Harris probation director resigns in wake of urinalysis errors that put innocents in jail

An outrageous scandal has engulfed the Harris County probation department and forced the ouster of its director.

Harris County probation director Paul Becker tendered his resignation, reported the Houston Chronicle ("Harris County's probation director resigns," August 29) in the wake of a hearing which concluded with State District Judge Denise Collins issuing a moratorium on using urinalysis results from the probation department in her court and calling for Becker and his three deputies to resign.

Moreover, "On Tuesday, the Harris County District Attorney's Office joined the judge in refusing to use any of the division's drug test results in the 36 other criminal courts until further notice because they have questions about the reliability." (Regular readers may recall that the Bexar County DA had to do the same thing back in 2009 when similar allegations arose there.)

KPRC-TV (Aug. 28) summed up the core allegation thusly: "The fallout comes after days of testimony showing a long list of problems, errors and mix-ups in the way the county's probation department tests probationers for illegal drugs. In some cases, positive drug tests were linked to the wrong people. Local 2 Investigates reported last week that at least one probationer went to jail in part because of an erroneous drug test result."

Further, "Probation department leaders admitted they never told prosecutors or even judges about the problems, even when they knew probationers with erroneous tests went to jail."

Judges now say they would have stopped requiring urinalysis in every case if they'd been told the probation department was overhelmed, reported KTRK-TV, though hindsight is always 20/20:

Judge Michael McSpadden says he wishes the Probation Department had told judges they were overwhelmed with the testing

"When you're overwhelmed, what you do is go to the judges is say don't make the requirements in every single case, we are overwhelmed. We never heard that," Judge McSpadden said.

Even with Tuesday's moratorium, the biggest problem for Judge Collins is that there is no way to tell how many probationers were wrongly sent to jail.

"And I don't think we have any idea, and we never will, how many people have been impacted by this. There's no way to measure it," said Judge Collins.

In truth, Grits doubts most Harris County judges would have stopped requiring urinalysis in every case without this kind of scandal to force their hand. Back in 2005, Grits reported based on a consultant's evaluation that Harris County had been told that "Urinalysis requirements in particular, while popular among prosecutors and judges, take up a huge amount of staff time and cause delays throughout the system." The consultant, Justice Management Institute, specifically recommended that "The courts should seek to develop cost-effective common policies concerning when drug testing should be ordered," but that never happened. So judges knew the department was overloaded by too many drug testing orders but willfully ignored the problem. That's not Mr. Becker's fault.

In some ways I feel sorry for Becker, who was in a damned if you do, damned if you don't situation. Probation departments are underfunded, relying mainly on probationer fees and a relatively small stipend from the state. Plus, in Harris they've been asked to provide urinalysis and supervision not just for people on probation but often for defendants out on bail pretrial. The system has grown so large and unwieldy that, to me, these types of errors are regrettable but unsurprising, not that that does wrongly jailed defendants any good. Mr. Becker may have fallen on his sword, but by no means are he and his staff the only ones to blame.

This episode also reminds us that people who've spent decades in prison on false rape or murder convictions before being freed by DNA aren't the only or even the most common category of innocent defendants jailed based on false accusations. These more workaday, low-level cases have just as much room for mistakes, but are also much more easily swept under the rug. Most defendants are indigent and can't afford to mount the type of full-court press that resulted in Judge Collins' findings this week. It's a great mitzvah that attorney Lisa Andrews did so on behalf of her client, but if defense attorneys in Harris County had been aggressively confronting false forensic evidence against their clients on an ongoing basis, maybe the problems would have been identified and rectified long ago.

RELATED: "Houston probationers did jail time based on faulty drug tests." SEE ALSO: Coverage from the ABA Journal, and a blog post from Paul Kennedy at The Defense Rests titled "Judge calls for heads in drug test fiasco." A Houston radio station quoted an attorney predicting civil litigation from wrongly incarcerated defendants.

AND MORE: The Houston Chronicle's Lisa Falkenberg has an interview with attorney Lisa Andrews.