Baking soda confused for cocaine lands innocent couple behind bars
Fort Chaffe, Ark. (KATV) - The inside of a jail cell is by no means a welcoming place. after all, it's where we house the guilty, but sometimes it's also where we hold the innocent.
"When you start talking about a schedule one controlled substance, your talking about a major case," recalled the Fort Chaffee Police Chief Chuck Bowen of a case he responded to back on May 8, 2016.
The police at Fort Chaffee thought they hit the motherload. Gale Griffin and her husband Wendall Harvey have been driving trucks together since 2009. They haul explosives for the military, a job that requires high security clearance and a rigorous background check. However, back in May, at the gates of Fort Chaffee, a routine inspection turned into a real life nightmare.
"I use baking soda for everything," said Griffin.
In fact, she buys it in bulk at Costco, but rather than taking the tub on a cross-country haul, Gale stores some sandwich bags which often accumulate throughout their sleeper trailer.
"I saw the guy hand out a bag of baking soda outside the drivers door, and I told him that's just baking soda, and I think that's when it started," said Wendell Harvey.
The Fort Chaffee police were suspicious of the powdery white substance, so, they called the narcotics unit from the Barling Police Department for help.
"We tested it three different times out of two different kits to make sure that we weren't having any issue, and each time we got a positive for controlled substance," said Chief Bowen.
"They thought we had like 13.22 ounces of cocaine, and the guy said I had over $3000 in cocaine," said Griffin.
As a former police officer in Fort Wayne, IN, Harvey was stunned. His intial thought was, 'How did cocaine get into the baking soda?'
"You don't even doubt the tests because I guess I'm stupid, I'm just a citizen and it never occured to me that the tests were invalid," said Harvey.
The test is a $2 Narcotics Identification Kit, also known as a NIK test, used by law enforcement agencies across the country.
"They're not infallible. They are subject to misreadings," explained Greg Parrish, Director of the Public Defender Commission. "There's a lot of these instances where they get false positives."
Around the country there have been instances of candy confused for meth, vitamins identified as amphetamines, and tortilla flour testing positive as cocaine. In Florida, the Department of Law Enforcement Lab Systems found 21 percent of the substances that tested positive for meth in the field gave a negative result in the crime lab.
Gale and Wendell were taken to the Sebastian County Detention Center, Jail where they were held for ten days before the court approved them for a public defender.
"The door opened, and there's a woman in the top bunk and a woman in the bottom bunk and a woman on the floor, and I had to sleep on the floor on the other side right next to the toilet," recalled Griffin. "I thought that I'd died and gone to hell. Really."
Because they did not have cell phone numbers memorized, they were initially unable to notify loved ones of where they were. After four weeks, Harvey was able to communicate to his son that he needed to set up a special phone system in order to receive calls placed from the jail.
"I felt like I was somewhere that didn't feel like America. I can't call anybody, nobody knows where I'm at," said Harvey.
After another two weeks, now early June, a specific attorney was assigned to their case. She sent wWndell a letter.
"We got an immediate response back from Mr. Harvey saying the substances are not illegal controlled substances. They are not.. He was very vehement about it. In fact, he wrote everybody," recalled Parrish who said the judge also received a letter from Harvey. "We immediately contacted the prosecutor through the public defender and said, you got the letter, he's saying it's not a control substance, can you expedite the crime lab testing on this."
However, the prosecutor did not respond. On July 11, after another four weeks had passed, the prosecutor finally asked the Arkansas Crime Lab to expedite the test. On July 14, the lab determined it was baking soda.
Two months after that routine stop at the gates of Fort Chaffee, Gale and Wendell walked out of the Sebastian County Jail, but their lives had been forever changed.
"We both didn't think we were going to get out at all," said Griffin.
It took another couple of months before the couple got their impounded truck back from Arkansas. They say it was badly damaged, and so was their reputation. They're still working to get their security clearance and their jobs back.
So, how could a mistake like this happen?
"We're not chemists, and we don't roll with a chemistry set in the back of a police car," explained Chief Bowen.
Right now that $2 test is all officers in the field have to determine probable cause.
"It's one of the best ones on the market that we can find, so it will have to be the one that we will stay with," said Bowen.
However, as long as that is true, both Gale and Wendell worry this could happen again to another innocent person.
"Two law-abiding working people, and there's no telling how many mistakes they've made. It's a mistake, but these mistakes happen quite often I think," said Harvey.
The Public Defender Commission is hoping to change the rules in Arkansas, so a public defender is assigned to each qualifying case within 72 hours of arrest. Right now, no rules govern that in Arkansas. For Wendell and Gale, it took almost a month for them to get an attorney assigned and had that happened sooner, they may have spent less time in jail.