From the Government, Keeping Secrets.
Posted by Edmund R. Folsom, Esq.
February 9, 2020
Continuing on the topic of my most recent previous post, Richard Tanguay was informed late last week that the Cumberland County D.A. decided not to prosecute him for OUI, driving to endanger, and endangering the welfare of minors. Richard was my client. Where did we learn of the decision not to prosecute? From the press.
Richard was arrested and bailed on November 2, 2019, on a State’s theory that he was driving under the influence of drugs while bringing the Biddeford High School girl’s field hockey team back from their state championship game, in Oakland. Initial news reports said Richard was speeding and driving erratically through a construction zone on the Turnpike, in Portland, when he was stopped. The Maine State Police trooper who pulled him over put him through field sobriety tests as the kids and coaches on the bus looked on. The trooper handcuffed Richard, put him in a police cruiser and took him to the Cumberland County Jail. There, Richard took an Intoxilyzer breath test. The result was 0.00 grams of alcohol per 210 liters of breath.
A so-called “drug recognition expert” (DRE) arrived and put Richard through a DRE exam. As part of that process, Richard provided a urine sample that was later sent to the State DHHS Health and Environment Testing Lab for analysis. When the DRE was done, he rendered an opinion not only that Richard was under the influence, but that Richard was under the influence of a particular category of drug or particular categories of drugs. How do I know that? Not because the State provided us with any reports containing the DRE’s opinion. You don’t get any such reports until you are arraigned on a formal charge in court. I know because a urine sample was taken from Richard and because Richard was bailed on a charge of OUI after blowing 0.00 on the Intoxilyzer. And I know it because that’s what DRE’s do – they opine what category or categories of drugs are impairing a person.
A typical OUI-drugs case leads to 2 distinct proceedings – criminal proceedings on a charge of OUI and a BMV license suspension proceeding. But there is a considerable delay, often 6 months in Maine, between the time a urine sample arrives at the State lab and the time it is analyzed for the presence of drugs or drug metabolites. In both the criminal and BMV contexts, the State uses the results of the urinalysis to corroborate its DRE’s opinion. If a drug or drug metabolite is detected that fits any of the drug categories the DRE opines is causing impairment, the positive result is viewed as corroborating the DRE’s opinion that the person was impaired by a drug or drugs from that category. How could the DRE nail the prediction as to what type of drug or metabolite would be found in the Defendant’s urine if not for the DRE’s highly-honed analytical skills? It must be true then, as the DRE opines, that the person was under the influence of that drug or those drugs.
What happens if you are a school bus driver whose mug shot shows up all over the news, accompanying stories about you being arrested driving a busload of kids under the influence of drugs? First, just about everyone immediately believes you did it. They say lots of really unkind things about you. And your job as a bus driver is placed at great risk (thankfully, in Richard’s case, the Biddeford School Department placed him on paid leave). After that initial shock wave hits you, you just have to wait for things to play out, taking whatever comfort you can in knowing the results will be clean when they finally come in.
Richard was bailed to a January 9, 2020, arraignment date. I entered a written appearance and not guilty pleas for him in the Cumberland County Court, in Portland. I sent a copy to the D.A.’s Office along with a discovery request. I also requested a copy of the surveillance video of the testing processes at the Cumberland County Jail. Once an attorney enters an appearance and not guilty plea on a Class D or E charge, the defendant does not have to appear in court on the arraignment date. Everything connected to the arraignment is handled administratively, outside the courtroom. The D.A.’s don’t provide any discovery materials until the arraignment date because formal criminal proceedings do not begin until then. Formal charges are not lodged by an arresting police officer. They are brought by a D.A. who reviews police reports and then files a complaint charging one or more offenses.
Sometimes, a D.A. will decide not to file a complaint because a review of the police reports leads the D.A. to believe there is insufficient evidence to proceed. In that case, the D.A. files a “no complaint” with the court. But a no complaint does not necessarily mean that the D.A. has made a final decision not to charge the defendant. The D.A. might simply find the investigative reports lacking and send the case back to the police for further investigation, bringing charges later on, once the additional information is provided. The D.A. is not obligated to tell a defendant whether the decision to file a no complaint is a final decision or is just a stall until further information comes in. Sometimes the D.A. doesn’t know when filing a no complaint whether a complaint will eventually be filed or not. The additional information might lead to a final decision not to proceed or it might lead to a final decision to proceed. But even when a D.A. has decided not to proceed with charges at all, the D.A. can choose to just leave the defendant hanging – and that’s often exactly what D.A.’s do. The D.A. has no duty to disclose to the defendant that the case is dead. But Richard Tanguay’s case illustrates, I think, the unfairness of withholding from a defendant the D.A.’s final decision not to charge him.
What happened on the arraignment date in Richard’s case? The Cumberland County Unified Criminal Court is very efficient at getting scheduling notices out to attorneys on or very soon after the arraignment date. And the Cumberland County D.A.’s Office is very efficient at getting discovery materials to counsel. What happened in Richard’s case is one of the strangest things I have ever encountered in this connection.
Richard’s arraignment was scheduled for Thursday, January 9, 2020. Because I had not heard anything from the Court or the D.A. by the following Tuesday, January 14, 2020, I approached the court clerk’s office that day and asked if they were delayed getting scheduling notices out. The clerk I spoke to looked up the case and said they were behind getting notices out, still recovering from the holidays. I asked her for the docket number assigned to the case. She gave it to me. I said alright, I’d just wait for the scheduling notice. In other words, counsel of record was led to believe the clerk’s office hadn’t issued a scheduling notice because they were lagging behind. But I now know, from Megan Gray’s story in the Portland Press Herald, that the D.A. filed a notice of “no complaint” with the court on Friday January 10, 5 days before my conversation with the clerk. What’s up with that?
On Saturday, January 18, 2020, four days after the clerk led me to believe a scheduling notice would be forthcoming, Richard’s wife emailed me to say the court clerk had mailed Richard’s bail money back to him without explanation. The only reason that would happen is if the D.A. had filed a no complaint. Once a no complaint is filed, there is no longer anything pending, so the clerk returns the bail — So much for the information I got from the clerk on January 14.
I figured I’d ask the A.D.A. handling the case what was up with the no complaint. Sometimes an A.D.A. will tell you, quietly, if the decision has been made not to proceed. So I asked the A.D.A. when I saw him in court on Tuesday, January 21, 2020. I thought he might have decided to issue a no complaint pending receipt of the urine test results, to avoid letting his cart get too far out in front of his horse. I explained what I had been told by the clerk before Richard’s wife emailed me that his bail money had been returned, and that it seemed odd to me. I asked him if he issued the no complaint because he was waiting for lab results. All he would tell me was that the case needed “investigation,” which signified to me that no final decision had been made. So, Richard and I continued to wait. We had no doubt the results were going to come back negative, but the waiting would have to continue.
Early last week, on February 3 or 4, a reporter called the Superintendent of the Biddeford schools and told him she had been informed that the D.A. was not going to prosecute Richard. The reporter wanted to know what the school department was going to do about Richard’s job. Word of this contact was passed along to Richard, who called me about it. But what did I know, other than what I had been led to believe through my discussions with the court clerk and the A.D.A.? I called the A.D.A. and left a message telling him about the reporter and asking for information so Richard wouldn’t have to find out what was going on with his case through the press. I received no reply.
On Wednesday, February 5, 2020, I was contacted by Megan Gray, reporter for the Portland Press Herald. She was checking the record at the courthouse while doing follow-up on the story, when she saw that a no complaint notice had been filed. In following up on that, she understood the D.A. to tell her he was not going to prosecute Richard. She was looking for comment from me. Well, the reporter knew more than counsel of record then, didn’t she? I told her all about what I’d been told by the court clerk and the A.D.A. She told me she was the same reporter who had previously contacted the Biddeford Superintendent. As we ended our discussion, she was going to clarify that the D.A.’s decision not to prosecute was final before running with the story.
The next day, Thursday, February 6, 2020, Megan Gray called again, this time to tell me that Steve McCausland, spokesman for the Maine State Police, told her that Richard’s urine test result came back negative and Richard would not be prosecuted. The decision was final. The story appeared in the Portland Press Herald the next day, Friday, February 7, 2020. Later that same day, Richard was reinstated to his bus driving job by the Biddeford Superintendent. I never did hear back from the D.A.’s Office. Did they make the final decision not to prosecute nearly a month before, when they filed the January 10, 2020 no complaint notice? Who knows? Would we ever have been informed of the decision if not for the press poking around and telling us? Who knows?
Why do I tell you about all this? Because people have a lot of misconceptions about how the criminal justice system works. For instance, I’ve had more than one person tell me they think police officers aren’t allowed to lie. Excuse me, as an investigative technique they are trained to lie. That’s one misconception that ought to be dispelled by a moment’s thought. Richard Tanguay’s case should serve to dispel a few others.
First, every time you see someone’s mugshot in the paper or on the news, it doesn’t mean the person did what he or she is accused of. It is possible for a totally innocent, regular working-stiff, 69-year old guy to be accused of drugging it up and driving a bunch of kids around on a school bus. And if a totally innocent person can be flogged through a news cycle and hauled into court for behavior as reprehensible as that, you should be able to see that it is quite possible for other innocent people to be accused of other, lesser offenses. So, consider backing off the righteous indignation, especially on social media, until you’ve got something besides police spin to go on.
Second, police DRE’s don’t know quite as much as they let on or quite as much as they would lead you to believe. They’ve been known to identify a person as being under the influence, and not only that but under the influence of a particular category or particular categories of drugs, when in fact the person hasn’t taken any impairing drug and is not under the influence of anything — Richard Tanguay’s case being a case in point.
Third, DRE’s are not able to tell you with any authority that a person is under the influence of any drug the metabolites of which are later detected in that person’s urine. Richard’s case also illustrates this. The DRE who did his exam no doubt opined that he was under the influence of a particular category of drug or particular categories of drugs. It would be interesting to know what those were. That aside, everyone can see from the results of both Richard’s Intoxlyzer test and urinalysis that he had no alcohol and no drugs in his system. Yet, the DRE believed he was under the influence, because that’s what the tests the DRE administered led him to conclude.
Now, imagine you are someone who uses cannabis. You use some on a Saturday. On Monday, you are pulled over for failing to come to a full stop at a stop sign. You have a small amount of the pungent herb in your car, detected by the officer who stops you. The officer thinks your movements look lethargic, so he puts you through field sobriety tests. The standard for OUI being to operate a motor vehicle under the influence while impaired to any degree, however slightly, and probable cause to believe you have done that being an extraordinarily low standard, the officer ends up arresting you for OUI. At the police station, you blow 0.00 on the Intoxilyzer. The same DRE who examined Richard arrives to examine you. The officer who stopped you tells the DRE about the weed he smelled in your car. The DRE who determined that Richard Tanguay was under the influence of drugs determines you are under the influence of cannabis, using the same highly-honed skills he used on Richard. You do know, don’t you, that the metabolites of marijuana stay in your system for days?
Your urinalysis is positive for carboxy THC, a non-impairing metabolite of cannabis. That will get your license suspended by the BMV in an administrative suspension action, and will cause a D.A. to charge you with OUI-drugs. But “I didn’t use cannabis for 2 days!,” you cry. No matter, the circumstantial case is, you messed up the DRE’s tests, indicating you were under the influence, the DRE exam indicated the category of impairing drug was cannabis, and a metabolite of cannabis was confirmed positive in your urine. Bye-bye license if the BMV hearings examiner credits the DRE’s opinion, and bye-bye clean criminal record if a jury buys what the State is selling. Did you think it worked differently? Another misconception dispelled.
Fourth, even if you are demonstrably totally innocent and there’s conclusive evidence to prove it, the D.A. can withhold from you both the smoking gun exculpatory evidence and the finality of the decision not to charge you. In other words, the D.A. can leave you hanging. For how long? The statute of limitations is 3 years for Class D and E crimes, 6 years for Class A, B and C. How long would Richard Tanguay have been left hanging if the press hadn’t been asking the questions? Thankfully, the press tends to get answers. They have the ability to cause pain, to make life uncomfortable for government holders of information when the press doesn’t get the information it wants. But again, all you people whose government is of, by and for you: Is it fair that that’s what it takes? Is that how you would want your government to treat you? Or should a final decision not to prosecute be conveyed to a defendant and the defendant’s attorney of record once the decision has been made? The D.A. and A.D.A. here did the same thing that many, if not most, D.A.’s and A.D.A.’s would have done in the same circumstances. They did what they are allowed to do, but should they have been allowed to do it once a final decision to decline prosecution was made, leaving Richard Tanguay under a cloud of opprobrium and suspended from his job?
That’s about it for misconceptions that Richard Tanguay’s case should help to dispel. But there is another tangentially-related item in today’s Maine Sunday Telegram that I’d like to mention. The Maine State police are probably using digital surveillance technologies on us, including facial recognition and mass cell phone surveillance. There are very good reasons to believe this is happening and that it is coordinated through the Maine Information and Analysis Center — a so-called “fusion center.” Would you like to know the extent to which police agencies are surveilling you, monitoring you electronically? Well, tough luck. It turns out Maine has a statute that blocks the public from knowing what our police agencies are up to if and when they surveil us. Even the press isn’t allowed to know the if-and-when of these secrets. When the press recently requested records pertaining to Maine’s fusion center and surveillance activities, they were told: “As a matter of law, we are unable to confirm the existence or nonexistence of such records and information.” This form of response is called a “Glomar” response, named after the CIA operation that gave rise to it. That’s right, CIA. Given its genesis, maybe, “We cannot confirm or deny the existence,” should be followed by, “And if we told you, we’d have to kill you.”
Be skeptical of law enforcement. Any power they can abuse, they will abuse. It’s just human nature. We should keep their opportunities to a minimum. Lead them not into temptation, that we may not need to be delivered from ensuing evil.
Related News Report, Regarding “Drug Recognition Expert” DUI Arrests and Clean Tests in GA: The Drug Whisperer.