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comment by oyster
oyster  ·  857 days ago  ·  link  ·    ·  parent  ·  post: How a $2 roadside drug test sends innocent people to jail

    she might have been able to sue her attorney for negligence

With what money ? Man the world is going to let you down really fucking hard one day.




jadedog  ·  857 days ago  ·  link  ·  

    With what money ? Man the world is going to let you down really fucking hard one day.

I don't appreciate the negative foreboding about my personal life. You know less than nothing about my life. My personal life is not the topic of this discussion.

About the woman in the article, since this is a civil case, she could look for an attorney who would be willing to take the case on a pro bono basis.

She could try finding legal aid. In this case, since it's an issue that has the potential to involve many people who were wrongly convicted, it might become a class action suit and it might involve a civil rights issue since her rights weren't protected. Some areas where free legal aid might be available are:

    You're [sic] Case Involves a Civil Rights Issue

    Private attorneys, legal aid clinics and advocacy organizations with lawyers on staff often take on cases that fall within their particular area of interest. For example, you may be able to secure free aid from an attorney for a pay discrimination lawsuit against an employer if it has the potential to become a larger class-action suit.

It's also possible that an attorney might take on the civil case on a contingency basis where the woman wouldn't have to put any money up front until the case was settled.

There are multiple ways to get legal representation with no money upfront.

oyster  ·  856 days ago  ·  link  ·  

So while she's looking for and writing to various attorneys hoping somebody helps her out who is applying for minimum wage jobs so that she can afford food and shelter ? Who's going to be working those possibly multiple because minimum wage sucks and she has a disable child to care for jobs ? Who's going to be caring for her child ? She has shit to do, she has to wake up everyday and try to get by. She doesn't have time to fight the system. When you're poor you tend to expend all your time and resources just trying to keep your head above water. Fighting the system isn't even on the radar.

The moral of this story is not that this woman should have done something different when faced with this conviction it's that she never should have been charged in the first place. She never should have met with the lawyer and went through her options. She never should have had to make the choice that did the least amount of damage to her life because she should have been free to go. This article was written not to make people think of all the things she could have done differently but to make people realize the system needs to change.

jadedog  ·  856 days ago  ·  link  ·  

    Fighting the system isn't even on the radar.

The example using the woman in the article is based on the hypothetical that the woman had the information that the reader of the article now has. I was using her case as an example of how the situation could have turned out differently if she had that information at the time.

Fighting the system to sue the attorney happens only IF (an unlikely IF) she had asked the attorney to get a lab test done and he refused to request it. If he had requested a lab test done on her behalf (which is a much more likely outcome), she would have gotten out of jail without a felony record and been able to resume her career as a property manager. Then she wouldn't have to be taking those minimum wage jobs to afford food and shelter.

Only IF he had done the wrong thing would she have the potential of seeking redress. She could choose to do this or not in the hypothetical situation that the attorney did the wrong thing.

IF that had happened, it goes along with the scenario that she would have been exonerated and would no longer have a felony on her record. At that point, she could seek a better job, possibly back as a property manager before looking for an attorney.

IF that had happened, your painting of the picture of how difficult finding an attorney would be is pure speculation. I could speculate in the opposite direction. She might have known attorneys from her career as a property manager. Even if she didn't, the first attorney she called might have agreed to take her case pro bono or on a contingency.

    The moral of this story is not that this woman should have done something different when faced with this conviction it's that she never should have been charged in the first place.

Yes. In a perfect world, there would be no places in the system where injustices would ever occur. That perfect world doesn't exist.

I'm not blaming this woman for what she should have done. She had no reason to know that the roadside test was not admissible as evidence. I was using her case as an example for what could have gone differently had she been given the information the reader now has.

I added the parenthetical part about my moral being tongue in cheek in part because her story is a caution to the reader of the article that they might have a different outcome with the knowledge they gained by reading the article.. They can ask for a lab test. She didn't know that one was available.

    This article was written not to make people think of all the things she could have done differently but to make people realize the system needs to change.

Since the system hasn't been changed yet (the article doesn't say it has), one takeaway from the article could be that if the reader of the article is ever faced with the situation, they can request a lab test to be done. They might be able to avoid the situation this woman was faced with.

If the article was written with the intention of calling people to arms to change the system, the author didn't suggest any actionable steps for people to do that. Did you see any actionable steps the reader was supposed to take?

The Department of Justice is already aware of the practice and has already spoken out against the use of roadside tests to be used as evidence at trial. If the author wanted all roadside tests to be eliminated, the author wasn't clear on that point. There wasn't enough information in the article about a clear solution.

oyster  ·  856 days ago  ·  link  ·  

You're forgetting that she only briefly knew the guy and was scared that there was a chance it was drugs. She took the plea bargain instead of taking the chance on this guy. Even if she had the information she would still be taking a gamble not taking it.

The author brought our attention to this practice because they think it's wrong. They didn't propose a solution but you really think they just brought it up for some light reading ? It should bother you that this is how your justice system works and it should make people want change. IMO the author underestimated the apathy of Americans.

This isn't the only way your justice system can screw you over and knowing about this one thing won't protect you. This is just one of the many ways poor people get screwed by the system because those court appointed attorneys don't have time to give a shit. You can't possible know ever single way to be screwed over and that's why you have a lawyer. That's their job.

jadedog  ·  855 days ago  ·  link  ·  

    You're forgetting that she only briefly knew the guy and was scared that there was a chance it was drugs. She took the plea bargain instead of taking the chance on this guy. Even if she had the information she would still be taking a gamble not taking it.

No, I'm not forgetting that the test could show a positive result. From a previous comment I made.

    However, in this particular case, there's no other evidence except a roadside drug test that has been deemed inadmissible as the sole evidence for conviction at a trial. If there was a lab test that corroborated that roadside drug test, that's a different thing. My only point was that if she had known that, she could have gotten a lab test before she made her decision to accept the plea bargain or not.

My suggestion was to request a lab test, NOT to reject the plea bargain. If the plea bargain was contingent on not getting a lab test, she might still have grounds to sue since she wouldn't have been able to defend herself at a trial without that evidence.

    The author brought our attention to this practice because they think it's wrong. They didn't propose a solution but you really think they just brought it up for some light reading ? It should bother you that this is how your justice system works and it should make people want change. IMO the author underestimated the apathy of Americans.

Maybe the Americans are too busy with their multiple minimum wage jobs to fight the system.

It's also quite likely that there isn't a simple solution to this problem. If roadside tests are eliminated, that defaults judgment back to police officers at the scene. That's a more biased and fallible system. If all roadside tests are double-tested with lab tests, that adds expense and time to the system. It's possible that a solution might be to inform anyone who is making a plea bargain decision that they have a right to a lab test. It's likely that someone will need to sue to get that put into practice. In order for someone to sue, they would need to have been affected. In order to have been affected, they would have needed to have requested a test, been denied and been negatively affected.

Maybe the author wanted someone reading the article to become the first test case to change the system by taking my moral of the story to heart.

Putting aside what I should be bothered by, why are you bothered by a flaw in a justice system that you're not subject to?

    This isn't the only way your justice system can screw you over and knowing about this one thing won't protect you. This is just one of the many ways poor people get screwed by the system because those court appointed attorneys don't have time to give a shit. You can't possible know ever single way to be screwed over and that's why you have a lawyer. That's their job.

From a previous comment I made.

    As to the rest of your comments about how the justice system should be set up to be more egalitarian, that sounds very idealistic. In capitalist countries (or life in general really), the wealthy often have more advantages.

In this case, since the woman is already in the hypotherical position using her as an example, as you've noted, the court appointed attorney might not have time and she might not have the money for another attorney, it would help her if she knew she could ask for a lab test that could exonerate her.

oyster  ·  855 days ago  ·  link  ·  

There's no guarantee that the same deal would still be on the table after the drug test, especially if it's positive and strengthens the prosecutions case.

It's to expensive to make sure innocent people (as in the government has no actual evidence you committed a crime) aren't going to trial or prison ? There is really no surprise America has the highest level of incarceration in the developed world. Your government gathering legitimate evidence against you before charging you with a crime shouldn't be something that's to expensive to do. It should be the baseline.

This isn't about being in an egalitarian society, the right to counsel is in the sixth amendment but everybody is to busy fussing over the 1st and 2nd I guess they haven't got that far yet. Or quite frankly don't care that the counsel people recive is insufficient because they never see themselves in that position. It's not that the court appointed attorney "might not have time" it's that he didn't. Watch the episode I told you about and you'll understand that if you ever need one they won't have time either.

jadedog  ·  853 days ago  ·  link  ·  

    There's no guarantee that the same deal would still be on the table after the drug test, especially if it's positive and strengthens the prosecutions case.

I went back to read the article and found that I missed a couple things in the article.

She actually didn't have to ask for a lab test. They offered one to her, if her court appointed lawyer is to be believed. He says that the prosecutors offered her deferred adjudication, which would have allowed her to get the lab test and might have allowed her to decide on the plea bargain outside of jail.

    In fact, Richardson, Albritton's original court-appointed lawyer, says the prosecutor offered her a deferred adjudication, in which she may have been able to wait for the results of a lab test outside the walls of a jail cell. Richardson, who first said he had no memory of their conversations, says he told her about the offer but she refused it. Albritton says she has never heard of anything called deferred adjudication. Neither could explain what actually happened.

The woman in the case has already done what I would have suggested which is to consult an attorney to bring legal action against the court appointed attorney and/or the government.

    People plead guilty when they’re innocent because they see no alternative. People who have just been arrested usually don’t know their options, or even that they have an option. “There’s a fail-safe in there, and it’s called the defense lawyer,” says Rick Werstein, the attorney now representing Albritton as she seeks to finalize her exoneration. Defense lawyers can demand a lab analysis, and they exist to help defendants navigate the consequences of the jail time while they wait, even as they explain the even higher costs of a felony conviction. They are fully authorized to pursue alternative deals.

    So far, we have been unable find anyone who pleaded guilty based on field-test results and later filed suit, though Werstein said he and Albritton are considering their additional legal options.

Other people have already asserted their rights and sued based on inaccurate field tests.

    In the past three years, people arrested based on false-positive field tests have filed civil lawsuits in Sullivan County, Tenn.; Lehigh County, Pa.; Atlanta, Ga.; and San Diego, Calif. Three of the four cases also named the manufacturers Safari­land Group or Sirchie as defendants. Three of the cases have already been settled.

    It's to expensive to make sure innocent people (as in the government has no actual evidence you committed a crime) aren't going to trial or prison ? There is really no surprise America has the highest level of incarceration in the developed world. Your government gathering legitimate evidence against you before charging you with a crime shouldn't be something that's to expensive to do. It should be the baseline.

It's expensive both on the part of the government but also on the part of the accused.

    The labs issue reports in about two weeks, but defendants typically wait three weeks before they can see a judge — enough time to lose a job, lose an apartment, lose everything.

The high rates of incarceration in the US has a much broader history than this case and really isn't much related.

    This isn't about being in an egalitarian society, the right to counsel is in the sixth amendment but everybody is to busy fussing over the 1st and 2nd I guess they haven't got that far yet. Or quite frankly don't care that the counsel people recive is insufficient because they never see themselves in that position. It's not that the court appointed attorney "might not have time" it's that he didn't. Watch the episode I told you about and you'll understand that if you ever need one they won't have time either.

The woman in the article had both court appointed counsel and separate legal counsel to help her with her exoneration and to seek redress against her court appointed counsel if necessary.

Despite your predictions, she was able to obtain legal counsel on her budget with the time available to her.