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.