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Over 20,000 Alcotests used in drunk driving convictions thrown out in New Jersey, and challenges to the convictions could follow


What you’ll read today

  • Spotlight: Over 20,000 Alcotests used in drunk driving convictions thrown out in New Jersey, and challenges to the convictions could follow

  • Lawsuit accuses a Louisiana police chief of punching a man and throwing his wife to the ground

  • With Democrats in control in New York, public defenders call for long-overdue reforms

  • Democratic sweep in Harris County, Texas, makes bail lawsuit settlement more likely

  • Missouri prosecutor will stop most marijuana possession prosecutions

  • Writings on the nightmare of prison life

In the Spotlight

Over 20,000 Alcotests used in drunk driving convictions thrown out in New Jersey, and challenges to the convictions could follow

Yesterday, the New Jersey Supreme Court—the state’s highest 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 is charged with falsifying records pertaining to machines in five counties from which these test results were obtained. People who pleaded guilty or were found guilty at trial at least in part based on the evidence of the test results can now challenge their convictions. [Nick Corasaniti and Sharon Otterman / New York Times]

Police across the country use breath test devices, known as breathalyzer machines, for measurements of alcohol levels that are then used as evidence against people suspected of driving under the influence of alcohol. The reliability of the machines rests on their accurate calibration—a process that includes ensuring that an ethanol solution within the machines is at the same temperature as human breath. Sgt. Marc W. Dennis of the state police, in his capacity as a coordinator for the agency’s Alcohol Drug Testing Unit, was responsible for twice-annual calibrations of the instruments. In 2016, Dennis was indicted on charges of neglecting to take required temperature measurements and having falsely certified that he followed the required calibration procedures. In yesterday’s ruling, the court deferred to the findings of a special master that the errors in the calibration process undermined the Alcotest’s reliability. [Nick Rummell / Courthouse News Service]

After Dennis’s indictment, the attorney general’s office informed court officials that 20,677 breath test samples taken from machines calibrated by Dennis had been used in driving under the influence cases in five New Jersey counties from 2008 to 2016. Eileen Cassidy, who pleaded guilty to driving under the influence in 2016, largely because of an Alcotest that showed her blood alcohol level to be over the limit, moved to withdraw her plea after her lawyer was informed that the breath test results in her case had been called into question. Cassidy was two weeks into an 18-month sentence at the time. Her conviction was vacated yesterday, eight months after she died of cancer. [Nick Corasaniti and Sharon Otterman / New York Times]

“For those cases already decided, affected defendants may now seek appropriate relief,” the court said in its decision. It also lifted a stay on cases that were on hold while the ruling was being considered. One lawyer told the New York Times that he anticipated a “hornet’s nest” in the courts in coming months because the court did not clearly define a category of cases for which convictions could be challenged and he doubted the state had accurate information on the number of affected cases. “The state at some point is going to notify people, but we don’t know if they are notifying the correct people,” he said. “I have zero confidence that the state knows who the affected people are.” [Nick Corasaniti and Sharon Otterman / New York Times] The affected machines were used in New Jersey’s Middlesex, Monmouth, Ocean, Somerset, and Union counties. [NBC New York]

Other states have also had to deal with the fallout from flawed breathalyzer evidence. In Massachusetts, after questions about the reliability of tens of thousands of breath tests from 2011 to 2017 came to light, defense attorneys and the state’s 11 district attorneys reached an agreement that the breath test results would not be used against anyone charged with and convicted of drunk driving between June 2011 and August 2017. Last October, public safety officials released a report saying the Office of Alcohol Testing, part of the state’s scandal-ridden crime lab, routinely withheld documents from defense lawyers over the course of a lawsuit brought to challenge the test results’ reliability, including evidence that breath test devices were not properly calibrated. While prosecutors agreed to excluding the breath test evidence through August 2017, defense attorneys also sought for it to be excluded until the alcohol testing office went through an accreditation process. The judge who will review the deal will make the decision about a final date for excluding breathalyzer evidence. [Travis Anderson / Boston Globe] Questions about the reliability of breath test results from machines used by over 400 law enforcement agencies statewide had already led to a 2017 court order excluding the results in more than 19,000 cases between 2012 and 2014. [Patrick Johnson / MassLive]

Stories From The Appeal

Surveillance video from September 2017 shows Golden Meadow, Louisiana, Police Chief Reggie Pitre grabbing Chloe Cortez’s neck after a fight with Cortez’s husband, Jason Cortez. [Screenshot from video]

Lawsuit Accuses a Louisiana Police Chief of Punching a Man and Throwing His Wife to the Ground. The chief in the small town of Golden Meadow then ordered another officer, who arrived later, to arrest the man. [George Joseph]

Stories From Around the Country

With Democrats in control in New York, public defenders call for long-overdue reforms: With New York’s executive branch and legislative bodies all securely in Democratic control for the first time in a decade, New York City’s five major public defender organizations are calling for criminal justice reforms that had stalled during Republican control of the state Senate. These include a number of far-reaching changes including a revision of the civil service law that has been used to shield NYPD disciplinary records from release; bail, speedy trial, and discovery reforms; legislation to prohibit solitary confinement beyond 15 days; the opportunity for parole release for anyone who is 55 or older and has been incarcerated for more than 15 years; and protection from deportation for undocumented immigrants convicted of misdemeanors. The organizations also call for a judicial warrant requirement for any courthouse arrests by ICE; the restoration of a free bus service for people visiting loved ones in prison; expanded visiting opportunities in state prisons; and the legalization of marijuana and vacating of past conviction. In a letter to the governor, the State Assembly speaker, and the senator set to be the next leader of the Senate, the groups say, “the time for meaningful reform has finally come,” to address “the profound injustices that Albany has permitted to exist for decades, while other states have taken action to help fix the problems.” [Ken Lovett / New York Daily News]

Democratic sweep in Harris County, Texas, makes bail lawsuit settlement more likely: Democrats ousted 15 incumbent Republican judges and the top county official in Harris County, Texas, last week. The election results have made a settlement in the long-running challenge to the county’s cash bail system significantly more likely. Fourteen of the 15 judges who were voted out had opposed reforms to the bail system and fought the lawsuit even after a federal judge ruled that the county’s bail practices discriminated against poor people. Among the Democrats elected were several who had made bail reform central to their platforms. Franklin Bynum, elected last week as a misdemeanor judge, told the Houston Chronicle that “[i]t was this lawsuit that originally inspired me to run for judge” and that the newly elected judges who campaigned on promises of reform would not be “defending the indefensible.” [Gabrielle Banks / Houston Chronicle] See also Our Nov. 8 newsletter looked at how Democrats running for seats on the bench were among the beneficiaries of massive turnout among Texas Democrats.

Missouri prosecutor will stop most marijuana possession prosecutions after vote to legalize medical marijuana: After a statewide vote to legalize medical marijuana by constitutional amendment, the chief prosecutor of Jackson County, Missouri, Jean Peters Baker has announced that her office will stop prosecuting most marijuana possession cases. The policy as announced does allow for several exceptions, including allowing for the continued prosecution of people who sell or distribute marijuana “without proper authority,” possession of items “that are routinely associated with the illegal sale or distribution of marijuana,” such as individually packaged bags of the drug, or a scale; cases where large amounts of cash or firearms are found; and cases in which the possession of marijuana results in “drugged driving or where possession of marijuana results in harm to a child.” Peters Baker noted that 3 out of 4 voters had supported passage of the medical marijuana amendment and told the Kansas City Star that the “mandate from voters is directing this shift in our office.” The Jackson County sheriff supported Peters Baker’s decision calling it “bold and progressive” and said the sheriff’s office will adjust its arrest practices accordingly “to make sure nobody will get falsely arrested.” [Tony Rizzo and Glenn E. Rice / Kansas City Star]

Writings on the nightmare of prison life: The American Prisoner Writing Archive (APWA), which began with an overflow of submissions for an essay collection, now holds 1,600 essays by people incarcerated in U.S. prisons, making it, according to The Nation, “the largest and first fully searchable archive of nonfiction writing” of those currently incarcerated. The essays describe the nightmare of life behind prison walls—brutality, assault, and rape; corruption and cover-ups; pervasive racism; suicide and the persistence of slavery in prison—and seem destined to expose the truths about our system of incarceration in the way that the slave narratives of Frederick Douglass, Sojourner Truth, and so many others, exposed the lie of white slave owners’ narratives about slavery. The Nation has published five essays from the collection. Robert S. Morales’s “The New Death Penalty” describes the cruelties of life sentences. Morales talks about watching “my old friend, Anthony Alexander Alvarez, now eighty three years of age languish in a dungeon cell” and describes Anthony’s “gnarled and weathered hand (dappled with liver spots)” as it strokes a gopher, another creature who “also lives underground.” In another essay, Billy Gomez addressed “Dear American Justice.” Gomez talks about becoming an “inner city statistic” at the age of 17 and how, despite maturing and learning from past mistakes, “in the eyes of so many, including your eyes, I will always be considered Inmate Number 22090-069.” [Ella Fassler / The Nation]

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