Lab Reports Show Hundreds "Convicted in Error" for Drug Offenses

In recent months the Harris County District Attorney's Office has sent out hundreds of notices to defendants convicted of drug offenses, telling them that forensic lab reports show they were "convicted in error."

The Houston Press has obtained copies of those letters from Wayne Dolcefino, a former investigative reporter and consultant working with the Democratic DA candidate Kim Ogg, who's hoping to unseat incumbent Devon Anderson in next week's election.

The letters, which were sent between July and September 2014, show hundreds of defendants who took plea deals for misdemeanor and felony drug possession charges were later cleared when evidence tested by an HPD crime lab analyst came up negative for a controlled substance. Court records show that while prosecutors were notified several years ago that those tests came back negative, defendants weren't told until months ago.

The Press is currently reviewing the cases, some of which date back as far as 2004. In some cases, the HPD crime lab notified the DA's office that there was no evidence of a controlled substance before a defendant even took a plea deal. Take, for example, a man who was charged on September 25, 2008 for possessing less than a gram of cocaine, a felony. Records indicate an HPD crime lab analyst sent prosecutors a letter on October 21, 2008 saying there was no evidence of a controlled substance. Still, the DA's office struck a plea deal with the man on October 26, 2008 -- one year in county jail. Anderson's office sent the defendant a letter on August 5, 2014, informing him that he had been convicted in error.

In most cases, it appears the negative lab reports came back months to a year after a defendant took a plea deal. Some defendants would go on to rack up multiple drug charges and other criminal convictions. However, district clerk's records show that for others, the faulty conviction was their only charge, one that sat on their record even though the DA's office for years had reports showing evidence in the case tested negative for drugs.

DA's office spokesman Jeff McShan says late DA Mike Anderson first discovered the problem shortly after he took office in 2013 (current DA Devon Anderson was appointed by the governor to take her husband's place after he died of cancer in August 2013). In March of this year, McShan says, the current DA Anderson realized the gravity of the situation -- that hundreds of cases might be implicated by negative lab reports that were never sent to defendants or entered in court -- and the office began working to clear up cases. "It was just a big mess," McShan said.

The DA's office has been working with the Harris County Public Defender's Office since spring 2014 to "clean up the files," McShan said, sending notices to defendants. He says most defendants impacted by the backlog have already been notified.

McShan stressed that the cases were handled by previous district attorneys.

Meanwhile, the public defender's office says it's still scrambling to handle the influx of defendants trying to clear their records. "Obviously, if it's a person's only felony offense, there are very significant collateral consequences," said Nicolas Hughes, an assistant public defender who's been tasked with handling the cases. "It could have changed the trajectory of someone's life."

For instance, even a misdemeanor marijuana conviction can have life-altering ripple effects. Defendants could have been denied student loans. "There could be job consequences," Hughes said. "What if someone had been an educator or something like that? Even a whiff of that could end somebody's career."

Hughes says he's already overturned several cases. "I know it's a big issue for these people who have gotten out of convictions," he said. "It's improved their lives."

Hughes says he started to see a trickle of drug convictions with negative lab reports back in May, but that such cases began to flood his office by July. Overall, he says there appear to be 350 or more such cases that have hit the public defender's office in recent months.

Hughes says part of the problem is there's no standard protocol for what happens when a negative lab report comes back after someone's already been convicted. While Anderson's office has been "proactive" in resolving the problem, Hughes said, "I don't know about previous administrations - I mean, this information had to be somewhere... They must have seen these and just put them in a file somewhere and didn't do anything about it."

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Michael Barajas
Contact: Michael Barajas