Judge calls for heads in drug test fiasco

You know the drill. The client accepts an offer of probation because, like most sane people, he doesn't particularly want to find out what life's like behind bars. Every month he has to drive across town to meet with his probation officer and piss in a plastic cup.

Then comes the bad news. That little cup of pee turns out to be a tad bit dirty. Maybe a little weed, a little blow or maybe some plain ol' pharmaceuticals. The next time he walks into the probation office there's a surprise waiting for him - a man with a gun and a set of handcuffs.

As the cuffs are being snapped onto his wrists, he finds out that the DA has filed a motion to revoke his probation.

At the courthouse the prosecutor offers a one-time only offer of the absolute minimum. She tells his attorney that she should be giving him more because of the hassle he has put everyone through. Now's the moment of truth.

The only problem is that the state only has to prove up its allegation by a preponderance of the evidence - the same burden a plaintiff faces across the street in the civil courthouse. If he turns down the offer he knows he's looking at even more time behind bars.

But what if the results of the urine test weren't all they were cracked up to be? What if the probation department couldn't keep the samples straight? What if the paperwork was all screwed up? What if the probation department knew that their tests were yielding false positives?

If they were in State District Judge Denise Collins' courtroom, the folks from the probation department might be feeling a bit of heat under their seats. They might even hear the judge recommend that they be fired.

And that's exactly what happened this week in Harris County. Local defense attorney Lisa Andrews looked behind the curtain at the probation department and found out the wizard wasn't nearly as scary as he thought he was. She found evidence of clerical errors, mislabeled samples and knowledge of false positives.

Judge Collins wasn't too amused when she found out during what she expected to be a routine hearing on a motion to revoke probation. She was so frustrated with what she learned that she announced she would not be allowing any test results from the probation department in her court. She also called for the head of the probation department, and his top lieutenants, to resign. Which Paul Becker dutifully did on Wednesday.

Outgoing Harris County District Attorney Pat Lykos has announced that her office will not be relying on the probation department's test results until such time as she has reason to believe the problems in the department have been addressed and remedied.

"In recent court testimony, senior adult probation department officials revealed previously undisclosed issues concerning the accuracy and reliability of urinalysis testing performed by and on behalf of their agency. This moratorium will remain in effect until I am assured of the accuracy of the department's test results." -- Harris County District Attorney Pat Lykos

There is no telling how many people had their probation revoked, or their pretrial bonds forfeited, because of a dirty urine test. There is no telling how many people have been sent to jail or prison and lost their jobs because of the incompetent management of the probation department.

But, despite having the evidence in front of her, Judge Collins has refused to revisit the cases of anyone who had their probation revoked because of a bad urine test.

Can we trust any test result in a criminal case? Can we really put faith behind that number of the sheet of paper? Would you be willing to convict a person just because a printout shows a number the prosecutor says is too high?

The probation department has a reputation for being sloppy and unreliable. Maybe it's to be expected when you look at the people who are hired and wages that are paid. Who cares about a screwed up test result here and there when your desk is covered in paper and more cases are being dumped on your lap everyday?

Allowing the probation department to both administer and evaluate the tests is akin to handing the fox the keys to the chicken coop. In much the same way as crime labs need to be made independent of law enforcement agencies, testing needs to be taken out of the hands of the probation department.

See also:

"Houston probationers did jail time based on faulty drug test results," Grits for Breakfast (Aug. 26, 2012)
"A crisis in community supervision," Criminal Background (Aug. 26, 2012)