On July 28, 2011, Major Eric Smith, a 40-year-old U.S. Army physician in a residency program at the Madigan Army Medical Center in Tacoma, Washington voluntarily submitted a urine sample as part of a random sampling program for physicians.
A month later, Smith was informed that the urine tested positive for the presence of cocaine. Smith immediately sought a hair follicle test and on August 30, 2011, a test showed the hair was negative for the presence of cocaine. Research has shown that cocaine can remain in hair follicles for as long as three to four months after cocaine is ingested in the body.
In November, 2011, the Army sought to court-martial him on a charge of wrongful use of a controlled substance.
Smith went to trial in September 2012. Smith’s defense attorney failed to provide a proper foundation to admit the follicle test as evidence so the trial judge excluded the negative test result. Smith testified that he voluntarily submitted the urine sample which suggested that he, a physician who knew how long cocaine remains in the body, had no fear that cocaine would be detected.
Smith’s defense attorney tried to show that the urine sample must have been contaminated during the testing process—the testing was done in a temporary facility because the air conditioning at the toxicology lab was being repaired. On September 28, 2012, the military jury convicted Smith. He was sentenced to two years in prison and loss of all pay and benefits.
On May 15, 2013, Smith’s sentence was commuted by the military and he was released from prison. Smith took and passed a polygraph examination. In 2014, Smith filed a motion to vacate his conviction on the ground that his trial attorney’s failure to take the correct steps to admit the follicle test results into evidence denied him a fair trial. In addition, Smith claimed that his defense attorney had also failed to call a witness who would have corroborated Smith’s testimony that he voluntarily submitted the urine sample. After the motion was filed, Smith obtained an independent DNA test of the urine sample which identified two separate DNA profiles—his and that of an unidentified male.
On July 17, 2015, the U.S. Army Court of Criminal Appeals vacated Smith’s conviction and ordered a new trial. The decision did not mention the DNA test results, but held that Smith’s attorney failed to provide an adequate legal defense. The court concluded that Smith’s lawyer’s “failure to properly investigate and evaluate the validity, strength and relevance of the hair follicle test…was unreasonable under prevailing professional norms….This was exculpatory evidence that, if admitted as substantive evidence, would have enhanced the defense…”
The appeals court also held that Smith’s lawyer should have called the witness who would have corroborated Smith’s testimony that he submitted the urine sample voluntarily and that the failure to call the witness “was not reasonable.”
On September 2, 2015, the prosecution dismissed the case.
– Maurice Possley
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