Drug Policy

Poppy-Seed Bagel Triggers Kafka-esque Nightmare

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The prison system finds it hard to say goodbye.

Nicole Defontes pulled her life back together in dramatic fashion after serving 4½ years in federal prison for participating in a cocaine deal with her then-boyfriend.

But if it weren't for the work of some determined Miami criminal defense attorneys and for a federal judge who was willing to listen, Defontes would be behind bars, unable to defend herself or present evidence to prove her innocence, and wrongly incarcerated for eating a poppy-seed bagel that produced a false positive on a drug test.

When her case landed before U.S. District Judge Marcia Cooke on a habeas corpus petition to remove Defontes from the clutches of the U.S. Bureau of Prisons, the jurist appointed by President George W. Bush was outraged.

"When this happens in other countries, we call up Amnesty International," Cooke said at a hearing a year ago. "But for the fact of this defendant having resources, she would be in the FDC [federal detention center] supervised release gulag."

It's not the mistake that's disturbing, it's government officials' refusal to admit a mistake is possible.

Fridman said the halfway house where she tested positive had a history of irregular testing.

The U.S. attorney's office, which represented BOP, would not turn over the lab report, forcing litigation. "They basically told us, 'You have to sue us,'??" Fridman said…

Even with the money to marshal a defense, it wasn't easy for Defontes to take on the Bureau of Prisons. Fridman, a former federal prosecutor, claimed BOP officials were vindictive when Defontes tried to exercise her constitutional right to defend herself.

"BOP tried to send Nicole out of state right after we filed the lawsuit. We had to get a court order to make them keep her there. She was about to board the bus," Fridman said.

Fridman said he was astonished by one claim lodged by the Bureau of Prisons — she had not attended four drug counseling sessions while she was jailed due to the drug test results. Fridman said the FDC never offered those sessions.

Cooke determined Defontes didn't test positive under BOP policies. She tested 0.1 micrograms per milliliter, but a positive drug test for opiates for inmates is 0.3 mpm or above.

"The BOP person in charge of the early-release program didn't even know about the cutoff," Fridman said.

Still BOP officials were determined to re-incarcerate a woman who had been a stellar inmate.

The BOP was looking for an excuse to drag her back in, Defontes said.

Fridman noted drug rehabilitation programs — from halfway houses to drug counselors to drug-testing facilities — make money off the system.

In her ruling, Judge Cooke added that it's likely Defontes isn't the only person this has happened to. She was just lucky enough to have a determined, well-funded law firm defending her.