Thursday, April 21, 2016

Examples of why you question the evidence used against you in a drug charge

First off I am happy to see that the word is getting out about questioning the evidence used against you for drug charges!  Over the last few years I have been using my blog, website, and social media to reach millions of people, and putting out the word that the police have been using junk science to convict people for drugs.


Recently, a crime lab in New Jersey has been busted for providing fraudulent  testimony regarding proper testing and proof that a substance is/was cannabis.



http://www.muni-mail.com/wp-content/uploads/2016/03/Fallonmemo.pdf     This is a PDF of allegations of wrong doing by State Lab Technician Kamalkant Shah.



"Mr. Shah was employed with the lab from 2005 to 2015; obviously all his “results” have been called into question. In Passaic County alone, the universe of cases possibly implicated in this conduct is 2,100."




Since this initial report it has ballooned to over 7,800.







Judy Fallon, D.P.D., the author of the PDF, also notably stated:



"Jon Iannaccone and I attended a meeting this afternoon with the management of the Passaic County Prosecutor’s Office, the criminal bench, and representatives of the private bar where it was disclosed that Laboratory Technician II Kamalkant Shah of the New Jersey State Police Laboratory (in Little Falls) has been found to have “dry labbed” suspected CDS specimens. Basically, he was observed writing “test results” for suspected marijuana that was never tested." 





The other gem the link provided was the possible ramifications of having to retest thousands of cases.



"The larger, and unanswered, question is how this impacts already resolved cases, especially those where the specimens may have been destroyed."




The memo also mentioned implications that the testing was not just for cases in that particular region. The lab received shipments for places out of their jurisdiction for testing as well.



"The Prosecutor’s Office has not formulated a policy or protocol yet to deal with these cases; they are still in the process of identifying them. I was told that the Little Falls laboratory is used by many other law enforcement agencies besides those in Passaic County."




Now, here is further proof that it is not just "one bad apple" Crime labs all over the country have been getting busted for providing false evidence to get prosecutions.



Michigan:



https://tribwxmi.files.wordpress.com/2015/12/nichols-nij-complaint.pdf   This PDF is a formal complaint against Michigan crime labs falsifying evidence to get convictions. The formal complaint was written by Attorney Michael Nichols.






Oregon: 

"A forensic analyst at a state police crime lab in Bend, Oregon, is under investigation for allegedly “skimming drugs” from controlled substance tests that were tied to nearly 1,000 drug-related cases going back to 2007."






Montana:







"BILLINGS - A former Montana Crime Lab employee is suspected of stealing drugs in as many as 50 cases, the Attorney General’s Office confirmed Friday.Steve Brester, a former Missoula Police Lieutenant, is under investigation by the state Department of Justice’s Criminal Investigation Division.Brester was employed with the crime lab as an evidence technician in September of 2014 and was terminated in June of 2015.Over the period of nine months that Brester worked for the crime lab, he’s accused of stealing pills that were submitted for evidence in a number of cases across the state."

Massachusetts:

 "Annie Dookhan was recently paroled after serving just two years of a 3-5 year sentence.Her crime?Routinely and brazenly fabricating evidence that potentially tainted 40,000 convictions in Massachusetts.Dookhan was a chemist who worked in a Massachusetts crime lab. Bright and ambitious, Dookhan was the equivalent of a drug testing rockstar. In 2004, her first full year in the crime lab, Dookhan conducted 9,239 drug tests, or triple the number of tests conducted by the other chemists in the lab. In 2005, her second year in the lab, Dookhan performed more than double the number of tests conducted by the lab’s next-most productive chemist, and outpaced the other chemists by nearly four times their mean testing results.The staggering numbers should have raised multiple red flags. But they didn’t. Not for almost a decade.In the years between 2003-2012, Dookhan was involved in tens of thousands of cases. In some cases, she did not perform drug tests but fabricated results. In others, she tampered with drug samples so they would test positive for illegal drugs when there were no illegal substances at all. And sometimes she would change the weight of tested drugs so that they would trigger more serious penalties.After several miscarriages of justice were revealed, Dookhan was arrested and, in 2013, pled guilty to a variety of charges, including tampering with evidence and filing false reports."
So, you see, it is not isolated to just one area.  It is a problem all over the country. State crime labs are becoming overwhelmed with having to back log cases to properly test them before a prosecution.  
North Carolina:
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Why does this matter?
Because the police use junk science to arrest you, and they do not have the capacity to properly test every drug case out there, so they still have to cheat to get the conviction. That is unless you question the evidence, and have it properly tested before you make a plea deal.  
The more that people do this the harder it will be for them to get convictions.
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Here is what Attorney Dr Fred Whitehurst has to say about drug testing in crime labs.
 Research in the subject of laboratory analysis and how it takes more than a simple field test to determine if a substance is actually marijuana. Surprisingly lawyers and judges rarely question the integrity of lab results and many people end up with criminal records

Instead of settling out of court, maybe these strategies will empower you to question the validity of how they go about testing marijuana and enforcing the law. If enough people are successful they will have no choice but to re-evaluate their stance on prohibition. Especially if they start losing more and more cases due to this strategy.

Take them to the task of proving what they have is actually marijuana. A sheriff with a field kit is not a botanist and just because it looks and smells like marijuana does not mean that it is. The burden of proof is on the prosecutor to prove it in fact actually is. If you can learn the facts behind their research and use it against them due to being unsatisfactory you got a shot at having your case dismissed.

Just because it walks like a duck and talks like a duck, does not mean you are a duck in the court of law. There are a lot of different ducks out there! Are you a mallard? How about a Muskogee?


If you take the time to read the Texas Tech PDF you will be amazed at the shortcomings of the research that was actually done to prove inconclusively that a substance is marijuana and no other type of "green, leafy, vegetable like substance that looks and smells like marijuana.

The laboratory protocols used to determine the forensic analysis of marijuana is not logical or valid. So take the time to read these PDF's and find out for yourselves why. Once you see the research I guarantee it will blow your mind.

Here is a good example of how the Texas Tech Law Review can help you.

According to North Carolina General Statutes 8-58.20 Forensic analysis admissible as evidence(My home state)

Sections B and C say:

(B) A forensic analysis, to be admissible under this section, shall be performed in accordance with rules or procedures adopted by the State Bureau of Investigation, or by another laboratory accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) for the submission, identification, analysis, and storage of forensic analyses. The analyses of DNA samples and typing results of DNA samples shall be performed in accordance with the rules or procedures of the State Bureau of Investigation or other ASCLD/LAB‑accredited laboratory.

(C) The analyst who analyzes the forensic sample and signs the report shall complete an affidavit on a form developed by the State Bureau of Investigation. In the affidavit, the analyst shall state (i) that the person is qualified by education, training, and experience to perform the analysis, (ii) the name and location of the laboratory where the analysis was performed, and (iii) that performing the analysis is part of that person's regular duties. The analyst shall also aver in the affidavit that the tests were performed pursuant to the ASCLD/LAB standards for that discipline and that the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory. The affidavit shall be sufficient to constitute prima facie evidence regarding the person's qualifications. The analyst shall attach the affidavit to the laboratory report and shall provide the affidavit to the investigating officer and the district attorney in the prosecutorial district in which the criminal charges are pending. An affidavit by a forensic analyst sworn to and properly executed before an official authorized to administer oaths is admissible in evidence without further authentication in any criminal proceeding with respect to the forensic analysis administered and the procedures followed.

Now also, since North Carolina is my state of residence I learned about corruption in the State Board of Investigations stated here in this article:

SBI veterans wrote and approved bad blood policy

Here are a few excerpts that are relative to where I am going with this.
For nearly two decades, the State Bureau of Investigation's habit of not reporting results of critical blood tests was unwritten and unofficial. Agent Duane Deaver, operating under unwritten orders, withheld test results that would have helped defendants such as Greg Taylor, who spent 17 years in prison for a murder he didn't commit.

Then, in 1997, the SBI put the practice in writing, and it didn't change.The task of writing the policy fell to Mark Nelson, a 25-year veteran agent who supervised and trained the agents who analyzed blood and DNA evidence. Nelson penned the policy that now is at the center of a controversy roiling the North Carolina criminal justice system.
That policy, approved by his superiors and then-SBI Director Jim Coman, embraced the practice of reporting positive results and withholding negative results, which favored the prosecution at the expense of defendants.

An outside audit of the unit Nelson trained and supervised found 229 cases where the bureau omitted or obscured critical test results from 1987 to 2003.

Nelson considered the primary consumer of the lab reports to be law enforcement, according to  the audit. Current lab managers and analysts told the auditors they had a different view - their scientific analysis is for the criminal justice system as a whole, not just police and prosecutors.Nelson's view also conflicts with the landmark 2009 study on forensic sciences by the National Academies, the nation's top advisory board on science and medicine. The report said forensic scientists should operate independently of law enforcement.

A recent News & Observer series reported that SBI lab analysts pushed past the accepted bounds of science to deliver results pleasing to prosecutors. They are out of step with the larger scientific community and have fought defense attorneys' requests for information needed to review the SBI's work.

So basically what you have here is shoddy unethical practices in the states investigative forensic laboratories putting out supposedly validated forensics work and helping get convictions favoring law enforcement.

It's out there that North Carolina' State Bureau of Investigation (SBI) has a record of unscrupulous practices in order to obtain convictions for many years. So basically it is not beyond a stretch of the imagination to honestly question the integrity of their forensic lab results.


The law NC General Statute 8-58.20 paragraphs b and c say that before you issue a forensic report you have to follow the requirements of the American Society of Crime Lab Directors-Lab Accreditation Group.  And you have to sign an affidavit that you ha
ve done just that.  In other words you have to swear under oath that you have done that and if you lie then you have committed perjury.


I wonder how many affidavits were signed off by the SBI and caused people to go to jail...


Now take the Texas Tech Law Review, if you take the time to read it and check its references you will find that it is up to the prosecution to validate their protocol. 

The bitch of it is though is that they actually cant! THERE ARE TOO MANY PLANTS TO CHECK OUT TO DETERMINE IF YOU HAVE IDENTIFIED MARIJUANA TO THE EXCLUSION OF ALL OTHER PLANTS! Out of the hundreds of thousands of plants out there on this planet, they have only tested 600 of them to see if they show up as positive for their field tests they use.
Its like filling up a 5 gallon bucket with only a drop of water and claiming that they can scientifically prove the bucket is full.
Defense attorneys need to learn how to start questioning lab results and not taking them as the gospel when they can easily be proven to be invalidated.
















Saturday, March 12, 2016

Reefer Madness II

REEFER MADNESS II
Written by: John Kelly

Controlled Substance Analogue Enforcement Act 
The DEA has ‘’identified” more than identified over 400 new designer drugs in the United States” while admitting that  ”many of the designer drugs being marketed today that were seized as part of Project Synergy are not specifically prohibited in the Controlled Substances Act (CSA), the Controlled Substance Analogue Enforcement Act of 1986 (AEA) allows many of these drugs to be treated as controlled substances if they are proven to be chemically and/or pharmacologically similar to a Schedule I or Schedule II controlled substance.” 
The DEA has never provided or published any proof that designer synthetic drugs are chemically or pharmacologically similar to illegal controlled substances. In a recent court case, the DEA refused to provide such proof even when ordered to do so by the court. Heather Harris, who was the defense expert in the case and is one of the top forensic chemists in the country, specializing in controlled substances, has written that: ”DEA can add whatever it wants to the controlled substance schedules as long as they follow the rulemaking process.  Are they deeming non-controlled substances as analogues without proof?  Sure, but this information is not available to the public.  It is not even really available to defendants.”
I did have a case recently plea that was an analog prosecution and the
> gov't never revealed which scheduled compound they were using for the
> analog comparison.  I told the attorney repeatedly that this should be
> challenged b/c it is ludicrous to charge and prosecute someone and never
> reveal the elements of the offense.  However, this was a juvenile and he
> needed finality more than justice I guess.
> It was a really sad case for this kid.  He worked as a clerk in the head
> shop that was selling massive amounts of bath salts.  He got swept up in
> the sting, charged with conspiracy and branded a felonious drug offender
> for the rest of his life.  All for a minimum wage job. HEATHER HARRIS
According to the DEA: ” Synthetic cannabinoids represent the most significant class of designer synthetic drugs.  According to the National Forensic Laboratory Information System (NFLIS), substances identified as synthetic cannabinoids by federal, state, and local forensic laboratories increased from 23 reports in 2009 to 32,784 reports in 2013; to 37,500 reports in 2014.”
In other words, thanks to a DEA ipse dixit, replete with anectdotal horror stories, reminiscent of Reefer Madness, there are now an additional 30,000+ marijuana convictions a year in the U.S., and the DEA’s sky’s the limit.
On April 26, 2012, Mahir Silmi and Mohammed Salem were indicted for trafficking and possession of Controlled Substances Analogues in Cuyahoga County, Ohio, and their attorney sought to exclude the lab reports as based purely on subjective observations. 
Judge John Russo agreed and excluded the lab reports. He ruled that: ”Looking at the theory, this Court finds no objective, reliable test in the current testing of potential analogs by the CCRFSL (Cuyahoga County Regional Forensic Science Laboratory). The vague and undefined term of ‘substantially similar’ left the CCRFSL to devise an unguided subjective testing procedure. . . .
”Both of the State’s witnesses, Mr. Boggs and Mr. Sran, admit the CCRFSL test is a subjective test. Paul Boggs explained the subjective nature of their lab’s testing of potential analogs, describing ‘[I]t is based on something. I t is just not based on something the way we would like it to be based on.’ There is no statewide or nationwide resource or protocol for this lab to draw from and no formal organization or guidance regarding the testing of potential analogs. This leads the Court to the conclusion the current testing of the CCRFSL is not objective or derived from well-known facts and principles. It has never been formally peer-reviewed and no error rate has ever been determined. . .
”The theory of ‘substantially similar’ is too vague to be properly implemented. The lab has been left  guessing if it is doing the right thing because there is no definition provide to it by any Federal or local government agency as to what ‘substantially similar’ means. CCRFSL was left to develop a test they hoped met this vague standard with no definition. . 
”. . .  it is hard to determine what would be an accurate result when there has been no peer review, no error rates determined, and no real comparison or common protocol even between counties in Ohio. This Court has no way to determine if there is general acceptance to this methodology because it has never been compared to any other lab’s methodology.”
Regarding the acceptability of controlled substance analogs evidence, the DEA is worse than the  Cuyahoga County Regional Forensic Science Laboratory The DEA maintains no database, protocols, or any formal organization or mechanism of standardization regarding the testing of potential analogs. The DEA has not tested or validated its method; published no peer-review studies or error rates; and, has not shown general acceptance of its method in the scientific community. The DEA does not even have protocols, the bread-and-butter of any lab.
According to DEA lab director, James V. Malone:”The  Mid-Atlantic Laboratory does not allow non-law enforcement visitors and has no established protocols, security personnel, or escort procedures in place. The Mid-Atlantic Laboratory also does not have observation rooms where outside personnel can view analysis. . .
”DEA's Standard Operating Procedures do not provide substantial information regarding what procedures a. chemist must follow in order to test a particular controlled substance. The DEA does not have such guidance set forth in one particular document type or "protocol" that would provide instruction on how one is to test cocaine or marijuana.”
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John Kelly, is a drug testing expert witness. He was nominated for a Pulitzer alongside Peter Wearne for a book titled. Tainting Evidence





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Killer Bud -   Thanks John Kelly, for keeping folks posted about keeping the science real.   

The test most commonly used by law enforcement is called the Duquenis - Levine test. If a substance is what it is supposed to be. the liquid inside the test turns blue. 

It has been scientifically proven to give false positives from a long list of things. It has shown positive for chocolate, Tylenol, sage, powdered sugar, to name a few.

Considering there are millions of species of plants, it is suspect that a drug field test can determine  a certain plant among-st all the other plant species out there, That was never done, they tested around 6000, but this is our governments assertion. 

The government claims that their test is infallible, because they claim that the field test  have been right 100% of the time when they do further analysis.

One one hand it gives false positives, yet they claim infallibility in courts.  It seems unfair and biased to say it works every time, when it was basically a shot in the dark.     

For more information, please check out John' Kelly's latest ebook   
Amazon: Prevent your wrongful conviction with simple evidence       

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