Yes, the prosecution's "war on drugs" via military urinalysis looks pretty effective. Yet every once in a while, there's that rare client who insists that he (or she) is innocent of wrongdoing. . .that somehow, the test results are tragically flawed.
Speaking professionally, we tend to believe that screw-ups can occur occasionally. After all, don't babies sometimes get switched at the hospital and Challenger rockets blow up shortly after a supposedly successful launch, despite everyone's best efforts?
How do you defend the "innocent" person who has received the poisonous news of a bad urinalysis result?
Testing the Test
- The first thing is to investigate whether the local testing procedures are shaky. If so, you should argue that scientific support or regularity is missing and the presumption of innocence must govern.
- Carefully flyspeck the actual on-post test. Did the observer wear disposable rubber gloves? Did he/she watch the individual urinate into the specimen bottle and place the cap back on? Did the GI tighten the bottle cap and hand it to the observer? Was the right type of bottle used? Is there at least the required minimum amount of urine in the bottle? Was it sealed with so-called tamper-proof tape? Was an ID card used to identify the subject? Was visual contact maintained with the donor at all times?
- Who acted as observer and overall supervisor? Sometimes, unexceptional performers who can readily be spared from other duties are selected. So it's politic to check to see whether theirs is an impressive track record. Is there any indication of observer dereliction in everyday duties? Decertification in any given field? Article 15 punishments? A reputation for clumsiness or sloppiness?
- Check and recheck the local, on-base drug storage facility. Is there adequate physical security? Are specimens kept under lock and key? Is the site manned at all times, including non-duty working hours? How about heating and air-conditioning? What about proper lighting? Are the counter tops, floors, desks , and the like kept clean? Is there a log showing time and date of entry, date and time of exit, reason for entry, and name of the escorting individual? Was there a key control policy in effect? Did temporary storage occur elsewhere than a secure, limited access room? Were specimens held for too long before being mailed? Was there any flaw in overall storage procedures?
- Check all paperwork . Is the local chain of custody free of discrepancies? Are all columns of the required paperwork correctly filled out? Are there any screw-ups? Is the name and SSN of those tested correct? Does the paper trail suggest that samples went from the testing site to other than a secure area? Does the paper trail show samples were stored elsewhere than in a safe area? See STROZIER, 31 MJ 283 for a good defense case gathering other useful precedents.
- Did the observer act impeccably? How often did the observer leave to go to lunch, the bathroom, out for a cigarette, etc.? Did the observer have an assistant when he/she was absent?
What About the Drug Lab?
- The next step is to assess the centralized drug testing lab. In the past, there have been definite flaws in this area. If you find defects here, you should argue that oversight at the lab was mediocre at this time and your client must walk.
- At the testing lab itself, has the lab passed a recent inspection? Are all personnel certified and qualified? Are the following accurate: the access log, storage facility SOPs, key control, aliquot area rules? Is there adequate desk space for working? Proper heating and air-conditioning? Are there any problems with the administration, pre-screening, or internals? Are all the proper ledgers and positive controls kept? Are there uncorrected documentation errors? How about physical security, sanitation, and quality control? And what about the purity of the equipment? Has anyone been decertified lately? Were there any flaws in receipt of the samples in question? Has there been due diligence paid to quality inspections? What's the rate of errors in collection, handling, and documentation?
- Does the lab have a history of problems? See the historical materials in Maizel, "Urinalysis; Search and Seizure Aspects," 14 The Advocate 402 (1982); Wiesner, "Urinalysis: Defense Approaches," 15 The Advocate 114 (1983); and Neuling, "Urinalysis Reexamined," DA Pam 27-50-146. The latter piece covers the controversy over earlier drug testing and zeros in on harsh criticisms made by the Einsel commission of untrained personnel, defective equipment, and sometimes nonexistent quality control. If you are computer-literate, plug into LEXIS and its section on newspaper articles titled "Nexis" and see what's available in the 1983 time frame from the press about the military's then-inept program. Check more recent articles as well.
- Did the sample leak in shipment? Did any sample in the box leak? Do lab procedures require all samples to be discarded if there is any leakage or adulteration?
What About Your Client?
Look to the particular circumstances affecting your client. Talk with the client in depth and find out if you really have that rara avis, an innocent individual who has been tragically accused by the System. Find out whether your client is willing to risk all on other scientific tests such as a polygraph or hypnosis.
- Has your client been taking any legally-prescribed drugs? Has he ingested legal antihistamines, which are alleged to cause the same "glow" in urine as do illegal substances? Has the client taken cold medicine? Codeine? Morphine? Ibuprofen? Weight control pills? Has anyone given him strange food or exotic teas? (Yes, we know all about the marijuana fairy. . .but we're talking about a client who has innocently ingested.) If you're lucky, your client's urine sample might fail to indicate the lawful medication he/she has taken. Then, you've got wiggle room to claim the sample is not that of your client.
- Next, ascertain whether confirmed druggies were tested that day. If guilty rascals have been tested and come up NEGATIVE, it can yield scientific, persuasive proof of innocence.
- If your client so opts, set up numerous other tests used in competent business and Government circle to prove innocence:
- a private polygrapher with strong credentials
- a follow-on session with a hypnotist, videotaped
- DNA testing of his/her urine
- a psychosocial history with a social worker or clinician off base
- hair sample testing
- if the Government only performed the "BE" test, ask for an "EME" test as well. See MACK, 33 MJ 251 for a good example of inconsistent test results which gave an insufficient basis to support a conviction.
- If your client has good past efficiency records, use them to buttress your position. List prior impressive accomplishments. Prepare unwavering character references. Seek the help of a member of Congress in the appropriate case.
Preparing for Court/Board
If these steps fail to persuade the SJA or commander to hold off, you're headed for litigation. If so:
- Prepare effective, no-nonsense voir dire. You should be acutely aware that the System encourages its managers to believe in the urinalysis program as a virtual Article of Faith. Your job on voir dire: Insure that the members can have an open mind, at least, about the fact that nothing is infallible. The following areas of exploration might prove useful. All are stated in strong defense-minded terms. We've arbitrarily set them for an Air Force case.
- How would you vote right now? Guilty, right?
- Are you aware that antihistamine, cold medicine, etc., can affect test results?
- Are you aware that there are X people at the central testing lab [some 90 at Brooks AFB, with 10 to 15 assigned to the precise room doing the testing.
- Are you aware that several of them have been decertified? And that there have been numerous 'scandals' about this lab?
- Have you ever heard of food being spoiled at the Commissary or a space shuttle blowing up DESPITE highest quality control? Ever read about women being given the wrong baby at the hospital after birth? So are you POSITIVE that nothing like this could happen to the urinalysis program?
- Can you bet your CAREER or your LIFE on this test? Do you believe nobody ever plays a joke or gets tired or makes a mistake? That no error is ever made at the lab?
- If you were the Chief of Staff of the Air Force or the wing commander, wouldn't you go out and get a private test. . .just in case? (If it's not good enough for the Chief of Staff or commander, is it good enough for this enlisted person?)
- The Government likely will bring in "experts." But consider: If such experts ever found a flaw, do you think they'd be asked back? Do you realize there are "experts" who actually make a living off testifying pro-Government in such cases? Do you consider that unbiased?
- If there's an error, doesn't the lab have to close down? And all its employees would be out of business, right? So there's PEER PRESSURE to cover up a mistake, not to expose it?
- As an overall principle, do you think urinalysis testing is infallible? Have you been lectured or coached on this topic? Ever tour the lab? What did they tell you? Have they admitted past errors? How much tolerance do you have for Government errors in this area?
- Have you ever seen the "60 Minutes" TV show of a few years back about defects at the forensic lab?
- Have you ever received somebody else's mail from the "infallible" Government post office?
During the Hearing
Before the hearing, network with knowledgeable experts. Make sure that in the Air Force you know about the so-called "tamper proof" tape fiasco in Michigan. Check with your TDS regional office for latest information from the Army.
- Cross-examine the so-called expert in detail. Generally, do what you can to look bored as the Government details how the test works. Stipulate when you can, while maintaining specifics of where you suggest the system was flawed in this case. Be sure to get into the record the fact that "experts" have testified time after time; that they're effectively wined and dined at the military testing lab; and that they remain on a short-list of acceptable expert witnesses. Find out how much of their income is derived from such testimony. When were they last at the lab in question? How detailed was their last inspection or tour there? Did they speak with the workers, or merely take the guided tour?
- Test what the "experts" know about real life at the lab. Examples: Do they know that Susan at the lab had twins? That Charlie's dad died? Or how the bowling team did? If the "Expert" doesn't know about current goings-on, you can suggest he/she is simply an ivory tower professor-type, walked through by the System. Ask if the expert is on a first-name basis with the "worker bees."
- Again, ask how many times the individual has testified AGAINST the Government. You might inquire as to their fee for testifying. . .and what percentage of their income derives from testifying FOR the Government. All of this can provide good cannon fodder for later argument.
- Check and recheck the testimony of on-base witnesses. Is there anything that went wrong or was questionable about LOCAL testing? (On the whole, we think the best place to attack a urinalysis is at the local level, not at the faraway lab).
- Know the law on judicial notice and protest anything less than strict compliance with judicial notice and chain of custody. Se HUNT, 33 MJ 345 (CMA 1991); Army Lawyer (Dec 1991) p 38.
- Argue intelligently on the basis of everything developed so far. Protest strongly if the prosecutor or recorder suggests this is a test of "military loyalty" rather than a routine case in which the facts are dispassionately analyzed by the voting members.
- Argue also the credibility of the system is at risk and that freeing your client is the only safe way to fix the problem. Argue that military "loyalty" means that when a system is flawed, we move swiftly to fix the problem, not exacerbate it.
- Emphasize that we've got a tough, realistic drug program, which is so far generally believable. We rely on it without apology to remove from our number those who abuse illegal substances and thereby abuse the military. But to make the program "stick" and win public acceptance, we must quickly abandon test results that are skewed or defective in any way.
- You might compare the result to "friendly fire" in battle --something which should not occur but unfortunately does. Stress that untoward mistake and blunders not of the client's making occurred in his case.
- Underscore that a top-notch car manufacturer will once in a blue moon build a "lemon." And that credibility demands that such a "lemon" be recalled lest others doubt the manufacturer's reliability. If serious and numerous defects exist, that manufacturer must "tell it like it is." Similarly another top-notch employer, the U.S. military, does not want to be saddled with booting individuals out on the basis of badly defective, unpersuasive urinalysis results.
- A result favorable to your client can be argued as keeping faith with the client and with the military. Try to show that the military is concerned and full of integrity. Like an honest manufacturer who recalls a shoddy product, a result favorable to your client will prove the System honorable to all concerned.
And if That Fails. . .
If none of this works, we favor taking one last shot at the appointing authority with a presentation booklet hitting hard on all of these factors. If time permits, this notebook will be useful far beyond its trip to the appointing or approving commander. For it will provide the client plenty of ammunition for a subsequent BCMR action.
The package can be enriched by a short video of the client and his/her family, pictures of the family, letters from home; as well as excerpts from service charts and data showing what benefits are denied one who is put out of the service without an honorable discharge.