Most people would assume that the rule of law is drawn by the rules of logic and fairness. That assumption is both logical and fair, but the rule of law—with its most fundamental purpose being to protect society and ensure that justice is served for all its people—is not always governed by either logic or fairness.


Take the case of Kenneth Broussard, for example.


In December 2012, Broussard was arrested in Harris County with less than one ounce of an unidentified substance. A field test identified the substance as cocaine—a group one penalty substance in Texas. Broussard was charged with delivery of less than one gram of cocaine, a state jail felony punishable by 180 days to two years in prison with a fine up to $10,000. The charging document also contained two enhancement paragraphs.


Pled Guilty Two Days After Arrest


Two days after his arrest, Broussard entered into a plea agreement with the District Attorney’s office. He pled guilty and was sentenced to eight months in jail. As part of the plea deal, the State dismissed the two enhancement paragraphs.


Two months after Broussard’s guilty plea, the Houston Forensic Science Center identified the substance seized from Broussard as methamphetamine, not cocaine. Methamphetamine is also a group one penalty substance and delivery of less than one gram of the drug is also a state jail felony.


Logic and Fairness Take a Back Seat to Efficiency


Logic would instruct that Broussard file a writ of habeas corpus alleging his custody was illegal because he had pled guilty to delivery of cocaine when in fact he did not possess cocaine.  Fairness would indicate that the judge who sentenced Broussard and the prosecutor who cut the plea deal with him would not be opposed to the writ being granted.


And that’s exactly what happened: the judge hearing the habeas petition and the District Attorney’s Office both recommended that the Texas Court of Criminal Appeals (CCA) grant the habeas writ application.


On April 12, 2017, the rule of law took a leave of absence from both logic and fairness.


The CCA rejected the trial court and the state’s recommendation that habeas relief be granted.


The court instead concluded that Broussard had knowingly and voluntarily entered his guilty plea. The court reasoned Broussard knowingly pled guilty before laboratory tests confirmed that the unidentified substance was cocaine. He, therefore, “chose to avoid the risks involved at trial and pleaded guilty, gaining the certainty and benefits associated with the plea. He cannot now invalidate his guilty plea because his prediction of the State’s ability to prove he possessed cocaine was incorrect.”


Guilty Plea Valid if Defendant is Aware of Factual Circumstances Surrounding Plea


In Texas, and many other jurisdictions, a guilty plea is knowingly and voluntarily entered when a defendant is aware of the factual circumstances surrounding the plea. In other words, a defendant does not have to possess what the court called “complete information” for the guilty plea to be valid.


Review of guilty pleas have historically been confined to the strict rule that the appellate courts will scrutinize final judgments with a presumption of validity. It is exceedingly difficult to withdraw a guilty plea once it has been entered and accepted by the court. As the CCA put it:


“A defendant is not entitled to withdraw his guilty plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action.”


With respect to Broussard’s claim that he was entitled to have his guilty plea set aside, the CCA said that “when a defendant pleads guilty knowing that a particular fact is unknown or at least uncertain, he cannot later invalidate his plea if he misapprehended that fact or the State’s ability to prove it.”


Broussard offers a significant warning to drug defendants and the defense attorneys representing them to fully discuss and consider all options and possible results of tests from the crime lab.  The courts have made it crystal clear that plea agreements will enforced regardless of later discovered facts.


Faulty Field Tests


ProPublica reported last year that there are 1.2 million drug arrests made each year in this country with thousands of them taking place because of a $2-dollar drug field test that was invented in 1973 and has not changed much since.


Pointing out that the tests are “far from reliable,” ProPublica writers Ryan Gabrielson and Topher Sanders pointed to a Houston case where a drug test prompted the arrest of 43-year-old Amy Albritton:


‘The field tests seem simple, but a lot can go wrong. Some tests, including the one the Houston police officers used to analyze the crumbs on the floor of Albritton’s car, use a single tube of a chemical called cobalt thiocyanate, which turns blue when it is exposed to cocaine. But cobalt thiocyanate also turns blue when it is exposed to more than 80 other compounds, including methadone, certain acne medications and several common household cleaners. Other tests use three tubes, which the officer can break in a specific order to rule out everything but the drug in question – but if the officer breaks the tubes in the wrong order, that, too, invalidate the results. The environment can also present problems. Cold weather slows the color development; heat speeds it up, or sometimes prevents a color reaction from taking place at all. Poor lighting on the street – flashing police lights, sun glare, street lamps – often prevents officers from making the fine distinctions that could make the difference between an arrest and a release.


“There are no established error rates for the field tests, in part because their accuracy varies so widely depending on who is using them and how. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positive were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positive for methamphetamine in the first seven months of 2014. When we examined the department’s records, they showed that officers, faced with somewhat ambiguous directions on the pouches, had simply misunderstood which colors indicated a positive result.”


The Albritton case involved some white crumbs found on the floor of her car by two patrol officers. One of the crumbs placed in the tube caused a “blue” reaction.  Like Broussard, Albritton was arrested and advised to accept a plea deal requiring a few weeks in jail, something defendants regularly decide just to get out of jail.


99.5% Drug Convictions in Harris County are Result of Guilty Pleas


The Broussard and Albritton plea deals are not unusual; in fact, they are the norm, especially in Harris County. ProPublica found that 99.5 percent of the drug convictions in Harris County are the result of guilty pleas. Many of these guilty pleas, like the 100,000 other drug guilty pleas across the nation each year, are the result of arrests based on field test of suspected substances.


In Texas, under CCA precedents like Broussard, it does not matter if the drug field test misidentified the drug to which a defendant pleads guilty.


The problem faced by most criminal defense attorneys is that they are duty bound to present plea deals to their clients and most clients are receptive to favorable deals. These realities notwithstanding, defense attorneys also have a duty to inform their clients about just how unreliable drug field tests are before they allow them to accept a plea deal prior to the results of the crime lab being known. The point to remember is this: there is no turning back once a guilty plea is entered.