Test on Trial

In January 1998, Hank S. stood before a Los Angeles federal judge, facing the possibility of prison for failing an allegedly faulty drug test.

The matter at issue was whether Hank, who does not want his real name published, had violated the terms of the probation he was put on after getting busted for marking cards in a Washington casino. As a former cocaine abuser, Hank, 56, was required to wear a new type of drug-testing device, a patch that monitors sweat for traces of illegal substances. One day in October 1997, the patch said Hank had been doing cocaine. Hank swore he had not; he had clean urine and hair tests, and letters from his drug counselors attesting that he was staying straight, to prove it. The patch, Hank insisted, must have made a mistake.

"I was scared shitless," he says. His wife needed a liver transplant at the time, and if Hank was sent to prison, he would lose his salesman’s job and she would lose his insurance coverage. And when he got out, well, "There’s not a great market out there for unemployed 56-year-olds," he says.

To determine whether it was possible for the patch to have made such a mistake, the judge heard from a single expert witness: Neil Fortner, vice president of laboratory operations for the company that manufactures the patch. No way, said Fortner. And Hank lost his case.

It’s hardly surprising that a guy in Hank’s shoes would deny using drugs, but in his case and dozens of others like it, there’s reason to believe it was the patch, not him, that wasn’t telling the truth. In recent years, the patch has been slapped on thousands of people in Southern California and around the country by a lengthening list of criminal-justice agencies and courts. Its findings can determine everything from whether a drug addict gets extra counseling to whether a mother in family court loses her children. But despite the potentially life-altering power of its readings, a growing body of evidence indicates that the patch is prone to mistakes.

The Band-Aid-like patch was introduced with a $1.5 million marketing effort in the mid-1990s by PharmChem, a major Silicon Valley–based drug-testing company. Worn on the upper arm or back, it offers several advantages over conventional urine testing. A urine test will only detect drug use within the previous 72 hours; the patch, however, can be left on for up to two weeks, a constant chemical sentinel. It’s also much harder to deceive than urine tests, which can be fooled by drug users who drink enough water to dilute their pee, or who manage to tamper with the sample itself. (In one memorable recent effort, a Texas heroin addict was caught trying to squirt a sample out of a fake penis.)

The patch was purchased in July by drug courts in Inglewood and El Monte. The Orange County Probation Department has used it since 1996, as has Anaheim-based Sentencing Concepts, a private incarceration and drug-rehab outfit that also re-sells the patch nationwide. The device is also stuck on some 5,000 federal probationers and parolees across the country, and many more people under the supervision of correctional agencies and courts from Northern California to Massachusetts.

"We find it very useful," says Bill Daniel, director of adult field services for the Orange County Probation Department, which currently patches about 300 drug offenders. "It’s a reminder to parolees that they can’t slip up, even if they’re outside our supervision for a few days."

The patch’s critics, however, claim that it has a serious flaw: a propensity to indicate its wearers have taken drugs when, in fact, they haven’t. Defense attorneys in Northern California have compiled a list of dozens of people who, like Hank, came up with dirty patch results but clean urine and/or hair tests. Several court challenges have so far failed to prove the patch’s fallibility, but compelling new evidence currently being introduced in another federal probationer’s case in Nevada may change that. New scientific research points to flaws in the patch that could result in false-positive readings. Moreover, Neil Fortner, the expert who has played a key role in convincing courts across the country that the patch is trustworthy, appears himself to have trouble telling the truth.

Fortner, 44, holds well over $100,000 worth of PharmChem stock options — giving him an obvious interest in the success of his employer’s products. By his own count, he has testified in "most" of the two-dozen-odd court challenges to the patch’s accuracy — sometimes as the only expert witness.

Bahia Wilson, who oversees Sentencing Concepts’ patch-sales arm, says she has "no doubt whatsoever" that the device is reliable. What makes her so sure? Primarily, Neil Fortner’s word, she says. "He is extremely credible," says Wilson. "His résumé and credentials are beyond reproach."

In fact, Fortner’s credentials and credibility are eminently reproachable. In Hank’s case and many others, Fortner testified under oath that he has nearly completed a doctoral degree in neurochemistry at Cleveland State and San Francisco State universities. But in letters sent early this year to Nevada federal public defenders, officials at both universities declare that Fortner has never been enrolled in any of their doctoral programs. Cleveland State doesn’t even have a neurochemistry Ph.D. program. The closest Fortner got to a doctorate was starting a master’s program, which he has yet to finish, at Cleveland State in the late ’80s.