French economist Frederick Bastiat once wrote:
“When plunder becomes a way of life for a group of men living in society, they create for themselves, in the course of time, a legal system that authorizes it and a moral code that glorifies it.”The above quote was used in my last diary but it is so appropriate to the situation we American's find ourselves in, I chose to use it again as a lead in to this diary...
Since the mid 1950's the Indiana Toxicology Lab has contracted out the testing of blood, urine and other substances relied upon by Courts, Prosecutors and defense attorneys, to the Indiana University School of Medicine Laboratory. Cases involved include charges of murder, rape, drunk driving, possession or use of marijuana, cocaine and other drug substances. Indiana University runs the toxicology department by state statute.
In December 2009 a new Director was appointed to the Indiana Department of Toxicology due to reports about the validity of blood, urine and chemical test results, a long backlog of cases and slow statewide implementation of expensive new breath-testing equipment.
IU hired former Marion County Prosecutor Scott Newman in August 2010 to help fix the agency. Newman ordered an audit of all blood test results from 2007 to 2009 -- more than 10,000 cases. The audit of the lab's marijuana tests found an 8.2 percent error rate. Early data returned indicated a problem in at least 10% of all cases examined - positive results that when retested returned negative or inconclusive findings. The investigation revealed that technicians used a rare provision that allowed inconclusive test results to be manually "manipulated" by a technician. This procedure was used time and again and contributed to the erroneous result outcomes in more than 50 of the cases reviewed.
Following this initial information in 2010. Governor Mitch Daniels (R) ordered that the investigation be removed from IU's responsibility and control and had his office take over the continuing probe. Daniels appointed a three member panel to move forward.
Defense attorneys back in 2010-2011 questioned who was going to pay for the continuing investigation and asked how many people had been convicted by the use of false evidence?
"If these results are inaccurate, there may be a person who served some jail time based on what amounts to false evidence," Maternowski said. "Our entire Constitution is designed to protect your freedom and your liberty, and when we're convicting people based on unreliable evidence, that's a big problem."
"You need an expert to understand them (lab results), to be able to identify what is exactly wrong with it, and that costs money," Hennessy said. "Who's going pay for that is the next question in my mind."
Indeed who is on the hook for this ongoing investigation, retesting and for the money wasted in completed court hearings, trials and the needless incarceration of Hoosiers due to the manipulations by the IU lab? This is a question I'll return to momentarily - while we look at the latest in this ongoing story.
The three member panel appointed by Daniels has the results from preliminary testing and is refusing to make that information public - though at least one panel member has urged a public release. The Indiana Supreme Court became involved in the investigation authorizing a retesting of as many as 500 cases. Their findings:
"...confirmed Monday that the state Department of Toxicology provided incorrect test results for use in criminal cases, setting a course for what almost certainly will be legal challenges.
"The full extent of testing problems at the lab remains unknown, but a task force headed by two judges from the Indiana Court of Appeals found at least five cases where retested samples 'did not reveal any of the substances originally reported'.
"A report issued by the Supreme Court about the task force's work said about 500 other samples were either inadequate for retesting or showed some presence of drugs or "a successor substance." But the report didn't address one critical issue: whether test results from those samples would meet the scientific and legal standards to stand up in court."
Cases reviewed by the task force were only a fraction of the thousands of positive marijuana and cocaine tests called into question by an independent audit of lab procedures.
Governor Daniels' decision to place the investigation under the authority of his office has had the effect of stifling any release of factual information to the general public. His task force remains tight lipped about the numbers, percentages and other important findings made by this investigation that has been ongoing for nearly 3 years now.
The Supreme court statement did note that in the 500 cases reviewed by the task force, 497 defendants pleaded guilty to crimes and 18 are in jail. It was not clear whether any of the false positive test results involved the 18 people still incarcerated.
"Newman, who spent nearly a year as a consultant working to correct shortcomings at the lab, oversaw an audit that found extensive problems with the lab's processes and documentation. That work was abruptly stopped when oversight of the lab was transferred last summer from the Indiana University School of Medicine to the governor's office. The problems have been downplayed by a three-member panel appointed by the governor to oversee the lab.Department of Toxicology attorney Teri Kendrick last month denied a public-records request from the media seeking the test results. The newspaper is appealing that decision with the state's Public Access Counselor.
"Newman said he is still concerned about characterizations that problems auditors found were merely those of "protocol" and didn't affect physical testing.
"'You really can't separate protocols from results,'" Newman said. 'They're bound up together."'
Impact Upon Defendants:
Some people may have pleaded guilty based on bad lab test results, said Larry Landis, executive director of the Indiana Public Defender Council.
"Public defenders rely on those results," he said. "You assume they are right."
Landis added that most public defenders and their clients don't have the time, money or expertise to challenge lab results. A court spokeswoman said she did not have access to more detailed information Monday afternoon on the number -- other than "at least five" -- of new test results that didn't match the original finding reported by the department.
What all of the preliminary articles and findings did tell the public prior to the embargo put in place by Governor Daniels, was that thousands of criminal cases involving toxicological determinations were affected by the shortcomings of the IU lab. Since the IU School of Medicine has been under contract to the state for half a century to provide lab findings in criminal cases, the impact upon defendants - and the taxpayers who paid for those reports - is astronomical, in both loss of personal freedoms and wasted tax dollars.
How many people have been forced to plead guilty to charges that were supported by the results of lab results performed by IU under their state contract? UNKNOWN. How many thousands of individual cases involving alcohol, marijuana or cocaine use in DUI charges resulted in pleas or convictions? UNKNOWN. How many thousands of individuals paid their fines, did time in county jails or prisons based upon those convictions? UNKNOWN. How many thousands now have criminal records as a result of these fraudulent laboratory results - can't get good jobs, are denied necessary bonding, refused entry into the armed forces or ineligible for state jobs - and have been harmed by this? UNKNOWN.
What provisions is the Indiana Supreme Court and Governor Daniels making for those previously convicted whose cases are long over, the evidence used to convict destroyed - who remain tarnished by their arrest and conviction record? NONE. How many families affected due to this fiasco, reputations ruined, college grants and tuition programs denied because of records of drug and other convictions or arrests? UNKNOWN.
An additional aspect under the heading of "IMPACT" of all this is the question of how many individuals applying for state jobs have been subjected to drug testing by the Indiana Toxicology Lab with inconclusive or manipulated findings by IU? So how many potential hires had the same results of their drug testing when applying for state or government jobs? How many lives altered, salaries lost? UNKNOWN.
But never fear, Hoosiers...our Governor has a plan that will allow all of this to be worked out - those incarcerated can raise claims to challenge their convictions based upon possibly tainted lab results.
"I think there is still a great deal to be learned about the details of individual cases and even classes of cases," (IN. Supreme Court Chief Justice) Shepard said, "but I am confident in the path the task force has identified for individuals to raise questions they may have about their cases."This way of "handling" a massive problem that may have put thousands - or over the course of half a century, tens of thousands - in prison based in part upon faulty reporting of blood, drug and related evidence, places the burden upon the victims to now return to court and challenge their convictions. These challenges will involve the use of the IN. Public Defender's office which is already underfunded and overworked. More tax dollars will have to be set aside to pay for the court hearings, retesting of evidence and to fund the PD's involvement.
"The most likely approach to challenging testing results is through a legal process called post-conviction relief. It is a way to appeal convictions based on new evidence.
"The court's statement said the process "should provide a vehicle for individuals to seek relief from a guilty plea conviction based on a possible State Department of Toxicology Lab test error."
"Legal experts said that removes an obstacle that often prevents defendants from even receiving a hearing.
Taxpayers will also be on the hook for any civil suits that arise due to claims of false imprisonment - not simply the jury award of damages, but in defending the cases in civil court; court costs, attorney fees, expert witnesses, jury expenses.
Having been through our court system(s) previously I can tell you from experience, that in many cases where inmates challenge their confinement based upon "evidentiary" misconduct or use, the courts find the error to be "harmless" ruling a conviction would still have been possible even after excluding the evidence that was used to convict. This is nothing more than a sham used to continue to incarcerate and give the state an "out" by putting the responsibility for redress in the hands of the victims. The victims have already suffered at the hands of the state. Many will be found to have plead guilty to charges because their counsel could not refute the clear and convincing "evidence" presented to the court by the State Toxicology Lab. The courts will also have an "Out" by now being able to claim the victim/defendant participated in the travesty when they plead guilty - a finding that would absolve the state from costly damage claims and payouts. The reasoning being that no normal sane individual would plead guilty to something they were not guilty of - not taking into account the coercion that was used by attorneys and prosecutors upon defendants based upon the findings of these lab reports, leaving the defendant with an unavoidable outcome should he/she insist upon innocence and take their case to court.
It is bad enough to steal a person's freedom and place them in jails and prisons for something they did not do. To learn later that the evidence used to strip a person of those freedoms was possibly erroneous and tainted to begin with - and then require the victim to prove that was the case, adds insult to injury...and is going to further place Indiana taxpayers on the hook for possibly tens of millions of dollars in court costs, damage awards, legal fees and the costs of victims pursuing expungements of their criminal records. These millions will be in addition to the tens of millions already spent to secure improper convictions as well as good money paid to the IU School of Medicine Lab to properly perform necessary and critical testing upon evidence submitted.
Again what have been the costs to those whose cases have already been concluded, closed and the case file destroyed? They have the convictions upon their record - convictions that now have serious concerns about the evidence used to obtain pleas or convictions. What of them? How are those tens of thousands of cases to be resolved to compensate the former defendants/"criminals"? Governor Daniels and the Republican legislature is staying silent on this issue. What is going to be done for those denied jobs, bonding, security clearances and employment due to what we now know were possibly false evidentiary reports?
This is a part of the "war on drugs" that has been hidden away from the view of the public - possibly not just in Indiana, either. You see, Indiana is one of the states with contracts to privatize prison facilities. Have/are any of the inmates at this private prison facility serving sentences that were based upon the lab findings by IU SoM? Certainly. Is Geo Group profiting off of these men they house for the state? Again, certainly. Who is paying for this housing? Indiana Taxpayers. Fact is, in the rush to craft laws to make everything drug related illegal in the U.S. lawmakers were not so concerned with factual findings or determinations of guilt, they were more interested in convictions that could be used to further profit off of incarceration. As the statistic provided by the IN. Supreme Court demonstrated of the 500 cases reviewed by them the lab findings were either different than the findings provided by IUSoM or inconclusive. In 497 of these 500 cases "defendants" plead guilty. Consider that the cases reviewed were just some of those between 2007 and 2009 and we begin to get the picture of a system that has been used to wrench please of guilty and imprison thousands and put thousands more under some form of probation - needlessly and based upon false evidence. All in pursuit of the war on drugs. While the largest number of those impacted were/are those charged with drug crimes - many others charged with other crimes including murder, DUI, assaults and rape have been subjected to the same false findings and sent to prison. This situation is aggravated due to privatization; prisons, jails, medical care - and the contracting of processing of evidence used in Indiana's courts.
In fact Indiana - as a red state - has a long history of privatization as witnessed by this one example involving the testing of critical judicial and criminal evidence by a state university. In 1997, Indiana signed a four-year contract with a private firm to provide health care for all state inmates and has current contracts with Geo Group to provide housing for state prisoners at a facility in New Castle. (In 2007 this Geo contract resulted in a huge riot by AZ. inmates moved to the facility that cost Hoosier taxpayers a substantial amount to repair the facility and in prosecutions of the inmates involved in the riot). Over the objections of many of us the Indiana DOC outsourced food services in 2005 to Aramark- a company with one of the worst possible track records of any company providing such services.
Of course the "Cabal's" official voice, the Heartland Institute applauded the contract award to Aramark and mentioned that several Indiana jails were already contracting with Aramark to provide food services.
Under Daniels Indiana lawmakers approved the privatization of our on toll road in northern IN., attempted to privatize the Hoosier Lottery and the state Medicaid determination responsibilities. So like most other predominantly Republican states, IN. has followed the party line supporting privatization of state facilities, buildings and responsibilities - including public education.
This one situation in Indiana is now peeling back the "onion" that is the war on drugs and a pursuit of mass incarceration as a means of profiting off of the imprisonment of millions. This is so undemocratic and harmful to our society is is almost unbelievable. When we add to this IU SoM scandal that of the "investigator" that used her trained dogs to gather evidence in hundreds of criminal cases that resulted in the imprisonment of many - and later she was convicted of planting evidence that led to numerous convictions; the cases of police who have been found to have planted evidence in hundreds of other cases that led to convictions, we see an overall picture of tens of thousands of individuals falsely arrested, convicted and imprisoned - and profits generated off of that imprisonment. Factoring in the families affected by all these cases involving deliberate or "accidental" manipulations, the numbers easily reach into the millions. Each one of those numbers representing ruined lives, or lives altered by the actions of others pursuing corporate or personal gain off of the misery of others. It is a sick, sad and despicable practice - and easily avoidable: JUST DON'T INCARCERATE FOR PROFIT! Secondly states should be forced to stop outsourcing important responsibilities such as the testing of chemicals, blood and other evidence used in criminal prosecutions. The risk of erroneous findings presented by an outside provider is too great to weigh the lives of our citizens against their performance under a "contract".
When we consider that if the testing had of been done to the standards required by the state and the results 100% verified, thousands of cases under consideration by state prosecutors would have been dismissed for lack of evidence and defense attorneys would have had the basis of a defense with findings of negative testing results. Millions upon millions of dollars have been paid out in prosecutions based upon these inaccurate tests and in many cases that would not have been necessary with true results and determinations exonerating thousands.
Today we are aware of the American Legislative Exchange Council (ALEC) and their involvement in crafting, drafting and passing legislation used to incarcerate millions. At the same time ALEC implemented additional legislation to allow companies access to the billions of tax dollars spent on that incarceration through contracted imprisonment, healthcare, feeding, transportation, prison labor, manufacturing and related services. Through them the conservative factions in our political arena have had great success over the years. They are all for eliminating government oversight (think EPA and environmental issues) - oversight that would uncover such problems as now faced by Indiana. When discovered there is no cry issued by ALEC or the cabal to immediately take steps to free those whose freedom has been unjustly taken from them. No they work instead to limit the exposure first. Secondly they seek ways to place the burden of proving they have been harmed upon the victim him/her self. This is not isolated - no, take a glance at ALEC's model legislation on Asbestos litigation. In a similar manner they wish to put the burden upon those harmed to "prove" that the harm is a direct result of a specific asbestos product, or from employment in a factory using asbestos products or manufacturing it.
Through the likes of ALEC states charge forward with privatization and limiting government oversight. When privatization results in problems such as here in Indiana with the State Toxicology Lab contract, the initial response is to limit investigation and if that is not possible, use the authority of sympathetic Governors to limit exposure by hiding any investigation and refuse to release the incriminating facts to the public. When it can no longer be kept behind the curtain, they work to reduce liability by laying some of the blame upon the victim - and make them responsible for having to make a case to the same court system that imprisoned them or found them guilty, for exoneration and compensation.
This situation in Indiana is just one of dozens of articles and stories revolving around incarceration in the U.S. today. With the research and digging being done by many into ALEC and the cabal, more and more of these stories of needless laws and incarceration are coming out. I find it non-coincidental that Indiana with a Governor who has attended many ALEC conferences on behalf of two presidents (Reagan and Bush II) and pushing ALEC's Right-to-work (for less), privatization of education and public utilities and facilities, is at the heart of this most recent controversy. One involving the rights of state citizens versus corporate profits.
I'd move away from this unjust policing...but to where? ALEC and this agenda is now in all 50 states and growing larger by the day. Soon it will not only be problematic to be a known American overseas - it will be dangerous here in the U.S....
Those who continue to call America the "land of the free" need a wake-up call and cold splash of reality. We have become a nation that abides torture, makes unnecessary wars upon others over oil and politics, imprisons the worlds largest number of their society, sanctions phone taps, rendition...and has a former President and his Cabinet members who cannot even leave the safe harbor of the U.S. without fearing arrests for war crimes and crimes against humanity - yet they walk free within our borders and are considered by their party and Republican voters as having had a successful administration.
I have to ask "what in the hell has become of our country and society?" How have we been so blind for so long as to allow this kind of damage to befall our neighbors, family and friends? Finally, I think many are starting to comprehend the "tough on crime" rhetoric used to incarcerate, is just that - rhetoric used to endorse mass incarceration and enrich those invested in the Prison Industrial Complex.
Please join the F-29 Occupy Protest against ALEC and corporations involved in profiting off of incarceration. It is nationwide and takes place tomorrow. Please turn-out and lend your support for Occupy and the thousands languishing behind bars due to faulty evidence and profits. Also make plans now to attend VLTP's All About ALEC Protest in Charlotte, NC. May 11th and 12th. More on that to come in future articles...