DID DRUG POLICY PASS THE REAL TEST?

DA Orders What Others Used All Along To Detect Fakes: Lab Analysis

Dozens of defendants in problem drug cases filed by Dallas police
would not have been indicted in other jurisdictions because the cases
relied on uncorroborated field tests by the arresting officers,
prosecutors said.

The district attorneys' offices in Tarrant and Harris counties, like
federal prosecutors, do not submit a drug case to a grand jury until
they receive a laboratory analysis confirming the presence of an
illegal substance.

"We're protecting ourselves, and we're protecting the police agency,"
said Mike Parrish, head of the Tarrant County district attorney's
felony division. "Nobody wants a false or malicious
prosecution."

Harris County District Attorney Chuck Rosenthal said he requires lab
testing before seeking an indictment because knowing a confiscated
substance is an illegal drug is essential to a successful
prosecution.

"If we can't prove it, then we lose the case," he said.

Bill Hill, Dallas County's district attorney, has declined to discuss
his office's drug-testing policies because of an ongoing investigation
into several dozen problem cases filed by Dallas police narcotics officers.

Mr. Hill said Jan. 16 that he will dismiss 59 cases involving 39 drug
defendants arrested between June 2000 and October 2001. Lab tests have
shown that the suspected drugs in several cases were ground Sheetrock.

Two narcotics officers involved in the cases have been placed on paid
administrative leave, and Police Chief Terrell Bolton has said an
informant who was paid $200,000 for assisting those officers is no
longer being used.

Lab Tests Now Required

Without describing his previous practice, Mr. Hill announced Jan. 18
that his office will require laboratory testing in all drug cases
before they are submitted to a grand jury for possible indictment.

"It is essential to have an independent agency involved so the results
of the investigation will restore public trust," Mr. Hill said. "This
is best achieved by the involvement of a credible outside agency."

Besides Mr. Parrish and Mr. Rosenthal, state and federal sources said
the Texas Department of Public Safety, FBI and Drug Enforcement
Administration routinely submit contraband for lab tests before indictment.

Several defense attorneys and three former prosecutors who worked in
the Dallas County drug courts since the 1980s confirmed that the
practice has been to indict drug cases based on police field tests,
which should detect illegal substances even in small
concentrations.

Arresting officers are supposed to use the field test on suspected
drug contraband shortly after making the seizure. To do the test, a
sample of the substance is placed in a plastic bag containing three
vials of chemicals. If the substance is an illegal drug, the chemicals
turn a distinctive series of colors.

Use Of Field Tests

Experts in drug analysis have said the field tests used by police
officers are almost always accurate if conducted properly.

When suspected drugs are sent to a laboratory for testing, the
substances are weighed and tested for purity. Those tests often
determine the severity of charges sought against defendants.

Each of the dismissed narcotics cases identified as involving
Sheetrock had tested positive for illegal drugs in a field test.

Dallas police declined to comment on their drug testing procedures
because of the ongoing investigation, spokeswoman Janice Houston said.

Mark Hasse, chief of the Dallas County district attorney's
organized-crime section from 1985 until 1988, said the belief was that
a field test was adequate to show probable cause that a drug defendant
had committed a crime.

But Mr. Hasse said he would have expected police to provide him with
the results of a more thorough lab test in virtually every drug case
to help him evaluate whether to offer a potential plea bargain.

The higher the purity of the contraband, the greater chance that the
suspect is a major dealer, he said. And the initial charge may have to
be increased or lowered depending on the weight shown by testing.

What's In The Bag?

"You don't know who you are dealing with until you find out what's in
the bag," Mr. Hasse said.

If he received an indicted drug case that did not contain a lab
report, Mr. Hasse said, he would have called the arresting officer and
requested that he submit the suspected drugs for additional testing.

Attorneys who have prosecuted and defended cases more recently in the
drug courts said the practice has been to order lab tests only if the
defense attorney requests one or demands a trial for his client.

"If a case isn't set for trial and the defense attorney doesn't ask,
the drugs don't get tested," attorney Cynthia Barbare said. "It's a
very easy way for ... [defendants] to be taken advantage of by the
system if they don't have good counsel and someone who knows" to get
the drugs tested.

Other defense attorneys contended that some drug court prosecutors
will increase the sentence in their plea offer if the defense requests
a lab test. Some prosecutors, they said, view drug tests as hindering
their ability to dispose of their cases when they are juggling an
overloaded docket.

Mike Sullivan, a former drug court prosecutor, said he would be
surprised if prosecutors tried to discourage drug testing. But he
agreed that Dallas police do not request lab tests as a routine matter.

"What happens is the Dallas police place the drugs into a lockbox
until the case is set for trial," said Mr. Sullivan, who worked two
stints in the drug courts between 1990 and 1998. "The DA will prep the
case for trial and will order the drugs to be tested."

Greg Gray, who prosecuted cases in drug court about the same time,
said he assumed that cost was the reason behind the testing practice.

"You're talking about a huge volume of cases," he said.

The Dallas Police Department, like most police agencies in the county,
sends suspected drugs to the crime lab operated by the county-financed
Southwestern Institute of Forensic Sciences.

Dr. Elizabeth Todd, the drug lab director, said testing is done for a
fee, for which clients are billed on a monthly basis. The Dallas
Police Department is the lab's biggest customer, she said.

Dr. Todd said she did not know how much Dallas police had paid the lab
over the last few years. Nor could she say whether the number of
Dallas drug cases submitted for testing had increased or dropped.

But lab officials had not turned down any cases for testing and had
reduced their backlog over the last year, she said. Drug tests are
being completed in about three to six weeks, Dr. Todd said.

"They bring it to us, we will test," she said.

Prosecutors in Fort Worth and Houston, the state's most populous city,
said they expect police to submit all suspected drugs for lab testing,
regardless of the amount.

"Everything gets tested," Mr. Rosenthal said. "Even residue."

Mr. Rosenthal said the drug-testing policy has been the same
throughout his 27 years as an assistant and now chief prosecutor in
the Harris County district attorney's office and is based on common
sense.

A prosecutor cannot know whether he can prove the weight or presence
of an illegal drug - routine elements of any drug indictment - unless
he has a lab test, Mr. Rosenthal said.

"It's a pragmatic thing," he said.