Questions linger over county drug testing system

By Robert Arnold - Investigative Reporter

HOUSTON - Six months after a courtroom hearing exposed a deeply flawed drug testing system, questions remain as to whether the problems have been solved.

The system is run by the Harris County Community Supervision and Corrections Department, also known as the Probation Department.

Last year's hearing before Judge Denise Collins exposed rampant human errors, a poor chain of custody and shoddy record-keeping when it came to drug testing thousands of probationers each year.

"I think what's at stake is the integrity of our criminal justice system," said defense attorney Lisa Andrews during an interview with Local 2 Investigates last September.

Andrews helped expose these problems and even discovered errors with the drug testing system contributed to Richard Youst being sent back to jail. Youst, a first-time driving while intoxicated offender, was sentenced to 10 days in jail after multiple errors led to him being wrongly accused of testing positive for cocaine.

"They don't know how hard it was," Youst said after testifying at an August hearing.

When the hearing concluded the head of the department, Paul Becker, and two of his top lieutenants resigned. The Harris County District Attorney's Office also issued a moratorium on using test results from the department until the system was cleaned up.

An interim director was appointed in September to help right the troubled agency. Helen Harberts, a former prosecutor and probation chief in California, was paid the monthly equivalent of a $134,000 per year employee. Harberts did make sweeping changes to the drug testing system and even fired employees before stepping down as interim director this month.

Yet, six months after the moratorium was issued, Local 2 investigates has learned the Harris County District Attorney's Office is still not accepting drug test results from the department. Officials with the DA's Office told Local 2 they are still not convinced the system is totally trustworthy. Officials with the DA's Office now want to bring in another independent expert to audit the system set up by Harberts.

Local 2 also spoke with the newly appointed director of the department, Teresa May, Ph.D.. May wrote she, too, is in favor of bringing in an outside expert to audit the system set up by Harberts.

"I was appointed as the new Director for HCCSCD effective February 18, 2013. I am reviewing all of the problems that were outlined in the hearings, in Ms. Harberts review, and by the State oversight agency (TDCJ-CJAD). I am completing a full review of all of the corrections that have been made by Ms. Harberts to address those problems. I have requested assistance from Tony Fabelo and Mike Eisenberg of the Justice Center, Council of State Governments to gather and analyze data that will assist the courts and the HCCSCD in establishing a protocol to reduce the large volume of UAs conducted by the department. Ultimately, this analysis along with best practice standards will provide the courts with the information needed to make certain the volume and delivery of UA testing is manageable and the most appropriate course of action for the individuals under community supervision," May wrote. "First Assistant District Attorney Belinda Hill and I discussed a plan to ask the County to assist us in selecting and retaining an independent expert to evaluate the corrections and adjustments that have been made in the HCCSCD UA testing program to confirm that all of the problems previously identified have been corrected. The HCCSCD will continue to follow the best practice standard of evaluating all programs and practices periodically to ensure that they are being delivered in the most effective and efficient manner possible."

Local 2 also received an email from Harberts, responding to questions about another independent expert being brought in to review the drug testing system she put in to place.

"Thank you for contacting me. After the revelations about drug testing problems in Harris County, I was asked to assist with restoring the department's program. In less than six months it is a challenge to correct over a decade of neglect and poor habits. I found a system that was broken from the Director to the support staff. And, the legal system did not do their part in monitoring testing when there were denials and inaccuracies brought to their attention. The staff at HCCSCD did an incredible job in reversing the problems we had and they worked very hard to restore integrity to our program. I personally trained over 600 people on drug testing, and left the training on the department training drive so new employees could see the video.

"I brought in Paul Cary, the director of a SAMHSA certified non profit lab housed in a university (Missouri) to teach the Judges as well as the defense and prosecution bar. I also opened my training to pretrial services, the defense bar and others. Lisa Andrews, defense counsel at the original hearings, was brought in to examine our changes. During the changes, I often consulted with Paul on matters of science. We added EtG and EtS, bath salts, and designer drug panels, and we moved the department to national cut off standards. We moved to better electronic programming and placed two full time positions who report solely to the Director in charge of the monitoring and quality assurance via training and surprise audits. We focused on chain of custody issues heavily via training and policy and training on new policy, and surprise audits. The outcomes were good. The Court began using testing again, and we proceeded with continual improvements.

"You inquired about the need for another expert to come in. From my view: not necessary, but not harmful. The more eyes on this, the better. Your new Director is not a drug testing expert. She is an expert in other things. Therefore, I think she is wise to bring in another set of eyes to examine this. I know Dr. Kardasian. We are training together today in Alabama. He works as a consultant for a private lab that operates for a profit. He is a good man, and has offered assistance to other Texas jurisdictions because of the Harris County tragedy. As long as there is no quid pro quo, I think Dr. K is a fine choice to examine my work. He was initially contacted by the new Director and now the DA will be part of this. While you have been told that the DA has not been accepting these tests, I understand from individual Judges that this is untrue. The DA relying on Dr. K is a good idea, as long as Siemens does not suddenly get a contract from HCCSCD. That might be legitimate, but it "smells" of inside dealing.

"There were human errors still happening, and they were addressed very quickly and decisively. Once I trained everyone on this, I fired people who did not follow the rules. Lots of them. There is no margin for error here, and I held folks to the highest standard.

"We made constant efforts to ensure the chain of evidence was secure. Staff were taught that drug testing is not about "gotcha" but about "help you" Our probationers alerted us if something did not seem right, and we responded immediately. We abolished "quick test cups" overall and kept only a few for judicial mandate. These cups are notoriously unreliable in some regards and have a different cut off level for many drugs than labs do. We moved to state of the art GC/MS testing. I was completely focused on making sure that the public and the legal system could rely on our testing. As I left, I was satisfied that we were there. I am not responsible for changes made after I left, or for the RFP that was pulled immediately upon my departure.

"There remain questions about the amount of testing that HCCSCD does. I agree with those concerns. I believe that your new Director is continuing on my path of creating a state of the art assessment center. When operational, and if the Judges follow the recommendations, it will cut the testing sharply. Then it will be important to see to it that there be a nexus between the crime and the testing ordered. That is a standard of law generally and it should be followed.

"There are still issues about the facilities that HCCSCD is forced to use, and about the inefficiency caused by a lack of proper urine testing facilities. Our customer service remains challenging with long and unproductive waiting times to take tests. Before my departure I had asked for our call in system to be updated and changed to allow no more than 4 hours between the call and the testing time. I suspect that was not done.

"So your much is enough? When justice, freedom and due process are at risk, I am not sure there is enough. There are push backs when change happens. Without monitoring and direct support from the Director, I think folks will try to cut corners again. So, she (and every subsequent Director) should have someone look at this, and never, never blink. Public safety depends on it. Public health depends on it. Addiction is a disease of the brain. Without testing that is absolutely accurate and up to date, we cannot assess and address the issues raised by our offender population."

May said she is working with the District Attorney's Office to approach Commissioners Court to ask commissioners to choose and approve funding for an independent expert to be brought in and audit the current drug testing system. Neither May nor officials with the DA's office could speculate on exactly how much this will cost taxpayers and how long the process will take.

May and Judge Susan Brown, the administrative judge for all Harris County criminal courts, told Local 2 they are also working on reducing the number drug tests ordered each year. Last year's hearing brought to light a department overwhelmed by the estimated 300,000 drug tests ordered by judges each year. May and Brown said they are working to set up a system that will better assess which probationers need regular drug testing and which ones do not.

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