Drug Scandal 'Will Be Taken Into Consideration' Regarding S.F. Crime Lab's Accreditation

• That's funny, I thought Deborah Madden was using her nose to test the cocaine in the crime lab?

• The real problem with Deborah Madden and the SFPD lab is that for over 30 years they have been �identifying� cocaine, crack, marijuana, and other drugs with invalid discredited tests even though they have access to valid tests such as GC/MS. The recent case of USA v. Diaz et al highlighted this situation. The case brought out that in May 1995, the American Society of Crime Laboratory Directors (ASCLD) audited the San Francisco Police Department (SFPD) lab after a SFPD narcotics examiner was caught on tape faking narcotic lab results. The audit found many deficiencies and, in particular, declared that �ASCLD/LAB no longer accepts crystal tests without instrumental confirmation as a basis for the identification of drugs.� Until she was recently suspended, Deborah Madden used crystal tests alone to identify cocaine, and unknown number of defendants were convicted on the basis of tests that did not prove they possessed cocaine. In 1979, the U.S. Supreme Court in Jackson v. Virginia ruled that nonspecific tests which give false positives, such as crystal tests, cannot be the basis for a prosecution, let alone a conviction. A scientific study reported that: �Reaching an accurate conclusion using microcrystal tests will depend on the level of experience of the analyst, the proper use of standards and controls, the presence of adulterants and/or dilutent in the seized samples, the reaction pH, the temperature and humidity, and the concentration of the reagent and of the chemicals.� Madden testified in USA v. Diaz et al, that in 30 years of testing, she had never concerned her self with these factors, and they had never affected her test results. Madden (and the SFPD lab to this day) also used the non-specific cobalt thiocyanate color chemical test for the identification of cocaine resulting in unknown numbers of wrongful convictions. Regarding color tests, the UN has reported that: �It must be stressed that positive results for color tests are only presumptive (Madden and the SFPD used them as confirmatory or identifying) indications of the possible presence of cocaine. The color tests for cocaine are especially prone to produce false positives.� According to the U.S. Department of Health and Human Services: �At this time, gas chromatography/mass spectrometry (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine.� In 1991, the Wisconsin Court of Appeals, in Wisconsin v. Jackson, ruled that the cobalt thiocyanate test �is not specific for cocaine. It is also known as a nonspecific, presumptive, color screening test. . . . Nonspecific, presumptive screening tests for drugs . . . may result in what are called false positives, i.e., false identification of cocaine when the substance is some other alkaloid. . . the test results cannot meet the rigorous burden of proof beyond a reasonable doubt, since it is not a scientifically specific test for cocaine. It could have been another drug. Thus, this court holds that the State failed to meet the burden of proof establishing. . . possession of a controlled substance � cocaine.� The court reversed Jackson�s conviction. It also pointed out that the cobalt thiocyanate test was subjective as it depended on the vision of the examiner. �One analyst might identify a color as a light red while another analyst would record the test result as pink.� Subjective tests are unreliable. Under the Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals, Inc., unreliable tests cannot prove the presence of cocaine or any drugs in a seized substance and cannot be the basis for prosecution or conviction. Although it was a major drug case involving the death penalty, Madden nor anyone else in the SFPD lab used GC/MS testing in the Diaz case. A false positive is an error. Yet, U.S. District Court Judge William Alsup ruled that: �Thus, as to the chemistry itself, this order finds that the error rate of the procedures used by the SFPD Crime Lab to identify cocaine is close to zero. (Even though the lab kept no error rates.)� Elsewhere in his order, Alsup decreed that: �Despite the many hundreds of thousands of drug convictions in the criminal justice system in America, there has not been a single documented false-positive identification of marijuana or cocaine when the methods used by the SFPD Crime Lab are applied by trained, competent analysts.� In fact, false positives occur regardless of the analyst�s training and competence as shown by many scientific studies. The SFPD drug lab also uses the non-specific, Duquenois-Levine (D-L) color chemical reagent test for identifying or confirming the presence of marijuana in a seized substance. It used the D-L test in the Diaz case. The D-L test suffers from the same problems as the cobalt thiocyanate test. In 1975, Dr. Marc Kurzman and 12 other scientists reported that: �The micrcroscopic and chemical screening tests presently used in marijuana analysis are not specific even in combination for �marijuana� defined in any way.� Police officers have a 20-30% error rate in identifying marijuana. In 1979, the North Carolina Supreme Court ruled that the �Duquenois-Levine color test . . . is not scientifically accepted, reliable or accurate and that the test is not specific for marijuana because it reportedly also gives a positive reaction for some brands of coffee and aspirin�� The eminent legal scholar, Edward Imwinkelried of the UC Davis Law School has summed up the devasting effects of defying the Supreme Court (Jackson v. Virginia) and scientific findings in using and supporting nonspecific tests as a basis for drug convictions as follows. �. . . It would eviscerate the Jackson standard to sustain a conclusory drug identification in the teeth of the judicially noticeable fact that every test used to identify the substance is nonspecific. Even more importantly, sustaining such drug identifications places a judicial imprimatur on testimony that cannot justifiably be labeled scientific. The rejection of such identifications is necessitated not only by due process but also by the simple demands of intellectual honesty. After Jackson sustaining conclusory, nonspecific drug identification evidence is both bad science and bad law.� John Kelly is a court-certified drug test expert and the author of the forthcoming book: How to Obtain a Pretrial Dismissal of Marijuana Charges or an Acquittal or an Exoneration and the critically-acclaimed report: False Positives Equal False Justice. He is also the first author of Tainting Evidence which was nominated for a Pulitzer Prize. National Press Club: http://www.youtube.com/watch?v=djXVnmrlKvE Busted For Chocolate WXYX-TV (no video, just transcript) http://www.wxyz.com/news/story/INVESTIGATORS-Busted-for-Chocolate/jtLXDx0KCkKsm_ltB9ACtw.cspx

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