Drug testing backlog delays cases, defendants linger in jail
NORFOLK, Va. (AP) — Deep inside a six-story, brown and tan state building in Norfolk, not far from the waterfront, you’ll find thousands of sealed bags stored in a locked vault.
Each bag is labeled with a unique identification number and holds its own set of evidence — powders, tablets, capsules, injectables, patches, plants and liquids of all shapes, sizes and quantities — waiting to be examined.
Scientists will eventually poke, prod, dilute and separate the substances to figure out what they are and if they are illegal. They’ll scribble notes about what they find in the course of their testing — prescription drugs, synthetic opioids or fentanyl derivatives, wrapped in a plastic baggies or stored in orange pill bottles — and present their results to law enforcement.
But that process is taking months and tying up the criminal justice system as the state agency responsible for doing the testing, the Department of Forensic Science, struggles to keep up with the increasing number of cases submitted.
The defendants facing charges for the seized drugs are also waiting — sometimes in jail — for the test results needed for their court cases to move forward.
Without that record, trials are delayed, and prosecutors must decide whether to push to keep the defendant in custody — perhaps unnecessarily, if the drug turns out not to be illegal — or release them on bond while they wait for the testing. Letting a drug-addicted defendant out risks having them use again — which sometimes proves fatal.
As of May 1, there was a backlog of 11,794 controlled substances cases, according to a statistics provided by Linda Jackson, director of the Department of Forensic Science.
Drug submissions increased 27% between 2015 and 2018, and during that same time period, the backlog grew nearly 250%.
And in fiscal year 2018, it took an average of four months for a scientist to finish testing evidence in a single case.
Jackson said the main reason for the backlog is the significant rise in cases since 2015, and her department is doing its best to handle the increase by hiring more scientists and requiring overtime.
Not only has the labs’ work increased, but it’s become more complicated.
As the makeup of drugs seized has gotten more complex, identifying them takes more time, said Brian Meinweiser, controlled substances supervisor at Norfolk’s Eastern Laboratory.
He added that there aren’t enough examiners to handle the backlog, and training a new one takes around 10 months. And the scientists already on the payroll spend hours a week testifying in court, which takes time away from the lab.
Meinweiser considers it a success if the turnaround time is under three months in his lab.
In April, the turnaround time for the four labs was 113 days — almost four months.
He said his counterparts in the western and northern labs have been racking up cases — the northern lab’s backlog is around seven or eight months — and the forensic science department transfers the cases across the state so each lab has around the same workload.
In 2017, 28% of prescription opioid cases submitted to the department came from the western part of the state, even though it only makes up 5% of the state’s population. That area also led the way in amount of methamphetamine submitted at 30%.
Lt. Jason Robinson, who leads a regional drug task force from the Virginia State Police office in Wytheville, said that while meth submitted hasn’t decreased, the number of clandestine meth labs has dropped over the years.
“People are still using meth; it’s just that they aren’t making it. It’s cheaper, more profitable to buy it,” he said over the phone.
In the 15 western counties he covers, opioids remain a problem, although Robinson said the state’s prescription monitoring program, which allows prescribers and pharmacists to track prescriptions, is helping reduce the amount of opioids seized.
For Meinweiser, who has been with the department for 13 years, he sees the drug backlog steadying soon, at least in Norfolk.
“There’s always something. You get caught up, something happens, and you fall behind again,” he said.
In 2017, cocaine and heroin were the most-submitted drugs in Region 5, which includes the Eastern Shore, all of Hampton Roads and seven counties immediately to the west.
Because examiners work on cases in the order they were received, the evidence brought in by police officers is given a case number and placed in storage until someone is ready to test it.
An examiner starts by taking out the sealed bag of evidence, conducts an inventory and removes anything that won’t be tested. A 1998 state policy eased the burden on scientists by saying they don’t have to test items with residue, such as a smoking device, if there are accompanying weighable drugs in the case.
The examiner weighs each piece — the weight could affect the type of charge the defendant receives — and compares it to a “standard,” or a pure sample manufactured and purchased legally to serve as a benchmark in drug testing.
As they work, the scientist is noting the substance’s color, markings, number of pieces, the container it’s in and what tests have been performed.
If there are 15 tablets bearing different markings, for example, each one has to be tested.
The evidence could also contain synthetic opioids or illicit fentanyl, each with a different chemical makeup.
More and more, that’s what examiners like Meinweiser are seeing.
The percentage of illicit fentanyl cases submitted rose 2,212% between 2013 and 2017, with the majority of such drugs coming from the Richmond area and Hampton Roads in 2017.
“Because of the mixture, there’s obviously more drugs in there, more standards to run, and typically the mixtures we’re seeing with the opioids, there’s different fentanyl derivatives,” Meinweiser said.
Sometimes, if the substance is especially complex, examiners have to custom order standards to compare the evidence to, which can take several weeks or months.
Finally, after all the tests have been completed, the examiner finishes their notes, issues a “certificate of analysis” for the prosecutor and investigating officer, seals up the evidence bag and returns it to the police.
But in between the inventorying and the testing, examiners are often waiting to testify in court.
A 2009 U.S. Supreme Court ruling in the case of Melendez-Diaz v. Massachusetts increased the number of witness subpoenas staff received, meaning more time spent out of the lab. The court said a defendant has the right to cross-examine the examiner who tested drugs. In the past, prosecutors often submitted the scientists’ written reports to juries without testimony.
While Meinweiser said he’ll only spend 15-20 minutes on the stand, he’ll sometimes wait hours for his turn to testify.
In 2017, the controlled substances staff received 7,360 subpoenas and made more than 500 court appearances, resulting in about 66 days away from the lab.
And unlike Meinweiser, who enjoys a relatively short commute to any courthouse in Hampton Roads, some of his counterparts in Western Virginia sometimes have to drive hours to testify.
To save time, the state department has asked for its examiners to be able to testify remotely via video.
In a survey of law-enforcement officials, attorneys and medical examiners last year, 68% said they’d be interested in allowing examiners to testify remotely. Jackson said defense attorneys were more likely to answer “no.”
Elliott Bender, a Richmond-based criminal defense attorney, said it might work for bench trials but would be tougher to execute with a jury.
“Anytime you have video testimony it’s going to send a weird signal to a jury,” he said, adding jurors could have doubts about the examiner’s location and qualifications.
Bender said he’s had clients sit in jail for seven or nine months, waiting for the evidence to be tested. In some of his cases, the evidence turns out not to be illegal drugs.
“At nine months, your client is saying, ‘I want to go home,’” Bender said.
When the backlog was over five months, Meinweiser got a lot of phone calls.
“The judges didn’t want to hold people in jail that long,” he said.
He said judges were conflicted, because they also feared letting defendants out of jail meant they could use again, and possibly overdose, before the lab results came back.
Such a case came across the desk of Williamsburg-James City County Commonwealth’s Attorney Nate Green last year. With agreement from the defense, a judge released a defendant on bond and ordered him to attend a drug treatment program, but the defendant fatally overdosed on heroin before the examiner could issue a report.
Green said while the defendant wasn’t a flight risk or a danger to the public, he was a danger to himself.
“We’re not giving them the death penalty by letting them out and letting them use heroin again and kill themselves,” he said.
Del. Mike Mullin, who works as a criminal defense attorney in Newport News, tells his clients that’s just how the judicial system works right now.
“When someone’s waiting for trial on a charge like this, that could be their livelihood. That could be their reputation in society. That could be their feeling of security,” he said.
“It’s not something that either side can sort of hurry up,” he said he tells defendants. “It’s just one of those things you have to deal with at the moment.”
Green said he has to carefully schedule preliminary hearings and grand juries, as there’s always a chance the certificate of analysis hasn’t been issued in time for a hearing.
“It just makes us think about where on the assembly line of justice we should put this case,” he said.
To address some of the backlog, the department received money to hire six more forensic scientists in the fiscal 2019 budget.
But it still wouldn’t be enough to manage the caseload, so in August, the governor agreed to let the department use an additional $1.66 million now that it wasn’t scheduled to get until 2020. It will go to hire an additional six scientists, two evidence specialists and two forensic administrative specialists; purchase two pieces of equipment needed to handle the increase; and pay to have some of the backlogged evidence tested at a commercial laboratory.
About 380 cases have been outsourced so far, with 75 cases a week being sent out for analysis, Jackson said.
Between the additional staff and the outsourcing, the department has been able to reduce the backlog by about 2,000 cases in five months.
Still, the department is expecting a 10% increase in submissions in 2019, according to a 2018 annual forensic science department report.
And, according to the 2018 annual report, the state is evaluating policy changes that would limit submissions and testing.
And in the short term, there’s another solution: making scientists work longer hours.
In fall 2017 and 2018, the department required all controlled substances examiners to put in overtime. They did it again this year between January 1 and May 30, this time asking for an additional 40 hours of work.
“We have to worry about burnout in our job too,” Meinwieser said. “We obviously have to get everything right, and if people are tired or they are burned out, it’s not going to help anything.”
Information from: The Virginian-Pilot, http://pilotonline.com