Life in Prison for Hemp

José Peña was tired as he drove south toward Houston on the morning of Sept. 27, 1998. Following a quick trip north to Kansas in a rented van – to pick up the brother of a distant cousin's son – he was on his way home to Houston, where he lived with his wife and four children. It was the kind of favor Peña often did for friends and family, no matter how distant the relation – and the kind of favor that irritated his wife. "I was tired, and I was trying to get home," the 50-year-old recently recalled. "My wife was mad at me for doing favors for other people" when he could instead be home.

That morning, just before 8am, Peña was cruising south down I-45, a little more than two hours from home. He was driving in the right-hand lane through Leon County when he passed a state trooper sitting in his car on the grass median. He thought nothing of it – just another Texas trooper on a long and nondescript stretch of highway – until he noticed the trooper pull out onto the road and follow him. The officer, Mike Asby, a veteran member of the Texas Department of Public Safety, drove in the left lane until his car was parallel with Peña's. Peña looked over at Asby. "He pulled up next to me, and I looked at him because I wasn't not going to make eye contact" with an officer whom Peña thought was definitely checking him out for whatever reason.

Although Peña steadfastly maintains that he wasn't doing anything wrong or unusual, Asby would later testify that Peña caught his attention because he was driving more slowly than the rest of traffic in a van caked with mud; when the van "weaved across the center stripe and also across the solid yellow line on the shoulder," Asby testified in January 2003, he had to take action. "You're required to stay in a single lane of traffic," he said. He activated his lights and pulled Peña over.

Within the hour, Peña would be in handcuffs in the back of the trooper's car, headed to the county jail in Centerville on a charge of marijuana possession. Nearly five years later, Peña would be convicted and sentenced to life in prison for possession of what the state said turned out to be 23.46 pounds of freshly cut marijuana that Peña was transporting in the back of the muddy blue van. Although Asby testified that this was not a normal highway drug bust – "normally," he testified, marijuana moves north from Houston, already "dried out, cured, and ready to be sold" – he was certain that what he found casually laid out in the back of the van was pot because it smelled like pot – and he knows pot when he smells it. "It's something that you learned in [28] years of experience being on the road?" prosecutor Whitney Smith (now Leon Coun­ty's elected D.A.) asked Asby.

"Yes, sir," Asby replied.

Just Trust Us

There are at least two problems with the official story of Peña's arrest and prosecution. First, Peña is adamant – and has been since 1998 – that what he was transporting was not marijuana, but actually hemp, pot's non-narcotic cousin. Peña says he found the plants growing wild in Kansas and cut them down, thinking that he could use the stems and leaves in the various craft projects he made with leather and wood in his garage workshop; there was no doubt in Peña's mind that what he was transporting was not marijuana. The second, and eventually more decisive problem with the official story of the Peña bust, is that prior to his trial, officials with the Department of Public Safety lab in Waco, where the plants were taken for testing, completely destroyed all of the case evidence – all 23.46 pounds of plant material – and then also lost the case file with all of the original documentation of the lab's work on the case. By the time Peña was finally tried – more than four years later – there was absolutely no evidence to show the jury; instead, the state relied completely on the "experience" of Asby and of Waco lab supervisor Charles Mott (now retired) to persuade jurors that what they say they saw and tested was actually marijuana.

It worked.

That is, it worked until late last year, when Peña's conviction was finally overturned by the Court of Criminal Appeals, the state's highest criminal court, and Leon County subsequently dismissed the charges for good. In the intervening decade, however, Peña's case became a political hot potato, catching the attention of judges and lawyers across the state who watched as the 10th Court of Appeals, based in Waco, played tug-of-war with the Austin-based CCA over the power of the Texas Constitution, and whether it affords citizens greater rights and protection against state power than does the U.S. Constitution.

It's a conflict that has left the state of Texas divided and may mean – at least for the time being – that persons tried for crimes in one part of the state will be afforded greater protection from prosecutorial errors or malfeasance than are others. Frankly, says Keith Hampton, an Austin defense attorney who represented Peña just before his case was dismissed, you just "don't see this happen very often." Ulti­mate­ly, whether the protections gleaned from the Texas Constitution by the 10th Court will remain in force and be applied to all Texans is still to be determined.

Weeds, Not Weed

Peña had a knack for creating handcrafted leather and wood items that sold like hotcakes, he says, at flea markets in and around Houston. He made personalized shellacked plaques and leather key chains with popular first names spelled out in tiny beads, and at a dollar a key chain, they sold well. So when he first saw the hemp plants growing on the roadside near Manhattan, Kan., they gave him an idea. He would take the plants – which, to an untrained eye, look exactly like marijuana plants – press the leaves, and then use them on plaques or affixed to the small leather wallets that he also had become expert at making. He recognized these as "volunteer" hemp plants – they grow wild across the country, reminders of the days when hemp farming was commonplace and even, during World War II, encouraged by the feds as supporting the war effort. By the Kansas roadside, they were scraggly and abundant. When he pulled into the Tuttle Creek State Park outside Manhattan, and saw the plants growing everywhere, he "loaded ... up."

Indeed, Peña thought nothing of the fresh-cut plants that he'd laid out in the back of the blue van he was driving. He knew – partly from experience of having smoked pot when he was younger, and partly because he knew that hemp was once a major agricultural commodity – that the plants were nothing more than weeds that looked like weed.

However, that's not how Asby saw it. To him, it was clear that one thing, and only one thing, was taking place. Peña was moving a large amount of marijuana to Houston – as unusual as that might be, Asby acknowledged.

Peña repeatedly told Asby that the plants were hemp, and his insistence clearly gave some pause to Asby and the two backup officers who soon joined him. The three men stood next to the van pondering the notion that a plant could look like, but not actually be, marijuana. "I ... questioned them, I said, 'Well, he says it's not marijuana,'" Asby recalled in court. "I knew that there was a substance called hemp and I was asking them. ... And I asked them, 'You ever heard of something like marijuana, just hemp, that is legal to have?'" he continued. "I don't know that there is a legal kind. That was the question I was asking the officers: 'Have you ever heard of this ... where marijuana was cut and it turns out to be legal?'"

In the end, Asby was unpersuaded. "I just know marijuana smells like marijuana," he testified in 2003. "And I have never found anything that I thought was marijuana that wasn't." He cuffed Peña and hauled him off to jail.

On the ride into Centerville, Peña says he implored Asby to have the plants tested – that would prove that they weren't drugs, he said. Asby, who'd loaded the plants into a blue plastic storage tub before storing them in his trunk, assured Peña that the state would test the plants to determine whether they contained any tetrahydrocannabinol (aka "THC"), the main psychoactive ingredient in marijuana, the chemical indicator that a plant is indeed pot. Asby took the plants to Waco the next morning, where he handed them off to Charles Mott, then a 37-year veteran employee of DPS' Waco lab, who testified in court that he was the one who tested the plants. But that, as it turns out, was about as much as he remembered about the case. Indeed, in March 2000, almost three years before the case went to trial (why it took nearly four years to prosecute Peña is unclear), the Waco DPS lab completely destroyed all the evidence. Moreover, Mott testified, the original file with detailed documentation of testing procedures and results – including how the sampling and analysis had been performed – was also missing. By the time of Peña's trial, the only thing that remained was a one-page printout from a file that says the "results of analysis" reflected more than 23 pounds of marijuana – though how that was determined, or how much THC (if any) was found, will be forever unknown.

Village Idiots

José Peña (Photo by Jana Birchum)

Why the evidence was destroyed is uncertain; Mott said he received a legal order – from Asby, he recalled – directing him to destroy the evidence. But because the file was missing, he admitted, he did not even have a copy of the destruction order; all that remained was a computer notation that the order had been received.

Asby said he did not send any such order to the lab – and although Mott said the lab often took direction to destroy evidence directly from police officers, such a procedure should not have been proper. By state law, a judge must issue an order to destroy evidence, sometimes at the behest of a district attorney, says former D.A. Ray Mont­gom­ery, who led the Peña prosecution. In the Peña case, Judge Kenneth Keeling and Montgomery each averred on the record in court that the destruction order did not come from either of them. "You can't do that legally, as I understand, without a court order, and they didn't have a court order," Montgomery, now retired, recalls. "Sure, it's troubling to me that the law would not be followed," he continued. "I don't know why in the hell the DPS destroyed it," but, he reiterates, that order did not come from anyone at his office. "We'd be absolutely the village idiot to ask a judge to destroy evidence in a pending case."

The destruction of evidence made it difficult, at best, to mount a defense – and Peña's trial attorney, Brent Cahill, objected several times, arguing that to go forward without access to evidence (for which the defense had received court permission to have tested by an independent lab before the destruction was discovered) would violate any number of Peña's rights – including his confrontation and due process rights under the U.S. Constitution, as well as his "due course of law" right under the Texas Constitution. Keeling was not impressed; as he saw it, there was nothing to suggest that the destroyed evidence would have been favorable to Peña's case – even if it had been subjected to additional testing – so he allowed the trial to move forward with only the testimony of Asby and Mott to confirm that the plants were what the state said they were.

That was apparently fine with Mott, who said the destruction of the evidence was a random error and his lab generally did not make mistakes. "Has your office ever made a mistake?" Cahill asked Mott.

"We are human; we probably have," Mott replied. "A reportable mistake, a mistake that affects analysis, no."

"Never made a mistake in analysis?" Cahill asked.

"That was reported, no, sir," Mott said.

Mistakes Happen

That assurance was apparently sufficient to convince the jurors that Peña was guilty – a decision they reached before 6pm on the same day as the trial. After a short punishment hearing the following day – at which prosecutors trotted out Peña's prior convictions, including drug possession – the jury imposed his sentence: life in prison plus a $10,000 fine.

That Asby was able to determine (by appearance or smell) that the plants were pot, or that Mott's lab had never before improperly destroyed evidence nor ever made an error in analysis – is highly unlikely. Indeed, contemporaneous to the Peña trial, the Houston Police Department's crime lab was at the center of a growing public scandal involving contaminated samples, files in disorder, even a roof leaking into an area where biological samples were stored. The city of Houston is considering whether to move the lab out from underneath the HPD umbrella in order to give it more independence – a recommendation applicable to labs across the nation that was among many made by a panel from the National Academy of Sciences in its groundbreaking 2009 report on the national state of forensic science. In a sweeping investigation of lab practices across the country, the Denver Post in 2007 found that in the 10 states they investigated, biological evidence had been destroyed – or "purged" – in nearly 6,000 unsolved rape and murder cases, "rendering them virtually unsolvable."

"You can't keep everything," Arthur Mor­rell, clerk of a New Orleans criminal court, told the daily.

In creating the Forensic Science Com­mis­sion in 2005, Texas lawmakers acknowledged the need for better oversight of forensic labs. Among the questions currently on the commission's plate is an allegation that APD's crime lab has been inaccurately conducting analyses of suspected drugs in criminal cases; the APD has denied any wrongdoing.

Show Malice

Concerns of this sort were among those noted by a two-judge majority of a three-judge panel of the 10th Court of Appeals, which concluded in 2005 that Peña's conviction should be overturned and the case returned to Leon County for retrial or dismissal. "[T]he recent findings of negligence in the handling of evidence by crime labs across the country, resulting in hesitation and concern for those individuals whose convictions were connected with the work of those labs, demands that courts exercise caution when analyzing lost or destroyed evidence," the majority wrote in April 2005. "It is also clear that the negligence found in crime labs in Texas has resulted in the incarceration of innocent citizens and convictions based on faulty evidence."

Theoretically, one or the other outcome – retrial or dismissal – should have happened that year. Instead, the appellate court's opinion touched off a six-year volley between the 10th Court of Appeals and the state's highest criminal court, the Court of Criminal Appeals. At issue was the way the intermediate appeals court overturned Peña's conviction. Specifically, the 10th Court in Waco ruled that the Texas Constitution's "due course of law" provision – which is similar to but contextually different from the U.S. Constitution's 14th Amendment due process clause – provides more protection to individuals than does the U.S. Constitution. The court rejected the so-called "Youngblood standard" devised by the U.S. Supreme Court in a 1988 case (Arizona v. Youngblood) as a means of determining the limits of the accused's rights when evidence is destroyed. Texas, the 10th Court concluded, should not follow a standard that does not comport with protections afforded by its own Con­sti­tu­tion. "Whether in cases involving contraband or those containing DNA evidence ... science is becoming increasingly capable of answering life or death questions with the alacrity of Caesar's thumb," the court concluded. "As a result, it is imperative that we consider the loss or destruction of evidence carefully. ... [W]e join our sister states in rejecting Youngblood as persuasive when interpreting the due course clause of the Texas Constitution."

The Youngblood standard had in fact failed to protect Larry Youngblood from being incarcerated for a crime he did not commit. Youngblood was tried and convicted of abducting and sexually assaulting a 10-year-old boy who identified him in a lineup, but DNA testing was inconclusive, and the boy's clothing had not been properly refrigerated by police, destroying the evidence. Youngblood was subsequently convicted based on the boy's eyewitness identification. When Youngblood appealed, the U.S. Supreme Court eventually ruled that a defendant must show not only that the evidence destroyed would likely have been favorable to the defense, but also that the destruction was done maliciously. "Unless a criminal defendant can show bad faith on the part of the police," said the court, "failure to preserve potentially useful evidence does not constitute a denial of due process of law."

In 2000, after updated retesting of the DNA evidence revealed he was not the boy's assailant, Youngblood was exonerated, and the Youngblood standard has since been harshly criticized; numerous states have since rejected it as not comporting with protections afforded by their state constitutions, including its shifting the burden of proof from the state to the defendant. "The Youngblood bad faith requirement has posed a virtually insurmountable burden on defendants seeking to demonstrate that the government's destruction of evidence violated due process," American University Washington College of Law Professor Cyn­thia Jones wrote in the Fordham Law Review in 2009. Jones says that it's nearly impossible to find a case that would be overturned based on the Youngblood standard – clearly it didn't help Youngblood, who was actually innocent. "What better proof of the fact that this is not a good idea?" she asked in a recent conversation.

At trial, Peña's defense attorney noted the burden that the Youngblood standard placed on his client to have to refute the "expert" testimony of Asby and Mott, who – though lacking actual evidence – claimed definitively that what Peña was transporting in the fall of 1998 was marijuana. "I understand the court is going to let this testimony in, that this was tested as marijuana, that it was marijuana ... and when the Court [ruled] that [the evidence destruction] wasn't done purposely by the laboratory, be it the state of Texas, that puts defense counsel in a posture, Judge, where we are forced to assume the burden and prove a negative," Cahill told Keeling.

This single sheet of paper was all that was produced as "evidence" in the trial of José Peña.

"I know that, Mr. Cahill. But you know, I didn't write the law," Keeling replied. "I realize it puts the defendant in a predicament," he continued. "I have got to follow the law that the courts write for me, and that's what I'm trying to do and that's what they told me to do, so I'm doing it."

Dueling Judges

Other states – among them Alabama, Del­a­ware, Massachusetts, and Tennessee – have rejected the Supreme Court decision in Youngblood, but that had not happened in Texas – until Peña's case made it to the 10th Court in 2005. Ruling in Peña's favor, the appellate court recognized the impossible burden the federal decision placed on defendants and ruled that a different and more equitable balancing is required to satisfy the Texas Constitution. "One of the many reasons promulgated for a rejection of Youngblood is the practical impossibility of proving bad faith on the part of the police," the majority wrote. As such, the court reasoned, the best approach to handling the impact of lost or destroyed evidence is to consider three things: First, "the degree of negligence involved"; second, the "significance" of the destroyed evidence; third, the sufficiency of remaining evidence "to support the conviction."

"If after considering these factors," continued the ruling, "the trial court concludes that a trial without the missing evidence would be fundamentally unfair, the court may then determine the appropriate measures needed to protect the defendant's rights" – either by crafting an instruction that the jury must construe the destroyed evidence as favorable to the defense (such as is done in Texas civil cases, where jurors are told to assume destroyed evidence would negatively affect the position of the party responsible for the destruction) or by dismissing the charges.

The 10th Court's decision turned heads across the state. "After that first opinion [and when] it goes to the CCA" on an appeal from the state, "that's when it had everyone's full attention," said Hampton, who represented Peña last year. It was the kind of game-changing decision that had the defense bar cheering and the prosecutors' lobby grumbling, so it was not terribly surprising that Leon County appealed to the CCA to revisit and reject the 10th Court's ruling.

And that's what the CCA did – sort of. Although the appellate decision had touched a political nerve at the state's highest criminal court, in reversing the 10th Court the CCA did not overrule the lower court's decision on the Youngblood issue. Instead, in a decision written by Presiding Judge Sharon Keller, the CCA ruled that the 10th Court had decided the case in Peña's favor based on the Texas "due course" protection argument that he had not directly raised on appeal. The Keller court opined that the 10th Court had not given the parties an opportunity to argue for or against the Youngblood standard, and remanded the case to reconsider the matter after briefs from both sides.

After that process, in May 2007, the 10th Court again rejected the Youngblood standard in favor of the Texas Constitution's "due course" protection and overturned Peña's conviction. "Peña had a right to inspect the plant material and it was subject to discovery," the same two-judge panel wrote. "The State had a duty to preserve this evidence, which the State breached. ... [The] importance of the lost evidence and the sufficiency of the remaining evidence, weigh heavily in Peña's favor. Therefore, we hold that Peña was denied due course of law by the State's destruction of the plant material and the DPS lab file documenting its testing and subsequent destruction."

Judicial Ping-Pong

Unfortunately for Peña, that was still not the end of the matter. Again the state appealed to the CCA, and again the CCA weighed in to overrule the 10th Court – still without addressing directly the Young­blood question. This time, led by Judge Michael Keasler, the court reversed its previous finding that Peña's lawyer had preserved the state constitutional claim, and decided that he had not – telling the 10th Court that it could review Peña's appeal, but could not again consider that issue.

Four judges dissented, with Judge Charles Holcomb writing that the majority was essentially changing the rules in the middle of the game. While the court did not address the Youngblood standard directly, it did rule that Peña had preserved the right to raise that issue on appeal, noted Holcomb – "our [earlier] opinion clearly suggests that we did consider the preservation issue and resolved it in [Peña's] favor."

When the case again returned to the 10th Court, it was almost inevitable that Peña's conviction would be upheld. Without the Youngblood issue to consider, the 10th Court did not find that Peña's other issues deserved relief – including an argument that the state had withheld exculpatory material from the defense and had lied about it.

At issue was a soundless videotape of the highway stop. Asby had testified that there was no audio recording of his interaction with Peña – the trooper said he may have forgotten to turn it on. Without that audio, the state argued that Peña knew he was carrying marijuana and had never asked for testing of the plant material until after his defense learned that it had been destroyed. Peña was adamant that was not the case.

As it turns out, audio of the stop existed, though it wasn't rediscovered until the jury had retired to deliberate Peña's fate and was thus never heard by them. In the audio, Peña repeatedly tells Asby that he's certain the plants are not marijuana. Although the 10th Court was not swayed that the failure to disclose the audio evidence had sufficiently tainted Peña's case, in a twist, the CCA – not exactly known for being sympathetic to such defense arguments – took the failure to disclose the audio evidence seriously enough that in September 2011, it reversed Peña's conviction and once again returned the case to Leon County – where the charges were eventually, finally dismissed.

Regionalized Justice

Ironically, the question of whether the Youngblood standard still applies in Texas – or whether the more measured approach to handling evidence destruction issues that was devised by the 10th Court still stands – remains unresolved. Because the CCA has not rejected outright the 10th Court's reasoning in rejecting Youngblood, the 10th Court's decision in the Peña case still stands – at least in the 18 counties covered by the 10th Court. "The [CCA] did not reject it ... so the law still stands," says Hampton. But because only one of the 14 intermediate courts of appeal – the 10th – has specifically rejected Youngblood, the standard of justice in Texas now depends on where a defendant lives. "It's a weird place," says Hampton. "The appellate courts in the state aren't quite sure what to do with it."

Since 2005, when the first opinion was issued, the 10th Court's Peña ruling has been cited an inordinate number of times in other court rulings, Hampton says, though a number of those courts – including the 3rd Court of Appeals, which covers Austin – has rejected the reasoning in favor of the "show malice" standard of Youngblood. He says he does see hopeful signs that other state appeals courts – specifically, the 8th Court in El Paso – might be interested in following the example set by the Waco court in Peña. "You don't see an opinion like that come out very often. It is a very unusual opinion," he said.

For the time being, the state remains split on how to handle the issue – and that means it is likely that the CCA will sooner or later have to settle the matter. For now, Hampton notes, there is a different standard at work for defendants covered by the Waco appeals court. "If I'm in Bell County [covered by the 3rd Court], I have to prove bad faith" on the part of law enforcement for any destruction of evidence, "but if I'm another 40 minutes up the road [in Waco], I don't have to."

As for defendant José Peña, who spent more than a decade fighting the case, he is greatly relieved that he has – at least as far as the courts are concerned – been vindicated. But the case, he says, has cost him everything. He lost his marriage and his home; his relationship with his children has been strained; things just haven't worked out as he had planned before the fateful traffic stop in Leon County. (He now works in a specialized kind of construction for the natural gas industry.) Nonetheless, he insists he always knew he would be getting out of prison – the system had failed, and he knew it had to be set straight. "They destroyed the evidence and everything, and they still railroaded me," he says. "I knew I was getting out – I begged my wife to hang on. I said, 'I know I'm getting out; I don't know when, but I know I'm getting out.'"

She couldn't hang on, he says; she was tired and scared that she would grow old alone. "I know this wasn't right," he says of the state's case against him. "But when I think back" about the weeds growing on the side of the road, he says, "I just should've left that stuff alone.

"It has cost me immensely."