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Lawmaker says reducing delays at crime lab will be priority

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(Walt Unks/Journal)

RALEIGH, N.C. — As the General Assembly convenes this week, lawmakers will mark as a priority the complex task of dealing with enormous delays at the State Crime Lab that law-enforcement officials say jeopardize the full prosecution of certain criminal cases, Republican Sen. Buck Newton of Wilson said in a phone interview last week, according to the Winston-Salem Journal.

“That’ll be one of our big focuses during the next session, other than throw more money at it,” said Newton, a co-chairman of the Joint Legislative Oversight Committee on Justice and Public Safety.

Not all criminal cases involving alcohol- or drug-related charges result in either a punishment or exoneration.

Some drivers arrested on DWI charges will not be prosecuted for at least two years, said Peg Dorer, the director of the N.C. Conference of District Attorneys. “They can go drive. They can drink and drive and some of them – you see them twice,” Dorer said.

Prosecutors sometimes agree to dismiss such cases because the State Crime Lab takes too long to test toxicology or drug-chemistry evidence, and judges refuse to make defendants wait months, sometimes years, to have their cases heard, according to law enforcement officials.

The problem can be attributed mostly to three causes: the volume of evidence that must be tested, employee attrition at the State Crime Lab and a 2009 U.S. Supreme Court decision that upholds the principle that defendants must be allowed to face their accusers, according to interviews with state lab experts, law enforcement officials, state lawmakers and an annual report by the N.C. Department of Justice.

“The challenges are not insignificant by any means,” said Judge Joe John, the director of the State Crime Lab from 2010 to June. He is an advisor now to the crime lab.

Reasons for problem

Attrition is the top concern, he said.

Between January 2010 and the first half of 2014, 35 departing scientists, or 28 percent of the lab’s case working scientists, gave “better employment” as an explanation for leaving, according to the annual report by the State Crime Lab, dated Oct. 1. “Factoring in selection, hiring, training, salary and other Lab costs, it is estimated that the state’s loss from the departure of these 35 scientists to other employment reaches a stunning $4,011,875.”

Private-sector labs, such as those run by medical centers, can pay a state lab scientist $20,000 a year more, John said.

A bill, known as HB 1093, proposed during the legislature’s short session last summer with bipartisan support – including co-sponsors Reps. Debra Conrad, a Republican, and Ed Hanes, a Democrat, of Winston-Salem – tried to deal with the attrition problem by raising salaries by 10 percent, for a total cost of little more than $993,000.

The bill never made it into the budget.

State Rep. Justin Burr, an Albemarle Republican who was a key bill sponsor and one of the House budget writers, did not respond to several calls and an email last week asking about the bill.

“Maybe that will come back again in the long session,” Conrad said. “If we keep losing lab technicians, we need to pay them an appropriate salary because otherwise they will go to the medical centers.” Later, she continued: “Just imagine how many are drinking and driving and not getting caught.”

In addition to the loss of employees, the State Crime Lab must also contend with a 2009 decision by the U.S. Supreme Court on Melendez-Diaz v. Massachusetts. The effect of the case was that forensic scientists at the State Crime Lab offices must appear in court to provide testimony if the defense attorney requests it. Not only is the State Crime Lab short-staffed, it also must deal with scientists leaving the office to be in court, sometimes for hours, John said.

State lawmakers passed a bill that allows State Crime Lab scientists to testify live via a video monitor. That process will be tested in two court locations, John said, before it may be extended to other courtrooms statewide. Separately, it would not be a surprise if civil rights advocates try to challenge the procedure in court, he said. For now, scientists still spend a lot of time in court waiting to testify.

“Mandated to testify live in all criminal trials, Crime Lab scientists expended 2,835 hours (70.9 forty-hour work weeks) away from the Laboratory in meeting the requirement. Only 275 hours, or 9.7 percent, represented actual live court testimony, the remainder being consumed by travel and wait time,” the annual report said.

Some progress

There have been improvements.

For example, state lawmakers allotted money for 19 new technicians.

In the 2013-14 fiscal year, the State Crime Lab got more than 55,000 total submissions, according to the annual report.

“Nonetheless, total case work completions, reflecting the Lab’s methodology and processing improvements, exceeded incoming case work submissions by approximately 10,000 cases, and the DNA Database Section eliminated its inventory of several thousand Convicted Offender and Arrestee samples,” according to the annual report.

To do it, the lab had to log 7,776 overtime hours, according to the annual report.

All the while, however, cases slip through the cracks, according to law enforcement officials.

“On DWI cases, there have been times when we had to take a dismissal because the State Crime Lab was not coming back fast enough. It’s not uncommon in DWI cases to be a year or more,” said Jim O’Neill, the Forsyth County district attorney.

Newton, the judiciary oversight committee co-chairman, said that he hopes the video testimony takes hold.

Other proposals may come into play during the next session, he said. Privatization of certain aspects of the State Crime Lab may be one solution, he said. For example, new lab scientists could be trained by a private company rather than by another lab scientist whose time could otherwise be spent testing evidence. Another idea may be to have some of the backlog reduced by farming it out to a private company.

“Certain segments can be privatized, which will save the state money in the long run,” Newton said. But it has to be done right. “What I don’t want is a case six to eight years from now with a real problem because of the analysis.”

Winston-Salem response

Several local governments, including the city of Winston-Salem, have found themselves in a position of either waiting for state lawmakers and the State Crime Lab to fix the problem or testing evidence in-house. In the end, the effort by some local governments to accelerate evidence testing has also put taxpayers in the position of paying for something through local coffers that they were already paying for through state coffers.

The Winston-Salem City Council has chosen to do things in-house.

The city council agreed during its Nov. 17 meeting to pay $108,000 a year to a private company – NMS Labs – to test toxicology and drug-chemistry evidence here within days that would otherwise take the State Crime Lab months, sometimes more than a year, according to law enforcement officials. Some of the money may be recouped, as state law allows judges to make defendants, if convicted, pay for such lab costs. Also, the city is trying to negotiate fee-for-service contracts with law enforcement agencies, officials said.

Brad Stanley, chief deputy at the Forsyth County Sheriff’s Office, said that the company has contacted the sheriff’s office but that no contract has been executed. The county sheriff’s office does not need the services of a private lab as much as the city’s police department might because the volume of evidence is not that significant.

James Taylor, the chairman of the city council’s public safety committee, explained why the city decided to move ahead with the lab.

“If you have people who need to be in jail, and you have people who should be exonerated, and you have the state not doing what it’s supposed to do, then that’s something that we have to deal with. At the local level, we have to hold the line,” Taylor said last week.

Hanes, the Winston-Salem Democrat, said he will try to offer a solution when the legislature reconvenes this week for the long session.

Hanes said last week that he has been in discussions with House Republican leaders to muster bipartisan support for a bill he plans to file. The details of the bill must still be worked out; in general terms, it would provide a way for local governments paying for in-house evidence-testing to get reimbursed by the state.

“Until we find a solution to clear out the backlog, I think the lawmakers have a duty to … make the wheels of justice run smoothly,” Hanes said.