It’s not about hemp or marijuana. It’s about justice.
I was 7 years old when a man burglarizing my grandparents’ Austin home, murdered my grandfather and beat my grandmother to near death.
The outcome of that event, including the possibly wrongful murder conviction of a woman believed to have abetted the incident, still echoes in my family 40 years later. The failure of forensic evidence in that case has left me with gnawing questions about culpability or innocence.
Undeniably, this determined the trajectory of my career, turning me toward forensics and a life dedicated to ensuring a better justice system. Victims and defendants, and their families and communities deserve a fair, objective, trustworthy system.
Time and again, I am reminded of forensics’ role in achieving that, and of the constant threat to that goal.
Now the reminder comes from recent federal and state laws changing the definition of marijuana to legalize hemp, allowing the Cannabis sativa L. plant to be used to produce a wide range of products. It’s a good idea with enormous economic potential.
The problem is not with legalization, but rather with the rush to profit and the lack of thought put into the impacts on the justice system, especially forensic laboratories.
The Federal Farm Act, passed in late 2018, defines marijuana based on a material’s chemical composition: anything with more than 0.3 percent tetrahydrocannabinol or THC, the psychoactive substance in the plant that causes a high, is now “marijuana.” Items with a lower THC concentration are “hemp.”
Texas is one of multiple states, including Florida and Virginia, that have passed legislation to ensure that the state definition of hemp is in line with the federal law. Ours went into effect June 10 and, as with other states, labs were not given the time or resources to adapt.
Until now forensic laboratories in Texas, like those in the rest of the nation, have done a simple microscopic test to identify plant material as Cannabis sativa L and a chemical spot test to determine that it has cannabinoids — not specifically THC, and certainly not the concentration of THC.
The result? Prosecutors in
Texas have dismissed hundreds of misdemeanor and dozens of felony charges because without a forensic laboratory’s analysis, they say they can’t prove beyond a
reasonable doubt that a suspect possessed marijuana and not hemp.
In Texas, only laboratories accredited to forensic standards with licensed individuals can do testing that can be presented in court. The reason: We are testing unknown substances, not a farmer’s hemp. We have to document and validate differently than in the agricultural world because we are dealing with people’s lives and freedoms.
There have been suggestions that prosecutors rely on circumstantial evidence in their marijuana cases, bypassing the need for a rigorous laboratory result when clearly marijuana is now defined by its chemical composition.
This is a terrible idea. Just as Texas is making historic strides in improving forensic science, we’d risk tumbling backward.
Houston remembers what happens when a forensic laboratory isn’t sufficiently resourced and “fast and simple” is substituted for rigor. It takes years to repair the distrust created by failed results that cause high-profile exonerations.
It is thanks to Houston’s leadership and courage that the city’s forensic laboratory is recovering. It is because of that history and those recovery efforts that we at the Houston Forensic Science Center must speak up about the hazards of discounting what forensic laboratories say is needed for responsible testing.
Legislators rarely get forensic science right, usually because laboratories are overlooked. Clumsy and uninformed federal legislation often forces states to navigate an inconsistent legal framework when attempting to protect public safety.
This is why I and many like me, pursued a career in forensics. We have seen too many times the consequence of trying to skirt the law, look for loopholes or attempt to reconcile the legally irreconcilable.
This is what happened to my family.
Police believed William Kenneth Felder beat my grandfather, Ivan Stout, to death on Sept. 14, 1977, only to be killed hours later by his ex-wife. They also accused Cherrie Ann Porter, who was alleged to be in the truck with Felder at the time of the burglary, of being his accomplice.
My life and Porter’s were forever altered that warm Austin day 40 years ago.
Porter, sentenced to seven years in prison for my grandfather’s murder, was acquitted on June 9, 1982. The Texas appeals court used U.S. Supreme Court rulings to argue the circumstantial evidence upon which the murder conviction relied was insufficient.
I will never know if that was the right decision.
But it is because of Porter that I battle daily to ensure that forensic science provides the system with objective, fair, timely science-based results that help bring justice to families and communities.
Drug and murder convictions are different, but both forever change lives. A drug conviction makes getting a job more difficult, leads to victimization and family strife, costs everyone thousands of dollars and can lead to a multi-year jail sentence.
Making a mistake is not an option. Too much is at stake, especially the system’s credibility.
Bypassing validated, rigorous forensic testing, simply to save time and money, should never be considered or suggested.
That is not justice.