Test (n.) – the means by which the presence, quality, or of anything is determined; a means of trial (from dictionary.com)
During law school and also during bar exam preparation, I often lamented that the tests I had to take failed to determine the quality of my ability to do anything other than take that test. The same complaint often arises in the debate over standardized testing as a measure of the quality of schooling children receive. In educational settings, the consequences of poorly crafted tests are no doubt important issues to consider, but I don’t write about education policy or legal academia. In the world of criminal “justice”, when tests are poor indicators of the thing they are supposed to prove, innocent people go to jail.
Many of the tests and methods (even the ones you see on stupid TV dramas) known to us as forensic “science”, in reality, prove nothing at all. Today’s topic, one sure to be the first of many on the failings of forensic methods, concerns anyone who ever has any item of any kind in their possession. Everyone else, feel free to stop reading now.
On the off chance that you are still reading because you do happen to have stuff, you should be aware of the possibility that your stuff is going to get you in trouble.
Meet Robin Brown, who was arrested at her place of work three months after some genius with a badge ran a field test on a substance in her possession. A prosecutor ordered her arrested without ever having the substance tested in an actual lab by someone with a degree, or even someone with at least a beaker and a lab coat. So with the blessing of a briefcase-toting genius, the badge-sporting genius showed up at Robin’s workplace and in front of her customers, boss, and co-workers hauled her away in handcuffs. She was taken to jail where she spent the night after being strip-searched and cavity searched by some other (hopefully female) badge-toter. She was released onto dark unfamiliar streets after her boyfriend posted $1000 bond around 4 the next morning. (At least she didn’t get billed for the cavity search).
So what was this nefarious substance for which Robin was subjected to this kind of treatment? A smudge stick she had purchased for $7 at an airport gift shop. Made from sage, sweet grass (which Wikipedia just informed me can be a cannabis colloquialism), and a hint of lavender. Which is exactly what, according to another article, she says she told the police. The officer who arrested her had never heard of a smudge stick and he said “smells like marijuana to me.” I’m not sure why he needed to get any more scientific than that, but he went ahead and field tested the stuff, and the field test confirmed his suspicions, which is what police like for their tests to do. Later, Robin’s defense attorney demanded that some sort of science be applied to the process, and a lab (probably independent) deducted that the smudge stick was indeed a smudge stick, and not marijuana.
Okay, so a smudge stick might smell a little like marijuana to an untrained or COMPLETELY BIASED nose, and some of you, like the policeman in the story, have never even heard of such a thing. Besides, she only spent one night in jail for her completely legal possession of a completely legal substance. Not too scary, you might say.
Now meet Janet Goodin, a sweet-looking Minnesota grannie whose lovely photo I would reproduce here if only I didn’t need to pay for the rights. In April, Ms. Goodin ran into trouble when Canadian border police searched her van as she crossed on her way to a bingo night with her daughters. The Canadian border thugs found an old bottle of motor oil in her van that for some reason needed field testing, and the test told them the bottle contained heroin. She, like Robin, protested that the substance was actually what the substance was, of course to no avail. She was arrested, handcuffed and taken to jail where she was strip-searched. (Sound familiar?) Ms. Goodin was also cuffed a second time when the Mounties (bet I don’t get to fit that into a lot of posts) took over the case. Ms. Goodin spent TWELVE DAYS in jail before a real lab performing a real test determined that, lo and behold, the motor oil was motor oil.
These two stories are just the tip of the iceberg. Field drug test kits, used by police hundreds of thousands of times each year, have produced false positives for all kinds of stuff. The Agitator, Radley Balko, in his article about Robin Brown’s run-in with the field test, links to stories of false positives for stuff like “chocolate chip cookies; deodorant; billiards chalk; Dr. Bronner’s Magic Soap; patchouli, spearmint, and eucalyptus; and breath mints.” The Alternet article on Robin Brown discusses how actual science has been disproving the reliability of these tests for over 40 years now and how even the manufacturers admit their unreliability. But for some reason stories like Brown’s and Goodin’s continue to occur.
Why, you might ask, do police and prosecutors continue to base arrests and even criminal prosecutions on tests that, due to frequent false positives, prove absolutely nothing? The answer is pretty simple. It’s because the tests say whatever they want them to (which is also true of most forensic “science”) and because no one has told them to stop. As long as they keep getting away with it, there is zero incentive for the dark side to turn away from these highly self-serving field kits.
In many cases, actual lab results will lead to dismissal of criminal charges, but not until after the stuff-possessing person has been at minimum arrested and strip searched. Because police are generally immune from liability for this sort of thing, any downside to field testing is virtually nonexistent. Worse, there are still courts that allow field test results into evidence in criminal cases, so the upside for police and prosecutors is huge.
So, until courts stop letting this shit into evidence, and until police and prosecutors face some sort of penalty for relying on this shit to screw over innocent people, I guess the moral of today’s story is to stop having stuff. You may argue that you like your stuff, you want your stuff, or even that you need your stuff. You may even be stubborn enough to hang onto your stuff despite the obvious risk.
But you can’t say that I didn’t warn you.
H/T to Rob Parker and The Agitator