, though, has muddied the waters. Several studies claim, falsely, to have validated the specificity of the D-L test. For instance, a seemingly authoritative 2000 study funded by the National Institute of Standards and Technology (NIST) purported to have validated the capacity of the D-L test to specifically and definitively identify marijuana. The title of the article, published in Forensic Science International, “Validation of Twelve Chemical Spot Tests for the Detection of Drugs of Abuse,” misstated the researchers’ actual findings. In fact, the study’s authors found that the twelve tests it analyzed, including the D-L, were nonspecific. “The tests,” they wrote, “are not always specific for a single drug or class.” Speaking of the D-L test, they wrote that “mace, nutmeg and tea reacted with the modified Duquenois-Levine,” meaning that they produced false positives. They also noted, echoing Maunder’s 1969 article, that the D-L test is subjective: “The actual color…may vary depending on many factors [including] the color discrimination of the analyst.”
The best-known D-L “validation” study, and thus the most damaging to defendants, was published in 1972 by John Thornton and George Nakamura in Journal of Forensic Science Society. It instantly made the D-L test the gold standard across the country for marijuana identification. But just like the NIST study, this report is internally contradictory and scientifically flawed. On the opening page of this article, the authors state that the D-L test is a “confirmation” test for marijuana. Such a test must be capable of proving the presence of the drug beyond a reasonable doubt, specifically identifying the drug to the exclusion of all other possible substances and producing neither false positives nor false negatives.
However, the researchers’ own findings contradict their conclusion and show instead that the D-L test merely screens for marijuana. The authors themselves reported that the D-L test gave false positives and was not a confirmatory test even when cystolithic hairs — visible on the leaves of marijuana and other plants — are found on the suspected substance. They claimed that “the Duquenois-Levine test is found to be useful in the confirmation of marijuana” when cystolithic hairs are observed “since none of the 82 species possessing hairs similar to those found on marijuana yield a positive test.” The problem is, as the authors noted, there are hundreds of plants with cystolithic hairs that they did not test, making their sample of eighty-two species woefully inadequate. In effect, they admitted that the botanical exam itself was nonspecific. Combining two nonspecific tests does not make a specific, confirmatory test, as the D-L and the botanical exam both could easily render false positives.
Without having proved specificity, the authors nevertheless claimed it: “The specificity of the Duquenois reaction has been established, empirically at least, over the past three decades. No plant material other than marijuana has been found to give an identical reaction.” They also noted its widespread use as if it were proof of its efficacy, mentioning that the D-L test was adopted as a preferential test by the League of Nations Sub-Committee of Cannabis and that a version of the test was proposed by the United Nations Committee on Narcotics as a specific test for marijuana. (The UN subsequently found that only gas chromatography/mass spectrometry analysis could affirmatively identify marijuana.)
Inexplicably, this Thornton-Nakamura study is cited by the Drug Enforcement Administration and labs around the country as justifying the use of the D-L test alone or in combination with the microscopic visual exam for proving the presence of marijuana in a seized substance. Even some courts have erroneously ruled that the D-L test is specific and confirmatory. The most egregious example occurred in 2006. U.S. District Judge William Alsup found the D-L test to be a specific identification test and declared, grandiosely: “Despite the many hundreds of thousands of drug convictions in the criminal justice system in America, there has not been a single documented false-positive identification of marijuana or cocaine when the methods used by the SFPD [San Francisco Police Department] Crime Lab are applied by trained, competent analysts.” In fact, according to an affidavit in that case from a senior criminologist at the SFPD, its lab had, for forty years, used the D-L test in combination with a botanical exam to identify marijuana — two nonspecific tests that can each produce false positives. (A spokeswoman says that current SFPD policy is to subsequently confirm these results with gas chromatography/mass spectrometry.)
In March 2009, a committee of the National Academy of Sciences, speaking of the D-L and other tests, called the analysis of controlled substances “a mature forensic science discipline”; “one of the areas with a strong scientific underpinning”; and an area in which “there exists an adequate understanding of the uncertainties and potential errors.” These incorrect assertions relied on assurances from government witnesses that “experienced forensic chemists and good forensic laboratories understand which tests (or combinations of tests) provide adequate reliability.” The committee’s main witness was Joseph Bono, the former director of a regional DEA lab, who had previously issued a sworn affidavit, referring to the D-L and other forensic tests, which asserted that “tests and instruments that are properly used by qualified forensic chemists are incapable of producing a false positive.” But experience and competence cannot make a test specific if it is not — nor can they make it immune from false positives.
In 2008, Senator Jim Webb, D-VA, said, in announcing a proposed bill, that “the criminal justice system as we understand it today is broken, unfair.” This unfairness is visible every day in the disparate and contradictory court decisions regarding the admissibility of D-L test results. Not only have courts contradicted one another on admissibility, but some courts have even chosen to admit the results of a D-L test while ruling that it does not prove the presence of marijuana beyond a reasonable doubt. This patchwork of admissibility means that a person in one state can be convicted of possessing marijuana on the sole basis of the D-L test while a resident of another state cannot.
In 1978, the Supreme Court of Illinois in The People of the State of Illinois v. Peppe Park illustrated this confused, unconstitutional state of affairs. In denying the admission of ipse dixit (“It’s marijuana because I say it’s marijuana”) reports, the court found that “police officers may not be presumed to possess the requisite expertise to identify a narcotic substance…because it simply is far too likely that a nonexpert would err in his conclusion on this matter, and taint the entire fact-finding process.” This court cited a study that found 241 incorrect identifications of marijuana by arresting police officers. Yet in the same decision, the court erroneously claimed that “to determine accurately that a particular substance contains cannabis, all that is necessary is microscopic examination combined with the Duquenois-Levine test.”
Challenging the Test
Robin Rae Brown never even faced trial on marijuana possession charges. After she was released from jail, she retained this author as a defense expert. When I first spoke with her attorney, Bill Ullman, he had never heard of the D-L test and said he normally plea-bargained cases like Robin’s. I urged him to challenge the test and provided him with several scientific studies cited in this article, relevant court decisions, including Jackson v. Virginia, and other information. When Ullman made inquiries, he discovered that the sheriff’s department had never performed a lab test to confirm his field test results. Robin, he discovered, had been charged with a felony solely on the basis of the D-L test and Officer Raimondi’s “opinion.”
At Ullman’s insistence, the sheriff’s department finally performed a gas chromatography/mass spectrometry (GC/MS) analysis on Robin’s smudge, which came out negative. State Attorney Berki Alvarez immediately dropped the charges against her, noting to Ullman, “the scariness that a person could be arrested under such conditions.”
Even scarier was the lab’s revelation that it does not conduct GC/MS analysis until just before a trial, as most marijuana possession defendants plea bargain before the trial. If Robin had accepted a plea bargain, she would have been wrongfully convicted and saddled with a criminal record that could have damaged her future job prospects. How many others before and since have accepted plea bargains based on false positives from a D-L test?
“I am just now willing to share this story,” Robin wrote months after her arrest, “because it was embarrassing and I didn't want to worry my family and friends.” After some serious thought, she recently decided to file a lawsuit for wrongful arrest. “I would like to see them stop using the bogus field tests and to improve their procedures at the county crime lab,” she says. “I would like the public to be aware of the faulty field tests.”
In truth, everyone arrested on marijuana charges has a Constitutional right to a GC/MS analysis. Otherwise, they are being denied both due process and a fair trial. “It is not only unnecessary for the courts to continue to accept conclusory drug identifications based on nonspecific tests, it is also unwise for them to do so,” wrote Edward Imwinkelried, a professor of law at the University of California at Davis whose work on scientific evidence has been cited by the Supreme Court. “Conclusory drug identification testimony is antithetical and offensive to the scientific tradition, and courts should not allow ipse dixit to masquerade as scientific testimony… Even more importantly, sustaining such drug identifications places a judicial imprimatur on testimony that cannot justifiably be labeled scientific. The rejection of such identifications is necessitated not only by due process but also by the simple demands of intellectual honesty.”
Sustaining evidence from nonspecific tests like the D-L, he concludes, “is both bad science and bad law.”
This article was reported in collaboration with The Investigative Fund at The Nation Institute.
John Kelly is a court-certified expert witness on drug tests and author of 'False Positives Equal False Justice' and the forthcoming book, 'How to Obtain a Pretrial Dismissal of Marijuana Charges or an Acquittal.' He can be contacted at: kjohn39679@aol.com.
http://www.alternet.org/story/147613/has_the_most_common_marijuana_test_resulted_in_tens_of_thousands_of_wrongful_convictions?page=1
More than 800,000 people are arrested on marijuana charges each year in the United States, many on the basis of an error-prone test.
July 28, 2010 |
Raised in Montana and a resident of Alaska for 18 years, Robin Rae Brown, 48, always made time to explore in the wilderness. On March 20, 2009, she parked her pickup truck outside Weston, Florida, and hiked 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.” For that purpose, 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, she told me, and believe that it can carry their prayers to the heavens.
As darkness approached, she returned to her pickup truck to find Broward County’s Deputy Sheriff Dominic Raimondi and Florida Fish and Wildlife’s Lieutenant David Bingham looking inside the cab. The two men asked what she was doing and when she said she had been bird watching, Bingham asked whether she had binoculars. As she opened her knapsack, Officer Raimondi spotted her incense and asked if he could see it. He took the bowl and incense, asking whether it was marijuana. “No,” she recalls saying. “It’s my smudge, which is a blend of sage, sweet grass, and lavender.” “Smells like marijuana to me,” said Raimondi, who admitted he had never heard of a smudge stick. He then ordered Robin to stand by her truck, while he took the incense back to his car and conducted a common field test, known as a Duquenois-Levine, or D-L, test. The result was positive for marijuana.
Robin protested, telling them the smudge was available for purchase online for about $7 and gave them the name of a Web site that sold it — information Officer Bingham used his laptop to verify. But the men still searched her truck. After an hour and a half they finally allowed Robin to go home and told her that if a lab test confirmed the field test results, a warrant would be issued for her arrest.
Exactly 90 days later, Robin was arrested at the spa in Weston, Florida where she has worked as a massage therapist for three years. She was handcuffed in front of clients and co-workers, and charged with felony possession of marijuana. She was brought to a local police precinct in the town of Davie where she was booked and held for three hours. Unable to post the $1,000 bail because she was not allowed to call her boyfriend Michael, she was transferred to the Women’s Correctional Facility in Pompano Beach. At no time was she read her rights.
Five hours after her arrest, she was finally allowed a brief phone call and left a message for Michael to post her bail. At the jail, a female officer came in and told Robin to take off all her clothes. She had already been searched at the precinct station and had her shoes, socks and bra confiscated. “I’m on my period,” she said. “I don’t care,” said the officer, who ordered her to pull her underwear down to her ankles, squat over the floor drain and cough. The following morning at 4:30 a.m. she was released onto the streets of Pompano Beach with no idea where she was.
The next day, Robin found a lab and submitted to voluntary hair and urine tests. These came back clean. She had previously worked for 16 years as a transportation systems specialist with the Federal Aviation Administration, a job that required airport security clearances, so drug tests were nothing new to her. During those years, she was frequently required to pass random drug and alcohol tests.
She later learned that her incense had never been subjected to a confirmatory lab test. She had been arrested and jailed solely on the basis of her positive D-L test results.
The Preferred Test for Marijuana
The Duquenois test was developed in the late 1930s by a French pharmacist, Pierre Duquénois, while he was working for the United Nations division of narcotics. In 1950, he completed a study for the UN which claimed that his test was “very specific” for marijuana; it was adopted by the UN and crime labs around the world as the preferred test for marijuana.
After undergoing several modifications, including the use of chloroform, the test became known as the Duquenois-Levine test, and became widely popular. Though scientists would show in the 1960s and 1970s that the D-L test was nonspecific, meaning it rendered false positives, it remains today the most commonly used test for marijuana — used in many of the 800,000 marijuana arrests that take place each year.
The test is a simple chemical color reagent test, easy to perform but difficult to interpret. To administer the test, a police officer simply has to break a seal on a tiny micropipette of chemicals, and insert a particle of the suspected substance; if the chemicals turn purple, this indicates the possibility of marijuana. But the color variations can be subtle, and readings can vary by examiner.
The field test kits are produced by a variety of manufacturers, the most popular brands being NIK and ODV. Literature about the D-L from NIK’s makers states that it is only a “screening” test that “may or may not yield a valid result” and may produce “false positive results.” Yet, since at least 1990, arresting officers, with the support of prosecutors, have regularly bypassed lab analysts and have purported to identify marijuana at hearings and trials only on the basis of visual inspection and the nonspecific D-L field test. And the manufacturers have taken note.
In 1998, ODV reported in its newsletter with seeming satisfaction that a growing number of police departments were using its D-L field test, marketed as the NarcoPouch, as “their sole method of testing and identifying Marihuana [sic]… To have Officers properly trained in identifying Marijuana and taking the Crime Lab out of the loop is a tremendous cost saving venture for the State…and gives the individual Officers testing the material a greater sense of satisfaction in completing their own cases” (emphasis added). NIK, too, argued that depending exclusively on D-L field tests saves time and money. “Crime laboratories are so busy that drug tests take too long,” NIK states on its website. “With the cooperation of the Prosecuting Attorney, many police agencies have turned to presumptive drug testing. If the results indicate that an illegal substance is present, criminal charges may be filed.
In June 2006, the Virginia legislature went so far as to pass “emergency regulations” permitting law-enforcement officers to testify at trial for simple possession of marijuana cases solely on the basis of a D-L field test. Prior to these regulations, officers had to send suspected material to an approved lab for testing. Nothing in the new legislation specified that the field tests used had to be specific, or even accurate. Frederic Whitehurst, a North Carolina-based defense attorney and former FBI special agent with a doctorate in chemistry, considers the law to be an unconstitutional usurpation of the authority of the courts to determine what test results can be admitted as valid evidence.
The trend toward police officers using the D-L as a confirmatory test has been encouraged by the National Institute of Justice, an agency of the Department of Justice which has funded programs to transform police officers into court experts, based on their use of these faulty field tests. One such ongoing program for the Utah police claims to offer, in four days, “the necessary training” to positively identify marijuana, which would allow officers to serve as “expert witnesses in the courtroom setting.” The program briefly covers the “botany, chemistry and analysis of marijuana preparations,” after which police officers, including street detectives and crime scene lab personnel, “will assume responsibility for all of their agency’s marijuana submissions.” By the end of 2005, such submissions became the exclusive provenance of the Utah officers who had attended the training, and suspected marijuana samples were no longer accepted at the state lab for processing.
In 2009, the Georgia Bureau of Investigation trained more than 1,600 police officers in the use of the D-L test, resulting in a 98 percent reduction in the use of marijuana lab tests. This troubling program garnered the bureau a 2009 Vollmer Excellence in Forensic Science Award by the International Association of Chiefs of Police.
Test 'Should Never Be Relied Upon'
Despite its widespread use, as early as the 1960s, the D-L test had been proven incapable of definitively identifying the presence of marijuana in a seized substance. A 1968 article in the Chemistry and Pharmacy Bulletin of Japan reported that the D-L tests “lack in adequate specificity.” In 1969, M. J. de Faubert Maunder, a chemist in the Ministry of Technology, a UK government agency, documented the unreliability of the D-L test in an article in the Bulletin on Narcotics, noting that test results depended heavily on the subjective judgment of the analyst — and thus could easily vary dramatically from lab to lab. “[A] positive test is not recorded until this colour has been identified,” he wrote, “and because it is almost impossible to describe in absolute terms it is best recognised by experience.” Moreover, he reported finding twenty-five plant substances that would produce a D-L test result barely distinguishable from that of Cannabis and cautioned that the D-L test “should never be relied upon as the only positive evidence.”
Several articles in the Journal of Forensic Sciences further disproved any claims that the test could specifically identify marijuana. A 1969 study in the journal reported false positive results from “a variety of vegetable extracts.” A 1972 study found that the D-L test would test positive for many commonly occurring plant substances known as resorcinols, which are found in over-the-counter medicines. For instance, Sucrets lozenges tested positive for marijuana. This study concluded that the D-L test is useful only as a “screen” test and was not sufficiently selective to be relied upon for “identification.” Still another study, in 1974, showed that 12 of 40 plant oils and extracts studied gave positive D-L test results.
In 1975, Dr. Marc Kurzman at the University of Minnesota, in collaboration with fourteen other scientists, published a study in The Journal of Criminal Defense that concluded: “The microscopic and chemical screening tests presently used in marijuana analysis are not specific even in combination for ‘marijuana’ defined in any way.” In the 35 years since that study was published, no one has ever refuted this finding.
Indeed, recent research has confirmed Kurzman’s findings. In 2008, Whitehurst, the chemist and former FBI agent, substantiated Kurzman’s findings in an article in the Texas Tech Law Review. That same year, Dr. Omar Bagasra, director of the South Carolina Center for Biotechnology, conducted experiments in his lab also demonstrating that the D-L test is nonspecific and renders false positives. Bagasra, too, has impeccable credentials — he’s a leading pathologist and a board-certified forensic examiner.
A number of high courts have been persuaded by this evidence, and have found that the D-L test does not prove the presence of marijuana in a seized substance. In 1973, the Supreme Court of Wisconsin ruled that the D-L test “standing alone is not sufficient to meet the burden of proving the identity of the substance beyond a reasonable doubt.” The court specifically noted that the D-L field tests used in this marijuana possession case “are not exclusive or specific for marijuana.”
Similarly, in 1979, a trial judge in North Carolina blocked the marijuana conviction of Richard Tate, which was to be based on positive D-L test results. In this case, too, the trial judge found that the D-L test was “not specific for marijuana” and had “no scientific acceptance as a reliable and accurate means of identifying the controlled substance marijuana.” On that basis, the judge allowed the defendant to suppress the use of the test results as evidence. This finding was upheld by the North Carolina Supreme Court, which found that D-L test “was not scientifically acceptable because it was not specific for marijuana” and thus “the test results were properly suppressed.”
Also in 1979, the U.S. Supreme Court in Jackson v. Virginia ruled that the results of nonspecific tests could not be the basis for prosecution or conviction. In other words, if the only evidence is a positive D-L test, then the case must be dismissed.
As noted, even the test’s manufacturers do not claim that their product can definitively identify marijuana. The literature accompanying NIK’s NarcoPouch 908 cautions, “The results of a single test may or may not yield a valid result… There is no existing chemical reagent system, adaptable to field use, that will completely eliminate the occurrence of an occasional invalid test results [sic]. A complete forensic laboratory would be required to qualitatively identify an unknown suspect substance.”
Shoddy Science
Shoddy science, though, has muddied the waters. Several studies claim, falsely, to have validated the specificity of the D-L test. For instance, a seemingly authoritative 2000 study funded by the National Institute of Standards and Technology (NIST) purported to have validated the capacity of the D-L test to specifically and definitively identify marijuana. The title of the article, published in Forensic Science International, “Validation of Twelve Chemical Spot Tests for the Detection of Drugs of Abuse,” misstated the researchers’ actual findings. In fact, the study’s authors found that the twelve tests it analyzed, including the D-L, were nonspecific. “The tests,” they wrote, “are not always specific for a single drug or class.” Speaking of the D-L test, they wrote that “mace, nutmeg and tea reacted with the modified Duquenois-Levine,” meaning that they produced false positives. They also noted, echoing Maunder’s 1969 article, that the D-L test is subjective: “The actual color…may vary depending on many factors [including] the color discrimination of the analyst.”
The best-known D-L “validation” study, and thus the most damaging to defendants, was published in 1972 by John Thornton and George Nakamura in Journal of Forensic Science Society. It instantly made the D-L test the gold standard across the country for marijuana identification. But just like the NIST study, this report is internally contradictory and scientifically flawed. On the opening page of this article, the authors state that the D-L test is a “confirmation” test for marijuana. Such a test must be capable of proving the presence of the drug beyond a reasonable doubt, specifically identifying the drug to the exclusion of all other possible substances and producing neither false positives nor false negatives.
However, the researchers’ own findings contradict their conclusion and show instead that the D-L test merely screens for marijuana. The authors themselves reported that the D-L test gave false positives and was not a confirmatory test even when cystolithic hairs — visible on the leaves of marijuana and other plants — are found on the suspected substance. They claimed that “the Duquenois-Levine test is found to be useful in the confirmation of marijuana” when cystolithic hairs are observed “since none of the 82 species possessing hairs similar to those found on marijuana yield a positive test.” The problem is, as the authors noted, there are hundreds of plants with cystolithic hairs that they did not test, making their sample of eighty-two species woefully inadequate. In effect, they admitted that the botanical exam itself was nonspecific. Combining two nonspecific tests does not make a specific, confirmatory test, as the D-L and the botanical exam both could easily render false positives.
Without having proved specificity, the authors nevertheless claimed it: “The specificity of the Duquenois reaction has been established, empirically at least, over the past three decades. No plant material other than marijuana has been found to give an identical reaction.” They also noted its widespread use as if it were proof of its efficacy, mentioning that the D-L test was adopted as a preferential test by the League of Nations Sub-Committee of Cannabis and that a version of the test was proposed by the United Nations Committee on Narcotics as a specific test for marijuana. (The UN subsequently found that only gas chromatography/mass spectrometry analysis could affirmatively identify marijuana.)
Inexplicably, this Thornton-Nakamura study is cited by the Drug Enforcement Administration and labs around the country as justifying the use of the D-L test alone or in combination with the microscopic visual exam for proving the presence of marijuana in a seized substance. Even some courts have erroneously ruled that the D-L test is specific and confirmatory. The most egregious example occurred in 2006. U.S. District Judge William Alsup found the D-L test to be a specific identification test and declared, grandiosely: “Despite the many hundreds of thousands of drug convictions in the criminal justice system in America, there has not been a single documented false-positive identification of marijuana or cocaine when the methods used by the SFPD [San Francisco Police Department] Crime Lab are applied by trained, competent analysts.” In fact, according to an affidavit in that case from a senior criminologist at the SFPD, its lab had, for forty years, used the D-L test in combination with a botanical exam to identify marijuana — two nonspecific tests that can each produce false positives. (A spokeswoman says that current SFPD policy is to subsequently confirm these results with gas chromatography/mass spectrometry.)
In March 2009, a committee of the National Academy of Sciences, speaking of the D-L and other tests, called the analysis of controlled substances “a mature forensic science discipline”; “one of the areas with a strong scientific underpinning”; and an area in which “there exists an adequate understanding of the uncertainties and potential errors.” These incorrect assertions relied on assurances from government witnesses that “experienced forensic chemists and good forensic laboratories understand which tests (or combinations of tests) provide adequate reliability.” The committee’s main witness was Joseph Bono, the former director of a regional DEA lab, who had previously issued a sworn affidavit, referring to the D-L and other forensic tests, which asserted that “tests and instruments that are properly used by qualified forensic chemists are incapable of producing a false positive.” But experience and competence cannot make a test specific if it is not — nor can they make it immune from false positives.
In 2008, Senator Jim Webb, D-VA, said, in announcing a proposed bill, that “the criminal justice system as we understand it today is broken, unfair.” This unfairness is visible every day in the disparate and contradictory court decisions regarding the admissibility of D-L test results. Not only have courts contradicted one another on admissibility, but some courts have even chosen to admit the results of a D-L test while ruling that it does not prove the presence of marijuana beyond a reasonable doubt. This patchwork of admissibility means that a person in one state can be convicted of possessing marijuana on the sole basis of the D-L test while a resident of another state cannot.
In 1978, the Supreme Court of Illinois in The People of the State of Illinois v. Peppe Park illustrated this confused, unconstitutional state of affairs. In denying the admission of ipse dixit (“It’s marijuana because I say it’s marijuana”) reports, the court found that “police officers may not be presumed to possess the requisite expertise to identify a narcotic substance…because it simply is far too likely that a nonexpert would err in his conclusion on this matter, and taint the entire fact-finding process.” This court cited a study that found 241 incorrect identifications of marijuana by arresting police officers. Yet in the same decision, the court erroneously claimed that “to determine accurately that a particular substance contains cannabis, all that is necessary is microscopic examination combined with the Duquenois-Levine test.”
Challenging the Test
Robin Rae Brown never even faced trial on marijuana possession charges. After she was released from jail, she retained this author as a defense expert. When I first spoke with her attorney, Bill Ullman, he had never heard of the D-L test and said he normally plea-bargained cases like Robin’s. I urged him to challenge the test and provided him with several scientific studies cited in this article, relevant court decisions, including Jackson v. Virginia, and other information. When Ullman made inquiries, he discovered that the sheriff’s department had never performed a lab test to confirm his field test results. Robin, he discovered, had been charged with a felony solely on the basis of the D-L test and Officer Raimondi’s “opinion.”
At Ullman’s insistence, the sheriff’s department finally performed a gas chromatography/mass spectrometry (GC/MS) analysis on Robin’s smudge, which came out negative. State Attorney Berki Alvarez immediately dropped the charges against her, noting to Ullman, “the scariness that a person could be arrested under such conditions.”
Even scarier was the lab’s revelation that it does not conduct GC/MS analysis until just before a trial, as most marijuana possession defendants plea bargain before the trial. If Robin had accepted a plea bargain, she would have been wrongfully convicted and saddled with a criminal record that could have damaged her future job prospects. How many others before and since have accepted plea bargains based on false positives from a D-L test?
“I am just now willing to share this story,” Robin wrote months after her arrest, “because it was embarrassing and I didn't want to worry my family and friends.” After some serious thought, she recently decided to file a lawsuit for wrongful arrest. “I would like to see them stop using the bogus field tests and to improve their procedures at the county crime lab,” she says. “I would like the public to be aware of the faulty field tests.”
In truth, everyone arrested on marijuana charges has a Constitutional right to a GC/MS analysis. Otherwise, they are being denied both due process and a fair trial. “It is not only unnecessary for the courts to continue to accept conclusory drug identifications based on nonspecific tests, it is also unwise for them to do so,” wrote Edward Imwinkelried, a professor of law at the University of California at Davis whose work on scientific evidence has been cited by the Supreme Court. “Conclusory drug identification testimony is antithetical and offensive to the scientific tradition, and courts should not allow ipse dixit to masquerade as scientific testimony… Even more importantly, sustaining such drug identifications places a judicial imprimatur on testimony that cannot justifiably be labeled scientific. The rejection of such identifications is necessitated not only by due process but also by the simple demands of intellectual honesty.”
Sustaining evidence from nonspecific tests like the D-L, he concludes, “is both bad science and bad law.”
This article was reported in collaboration with The Investigative Fund at The Nation Institute.
John Kelly is a court-certified expert witness on drug tests and author of 'False Positives Equal False Justice' and the forthcoming book, 'How to Obtain a Pretrial Dismissal of Marijuana Charges or an Acquittal.' He can be contacted at: kjohn39679@aol.com.
http://www.alternet.org/story/147613/has_the_most_common_marijuana_test_resulted_in_tens_of_thousands_of_wrongful_convictions?page=1
Subscribe to:
Comments (Atom)