Oregon DA says crime lab backlog at ‘crisis’ level
ALBANY, Ore. (AP) — Someone, or multiple someones, broke into Economy Supply in Lebanon back in January 2016.
They trashed the place pretty thoroughly, co-owner Richard Micklewright remembers. They tore out the hard drives of four separate computer systems and destroyed an antique safe in an attempt to get out its $2,500 in petty cash, about a third of what the safe itself was worth.
Linn County District Attorney Doug Marteeny said his office chased down every lead it could to find the perpetrators, but came up empty. The statute of limitations on the case expires this month.
Marteeny did have one potential ace in the hole. During the break-in, one of the suspects left some DNA behind (Marteeny won’t be specific on exactly what).
But that sample won’t lead to the capture of the burglar. It won’t even lead to his or her identification. The Oregon State Police crime lab stopped processing DNA found in most property crime cases a few years ago to focus more attention on its backlog of sexual assault forensic evidence cases, which means cases like the break-in at Economy Supply will expire with any material still untested.
The crime lab is still processing toxicology tests for motorists accused of driving under the influence, but the backlog there is about 14 months. That means some of those cases, too, eventually may fall off the table because the statute of limitations in impaired driving cases is two years.
The Linn DA’s office handled more than 500 DUII cases in 2018. Breathalyzers work for cases involving alcohol, but Marteeny said on average, about half the impaired driving cases in Linn County involve other drugs, such as heroin, marijuana or methamphetamine. Those must be measured through urine samples.
Having toxicology tests as a baseline of proof for a DUII charge is critical to successful prosecution, he said — but only if the DA’s office can receive results.
Marteeny said he isn’t aware of any Linn County impaired driving cases yet that had to be set aside because lab results weren’t received within two years. But he doesn’t believe that changes the essential problem: Oregon’s crime labs don’t have the resources they need to process samples in a timely manner, and that affects attorney’s abilities to work cases.
“This isn’t a slam on the crime lab. They do great work,” Marteeny said. “But they’re not being set up to succeed.”
“I don’t think people understand that we’re in crisis mode.”
Many of Marteeny’s colleagues feel the same way, especially about testing urine samples in impaired driving cases.
“The turnaround time for the lab is impacting our office because we’re having to wait for extended periods of time,” Benton County District Attorney John Haroldson said. “But it’s critical for me to note that the OSP crime lab, no matter how well they do their job, they have a finite capacity. And when that finite capacity is exceeded, the impact for us is the delay on having the lab work done.”
Haroldson said offhand, he isn’t aware of any Benton County cases that expired solely because toxicology tests didn’t come back on time. But he said he does remember a situation in which the accused sought to expunge a case because more than a year passed without a formal charge being filed because the DA was waiting on lab results.
The person wasn’t successful, but Haroldson said it’s not a good practice to make someone wait so long to be formally charged.
For one thing, delays don’t tend to strengthen the ability to prosecute, he said. Memories fade. Evidence can degrade. Witnesses become less available.
More important: “The responsibility of the prosecutor is to seek justice. Part of seeking justice is doing all we can to make sure that our systems are fair to everyone, including the accused,” he said. “Long delays do not represent the best work that we can do if we were properly funded.”
Amanda Dalton, who lobbies on behalf of the Oregon District Attorneys Association, said counties all over Oregon are struggling with the toxicology backlog.
Testing delays have the potential to increase risks for the public, she said, because motorists arrested for impaired driving who willingly give a urine sample don’t lose their licenses until charges are filed and the cases finished.
Jackson County, for instance, has at least four examples of drivers arrested twice for DUII during 2018 who have yet to have their cases settled because lab results were still pending months later.
In Umatilla County, a man arrested in March 2017 and again in August 2017 still had his license until his lab results came through that November. The second incident involved a crash.
The Oregon District Attorneys Association is looking to change the situation through legislation, Dalton said. The association filed a draft House Judiciary Committee bill Dec. 14 that would requires forensic laboratory tests of blood or urine samples within 90 days for prosecution of cases involving driving while under influence of intoxicants.
“While LC 1621 isn’t the ‘perfect solution’ ... we are hoping it starts the conversation and hopefully moves as a placeholder down to Ways and Means for funding,” she said. “We do believe delayed testing is a crisis as it relates to DUII prosecution and overall community safety and that OSP is doing all they can with the resources they currently have.”
Demand on resources
Oregon State Police’s crime labs are part of its Forensic Services Division, a nationally accredited forensic laboratory system that serves all state and local law enforcement agencies, medical examiners and prosecuting attorneys in Oregon.
The division employs some 100 people in five regional laboratories: Bend, Central Point, Pendleton, Portland and Springfield.
Only the Portland lab handles DNA sample testing, said Capt. Tim Fox, Oregon State Police spokesman, and only Portland and Springfield handle toxicology samples for impaired driving cases, which isn’t the same as a DNA analysis.
According to the division’s website, analysts at the labs evaluate evidence, interpret results and provide expert testimony on physical evidence recovered from crime scenes. But here’s the key: Information on results takes time.
That may be surprising to a population hooked on crime-related television dramas, Haroldson said. But in real life, everyone who handles a sample must be certified to do so, and every move must be documented. And that process isn’t instant.
“If we lived in TV reality, these lab tests would be done in a one-hour segment. Sometimes because of what we see on TV, we develop an expectation that DNA or any labwork can be done quickly,” he said. “But the fact is that even in the best-case scenario, it’s a complex analysis that has to be conducted in a controlled environment according to scientific standards so that the reliability of the findings can be depended upon.”
Said Marteeny: “When you take away people’s liberties, you have to have that kind of detail.”
The crime labs’ limits are frustrating for law enforcement officers as well as attorneys, said Frank Stevenson, chief of the Lebanon Police Department. His agency sent in the sample for the Economy Supply case, and received the letter saying it wouldn’t be tested.
“We want what’s best for the community,” he said. “People get frustrated with us and we get frustrated right along with the community, because we’re trying to do all we can to provide the best service.”
The crime lab’s situation is complicated by the fact that it isn’t the only part of OSP competing for resources. Oregon is dead last when it comes to the number of law enforcement officers per population, even including sheriff’s deputies and city officers alongside state troopers.
In 1980, OSP had about 33 patrol troopers for every 100,000 people in the state. Fast-forward almost 40 years and the ratio has dropped to 8 per 100,000, according to Fox’s figures.
“With our 10-year plan we are requesting to get to 15 patrol troopers for every 100,000 population, which would put us in the average for all states,” he said.
The state also is dealing with more requests for lab work even as it struggles with resources, Fox said. Back in 2012, forensic requests were at about 3,000 per quarter. By the fourth quarter of 2017, however, they were up to nearly 9,000 and have dropped only slightly since.
Legalization of recreational marijuana in July 2015 use has contributed to that backlog, Fox agreed, although he said he doesn’t have data to accurately quantify the size of the associated workload increase.
“Oregon’s population has grown dramatically over the last 40 years. That growth and numerous other factors have dramatically increased the demand for all OSP services in our labs, on patrol, and elsewhere,” Fox said. “We anticipated the growth in demand for lab services, and we have repeatedly requested the funding and resources to meet it, but most of the requests have been denied in favor of funding other services.”
Law enforcement agencies could theoretically outsource some of their work, sending certain samples elsewhere, Fox said. However, he said, not only is the testing itself expensive, it pales in comparison to the cost of bringing the testing analyst to Oregon to testify at trial.
“OSP receives roughly 30,000 requests for testing per year. We do the testing and provide the experts for trial at no cost to Oregon police agencies, and defense attorneys, because that’s our job,” Fox said. “Most police agencies are not funded to have all this work done by outside labs.”
Other states have their own limits on time and employees, Marteeny added. “They don’t want to use their resources for our problems.”
Toxicology times are long, Fox said, but they are also declining: down 2.37 percent from October to November 2018 for the forensic division overall, the most recent information available.
The labs are doing a lot of triage, he said, a process that varies by discipline and the fact that some types of analysis are faster than others. For example, he said, confirming that a substance is methamphetamine can be done in a morning, but DNA analysis of a sample takes weeks.
“Generally speaking, requests for analysis are prioritized based on a number of considerations including such things as crime seriousness, community risk, custody status of the defendant and trial date,” Fox said.
Crimes that involve violence — rape, murder, kidnapping — are the highest priority, Fox said. Sometimes that means pulling individual requests out of a potential batch of samples for rush processing. That’s critical when a case is pressed against a court deadline, but it’s also inefficient and adds to the time involved.
Fox said the Legislature has taken some steps to help. Lawmakers funded a replacement for the Pendleton crime lab, which should be ready for occupancy in May and should help with some of the workload, particularly in chemistry and latent fingerprint processing.
Overall, however, he agreed more needs to be done.
“Our lab quality assurance system has improved, our system efficiency has improved, and our processing time per case/request has dropped sharply, but we’ve reached our production limit with current staffing and facilities constraints,” Fox said.
“We can’t speak to the number of cases that have gone unprosecuted due to lack of evidence, as we have no way of collecting and tracking the DA’s results or other data,” he said. “But it’s clear that our labs have been unable to keep up with the increasing volume in toxicology and chemistry.”
Haroldson said he thinks changes in society also are influencing the backlog, a trend law enforcement agencies might want to keep in mind.
“As time passes, we learn more. With our increased scientific knowledge, we develop improved ways of examining evidence from a scientific perspective. And as that capacity increases, then there will naturally be a growing demand for evidence to be analyzed through the best scientific methods that we have,” he said. “For us to say, ‘Well, we ought to just do DNA on that,’ without necessarily taking into account the resources, we can get into trouble. Perhaps we don’t have the capacity to do that much testing.”
Marteeny said he believes delayed justice doesn’t serve anyone, regardless of the circumstances that led to the delay.
“To me, it’s crisis stage,” he said. “It really is crisis stage, and it’s got to be fixed.”