Pubdate: Tue, 22 Jun 2010
Source: Star-News (Wilmington, NC)
Copyright: 2010 Wilmington Morning Star
Contact: http://www.starnewsonline.com/section/submit01
Website: http://www.starnewsonline.com/
Details: http://www.mapinc.org/media/500
Author: Veronica Gonzalez
Referenced: The ruling 
http://www.aoc.state.nc.us/www/public/sc/opinions/2010/pdf/365PA09-1.pdf

STATE SUPREME COURT RULES EYEBALLING NOT ENOUGH PROOF FOR DRUG EVIDENCE

The state Supreme Court has ruled that an expert witnesses' visual 
identification of prescription drugs was insufficient to prove their 
substance and should not have been allowed in a New Hanover County man's trial.

But the court's ruling on Thursday was not unanimous, and in a 
dissenting opinion, Justice Paul Newby writes that the decision 
changes the law significantly as it pertains to witness testimony.

The opinion, which affirms an appellate court's decision, stems from 
the case of Jimmy Waylon Ward, who was convicted on Jan. 14, 2008, of 
drug-related felony offenses, including opium trafficking, after an 
SBI agent testified that out of hundreds of pills seized from Ward's 
home and car, only about half of them were actually tested by the crime lab.

Even so, Ward, 70, was sentenced to nearly a decade in prison.

"It's going to require the state to use science to convict people 
rather than visual ID," said Ward's appellate attorney, Paul Herzog 
on Monday. "What they're doing, I could do it. It doesn't take 
expertise. Anybody could do it. Just looking at something is not science."

Ward was arrested after New Hanover County Sheriff's Office narcotics 
detectives participated in an undercover buy with him on Aug. 22, 
2006 at the Carolina Beach Exxon station in which 30 blue oval-shaped 
pills were purchased for $180, according to the opinion written by 
Justice Edward Thomas Brady for six of the seven justices.

The undercover deal allowed detectives to search Ward's car and home 
where they found prescription pill bottles in his name and his 
cousin's name that were labeled Hydrocodone and Xanax. They also 
found unlabeled pills stored in a plastic cup and a bank envelope and 
more than $1,500 in cash, the opinion states.

At Ward's trial, SBI Special Agent Irvin Lee Allcox testified when he 
tested everything from Ward's car and home, he identified three pain 
medications with opium derivatives as well as cocaine, Amphetamine, 
Xanax, Valium, and Ritalin.

The agent testified that he only tested about half the pills because 
of limited resources in the crime lab. The rest he identified by 
looking them up in a medical publication used by doctors and pharmacists.

The court described the agent's techniques as "cutting corners."

Additionally, the agent testified the SBI routinely only tested drugs 
that would net a felony conviction while other drugs that would 
result in a misdemeanor conviction were of a lower priority so they 
were typically only identified visually.

"There is little evidence in the record either implying that 
identification of controlled substances by mere visual inspection is 
scientifically reliable or suggesting that Special Agent Allcox's 
particular methodology was uniquely reliable," the court ruled. "His 
testimony is completely devoid of any scientific data or 
demonstration of the reliability of his methodology."

The court noted that although the agent had an impressive background 
in chemistry and had considerable experience, he lacked a 
pharmaceutical degree.

"... There is little indication in the record that Special Agent 
Allcox was better qualified to visually identify a tablet than the 
average juror with ordinary perceptive abilities who, if called upon, 
could compare a tablet to a photograph and other descriptive 
literature," the court wrote.

Newby wrote in his dissenting opinion that "the majority's approach 
alters the law of this state as it pertains to the admission of 
expert opinion testimony" and altered the threshold for allowing 
expert testimony. He argued the SBI agent had two science degrees and 
more than 34 years professional experience analyzing and 
investigating drugs. Newby wrote the majority's ruling "expressly 
limits the manner in which an expert may arrive at his or her 
opinion, in direct contradiction of this Court's statements."

But the court stated in its decision that the ruling should lead to 
more fair trials. "Ultimately, the State is better served by 
identifying perpetrators with reliable evidence and reducing the 
likelihood that convictions rest on inaccurate data," according to the opinion.

Herzog said the ruling establishes good precedent. "Looking at 
something in a book, it's junk science," he said.
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MAP posted-by: Richard Lake