JURORS AREN'T SHAKEN BY FAKE-DRUG SCANDAL

They're Still Convicting, Though Rate Has Fallen Since January

In the months since the media fixated on a series of Dallas police cases
involving fake narcotics, prosecutors have quietly toiled in the courtroom,
racking up wins in their war on drugs.

For example, a Dallas County jury recently gave a life sentence and a
concurrent 25-year term to a defendant whom prosecutors called a major
North Texas cocaine trafficker.

A Dallas police narcotics detective made the cases in September and October
2000 with help from a confidential informant, called a "CI" in legal circles.

Prosecutors say it's the first recent life sentence in a drug case and
indicates that the ongoing fake-drug investigation hasn't shaken jurors'
faith in the Dallas Police Department or in narcotics prosecution in Dallas
County.

"If we put forward a credible case that proves the facts, the charge,
beyond a reasonable doubt, a jury is going to go with it," said Gregg Long,
chief of the Dallas County district attorney's organized crime division,
which handles drug prosecutions involving large amounts of narcotics.

"I think whether it's the Dallas Police Department or some other
jurisdiction - Irving, Garland - it doesn't matter [because] it's going to
depend upon how the detective comes across, how the CI comes across and the
facts presented. If it's well put together, juries are going to be more
receptive to it, and that's the way it should be," Mr. Long said.

Meanwhile, defense lawyers say they think jurors are more questioning of
evidence in all narcotics cases since the fake-drug cases first came to
light on Dec. 31. Their opinion seems to be supported by recent prosecution
statistics showing that the conviction rate in Dallas County's drug courts
has dropped about 10 percentage points since January.

The conviction rate in drug cases on average per quarter in 2001 was 90.5
percent; the conviction rate in drug cases during the first quarter of this
year was 80.8 percent.

"I think that people now are much more skeptical about what's placed before
them, and that's the way it should be," said Dallas defense attorney Kirk
Lechtenberger.

Mr. Long says it's too early to know whether the fake-drug cases will
affect the conviction rate long-term. "Whether or not that's substantial or
even meaningful is probably debatable," he said of the first quarter's
conviction rate.

Prosecutors and defense lawyers agree, however, that the county's drug
courts are running almost back to normal.

"I think logistically things are flowing better," Mr. Lechtenberger said.
"I think the right result is being done now, however that got to be."

The busier pace in drug court is a vast change from January and February.
Then, prosecution of many cases slowed as the district attorney's office
sought laboratory tests on every narcotics case and weeded out cases
involving two suspended Dallas police officers or the confidential
informants from the fake-drug cases. Area law enforcement agencies also
filed nearly 58 percent fewer drug cases in the year's first quarter as
officers awaited lab results on evidence.

The district attorney's office dismissed more than 70 Dallas police
narcotics cases after some evidence that field-tested positive for drugs
was found in later laboratory analysis not to be illegal substances.
Instead, the seized substance was identified as gypsum, a main ingredient
in Sheetrock or pool chalk.

Although two dozen cases involved fake or no drugs, the others were
dismissed because of questions surrounding Senior Cpl. Mark Delapaz and
Officer Eddie Herrera, who remain on paid leave, and their informants.
Targeted defendants were mostly Hispanic immigrants, many of whom speak
little or no English. Many sat in jail for months before their cases were
eventually dismissed. The FBI is conducting an investigation into the
questionable cases.

Amid the controversy, District Attorney Bill Hill instituted a policy
requiring all seized narcotics to be immediately tested by a laboratory.
Previously, seized drugs were tested only if cases were set for trial or if
a defense attorney insisted.

Defense attorneys say one of the frustrating results of the fake-drug cases
is that numerous defendants face higher-than-usual bail amounts and cannot
afford bail while awaiting lab test results. With lab tests taking up to
three months to process, several defense attorneys say they will ask judges
to set personal recognizance bonds for their clients.

"The fact that people are staying in jail longer is an ironic consequence
of the Sheetrock scandal," said Dallas defense attorney Dan Patterson.

He said that clients who were caught with small amounts of drugs and are
willing to plead guilty and get probation cannot get out of jail because of
the pending lab tests.

"It seems to me that things in drug court are pretty much
business-as-usual, for the most part - the exception being that with the
necessity of testing the drugs in every case, a lot of clients are staying
in jail longer than some of them would like to," Mr. Patterson said. "But
we all know ... [the testing] is necessary given the fake- drug scandal."

Meanwhile, in court, prosecutors and defense attorneys routinely ask
potential jurors about their familiarity with the fake-drug cases.
Prosecutors say they haven't had many jurors who say the cases have
affected their ability to serve.

"What we're always going to say [to jurors] is, 'Judge this case - just
like the defense attorney would ask you - based on what you hear in court
about this case'; that's the bottom line," Mr. Long said. "I think that
jurors are able to do that."

He thinks that a jury panel did just that in the recent life sentence case
involving Wayne Smith, 50. One of Mr. Smith's drug buys involved 500 grams
of cocaine; the other involved nearly 2 kilos of cocaine. He had previously
been caught with $94,000 in cash while trying to buy 5 kilos of cocaine in
1995, according to testimony.

Mr. Long and prosecutor Dan Benavides also presented evidence that Mr.
Smith had sold at least a kilo of cocaine a week from 1998 through 2000.

The evidence struck a chord with jurors, who afterward praised the Dallas
police detective's work, which included video and audio surveillance of the
2-kilo drug transaction. Mr. Long asked that the undercover officer's name
not be published to protect her.

"The people on the jury said they really appreciated this detective," Mr.
Long said. "She's an incredibly good detective ... and they really
appreciated her professionalism.

"[The case] told me that juries are willing to do as much as we could ask
of them - and that is to look at the individual case and analyze it based
on the facts of that case. If there's something wrong in that case, there's
something wrong, but if there isn't, there isn't."