It Takes A Narco-Saint Expert

For anyone who hasn’t had the pleasure of defending against narcotics charges, the “indicia” of drug-dealing has always been a bizarre offer of proof.  The defendant had $324 in cash in his pocket?  Proof he’s a drug dealer, because drug dealers transact business in cash.  If he has no cash in his pocket, it’s proof he’s a major drug dealer, because major drug dealers have people who do the dirty transactions for them so they don’t get their hands dirty. See how that works?

It used to be the beeper that proved someone was a drug dealer, because drug dealers used beepers. Then it became cellphones. Same reason. What, you say?  Everybody used beepers and cellphones?  Ah, you don’t understand because you aren’t an expert in drug dealing.

For that purpose, you need a cop to testify.  The prosecution will put a cop on the stand, who the judge will invariably qualify as an expert based upon his “education and experience,” because he’s got tons of experience dealing drugs and learned all about it from the drug dealers teaching at the police academy, to explain to the ignorant groundlings on a jury why that cash in the defendant’s pocket is so fundamentally different than the cash in their pockets.  (Hint: It’s because he’s a criminal.)

This is nothing new. It’s been going on for decades, without any serious scrutiny of the use of police as drug dealing experts.  While juries may not need experts to explain misidentification or false confessions, because they can certainly grasp that on their own, courts have taken no issue with police offering expert testimony about the indicia of drug dealing so that law-abiding folks can understand how a cellphone could possibly be used for that purpose. Without such expertise, jurors could easily be confused into believing that possession of a cellphone made a defendant a regular person just like them.  That would be a travesty.

At WaPo Conspiracy, Eugene Volokh raises the latest, and perhaps most bizarre, indicia of drug dealing offered via police expert to aid the jury in understanding why the defendant is GUILTY, GUILTY, GUILTY!!!

When may a government expert tell the jury that a defendant possessed religious paraphernalia allegedly connected to drug trafficking, as evidence that the defendant likely knew that drugs were present in the car? A May 2014 decision from the Eighth Circuit and a decision last week from the Tenth Circuit disagree on this. From United States v. Medina-Copete (10th Cir. July 2, 2014):

In assessing [United States Marshal Robert] Almonte’s qualifications, the district court relied on familiar precedent holding that “a drug dealer’s tools of the trade” are an appropriate subject for expert testimony. The district court acknowledged that “Almonte’s proposed testimony is somewhat different from a typical case where a law enforcement officer seeks to testify on tools of the drug trade,” but it nonetheless concluded that Almonte’s testimony could be helpful to the jury, in part because “[d]rawing the connection between a religious icon and drug trafficking is not a straightforward matter.” On appeal, the government asserts that “[t]he Santa Muerte evidence related solely to the tools of the drug traffickers’ trade.”

The “Santa Muerte” evidence is that drug dealers, according to Almonte, pray to certain “narco-saints,” and so religious icons are tools of the drug trade.?  The 10th Circuit rejected this, from Almonte’s “expertise” in such matters to the connection between certain saints and drug dealing.  The 8th Circuit, not so much. From United States v. Holmes (8th Cir. May 12, 2014):

Almonte was properly qualified. A witness may be qualified by knowledge, skill, experience, training, or education. For about a decade, Almonte studied the iconography of the Mexican drug underworld. He observed icons in hundreds of narcotics cases and traveled to numerous Mexican shrines. Almonte has self-published materials on the subject and has conducted law-enforcement trainings on recognizing it.

The defendants emphasize Almonte’s lack of formal education about narco-saint iconography, but that is not required under Rule 702. In drug cases, courts frequently admit expert testimony relating to the modus operandi of drug dealers, where the expert witness is a law-enforcement officer whose only qualification is experience in the field.

Note how the use of police as faux experts historically is bootstrapped into a justification for permitting Almonte to testify as an expert in Holmes?  Forget Daubert. Forget Rule 702.  There’s no squaring this with anything remotely resembling the rigors of qualification for scientific experts, or defense experts for that matter.

Indeed, that fact that there is such a notion as “narco-saints” borders on incomprehensible, as if the fact that a person has a religious affiliation to an icon distinguishes her from the millions of others who share her faith.  But give it a cool name like “narco-saint” and it suddenly turns religion into proof of guilt.

Aside from the question of whether religious practice (and its accompanying iconography) should ever be permitted as evidence of guilt, the nature of such “expert” evidence against drug defendants turns common household items into conclusive proof of criminality.  After all, an “expert” said so, provided he can fashion some minimally asinine story to connect up the ordinary stuff that most of us use (hey, do you have baggies and aluminum foil in your home? You too can be a drug dealer) to the crime as “tools of the trade.”

After all, how would the members of a jury possibly know what the “tools of the trade” for drug dealing are if some “expert” cop didn’t explain it to them?  It’s nothing like the jurors’ inherent understanding of such obvious matters as false confessions and worthless eyewitness ID’s.  Just be careful that when you pick your favorite saint, it’s not one of the narco ones. Of course, if a cop like Almonte takes the stand to testify that it is, there’s no way to counter it. Because he’s an expert.

28 thoughts on “It Takes A Narco-Saint Expert

  1. Dave

    For phony ids and false confessions…. There are excellent documentary films on both and I think they should be required viewing for all juries (after the jury service videos). Gee, I wonder how prosecutors (other than myself) might feel about that.

  2. Wheeze the People™

    In college, for my particular degree, we were required to take one course on civil law. And all I really remember from the class is when the adjunct prof warned us about “experts”. He broke it down for us: ex=old and a spurt=a drip under pressure; thus, he contended, an expert is usually nothing more than an old drip under pressure. Beware . . .

  3. Robert David Graham

    I have often wondered what makes an “expert”. In the case of computer experts, I guess it’s somebody who knows more about computers than the rest of the court. But, as a real expert, I’m shocked by how stupid they are about computers — they may know barely more than the court, they certainly aren’t anywhere close to real experts. That was the case in the Julie Amero case, where the prosecution’s “expert” claimed things that were clearly false. In that case, the defendant’s “expert” was also a complete tard, so it was a pretty weird trial all around.

    1. SHG Post author

      In the Rakofsky case, Rakofsky offered an affidavit from a forensic computer “expert” who claimed proficiency in the computer language C+++ and explained the meaning of HTML as “hyper treading multi language.”

      It was the extra + that made him a real expert.

      1. bill

        I thought you were making it up BC the stupid was strong. Damn if you weren’t telling the truth. Just freaking wow

        1. SHG Post author

          What’s really wild about some of the insanity is that nobody would think to make up anything this ridiculous. It has to be real.

  4. bill

    I’m just a computer dork consultant and I keep a Jesus malverde mini in my car. Because I watched breaking bad and the cousins were cool. Based on these criteria, I might as well be in ms-13, I have every sign

  5. john Barleycorn

    Damn, over the 4th of July weekend, I traded a guy my Margaret Thatcher belt buckle for a very nicely stiched leather with beaded leather fringe zippo lighter cover/case that has the Corporate Jesus icon, patches and all, intercriately beaded in tiny, tiny little beads on it.

    I am never going to get this inconvenient fact past an expert witness and through a jury if I contest a future tax audit. I woukd hate to give up the lighter cover though.

    Keep these rules comming esteemed one. There could be some part time employment opportunities in rule 702.

    A witness who is qualified as an expert by knowledge, skill, experience, training, or education may in the form of an opinion or otherwise testify if:

    (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

    (b) the testimony is based on sufficient facts or data;

    (c) the testimony is the product of reliable principles and methods; and

    (d) the expert has reliably applied the principles and methods to the facts of the case.

    So, if I am reading and interpurting this rule 702 correctly there isn’t a damn thing a CDL can do except cross examine the expert if the judge has concluded the expert is an expert and follows the other stipuliations of the rule correct?

    P.S. Just a heads up to your readership the various law enforcment fraternal order organization bumper stickers (text and symbol icons) out there will get you out of a 4 over the limit ticket but will gaurentee a search of your vehicle unless you have one of my bobble head action figures of a state trooper in a big brown tassled hat and shades (actual icon) on your dashboard. So, don’t forget to mix and match your icons correctly or there will be consequences. Expert witness know so.

    1. SHG Post author

      Yup. Please send me on of those bobblehead state troopers go next to my other icon. Thank you.

  6. Zee L Usay

    I have to wonder how all those drug dealers that were busted for pagers and cell phones avoided racketeering charges for making book. As we all know bookies use phones, cellphones and pagers. So if you have one you must be a bookie; and pads. Bookies use pads of all kinds so that DA sitting there with a legal pad is definitely a bookie, well a criminal anyway.

  7. Charlesmorrison

    I looked again, for shits and giggles, and still can’t locate the portion of the holding wherein SCOTUS limits Daubert to defense witnesses. Maybe that was in Kumho tire?

    Nonetheless, I hold out hope that the disparity between the state and the defense with respect to the use of experts will eventually be done away with. Maybe only decades from now, mind you.

    But, the more defendants push and proffer their own experts on issues such as those you identified in the post, the more likely appellate courts will have to come to the realization that this issue is terribly one-sided. Maybe, just maybe, enough reviewing courts will say “hey, we’re not really enforcing this whole gatekeeper requirement, except for defense witnesses.

    A potential procedural/monetary problem, though: if a motion in limine is granted and the court excludes a potential defense expert, does the client want to pay for him to hang out for two, three, four days until you attempt to call him? Including hotels, meals, etc. Unlike the state’s/Fed’s situation, where their police experts are (mostly) local, a defendant may have to cast a wider net.

    Even if you are able to proffer the expert testimony at a hearing on the motion, such that it’s in the record, you still must attempt to call the expert during trial and have the court sustain its earlier ruling in order to preserve it as an issue. Because, of course, it’s an interlocutory ruling and it’s a damn good chance the judge would have changed his mind during trial, say appellate courts. Sadly, those appellate courts will never know for sure what the judge was going to do after hearing all that other testimony. Sorry, Mr. Defendant.

    Maybe this isn’t a problem for you federal guys. I don’t know, so correct me if I’m wrong.

    But It’s a problem for defendants to consider where I practice. Do clients want to pay this guy who won’t be able to testify anyway, just to preserve the issue?

    1. SHG Post author

      Isn’t that always a problem for the defense, state or federal? Non-lawyers think this stuff all happens by magic. We know that there are hard costs to everything we do, every chance we take, every witness we hope to call, and that we could be blowing the defendant’s last dime on something that has almost no chance of happening.

  8. simple-touriste

    Some people say that scientific and legal enquiries, evidences, statistics and proofs are completely different, but I never seen a convincing explanation, or pretty much any explanation of that assertion. I assume they work the same, or should work the same.

    So there is an observed correlation between specific religious images and drug dealing, “according to experts in the field”? Or maybe there is a correlation between specific religious images and drug prosecution? “Experts” are also the ones who catch drug dealers. And obviously they are using their religious images knowledge as clues to find drug dealers.

    Of course, they are not arresting everybody with a religious image, they are using other clues. So the might find more drug dealers than by randomly choosing a name in the telephone book. They have useful knowledge (if you want to find drug dealers).

    It means that they know some useful stuff about drug dealing, but it does NOT mean that they are experts, as a dog can help detecting drugs but is not a drug “expert”: an expert knows its knowledge, and the limit of its knowledge. A competent and honest expert will refuse to give expertise about stuff he doesn’t know well.

    When people who think that specific religious images are likely to be drug dealers look for drug dealers, they might mostly find drug dealers with religious images, and miss the others.

    There is a classical failure of capture-recapture here:

    Capture = you put traps in a forest to capture animal (without hurting them). You check the traps regularly, then tatoo and put a sign on the animals, and free them. Then you do it over again (recapture) and you count how many of these animals have been captured the first time. This protocol is designed to measure how many animals were not captured with a simple formula: if, say, 10% of recaptured animals are marked, you say that on average 10% of animals are trapped, so the total number of animals is the number of captured animals divided by 10% (or multiplied by 10 if you like).

    But it only works if animals uniformly randomly fall into the traps. If some animals are more intelligent/agile/whatever and rarely do, they you haven’t measured the whole population. The capture-recapture is then useless. Capture-recapture is now sold as the almost magical methodological approach for vaccine adverse effects in France, but the underlying hypothesis (homogeneity) is untested.

    If cops are scientific experts, they should be able to tell the specificity, sensitivity and positive prediction value of the religious test. That is, if “expert” has any real legal content, they should be able to go beyond, “I know some guys, they know others guys, they deal drugs and have these religious images or whatever”.

    There was a scandal about a pedophile case in France, le procès d’Outreau (see https://en.wikipedia.org/wiki/Outreau_trial ) with many people convicted in first trial, with claims dismissed on “procès d’appel” (not really the same as your appeal courts, it’s just a second trial); then a parliamentary inquiry about the failings of the “juge d’instruction” (investigative magistrate, you have no equivalent, hopefully) ‘s work. The psychological experts apparently had a huge influence in the case. I watched some of it (it was on TV, something exceptional for a parliamentary inquiry at the time), and I don’t think at any point the specificity of the psychological diagnostic was discussed (but a psychological expert said he was paid as much as a cleaning lady so he was doing an psychological expert job as a good as a cleaning lady). The psychological diagnostic was that the person accused has the mind compatible with pedophile mind (don’t remember, stuff like that); but apparently most people have such pedophile “compatible” mind (whatever that’s even supposed to mean). The test has zero specificity and is a waste a money that could be use for cleaning stuff. But then, some experts would be starving (I guess).

    (Some French Justice analysts/commentators say that at least a third of authorised tribunal experts are “buffoons”, according to most judges.)

    Some “journalist” pretended he identified the inventor of the Bitcoin system, Satoshi Nakamoto, real name Dorian Satoshi Nakamoto, based on many evidences including the two-spaces-after-period-rule, used by both Satoshi-the-inventor and Dorian Satoshi. Satoshi-the-inventor probably uniformly uses the two-spaces-after-period-rule (people rarely change), but there is no guaranty. Sensitivity of two-spaces-after-period-rule as a test for the condition is-it-the-bitcoin-inventor MIGHT be good, IF Satoshi was not actively trying to conceal its real identity (and most people believe he was trying to be anonymous). However, if the “journalist” did its homework, he would have realised the test is useless as its positive prediction value is extremely close to zero: the specificity of the test, the “ability to exclude a condition correctly” according to WP, that is the ability of detecting all the many not inventors of Bitcoin, is low, as many people (maybe most living US citizens) were taught the two-spaces-after-period-rule. The test is not worth mentioning, it isn’t even worth using at any point. You need have some idea how much people use the two-spaces-after-period-rule to know that (but the answer “a lot, really” is actually sufficiently precise).

    You could trying to combine many is-it-the-bitcoin-inventor tests to get better results, but then you have to prove that these are independent (or measure their degree of dependency) in order to reduce uncertainty. Anyway, even with many of these ridiculous prediction value tests, you won’t get anywhere. Also, the sensitivity of these tests relies on hypotheses, like Satoshi not voluntary using a distinct writing style, leaving fake clues, etc.

    The Satoshi situation may be easier to think about because:
    – nobody goes to jail (Bitcoin is not illegal);
    – inventing a cryptographic work proof based distributed network is not controversial – well, at least not as much as (illegal) drugs.

    The “journalist” should have asked an “expert” about typography. A typography “expert” would have told him that many people use the two-spaces-after-period-rule. That may not have changed the final outcome, but at least the two-spaces-after-period-rule argument would have been avoided, and some ridicule too. He was looking for a Satoshi and found one, “confirming” his original hypothesis. (Many untrained people don’t realise when they really just have chosen their conclusion as hypothesis.)

    I don’t know if the specific-religious-images-test is as unspecific as the two-spaces-after-period-rule, but I suspect it is close. The illegal nature of drug dealing implies that it is not possible to do a sociological study by randomly sampling (random sampling being the Gold standard of science) a phone book. Thus is not possible to measure specific-religious-images-test sensitivity directly.

    Lack of proper randomisation is the plague of studies about prostitution; many really preselect the worst case situations and then try to measure the ratio of worst case situation over the total of … worst case situations.

    A scientific study cannot use its findings as hypotheses: when measuring the impact of exposure to radioactivity on cancer, you measure exposure on other cancer-causing factors (“confusion factors”) and use knowledge on these other factors, the unplained-by-other-factors result being attributed to radioactivity. At no point you can use expected impact of radiations knowledge in this computation, as it would mean you are just copying (not reproducing) the results of previous radiation studies. Only then you can compare the result with previous radiation studies (if the results are extremely inconsistent, you might suspect something went wrong with the confusion factors, but maybe not).

    In order to use existing knowledge, you need to know how it was obtained. If figures about the effects of asbestos were computed using a model of exposure to radon (a natural radioactive gas) and “expected” radon caused cancers, using a regulatory model for radiation effects (“LNT”, a simplistic, unproven theory), you can’t use that figure in your radiation study, as you would study the radiation regulations, not medical effects. (I think that a lot of “epidemiology” findings are contaminated by regulatory unscientific hypothesis or other a priori, untested, even absurd hypotheses.)

    Good science tries hard to avoid circularities (but sometimes scientists fall for it). Good science tries hard to measure uncertainty (and sometimes scientists overestimate certainty).

    When cops “experts” try to estimate the sensitivity of specific-religious-images-test, do they poll drug dealers they arrested? Convicted drug dealers? How many cops use the specific-religious-images-test? How representative of the whole drug dealers population are the polled arrested drug dealers?

    There is a potential for a circularity here.

    This is not the only obvious issue with this story, of course.

    Illegal activities and vaccines (and cancer screening) have something in common, and it is a very serious issue: you mostly can’t do randomisation (don’t have the right to, or can’t at all, or you could but can’t because of a limited budget, or it would be unethical research, or you can but you really don’t want to and pretend it would be unethical research).

    Lack of randomisation means the conclusion is weak, and many incorrect medical advices have been based on these weak results. Science doesn’t “wait” for perfect data. Science is about doing the best the existing limited data, but also about knowing when evidence is weak (or not as strong). Science is NOT about “perfect proof” on one hand and “zero evidence, zero idea” on the other hand; there is a continuum between very strong and very weak evidence.

    Sorry if my message was too long. I intended it to be pretty short, then got “caught up in writing”. I really wanted to talk about science, correlations, probabilities (don’t start me on “CSI” … or the real world DNA test results), and randomisation; as I think it is appropriate. OMG I keep on talking please stop me.

    1. Dave

      This sort of “expert” testimony used as described in this post is, to me, wrong, as it is unscientific and unsupported, as noted. There is a place for a limited form of it, and perhaps a more successful approach would be to file a motion in limine to exclude only some of the testimony, or rather, only allow in that portion which is reasonable. I will illustrate with an example.

      One could argue that this sort of “lay expert” testimony is appropriate to explain things that actually bear explanation. Examples of this legitimate use of such testimony would be to explain the significance of a huge collection of baggies and twist ties next to a scale and a spoon. Or as was the case with one of my cases, where there were tubes and glass jars filled with fluid and containing coffee filters that, when tested, came back positive for pseudophedrine. Those items are generally found together in such a configuration for making meth, and the officer testified as such.

      What should be excluded, however, is testimony about things that could be found in any household. For instance, just finding pseuodphedrine in the medicine cabinet should not be the subject of “expert” testimony by the officer because probably EVERYONE has some. Or to use a more absurd example (yet one could imagine some judges allowing it): Testimony that a television and DVD player are indicia of a drug dealer because dealers often have to sit around in one place all day, waiting for customers, so they need something for entertainment. Now, a jury would see through that as every member of a jury has the same thing in their living room, but the example would perhaps serve as a clue to the judge that perhaps you need something more definite.

      To tie into the comment above, one would ask the police officer (in a hearing on the motion in limine, obviously no jury present for that) what studies they have done or what information they have about how many in the community have the saint medal who are NOT drug dealers. Absent any information about that, any such testimony should be excluded because it is just like the television and DVD example. But of course, this may fail because that is a logical argument based on science and that may just go over the head of some judges. But then there is another approach that may find more traction.

      It may simply be the case that in a given neighborhood or community, everyone has symbols or signs of a particular saint. And the reason for that may be that it is one revered within a particular ethnic minority community. In other words, finding the saint in a person’s belongings might just indicate their ethnicity and nothing else. Now if you can establish that to the judge, then you can point out that using that saint as an indicator of being a “drug dealer” in that community is nothing more than racial profiling. While judges may not get science, they do get the idea that racism is bad (one hopes) and that essentially allowing testimony that is akin to letting in testimony that someone is a drug dealer because they are a certain ethnicity is really bad. State judges are elected and would not want something like that getting out. Prosecutors are also elected and also may be sensitive to such a charge. So perhaps where science fails to convince, social pressure can help fill in the gap.

      I am really just thinking out loud here. I am no trial jockey. At the state level, I generally deal with appellate judges only. And while I deal with plenty of Federal District Court Judges, it is essentially with them acting as appellate judges, not in trials.

      Still, the anti-scientific nature of what often goes into court is appalling to me. If one can’t get a conviction with legitimate evidence, one shouldn’t get a conviction (even if you just “know” the defendant is guilty). That is the way our system is supposed to work.

      And I just had to laugh about the so-called computer experts mentioned here – as an aside, I was a computer programmer before (and ok, during) law school, and even I wouldn’t call myself an expert – I just know a bit more about computers in some areas than your average lay person. When I was in law school, I had my first oral argument before a judge (on a motion). It was a fake motion for a class, but it was a real, sitting state court judge. After I argued, I noticed that the judge had a shiny new computer on the bench there so I asked him about that. He basically said that he had no idea how it worked and that his court staff handled that stuff.

      More recently, for work, I made a little program to automatically handle what can sometimes be complicated calculations for whether a certain type of case is past the statute of limitations (there are many ways it can get tolled and then restarted and those things can overlap). To me, it was about as complicated as building a birdhouse would be to a competent carpenter. And I am sure I could have done many things better. To my fellow attorneys at work, it was like I did voodoo or conjured it up with magic. But now I greatly digress.

      1. SHG Post author

        I am no trial jockey.

        You don’t say? This isn’t tutti-frutti testimony, as would raise interesting issues for a motion in limine, but plain vanilla testimony, routinely used in narcotics prosecutions. Everyone, judges included, know the problems with it, but it’s nonetheless permitted because it’s always been permitted and, as trial jockeys are painfully well aware, the bar for admissibility of prosecution evidence is inversely proportional to their need for evidence to prove guilt.

        1. Dave

          Yes, the status quo is terrible. But surely you must have at least some small hope this can change, even if only at the edges? Or do you think even an attempt such as I suggest would be utterly futile?

          1. SHG Post author

            Absent a fundamental change in judicial perspective, the precedent will prevail. The best we can hope for is that it isn’t extended to such new and fabulous areas of cop expertise such as narco-saints.

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