By: Professor Tigran W. Eldred

Readers may have seen the startling front-page article in last Sunday’s New York Times magazine, which described how hundreds (and probably many more) of people are found guilty every year for possessing illegal drugs based on faulty field tests––chemical tests that can quickly, but often erroneously, determine whether narcotics is present. Entitled “How a $2 Roadside Drug Test Sends Innocent People to Jail,” it chronicles the story of Amy Albritton, a mother of two who was arrested in Texas when police officers found a “white crumb” on the floor of her car that tested positive in a roadside field test for cocaine. Processed through the Houston criminal court system, she was presented with her options by her appointed lawyer: plead guilty and receive a sentence of 45 days in jail or risk trial and the possibility of a two-year jail sentence. As happens for so many other people across the nation faced with a similar dilemma, she chose to plead guilty despite her claim of innocence. Years later, Ms. Albritton learned that the white crumb had been re-tested by a more reliable laboratory test and found to contain nothing illegal––yet by then Ms. Albritton, like so many others convicted of low-level offenses, had lost her job, her home, her belongings, and suffered years of ignominy because of the false conviction.

The authors of the New York Times article do an excellent job of describing how narcotics field tests can produce false positives, noting how these tests are a much less reliable measure of whether a substance is illegal than more sophisticated laboratory testing. Yet, because many people charged with a crime are required to decide whether to plead guilty before laboratory tests are conducted, too many defendants are charged and convicted without the more reliable testing taking place. The result: defendants such as Ms. Albritton are falsely convicted based on a test never meant to be the final barometer of guilt.

The bulwark against the type of injustice that befell Ms. Albritton is supposed to be the vigorous advocacy by a defense lawyer whose job is to ensure that a proper investigation of the facts occurs before a defendant pleads guilty. Yet, we know that too often defense lawyers across the country, burdened by excessive caseloads and inadequate funding and resources, recommend plea deals without engaging in any meaningful investigation of the facts or law. Apparently, Ms. Albritton’s lawyer fit into this mold: according the New York Times, after learning that the field test had tested positive, her lawyer was “unswayed” by her protestations of innocence — even though the white crumb had not been re-tested by a drug lab by that point. From there, the recommendation that she take the plea deal became pro forma. As her lawyer rhetorically stated when asked by the Times reporters, “The entire country works on these field-test kits, right?”

It is easy to conclude that lawyers such as Ms. Albritton’s appointed counsel should have sought a confirmatory lab test before allowing her to plead guilty, and certainly there is good reason for such a conclusion. But the harder question is why do defense lawyers every day across the nation allow their clients to plead guilty without engaging in the type of factual investigation required by professional standards? Is it because too many defense lawyers are lazy? Are they simply overwhelmed by the number of cases they need to process? Or is it something else?

Scientific evidence suggests another reason: as I have written elsewhere, a large body of empirical research suggests that defense lawyers for indigent clients are susceptible to what I call (provocatively, to be sure) “Ethical Blindness.” Simply put, too many lawyers, starting with the premise that their clients are guilty, are lulled by their cognitive biases into believing that quick plea bargains are in the best interest of the clients, despite their ethical obligations to act vigorously to investigate a client’s legal or factual innocence. The behavioral science supporting these conclusions is quite revealing and includes factors such as confirmation bias, motivated reasoning, and cognitive dissonance, to name a few (I explain these and other factors in more detail in my article and in this discussion with the Sixth Amendment Center).

If defense lawyers are to play their essential role in the administration of justice, then lamenting the circumstances that produce subpar performance is not enough. Rather, the psychological factors that can blind lawyers to their own professional obligations must be addressed. For Ms. Albritton and many others in similar situations, justice demands nothing less.