Crime lab falls behind because of testimony ruling

Virginia's crime lab has fallen further behind in conducting drug and alcohol analyses as forensic examiners spend more time attending trials to comply with a U.S. Supreme Court ruling, officials say.

Travel and overtime costs also are rising, and the two most obvious solutions -- hire more scientists or establish a system that allows them to testify by video conference -- are cost-prohibitive at a time when the state is trying to close a $4.2 billion budget shortfall.

The problem arose from the Supreme Court's ruling June 25 in favor of Luis Melendez-Diaz, who challenged a lab analysis that confirmed cocaine was in plastic bags found in the car in which he was riding. Massachusetts courts had rejected his claim that he should be allowed to question the lab scientist on testing methods and other issues.

The justices ruled 5-4 that the government must make the scientists available for defense crossexamination.

The impact was felt immediately in Virginia, where lab reports usually had been accepted as evidence with no questions asked.

By last month, the number of scientists subpoenaed to court had more than doubled, the work backlog at the state lab was increasing, and cases were lingering in the system several days longer on average than before the ruling, said Gail D. Jaspen, chief deputy director for the Virginia Department of Forensic Science.

"We don't know if it will ever return to pre-Melendez levels," Jaspen said of the subpoenas. She said she was unaware of any organization tracking the ruling's impact nationally.

In Virginia, the number of subpoenas spiked in July at 1,885. It has declined steadily since then to 1,237 in November, but that's still more than double the 582 in June.

The number of work hours spent by forensic examiners on drug cases out of the lab also increased from 19 hours in June to 332 in November. With examiners spending so much time in court, the backlog of drug analyses during the same period grew from 901 to 1,334.

Cases remained pending an average of 20 days in November, up from 16 days in June, and the number of cases lingering for more than a month increased from three to 58.

"These numbers are creeping up even though folks are working overtime," Jaspen said.

Since Sept. 1, 17 chemists have put in 336 hours of overtime, and mileage reimbursement for trips not related to training has increased 950 percent during the same period, she said. Overall costs associated with the increased workload are being calculated.

The department would get some relief under the state budget proposed by outgoing Gov. Timothy M. Kaine. He proposed adding $198,000 to hire two additional toxicologists and $789,000 in the next two-year budget to pay those additional salaries as well as travel, overtime and training related to Melendez-Diaz.

Despite the increased effort and costs, analysts are testifying in only 25 percent to 30 percent of the cases in which they are called as witnesses, Jaspen said. She said the cases often are continued or the defendant pleads guilty.

At a recent symposium, she said that from Sept. 1 to Nov. 12, drug analysts received 13 subpoenas from two distant localities. The analysts logged 2,600 miles and 74 hours outside the office to testify for a total of 10 minutes -- and never were asked a single question by defense attorneys.

The General Assembly met in a one-day special session last summer to revise Virginia's law to comply with Melendez-Diaz.

The law requires prosecutors to notify defense attorneys if they intend to use lab reports as evidence. Defense attorneys then have two weeks to demand that the analyst appear in court, and it's up to the government to get them there.

Members of the Virginia State Crime Commission were briefed by staff last week on the impact of the recent legislation enacted in response to the Melendez-Diaz ruling.

The staff recommended that the legislature monitor the situation for now. "What we concluded was there's really nothing for us to do. . . . We think we did a pretty good job at the special session," Del. David B. Albo, R-Fairfax, the commission vice chairman, said this week.

"The reason other states haven't had a problem like we have on DUIs . . . is that they don't have the certifications of their machines centralized in their state capitals," Albo said. Ultimately, he said, a solution might be to have qualified people scattered across the state instead of in one or two places.

Staff writer Frank Green and The Associated Press contributed to this report.