CASELOADS OVERWHELM STATE LABS

Investigations hindered by backlog

The statistics paint a daunting picture -- the state's forensic labs were
behind by about 6,000 cases in March.

A Roanoke County homicide case remains unsolved.

A Carroll County murder trial has been delayed, in part, because key
evidence was at the lab for more than a year.

A defendant's constitutional right to a "speedy trial" nearly became an
issue in a Montgomery County rape case in which forensic evidence went
unnoticed until days before the trial.

Defense lawyers, prosecutors and police say the cases are unusual and that
delays are part of the criminal justice system.

But the examples also reveal an understaffed state forensic lab system
struggling under great pressures. Examiners must divide their time between
testifying in court and handling an increasing number of requests from law
enforcement and court officials. As science develops more sophisticated
testing methods, particularly with DNA, the struggle becomes only more
complicated, forensic experts say.

"DNA by its very nature takes time to grow, so it takes a while to get
back," said David Baugh, a Richmond-based criminal defense lawyer, who has
not had problems with delays. "[But] it bothers me if a defendant sits in
jail on no bond to wait for tests to come back."

The problem is not isolated to Virginia. It is happening at forensic labs
across the nation -- too many requests and too few examiners to handle
them. The problem has become so widespread that U.S. Attorney General Janet
Reno recently established the Commission on the Future of DNA Evidence,
which is tackling a broad range of issues, including how labs can meet
increasing demands by police and courts.

In Virginia, the statistics paint a daunting picture. In March, the labs
were behind by about 6,000 cases. In April, only 576 of those cases were
processed.

"We're always playing catch up," said Paul B. Ferrara, director of the
Virginia Division of Forensic Science, who also sits on the Attorney
General's commission. "There is this subtle and very real explosion of
work. We're almost the victim of our own success."

Virginia was the first state in the nation to establish DNA testing. In
1989, it led the field again when it developed a DNA databank for convicted
felons. The databank's purpose is to catalog DNA from each convicted felon
and create a resource for investigators trying to solve old cases that
include DNA.

But there are 160,000 cases still awaiting analysis and entry into the
databank.

DNA testing is only one complicated part of the state lab's function. Its
four regional labs -- in Roanoke County, Richmond, Fairfax and Norfolk --
also analyze drugs seized during police investigations, perform fingerprint
comparisons and do ballistics tests on firearms.

Examiners review about 400,000 pieces of evidence each year. Annually, the
labs review 75,000 cases; more than half are drug analyses. In recent
months, on average, evidence stayed about 48 days in the regional labs
until it had been tested.

The choice for the state lab, Ferrara said, is between speeding up
production and risking error or maintaining quality control and a caseload
backlog.

The lab still bears the stigma of last year's incident in which an examiner
made a mistake on a case involving the high-profile murder of Spotsylvania
County teen-ager Sofia Silva, Ferrara said. The examiner resigned after
admitting she incorrectly linked fibers from Silva with fibers in the van
of a neighbor. After that incident, Ferrara instituted a 100 percent review
of each examiner's reports, a step that adds time to the process.

To meet the ever-increasing demands, the lab prioritizes cases by court
date. Without a firm date, a case goes into a pending file and takes a
number behind the more immediate deadlines. Ferrara said it's not unusual
for a case to be in the system at least six months before testing begins.

Just last week, a nearly year-long delay at the lab in Roanoke County
figured in the postponement of a high-profile murder case in Norfolk, where
a psychiatrist is charged with killing his estranged wife. In that case,
police never told prosecutors they had sent hairs found on the victim's
body to be tested in the Roanoke County lab, the only one of the four state
labs with a hair analyst. The lab received the evidence May 7, 1997 -- and
mailed a report to Norfolk police in May of this year.

Commonwealth's Attorney Charles Griffith Jr. attributed the delay to a
backlog at the lab; he said the report then got lost in the city's mail
system before it was discovered the night before the trial was scheduled to
begin. The judge postponed the trial until August.

In the Grayson County case where two white men are charged with burning and
beheading a black man, some of the evidence was out for seven months and
did not come back until two weeks before the first trial was scheduled to
begin in February. Ferrara said examiners had not been given a court date
by authorities, so the case wasn't processed immediately. Defense lawyers
argued it didn't give them enough time to review the documents. A judge
granted a continuance.

Last fall, a Montgomery County rape case involving two former Virginia Tech
football players also fell victim to a communication break-down.
Authorities notified the Roanoke County lab about a court date only three
weeks prior to trial, Ferrara said. Eight days before trial, a lab
technician discovered semen on a piece of evidence the lab had for 10 months.

Prosecutors tried to dismiss the charge so they would not risk a speedy
trial violation and the possible loss of the case. If prosecutors
successfully dismiss a charge, they can reindict later. Defendants must be
tried within five months of their preliminary hearing if they have no bond.
If a defendant is free on bond, the court must set a trial date within nine
months.

Ultimately, the defendants decided to plead no contest to charges of
attempted aggravated sexual battery and received a fine of $500 and no jail
time.

Montgomery County Commonwealth's Attorney Skip Schwab characterized the
mistake at the time as "not enough people at the lab and too many things to
be tested." Recently, he described the case as a communication foul-up. He
said he thought the police department was in contact with the lab about the
case's court dates.

"The problem is who's dealing with whom doesn't always get communicated to
all the parties," Schwab said.

Sometimes, it's unclear why delays occur.

In the Carroll County murder case of a 79-year old Galax man, the piece of
evidence that authorities believe is the murder weapon -- a knife -- was at
the Roanoke lab for more than a year. The DNA findings on the knife cleared
one of the two suspects. The other suspect has been out on bond and is set
for trial next month. Ferrara said the lab examiner's report didn't
indicate why the testing took so long.

Defense lawyer Karen Loftin said the delay in getting forensic evidence
"significantly" put off the trial. Prosecutor Gregory Goad said the delay
didn't have much effect on the case, especially since the defendant was not
in jail.

But some investigators say delays erode a case's strength.

"The only thing I know that gets better with age is wine," Roanoke County
Sgt. Paul McElvein said. "Cases do not get better with age. As cases get
older, you're dependent on your witnesses. They die, move, forget. A change
in witnesses can sometimes hurt."

Roanoke County investigators say they are unable to solve a homicide of a
21-year old woman because of delays at the state lab. Police have been
looking into the death of Anita Dickson since last August when she was
found slumped in the driver's seat of her car, parked in a North Roanoke
County neighborhood. She had been shot in the head.

At first, police believed it was a suicide. But preliminary forensic
evidence helped police determine that Dickson's death was a homicide. An
examiner identified human blood on Dickson's car tire but needed to do
additional testing to see if it matched Dickson's DNA.

Ferrara said new evidence continued coming into the western district lab
based in Roanoke County until March. The lab finished testing and returned
results on fingerprints, blood patterns and ballistics between last fall
and March. But it could not do some DNA testing until police found a
possible suspect to compare the DNA samples it had.

Investigators filed a search warrant asking for blood and hair from a
20-year old man in March. DNA is the only pending exam on the case. But
without a result, investigators say their "hands are tied somewhat" when it
comes to resolving the case.

The delay "certainly doesn't help because we don't know what the stuff
[evidence] is going to say," McElvein said. "It just means this guy is on
the street for a year when he should have been locked up."

Steven Sigel, lab director of the western district lab, declined to speak
with The Roanoke Times for this story. He forwarded all questions to Ferrara.

According to statistics provided by the state lab, backlogged cases at two
of the state's four forensic labs increased during April. And the western
district lab had the second highest number of backlogged cases last month..

Even though that lab completed more than 1,000 cases in April, its backlog
increased from 1,258 cases on April 1 to 1,353 by April 31. That's because
new cases came in during the month.

Some of the backlog was caused by two vacant positions in the DNA lab,
Ferrara said. And filling the vacancies doesn't alleviate time pressures
immediately. A trainee must go through a year-long training program and
work under the tutelage of another examiner.

No state study has been done on how delays affect the courts. Twenty
defense attorneys and prosecutors interviewed for this story, from Roanoke,
Richmond and Southwestern Virginia, say they understand the lab's difficult
position. Most say they work the delays into their schedule.

Several defense lawyers questioned the lab's objectivity. By state law, the
lab is supposed to act as an independent office, not an arm of the
prosecution. Others said the delays work to their advantage -- the longer a
case takes to get to trial, the greater the possibility that a witness's
memory will fade.

In Richmond, prosecutors have learned to deal with lab delays in drug cases
by dismissing the charges against a suspect so as not to risk a speedy
trial violation. Last year, the Richmond Commonwealth's Attorney's office
reindicted on one percent -- about 25 -- of its drug cases because lab
reports were not returned on time, according to Pamela Evans, senior
assistant Commonwealth's Attorney in Richmond. Evans argues that
rescheduling hearings is costly to the system, especially when witnesses,
lawyers and a judge are available.

It's also "inconvenient and unfair for the people who can't afford bond,"
she said. "It doesn't happen so much that we're outraged. But it happens
frequently enough that it's frustrating."

These challenges have not been lost on state officials, in particular the
General Assembly, which earlier this year approved 22 additional positions
for the state lab over the next two years. Sixteen of those positions will
go to staff the new Tidewater lab under construction. The state also passed
an extra $7.6 million in funding to jumpstart the profiling for the state's
DNA felon databank. Ferrara said an outside lab will soon analyze the DNA
samples for the felon database, which will free six DNA examiners to handle
active criminal cases.

But there is no quick fix, Ferrara said. Fellow lab directors in Indiana
and Tennessee agreed. Part of the answer is for states to realize that
long-term planning is a necessity, they said. States need to design and
build up-to-date labs and support training programs that will graduate
technicians who are immediately ready to work in a crime lab situation.

State labs can't be the forgotten stepchild of law enforcement when it
comes to funding, lab directors say. In Virginia, the lab's annual budget
is now up to $20 million. The state has built three new labs since 1989,
including the western district facility in Roanoke County, which opened in
1995. The division of forensic sciences also supports a master's program
for examiners at Virginia Commonwealth University. And Ferrara recently
called for a short-term solution to plow through some of the backlogged
cases -- voluntary, paid overtime for his examiners and chemical analysts.

"I think we're on the right track in Virginia," Ferrara said. But the
journey will undoubtedly be long and arduous.

"I envision taking cases where we begin working immediately and providing
the results as quickly as possible," he added. "Whether I'll ever live to
see that, I don't know."

Checked-by: Mike Gogulski