CASELOAD CRUNCH

State Crime Lab Under Fire Over Backlog

Long Delays Common For Drug, DNA Tests

FRANKFORT, Ky. - Swamped with evidence from drug arrests, the laboratory
that conducts tests for all of Kentucky's criminal courts is struggling
with a record backlog of 10,000 cases.

The backlog means the six Kentucky State Police Forensic Laboratory
locations need up to six months - and sometimes longer - to complete DNA,
blood and other tests before the cases can be brought to trial.

The delays have upset judges, prosecutors, public defenders and crime
victims and their families. In a few cases, charges have been dismissed
because of slow lab work, although officials say that is rare.

Twice this month, frustration about lab delays spilled over into the
courtroom. Two judges hearing cases nearly 300 miles apart on the same day
blistered lab officials about how long it takes to get reports on evidence.

In Western Kentucky, Graves Circuit Judge John Daughaday ordered lab
scientists to go to his court Aug.12 to explain delays in testing suspected
methamphetamine and other evidence. Daughaday cited 47 cases - 13 going
back to 2002, and one to 2001.

In Northern Kentucky, Kenton Circuit Judge Patricia Summe said it was
"unacceptable" that the lab needed up to six more months to complete DNA
tests on Aaron Dishon, 21, who is charged with the April27 rape and
strangulation murder of a 13-year-old neighbor.

"I recognize that the demand on the lab has increased. It did not have to
do DNA testing a decade ago; now it's standard," Summe said in an
interview. "What I can't understand is that it would take four or six
months, maybe longer, to complete tests on DNA in a capital murder case."

The family of the victim, Tiffany Rae Farmer, agreed.

"The waiting is very hard, and it shouldn't be like that," said Julie Estes
of Covington, Farmer's mother. "... That test is the only way to hear
Tiffany's side of the story."

Lab officials, citing a caseload that doubled to more than 40,000 in 2001
from about 20,000 in 1989, say they are overwhelmed by requests for tests
on drugs, DNA, blood and other evidence. They attribute the soaring
caseload mostly to drugs - methamphetamine (largely in Western Kentucky)
and prescription drugs (Eastern Kentucky).

About 80percent of the backlog consists of cases in which substances seized
by police must be tested to show whether they truly are cocaine, meth,
marijuana or whatever is suspected.

"We're sympathetic to the frustrations of judges, attorneys and the
victims. But we have limited resources," said Jeff Warnecke, manager of the
central crime lab in Frankfort. "And it's most important that we not allow
the quality of our work to suffer."

Other states are facing similar backlogs, said Susan Hart Johns, president
of the American Society of Crime Laboratory Directors.

"It's a resource issue - not enough money for personnel, equipment and
facilities," she said. "Logic tells me that revenue shortfalls states have
been experiencing is a major factor."

In Indiana, the crime lab backlog is 8,026 cases, of which 5,711 are drug
cases, said Indiana State Police 1st Sgt. Dave Bursten.

"Delays of several months are common in drug cases, and DNA cases can go as
long as a year," Bursten said.

Setting priorities

The Kentucky lab is responsible for conducting tests on evidence submitted
in criminal cases by every law-enforcement agency in the state, as well as
evidence submitted by the Department of Public Advocacy, which represents
indigent defendants.

The lab operates on a first-come, first-served basis and does not have a
written policy on prioritizing cases, Warnecke said. But he said the lab
will move ahead on a case if a judge orders it or a police officer,
prosecutor or victims' advocate requests special attention.

"Obviously, high-profile cases go to the front of the line - if we know
that it's a high-profile case," he said, citing the case before Summe as an
example of DNA tests being moved up.

"But until after the judge made her comments, no one had requested we
expedite that case," Warnecke said. "... To some extent the squeaky wheel
gets the grease. A court order is what really gets the grease. And lately
we've been getting more orders from judges demanding we appear and show
cause why a test has not been finished."

Help is on the way. The General Assembly increased the lab's budget from
about $6.5million two years ago to $7million in the fiscal year that ended
June30 and about $7.5million this year, Warnecke said.

Last year's budget increase allowed the lab to hire 11 new people, bringing
the staff to 114 workers. Of those, 83 are chemists, biologists or other
experts qualified to perform particular tests. This year's increase will
allow the hiring of 15 more people.

"Once we get the additional 15 people this year we'll have the tools to
shorten the delays and cut into the backlog," Warnecke said. "But because
it takes about six months to train new analysts, and because the backlog is
so big, we'll need a little time to show results."

While the lab conducts a broad array of tests, including ballistics studies
and examination of evidence from suspected arson scenes, the longest delays
occur in three areas: testing of drugs in possession and trafficking cases;
testing blood or urine for the presence of drugs in DUI and other cases;
and DNA testing in violent crimes.

Testing drugs in possession and trafficking cases and testing for drugs in
blood and urine usually takes only three to five days, Warnecke said, but
the volume of such cases is huge. In the first five months of this year,
the backlog of drug cases at the lab climbed by about 1,500, to nearly
8,000 in May.

DNA testing is more complex - with multiple steps and tests that must be
repeated - and can take weeks, Warnecke said. "If all goes well, in a
simple case it takes two weeks minimum," he said.

Kristi Gray, directing attorney for the public defender's office in
Paintsville in Eastern Kentucky, said the growing prescription drug problem
in Eastern Kentucky and other parts of the state has created problems for
the lab "primarily because when someone is charged with driving while
impaired because of an overdose of prescription drugs, it can't be measured
by a Breathalyzer like alcohol. It requires a blood or urine test by the lab."

Meth is another problem, said Kenton Smith, the Meade County commonwealth's
attorney and president of the commonwealth's attorneys association.

"We're facing a methamphetamine epidemic in parts of this state. It started
10 years ago, and about five years ago it really took off," Smith said. "In
a typical case we'll discover a small lab with residue that must be tested."

The number of clandestine meth labs sent for testing increased to 354 last
year from 130 in 1999, Warnecke said. And the number of cases for testing
blood or urine samples for the presence of the prescription painkiller
OxyContin has quadrupled since 1996, he said.

Impact of delays

The lab's backlog, meanwhile, creates problems all along the criminal
justice system, affecting police and prosecutors on one side and public
defenders on the other.

"Defendants who can't make bond stay in jail, or police or other key
witnesses may move far away and cases are damaged or dismissed," said
Barren Circuit Judge Phillip Patton.

"If we have a bad guy - and we know he's a bad guy - the last thing we want
to do is release him (on bond). But with these long delays waiting for
tests, most of them are released," said Jefferson County Attorney Irv Maze.
"The public is seeing them arrested, then seeing them back on the street
dealing drugs again."

Assistant Magoffin County Commonwealth's Attorney Lori Daniel cited a case
early this year in which a charge of first-degree possession of a
controlled substance against Terry B. Brown of Royalton was dismissed by
Circuit Judge John Robert Morgan because tests had not been performed on
the suspected drugs for 15 months.

Daniel said state police shipped the suspected drugs to Frankfort, but
Warnecke said his records indicate the lab never got the shipment. "I can't
say what happened in that case because I can't see where we ever received
anything," Warnecke said.

State Sen. Robert Stivers, R-Manchester and chairman of the Senate
Judiciary Committee, said that in some counties DUI charges are dismissed
if it takes longer than 90 days to get lab results - the court system's
goal for resolving DUI cases. "If it takes five or six months for a blood
test, judges sometimes accept motions to dismiss," Stivers said.

But the court system's record-keeping arm - the Administrative Office of
the Courts - does not know how many cases have been dismissed as a result
of delayed lab tests because it does not record specific reasons that a
judge dismisses a case.

"I am not personally aware of a case dismissed because of delayed tests,"
said Chief Justice Joseph Lambert of the Kentucky Supreme Court. "My
intuitive feel is that would be a very unusual situation because if that
was happening to any significant degree, I would know about it."

For crime victims and their families, delays are "really rough," said Sara
McKinney, state chairwoman of Mothers Against Drunk Driving and a volunteer
advocate for victims.

"Until the trial is completed, they are constantly confronting the ugly
details of the case," McKinney said. "Three more months of being stuck in
that process can see them fall into lengthy depression."

Warren County Commonwealth's Attorney Steve Wilson said delays "almost
always work to the benefit of the defense."

But public defenders dispute that.

John Delaney, a public defender who works in Northern Kentucky, cited the
example of an elderly man charged with possession of cocaine because police
found two crack pipes in his pockets.

"He's been in jail nearly three months now because he can't pay the $2,500
bond," Delaney said of the man, whom he declined to identify. "If the tests
come back and show no crack residue was found in the pipes, he'll have
spent three months in jail on a charge that will be reduced or dropped."

Gray, at the public defender's office in Paintsville, said it's not unusual
for someone facing a second-offense drunken or drugged driving charge to
plead guilty and accept a minimum seven-day sentence rather than linger in
jail waiting for the results of a test.

"Some of these people ... are not guilty," Gray said.