CRIME LAB BACKLOG DELAYS DRUG CASES

General District Judge Morton V. Whitlow.

Over the weekend, Suffolk police officers caught a man with a substance they
believed to be cocaine, but they didn't charge the suspect with drug
possession. Not yet.

It could be months before the state forensic laboratory system provides the
necessary proof of narcotics, so police and prosecutors in the city will
wait to charge him and other drug defendants, who are not suspected of
dealing.

It is one way of countering the lengthy and increasingly routine court
delays caused by a massive evidence backlog from cases across the state.

"If you want these cases prosecuted, you have to do the drug work," said
Suffolk Commonwealth's Attorney C. Phillips Ferguson. "When they don't do
it, what it does is essentially shut down the system."

When police officers make a drug arrest, they must submit the confiscated
substance to one of the state's four regional forensic labs. There, a
chemist does a scientific analysis and reports back on whether the substance
is a narcotic.

Generally, that report is mandatory for a case to go forward.

The analysis normally is done in about 10 days, said Paul B. Ferrara,
director of the state's Division of Forensic Science. But a statewide surge
in drug arrests, coupled with staffing shortages, has slowed down
everything, he said.

By the end of August, analysis was taking an average of 82 days, with some
cases taking 120 days or longer.

"We were always struggling to keep up," Ferrara said, "and when you lose
some chemists and combine it with an increase, you run into this."

That has stalled cases in General District Courts, where informal state
guidelines set a goal of decisions on most matters within 60 days of an
arrest.

Practically, it also has forced prosecutors to drop drug charges in General
District Court and reinstate them through indictments in Circuit Court
because of time considerations. That means a defendant can be arrested twice
for the same offense.

Last year, about 42,900 cases were referred to the labs, Ferrara said. By
this year's end, he expects a total of 47,140. He attributes the increase to
the success of drug task forces and to the emergence of new "designer"
drugs.

While the number of cases has grown, the staff of drug chemists has shrunk
to 33, with five vacant positions, he said. That staff could produce about
30,600 analyses this year - far fewer than needed.

The labs cannot outsource to another public or private forensic laboratory
because Ferrara doesn't know of one that could help.

Earlier this year, Ferrara used a federal grant to pay for eight weeks of
mandatory overtime for the chemists, in an attempt to whittle the backlog.
He also has tried to prioritize cases by hearing date. Both efforts have had
only mild success.

Usually about 2,000 cases are pending at any given time. Now, there are more
than 11,000. "Our backlog right now has never been this high. Ever," Ferrara
said. "There's limitations to what you can do in order to expedite drug
analysis. We've done everything."

In a June letter to the Virginia Supreme Court, Ferrara suggested that
police and prosecutors try alternatives.

One option is for police officers to use approved field kits to test drug
evidence. That information is acceptable for preliminary hearings, but not
for trials, where the certificate from the lab is usually still required and
must be filed in court seven days before the hearing.

Field kits have worked in Norfolk and Virginia Beach, prosecutors say, and
Chesapeake has recently started using them temporarily.

"It's kind of a waste of manpower, but it is kind of necessary under the
circumstances," said Randall D. Smith, Chesapeake's commonwealth's attorney.
In Norfolk, prosecutors are allowing guilty pleas that can be changed if the
drug report shows no narcotics, and at the Beach, incriminating statements
are being used at the preliminary hearing.

"If the accused says it's cocaine, it probably is cocaine," said David W.
Laird, a deputy commonwealth's attorney in Virginia Beach.

In Portsmouth, late drug reports have caused charges in at least one out of
every five felony drug cases to be dropped, said General District Judge
Morton V. Whitlow.

Some drug reports still haven't shown up by the date of the trial in Circuit
Court, said Commonwealth's Attorney Earle C. Mobley.

Mobley said he plans to subpoena the chemist if a drug report is not
available on the trial date.

"We're not going to lose cases because they can't get their work done,"
Mobley said.

Ferrara said that five more chemists are in training, but they won't be
handling cases for another year.

He is looking into reasons the other chemists left, but he doesn't believe
that salaries are an issue. Drug chemists make between $40,799 and $73,000.

The lab system employs about 300 full-time and part-time workers overall, on
a budget of about $23 million.

There are also backlogs in analysis for DNA and firearms evidence.

Ferrara said he hopes the situation will be under control by this time next
year.

"It took us some time to get into this mess," Ferrara said. "It's going to
take us some time to get out of it."

Staff writer Linda McNatt contributed to this report.