Speed Bump on the Rocket Docket

Rosemary Lehmberg (Photo by John Anderson)

For the time being at least, Travis Coun­ty's "rocket docket" has been grounded.

The docket was designed in 2002 to ease jail overcrowding by expediting lower-level drug possession cases – which account for roughly a third of the criminal case docket – by allowing defendants to waive indictment and plead guilty based in part on the results of police-administered field testing of suspected drugs.

And so it went, and well, for more than a decade, with very few cases overturned or dismissed based on false-positive field drug tests. At least that's how it was until Jan­u­ary, said District Attorney Rosemary Lehm­berg, when prosecutors realized that since August 2012 there had been an unprecedented string of 12 false-positive field tests in rocket-docket cases. Since then, she's conferred with the courts and with Austin Police Chief Art Acevedo before ultimately deciding to slow the docket and not accept any pleas until after a final drug test has been reported back from the APD's lab. And because the lab is short-staffed and backlogged, that means the docket's speediness will, for now, be reduced to a crawl.

In fact, the APD lab hasn't been keeping up with the county's criminal justice system, as that system's reliance on scientific evidence – including chemical drug analysis – has grown. The rocket docket used to move as swiftly as its name implies – in 2009, cases on that docket took an average of just 11 days to close. But as the general backlog at the crime lab has increased, so too has the amount of time taken to return to prosecutors the final lab reports in these otherwise expedited cases. Lehmberg said the average turnaround time for a final lab report had been roughly 14 days; by last summer, that had stretched to nearly two months. (City Council last week voted to give APD an additional $180,000 this year to hire three forensic chemists to help reduce the lab's general backlog; see "Budget Games.")

Despite that growing lag time, that delay isn't ultimately what has slowed the rocket docket. Rather, it's the number of false-positive field tests for drugs that prompted Lehm­berg to put on the brakes. Essentially, the field tests help move the docket; for example, if cops find what they believe is a small baggie of cocaine on a person they've stopped, they'll employ a field test – essentially a chemical reaction test – to check their assumptions. If the substance reacts positively, they'll pop the person for possession of cocaine and send the baggie off to the lab for a final, conclusive test. In the meantime, however, the defendant, now slated for the rocket docket, is given an opportunity to plead guilty before indictment and before that final test is performed – a process that reduces jail time and helps unclog the criminal dockets. But in 12 recent cases, the final lab results have come back with a finding of no "controlled substances detected," even though a field test came back positive.

Exactly why the tests have come back false-positive isn't clear. Lehmberg says she's been told that it's a recent problem, not just in Travis County, but "everywhere." She and Acevedo said the issue in part is that the field tests aren't precise enough to detect what sort of "–caine" suffixed drug they're detecting. Indeed, it may not be cocaine that the person has been sold, but may be an adulterated drug with an anesthetic base, like lidocaine or benzocaine – both dangerous drugs (possession of either is a Class A misdemeanor, Lehmberg said), but neither as tightly controlled as cocaine, classified as a narcotic.

Whether the field tests are truly false, or whether they're simply not precise enough, is something that Lehmberg is currently trying to determine. She said she's requested the lab notes for each of the 12 cases that have come to her attention, to see if there was actually no drug detected by APD chemists or if there is some other drug there, but not cocaine. If the latter, those cases might need to be reconsidered for misdemeanor prosecution, she said. For now, however, she's not "willing to let people plead [guilty] without a lab report," she said. "Right this minute, until we figure this out, we're not pleading any more cases."