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.
And unfortunately, this is the normal standard procedure: every day in courts around the country, defense lawyers play chicken with the government; the defense exercises its confrontation clause rights and insists that the government call the chemist hoping for a no-show, but doesn’t do anything when she does show. The government (and frankly, most judges) would prefer that we just trust the black box of its pseudo-science: this is X drug, because we, the experts, say so.
Civil lawyers intuitively know that experts are fallible, usually in favor of the party paying, and judges also know to treat expert testimony in civil cases with skepticism. But this skepticism goes out the window in criminal cases. If the forensic crime lab scandals of the past few years have taught us nothing else, it’s that we can’t trust the government’s “scientific experts” to be unbiased. Defendants, our clients, deserve more.
In the recent Massachusetts forensic crime lab scandal, Annie Dookhan, a drug chemist, is believed to have falsified test results for many years – this chemist was responsible for the tests of 60,000 samples in 34,000 criminal cases. Many of those cases resulted in convictions (1,141 inmates have been identified so far). Could better cross-examination have helped uncover her fraud more quickly?
This is something that’s easy to question in hindsight, but it’s hard to see how we as defense lawyers can go wrong if we “QUESTION EVERYTHING”, as my new hero Bryan Brown says.*
So, where to start? Another new hero, Justin McShane, publishes tons of free information on the science, or lack thereof, behind drug testing. There’s lots of fodder for cross-examination there. I am finding that our local DEA lab doesn’t even want to disclose its practices and standards, so that’s something we get to fight about. I can also highly recommend Jim Shellow’s book, Cross-Examination of the Analyst in Drug Prosecutions. Shellow also wrote an article for the Champion (membership req’d) suggesting that defense lawyers call analysts out for not using the computer matching that most GC/MS machines can do, but rely on subjective spectra matching. Shellow was cited by Scalia in the prophetic Melendez-Diaz v. Massachusetts majority opinion.
I have a recent cross-examination outline you can use (please send suggestions if you see areas for improvement). The funny thing is that since I have started pushing on these issues, I can’t seem to get a drug case to trial. I’m not reading too much into it, but I can’t see how one can go wrong by being ready to force the government to prove its case. It’s what my clients want from me.
* Bryan Brown is one of the primary lawyers responsible for blowing the lid off of the breathalyzer scandal in DC, so to speak.