Jan 17, 2019

What you’ll read today

  • Spotlight: Mass injustice: Judge says breathalyzers cannot be used in Massachusetts until they are proved accurate

  • Justice in America: Public Defenders on the Front Lines

  • Barr seems no better than Sessions on criminal justice

  • California’s controversial bail overhaul is delayed until 2020

  • Supreme Court says pickpocketing can be a violent felony, and Roberts joins dissent

In the Spotlight

Mass injustice: Judge says breathalyzers cannot be used in Massachusetts until they are proved accurate

Every day, defense attorneys across the country meet with people charged with driving while intoxicated, possession of a controlled substance, and other crimes that involve lab testing. Some of the people charged tell their lawyers that they weren’t drunk, or that the substance was baby powder, or an herbal remedy, or cotton candy. The lawyer might believe the client, or might not, but either way, he or she will say something along the lines of, “OK, I hear you, but the lab results say you are guilty, and juries tend to believe lab results over defendant testimony.” The defendant, in most cases, will choose to plead guilty, or will take the case to trial, and get convicted. But a shocking number of those defendants are telling the truth. State scientists who test this kind of evidence have intentionally or negligently produced thousands of questionable or false results. 

In 2017, a Massachusetts judge ruled that because of lax state protocols for calibrating breathalyzer machines, thousands of convictions for driving under the influence in the state could be invalidated. District Court Justice Robert Brennan ruled that a lack of reliable standards by the Massachusetts Office of Alcohol Testing meant that any breathalyzer test calibrated between June 2012 and September 2014 could not be used to prosecute anyone, unless the prosecution proves that that particular test was properly calibrated. “In the absence of written protocols, it cannot be assumed that any particular calibrator understood or routinely applied the proper standards in calibrating a device,” Brennan wrote. The lawsuit directly affects 535 cases, but 2,000 to 3,000 other cases have been postponed until the issue is resolved. [Shira Schoenberg / The Republican]

The test at issue is the Alcotest 9150, the only breathalyzer test used in Massachusetts, which uses a technology dating back to the 1970s to determine a person’s blood alcohol content based on a measurement of alcohol in a person’s breath. The court found that the use of breath tests remains sound science, but the Office of Alcohol Testing had managed the breathalyzers irresponsibly. Until 2014, there were no written policies covering the responsibilities of office scientists or the management of the equipment, and no written protocols for standard testing and calibration. Many crucial procedures, such as preparing breathalyzers, testing solutions, and quality control, were communicated informally through word of mouth. As a result, Brennan found that during that time, the state did not have a reliable method for calibrating the test. [Shira Schoenberg / The Republican]

Things only got worse: Later that year, the judge ordered the office to provide all calibration and certification worksheets for the test, and state officials provided 1,976 worksheets, but intentionally withheld 432 worksheets that showed failed calibrations. The technical head of the office was fired. The Executive Office of Public Safety and Security conducted an internal investigation of the Office of Alcohol Testing, and that investigation, as described later by Judge Brennan, “identified various instances of intentional withholding of exculpatory evidence, blatant disregard of court orders, and other errors, all underscored by ‘a longstanding and insular institutional culture that was reflexively guarded at OAT.’” Prosecutors later agreed not to use evidence from tens of thousands of drunk driving cases. [Shira Schoenberg / The Republican]

Last week, the judge ruled that evidence from breathalyzers can no longer be used as evidence, at least until the office undergoes major reforms and is able to demonstrate accurate results. Cases involving serious injury or death or where it is a person’s fifth offense are exempt from the ruling. Defense attorneys have long questioned the accuracy of alcohol breath tests, saying that improperly calibrated devices give improper results. The decision validates their position. “People go to jail, people lose their license, and the judge is essentially saying, if you’re going to be putting liberties at risk, you better be precise,” said defense attorney Joseph Bernard. Leonard Cohen, a Pittsfield defense attorney, said the decision “takes the breathalyzer and throws it out the window.” [Bob Dunn / Berkshire Eagle]

This is not the first instance of the state’s negligent handling of evidence leading to large-scale injustice. In 2011, state chemist Annie Dookhan was found to have fabricated drug test results, leading to tens of thousands of convictions being overturned. “The lab was shut down,” reported the Associated Press. “Another chemist, Sonia Farak, was fired and thousands of her cases dismissed after she pleaded guilty to drug possession and evidence tampering.” [Associated Press]

Other states have struggled with the reliability of their breathalyzer results. Two months ago, New Jersey’s Supreme Court unanimously ruled that breath test results used to obtain over 20,000 driving while intoxicated convictions were tainted and no longer admissible as evidence. A sergeant was charged with falsifying records. Thousands of people who pleaded guilty or were found guilty at trial can now challenge their convictions. [Nick Corasaniti and Sharon Otterman / New York Times]

Stories From The Appeal


Justice in America: Public Defenders on the Front Lines. In the Season 2 premiere of our podcast, Josie and Clint talk with Jon Rapping, the founder and president of Gideon’s Promise. [Josie Duffy Rice and Clint Smith]

Stories From Around the Country

Barr seems no better than Sessions on criminal justice: Much of the coverage of William Barr’s nomination for attorney general has focused on the potential effects on the Russia investigation, but as attorney general, Barr would have a lot of control over the federal criminal justice system. “If you were hoping that [Jeff] Sessions’s replacement would be better on criminal justice reform, Barr’s nomination should be of great concern,” writes German Lopez for Vox. During the 1990s, as attorney general, Barr helped implement ever-harsher criminal justice policies. He signed off on a report titled “The Case for More Incarceration.” He denied racial disparities and said that “our system is fair and does not treat people differently.” Barr said it was “simply a myth” that there were “sympathetic people” and “hapless victims of the criminal justice system” in prisons. Recently, he has opposed sentencing reform, criticized the Obama administration for investigating police abuses, and praised Sessions’s memo encouraging federal prosecutors to pursue harsher prison sentences in drug cases. “In his opening remarks at the Senate confirmation hearings, Barr vowed to ‘diligently implement’ the First Step Act but also affirmed his commitment to ‘keep up the pressure on chronic, violent criminals,’” writes Lopez. [German Lopez / Vox]

California’s controversial bail overhaul is delayed until 2020: California’s landmark law that overhauled the money bail system and provoked ire on the left and the right has been put on hold until voters decide its fate in November 2020. Bail industry associations, fighting to remain relevant, prevailed in their effort to delay implementation, but criminal justice advocates are not fighting to save the law in its current form because of concerns that without sufficient checks, it could result in more people incarcerated pretrial, not fewer. Senate Bill 10 relies heavily on risk assessment tools that have not yet been developed, and it gives judges tremendous discretion to decide who stays in jail pending trial. Reform groups opposed to SB 10 have distanced themselves from the bail industry’s referendum efforts, and are instead pushing for new court rules from the Judicial Council to prevent racial bias in the use of risk assessment tools. [Jazmine Ulloa / Los Angeles Times]

Supreme Court says pickpocketing can be a violent felony, and Roberts joins dissent: When people hear “violent felony,” they imagine the worst. But the Supreme Court found this week what many defense attorneys know: Violent felonies are often not very violent. The Court held that purse snatching and pickpocketing are violent felonies for the purposes of the Armed Career Criminal Act, a federal law that functions as a kind of three-strikes law. The question was whether minimal force was enough to qualify as violent. In this case, a defendant pleaded guilty to possessing a gun, and prosecutors sought a much longer prison sentence on the basis of prior “violent” convictions, which included snatching a necklace. Justice Clarence Thomas, writing for the majority, said, “The force necessary to overcome a victim’s physical resistance is inherently ‘violent.’” He was joined by Justice Stephen Breyer, who generally votes with the Court’s liberal wing, and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh. Justice Sonia Sotomayor dissented, saying that locking up such offenders for long periods does not advance public safety. “Under Florida law, ‘robbers’ can be glorified pickpockets, shoplifters and purse snatchers,” she wrote. She was joined by Chief Justice John Roberts, as well as Justices Elena Kagan and Ruth Bader Ginsburg. [Adam Liptak / New York Times]

Thanks for reading. We’ll see you tomorrow.

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