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Test-tube maybes

Bexar County’s love of cheap plastic judges continues — despite a pattern of errors

Chuck Kerr
Dip tests can frequently return “false positives” suggesting someone has used illegal drugs when they are, in fact, clean. Bexar County may be the only large urban county in the state that refuses to offer a confirmation test.
Greg Harman

 

For roughly four months after Bexar County’s Adult Probation department shuttered its in-house lab and started farming out drug testing to a Texas company, the results coming back were unreliable at best. Still those test results were used to revoke probations and jail clients until a probation officer blew the whistle on the deal in May.

Director William Fitzgerald stood by his contract with Victoria-based Treatment Associates through intense internal criticism, public demonstrations, unflattering press coverage, and lawsuits.

Instead of ratcheting up testing protections to make sure the guilty are caught and innocents stay free, Fitzgerald has stubbornly refused to allow his officers to order confirmation testing as used in other probation departments in the state and by his own
predecessor.

By any measure, the department today is a house on fire and the only ones who can intervene, Bexar County’s local judges, have chosen to remain silent.

Halfway through a 12-month probation for petty theft, cannabis-friendly Michael returned to his bud. He fell behind on payments to Bexar County’s Community Supervision Department and failed to show for a required “theft class.” A motion was filed in county court on New Year’s Eve to revoke his probation. It was just the kick in the pants the lawn-mowing father of three needed.

After a night or two in lockup, he hired himself a good attorney and went straight. Or said so, anyway. Marijuana, which can take weeks to flush out of one’s system, as opposed to harder drugs that often pass through in a matter of days, continued to show up on his lab tests until a corner-turning, pristine whiz made on February 8, 2008.

Just one week later, however, Michael tested positive for cocaine and amphetamines. Thirteen days later he was hot for coke again. In March, the department reported he missed two drug tests. His lawyer was not amused.

“I kept telling him, you have to come clean with me,” said San Antonio defense attorney Robert Kahn. Michael wouldn’t budge. He wasn’t using, he insisted.

“Well, I get lied to so often that at first I just blew it off,” Kahn said. “He just kept insisting.”

One day, Kahn decided to believe his client. He requested copies of the drug tests so he could have an expert review them. The probation officer refused.

“She said, ‘Oh, no! We don’t do that. We’ll tell you what the results were, but we’re not going to give you a copy of the test itself.’” Laughing now, Kahn recalled his response. “I said, ‘You’re kind of expecting me to be awful trusting here. You just tell what it is and I’m just supposed to accept that as the gospel?’ Unfortunately, after 32 years, I’m just too cynical to be that trusting.”

Cynicism be praised. After a prolonged tussle for the records, Kahn discovered his client’s objections were more than well-founded. As it turns out, the probation department had outsourced their drug-testing services in February to private contractor Treatment Associates, and the unreliability of those tests was already a bitter subject for a growing number of probation officers. Lab complaints were added to the swelling list of complaints from staff, who in a 2006 petition warned of “serious health, safety, and economic issues affecting the work environment of our Probation Officers.” At the time, Director William Fitzgerald was preparing to meet with department employees over their concerns when something shifted. Talks with the recently unionized staff were abruptly canceled and the administration adopted scorched-earth policies apparently aimed at limiting the growing union’s influence.

On December 21, 2006, one day after backing out of what would have been his first meeting with union reps, Fitzgerald announced “retention interviews” would be held in early January and anyone interested in keeping his or her job would have to reapply for their positions and agree to a videotaped interview. The universally unpopular action ended before those interviews were concluded, according to staff, and a group of employees, led by chief probation officer Sheri Simonelli, sued Fitzgerald in March 2007 for workplace intimidation and discrimination. The lawsuit has since been passed up to the federal court, where a timeline for the case is expected to be set next week.

In May of this year, Simonelli issued a press release from her home computer alleging problems at Treatment Associates, which she said was returning large numbers of “false positives” wrongfully implicating probationers. She was terminated in short order.

One 20-year employee, who asked not to be identified for fear of retaliation, said she’d never seen such an explosion of obviously bad data — or such a poor administrative response to a critical situation. “I’ve never worked for an administration that didn’t care [if] false positives were occurring,” she said. “And then, to cover it up … as if they weren’t occurring.”

Simonelli’s firing led to a July 28 rally outside the courthouse attended by union brothers and sisters from a variety of other agencies and offices and a smattering of attorneys.

Few employees from adult probation attended. Simonelli’s termination had gone a long way to set the tone of current workplace relations.

It did not, however, put a lid on the growing number of district and federal lawsuits naming Bexar County Community Supervision, Probation Chief William Fitzgerald, and Treatment
Associates.

Within the myriad complaints of union-busting, intimidation, and wrongful terminations, is — for one of San Antonio’s most vulnerable populations — the rudest rub of all: The possibility that the department knew of the bad drug test results and allowed probationers to be jailed anyway. It is unclear how many people’s cases were impacted by the bad drug tests during the four months between February and Simonelli’s May whistle-blowing.

Former probationer Shannon McGillis Turner filed suit against Treatment Associates on September 12 on behalf of herself and her child, named in the suit simply “Baby McGillis.” The case alleges Treatment Associates is responsible for an inaccurate drug test that resulted in McGillis’s six-week incarceration. Hair tests performed before her incarceration and fecal-matter tests performed on her child, born the day after she was released from jail, confirm she was not using drugs, according to San Antonio attorney David Van Os, who represents both Turner and Simonelli.

“From the beginning, Treatment Associates was using a software program that was the wrong software. They knew it was producing inaccurate results,” he said.

A week after Treatment Associates President Jeffrey Warner failed to return calls from the Current seeking comment, another eruption. On Tuesday of this week, Texas Attorney General Greg Abbott brought charges against the company for illegally trashing sensitive client records in a public dumpster, a charge stemming from an investigation by WOAI.

Still, the campaign launched by Simonelli and fellow union members within the department has gone nowhere with the district and county-court judges who are responsible for hiring and firing (though not managing) the department’s head. Repeated calls by the Current to reach several of these judges for comment were unsuccessful. Director Fitzgerald also would not comment on problems with Treatment Associates or the department’s drug-testing policies, referring questions to a
coworker and codefendant, Deputy Director of Operations Kathy Cline.

Skirmishes over the contract with Treatment Associates have also drawn renewed attention to the department’s drug-testing policies in general. Shutting down the department’s old drug lab isn’t the only change five-year veteran Fitzgerald has made during his tenure. He also ended the department’s practice of seeking confirmation tests for any dubious or disputed test results.

While former adult-probation director Caesar Garcia agreed that the department’s in-house drug-testing operations had received some black marks in the past, he said confirmation tests were performed when probation officers requested them. It’s an assertion backed by several officers interviewed for this article but strenuously denied by two-year employee Cline, who did not work with Garcia during his 25-year reign as director.

The probation department relies on “dip” tests for proof of drug use. Dip tests consist essentially of dropping a sensitized paper into the pee cup and waiting for the appearance of positive lines, not unlike many home-pregnancy tests.

According to Redwood Toxicology, one of Treatment Associates’ subcontractors, the dip tests should never be interpreted as proof of drug use. The company website warns the technology is “For professional in vitro diagnostic use only. Any positive result obtained with this urine screening test is presumptive and should be confirmed by an alternate method such as GC/MS.”

A similar test distributed by Andwin Scientific warns the test is “only a qualitative, preliminary analytical result. A secondary analytical method must be used to obtain a confirmed result. Gas chromatography/mass spectrometry (GC/MS) is the preferred confirmatory method.”

Austin defense attorney and UT Criminal Defense Clinic lecturer Richard Segura said the dip-test technology doesn’t fly in court.

“Normally, if the client doesn’t admit to it, there’s no way in hell they’re going to ever be able to prove that case up,” he said. “The probation officer’s not a chemist, and the test isn’t scientifically validated. It’s not even admissible.”

Most officers use the tests to confront their clients and angle for a confession. Many defense attorneys even take the findings at face value and try to work plea deals based on their results. Certainly, they are accurate the majority of the time. But they fail enough that any time a result leads officers to seek to revoke a client’s probation, all other major cities in the state surveyed for this story offer confirmation tests. Probationers in Bexar County, however, aren’t even told they have the right to take a more conclusive test.

“No,” one Bexar County officer told the Current. “That information is not being offered.”

Cline said that there is no policy on whether or not the client must be informed they have a right to a more accurate test. “I don’t know we do or we don’t [inform probationers]. We don’t have a policy one way or another. We’re not their adviser. We’re not their attorney,” Cline said, before adding, “[Officers] certainly don’t advise them they don’t have the right.”

Houston sends off all positive dip tests for confirmation. Dallas confirms all positive tests when the probationer denies use, flying them overnight to an Arizona lab. Austin informs probationers who object to their dip-test results that they have a right to a confirmation test, but charges $42 to send the sample off.

San Antonio’s decision to wash its hands of the confirmation business entirely appears to be unique among large Texas cities. But there are other signs of strain.

A local toxicologist who just lost his contract with the Bexar County Department of Family and Protective Services says he spent much of the last year fighting to convince the department of the necessity of GC/MS confirmation. GC/MS, or gas chromatography mass spectrometry, breaks samples down to the atomic level and is widely considered the gold standard.

“They were trying to put us in a spot,” said Harvey MacFenerstein, a medical toxicologist at Analytical Toxicology. “They got this brainstorm, they don’t want confirmation. I said we need confirmation for it to go to court. I mean, someone’s going to lose their kids, and I know most of the opiates and amphetamines are sinus pills and over-the-counter stuff. I mean, a few months ago I would have tested positive because I was taking Claritin.”

A 40-year veteran of the piss trade, MacFenerstein doesn’t even like to touch the so-called dip tests. “There’s just too many problems with them,” he said, “inaccuracies.”

Similar to Florida’s hanging-chad pyrotechnics of the 2000 Presidential Election, the faint lines of dip tests often leave ample room for disagreement. Warm and cold temperatures can skew the results. And, quite simply, “there’s also a lot of bad kits out there,” whose results are frequently contradicted by the confirmation tests he runs using GC/MS, MacFenerstein said.

During the doctor’s fight with Family and Protective Services, he told the department he would not go to court to support any readings if they dropped GC/MS confirmation. (The new contract with a St. Paul company, according to a local press agent, includes automatic confirmation testing.)

The “big deal,” he said, are the amphetamines. “They could be a couple thousand different drugs, especially over-the-counter stuff. I said, ‘If I do go to court, I’m just going to tell the judge his caseworker did not order confirmation, so this is a tentative positive, and it’s not legitimate, and it won’t hold up in court.’”

Several attorneys interviewed for this article said that, at least in cases of motions to revoke probation, test results are very rarely challenged. Cline said drug tests alone rarely lead to a motion to revoke in Bexar County.

Still, those fighting the alleged surge of “false positive” drug results that followed the privatization of adult probation’s testing, say many probationers have either landed back in jail or fled town because of inaccurate test results.

“I believe that the top executive management of the probation department knew that there was something wrong at Treatment Associates, and they knew it was coming out with a lot of false positives, and they deliberately chose not to do something about it,” said Van Os.

“That is speaking to something that maybe has to do to with litigation, and I don’t want to speak to that,” Cline said.

In the fight for his client’s drug tests, attorney Kahn stumbled onto some damning information — just what Michael would need to slip the noose of revocation.

Kahn asked for test results, written reports, certifications, a list of employees, and, fortuitously, the sign-in logs.

“They fought it like hell, the DA and the probation office. I ended up going to maybe four different settings and getting the runaround. Finally the judge did enter an order saying they had to produce this stuff.”

Sure enough, not only had his client shown up for testing on the two days the probation officer had declared him MIA, but he had actually peed clean both times. Kahn also found that only one of the lab’s eight employees had been trained to use the test by the manufacturer. That sole certification had been issued almost eight months after Kahn first took Michael’s case.

When this information finally came to light after several months of hearings, “Judge Crouch was beside herself. She was pissed,” Kahn said. The judge immediately dismissed the motion to revoke and canceled Michael’s probation.

So a strange sort of entrenched relationship has set in at Adult Probation. The administration, being defended against Simonelli’s charges (and other plaintiffs such as the Service Workers International Union, Central Texas Association of Public Employees, and United Steelworkers Local 9528) by Texas Attorney General Greg Abbot — who through a twist of circumstance is also prosecuting Treatment Associates — is unwilling to explore the possibilities of wrongdoing in its lab relationship. Perhaps the state’s case against Treatment Associates will spare Fitzgerald the embarrassment of terminating the contract. But what is to be done about his continued refusal to support confirmation testing as so many other Texas probation departments routinely do?

One thing’s for sure: It’s not making justice’s high bar any easier to reach — and it’s not growing any love within the ranks of Bexar County’s probation officers.

“Our goal is to keep [probationers] in the communities, law-abiding, working, being functioning members of our society,” said one officer interviewed by the Current. “I think that our administration [has] an offender-type mentality. They were aware these false positives were coming back and they didn’t respond quickly … because it’s not something that personally affects them. It does thousands of other people, but not them.” •


Geography is everything

Bexar County
Initial test:
Dip test
Offered confirmation: No
Confirmation method: N/A

Travis County
Initial test:
Dip test
Offered confirmation: Yes (At probationer’s expense, $42)
Confirmation method: Shipped off for GC/MS

Dallas County
Initial test:
Dip test
Offered confirmation: Yes
Confirmation method: Shipped off for GC/MS

Harris County
Initial test:
Panel test
Offered confirmation: Yes, all initial positives
Confirmation method: Shipped off for GC/MS

Testing uno, dos, tres

‘Dip’/Panel Tests: Urine saturates the paper membrane, similar to most home-pregnancy kits, revealing the presence or absence of a drug at predetermined levels with solid lines. Depending on the manufacturer, these tests’ reliability ranges from 60-95 percent. Sometimes called a “positive–negative” test. Panel test used in Harris County is built into the cup, limiting chances of contamination.

EMIT: Computerized test similar to the dip test, known as the Enzyme Multiplied Immunoassay Technique in which the sample is heated to body temperature and light beams target antigens attracting their corresponding antibodies. Offers fast, cheap, and precise readings — that can also sometimes be wrong.

GC/MS: Gas-Chromatography Mass-Spectrometry is the “gold standard” by which the dip tests and emit tests are validated. Heats up and breaks down the now-gaseous sample to the atomic level. Also used to investigate criminal cases involving fire and explosives.


Pharmacopeia of
‘false positives’

Drug use is difficult to prove with just one or two dip tests. Most probation departments use a string of positive tests before seeking to revoke a probationer’s freedom. Even then, the onus is on any disputing Bexar County probationer to find and pay for his or her own tests, keeping in mind that “chain of custody” means everything to the courts. But with the rise of workplace drug testing and at-home tests for parents, who knows how many jobs have been denied or parent-child relationships disrupted by unreliable kits?

So-called “false positives” can come from a variety of factors. Here is just a sample.

Marijuana? Other candidates may be Dronabinol, Advil, Motrin, Midol, Excedrin, Aleve, Phenergan, niacin, hempseed oil, or a kidney infection. Being dark-complected can also put you at higher risk of a positive test, as the body flushes excess skin pigmentation, or melanin (which resembles stoner construct THC), from the system.

Amphetamines? Check those cold meds: ephedrine, pseudoephedrine, propylephedrine, basically the whole damn cold cabinet … Robitussin Cold and Flu, NyQuil, Vicks NyQuil, nasal sprays such as Afrin, asthma meds like Primatine tablets, and a range of prescription drugs.

Opiates? Not just poppyseed muffins;
Tylenol with codeine, most prescription pain meds, cough suppressants with dexotromethorphan (DXM), NyQuil, or kidney or liver disease.

Cocaine? Popular antibiotic amoxicillin, tonic water, diabetes, and kidney and liver disease.

LSD? Watch out for migraine medications, including Egotamine, Ergostat, Cafergot, Wigraine, and Imitrex, among others.


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