Tag Archives: Pre-trial

DEA Chemists: In Drug Cases, Sometimes They Just Make It Up

I have written before how in criminal drug prosecutions, the government analyst should be cross-examined  and their case file and other information should be requested to prepare a defense case. A colleague sent me a great example of this effort paying off.

D-L Color Test of Three Suspected Marijuana Samples

D-L Color Test of Three Suspected Marijuana Samples

A chemist at the DEA Mid-Atlantic Laboratory wrote in a report that three samples suspected to be marijuana turned purple in a Duquenois-Levine color test. The problem is that the picture of the test (not included in the report but in the analyst’s case-file) showed only one sample that might conceivably indicate the sample was marijuana (and even that one is weak). Continue reading

Who Cares Whether Urine Scores Are Reliable? DC Still Prosecuting Per Se Urine DUI Cases.

Even though everyone in the DC government, from the DC Council to the prosecutors at the Office of the Attorney General, knows that alcohol in the urine has a “loose correlation” to intoxication, that urinalysis is unreliable, people are still regularly prosecuted and convicted of driving under the influence (DUI) base on their urine scores.

Back in June of 2011, DC Chief Toxicologist Lucas Zarwell of the Office of the Chief Medical Examiner, stated under oath to the DC Council that urine testing cannot reliably determine impairment or blood alcohol levels. In response to a question from council member Phil Mendelson, Mr. Zarwell testified as follows:

MENDELSON. How accurate is urine testing for measuring blood alcohol content?

ZARWELL. It’s not.

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To the Permanent Resident Pleading Guilty to Drug Offense and Counting on Cancellation of Removal: Don’t

I was consulted on a case the other day where a person had pleaded guilty to misdemeanor possession (of something that’s not marijuana) over his lawyer’s warnings that it make him removable. The judge also (post-Padilla) made sure that the person knew that there could be immigration consequences. But all the person could hear was that the prosecutor would be asking for probation if he accepted the plea deal (which was also the likely sentence even after trial).

So you can guess what happened. After an ill-advised trip abroad, the person received a Notice to Appear in immigration court. As a legal permanent resident with medical issues, he was eligible for cancellation of removal (which he ended up getting, with a sympathetic judge). But it could easily have gone the other way. Cancellation is a discretionary remedy, which means that the judge could have denied it if he had a good reason to do so. Continue reading

In Drug Cases, Cross-Examine that “Expert”!

I was in court just before the Christmas break, waiting for a chance to talk to the clerk, and I got to see part of a colleague’s misdemeanor marijuana possession trial. I was very disheartened to see that when it came time for the DEA chemist’s testimony, the defense lawyer did not challenge her qualifications, did not challenge the identification of the seized evidence as marijuana, and did not cross-examine the chemist at all, not even to have the chemist at least list the procedures performed, etc. Continue reading

Ode to my Occupy DC Client

So over the last few weeks, I have seen more and more Occupy DC protesters being brought in to DC Superior Court, arrested for this and that. DC has a system where most people charged with misdemeanors will be released on personal recognizance – allowed to go home as long as they check in with pretrial services, and follow any other orders the judge feels necessary.  These orders are put in place at the time of arraignment.

All of the Occupy DC folks I saw come in have been ordered to stay away from the place where they were arrested, either McPherson Square or Freedom Plaza. I had not seen any of the defense attorneys object to this “stay away” order.  It occurred to me that the stay away is an underhanded attempt by police and prosecution to stifle the protest – to deprive the movement of its leaders (if you accept that’s who the police target), or even of followers.  If everyone has to stay away from the site of the protest, there is no protest.

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