No easy fix for state lab backlog
Van Hollen may consider changing testing priorities
By STACY FORSTER
Jan. 21, 2007
Madison - When law enforcement officers comb through crime scenes for DNA evidence, they sometimes send dozens of samples to the State Crime Laboratory.
And in felony cases, all of the samples submitted must be tested, further swelling a backlog of cases.
Attorney General J.B. Van Hollen and state lawmakers have said they will consider changing the rules governing how the crime lab prioritizes evidence, giving analysts more discretion in determining what to test. Doing so might help Van Hollen clear up the crime lab's backlog, which has grown to about 1,775 DNA cases.
Shortly after taking office this month, Van Hollen backed off a campaign promise to quickly eliminate the backlog, saying now that it will be a much more difficult task than he had thought. Van Hollen said that without any new evidence coming in, it would take up to 20 months to work through the backlog.
Some states already limit the amount of evidence they test, which officials say allows them to work more efficiently. But prosecutors in Wisconsin said they are already in regular communication with crime lab analysts about the most pressing evidence.
There are also much smaller backlogs in such units as fingerprints, firearms and toxicology. But DNA is what gets the most attention, and in Wisconsin, it's reached a crisis stage, said Kevin St. John, spokesman for the state Department of Justice.
"Given the time it takes to work up cases, the number that is the backlog and the increasing input, we view this as an emergency situation," St. John said. "It's worse than we feared going in."
Technology can contribute to the problem; as analysts find DNA on more challenging pieces of evidence, law enforcement officers tend to collect more with the hope it will yield a result. If a doorknob is submitted, for example, it's not likely to produce a meaningful result because so many people will have touched it, St. John said.
Some of the cases submitted to the crime lab are for defense teams or post-conviction orders, he noted.
Wisconsin isn't alone in dealing with a major DNA backlog. After years of watching their backlogs grow and scraping for funding, public crime labs are now in problem-solving mode, said Donna Lyons, criminal justice program director for the National Conference of State Legislatures.
In many states, backlogs have meant adding analysts or facilities to handle the increased flow. But it's also involved labs looking for ways to process DNA evidence more quickly while retaining its integrity.
In Michigan, crime lab analysts don't analyze more than seven pieces of evidence in a DNA case, said Kari Kusmierz, assistant division commander for the Michigan State Police Forensic Science Division. Working with investigators to identify the evidence with the most potential to yield DNA evidence produces faster results; if the initial tests are unsuccessful, further evidence can be tested, she said.
Michigan, with population of about 10 million compared with Wisconsin's 5.5 million, has about 1,200 cases in its DNA backlog.
"We had to make that decision a few years back with DNA, that we can't analyze everything they bring in," Kusmierz said. "When you say 'yes' to everything, it's not very timely service and you have those backlogs."
The average number of pieces of DNA evidence per case is eight in Wisconsin.
Limits could hurt cases
Putting constraints on testing of evidence make prosecution tougher, because juries often demand DNA evidence and defense lawyers could point to samples not tested as a potential source of exoneration, said Dane County District Attorney Brian Blanchard.
Still, police do exercise judgment in what they submit to prosecutors, as do prosecutors when they send evidence to the crime lab, he said.
"You could have a crime scene with huge amounts of blood, and you can't test it all," Blanchard said.
Norman Gahn, an assistant district attorney in Milwaukee County, said that ideally, prosecutors, detectives and crime lab analysts would work together to decide what items are most relevant.
"I certainly am capable of determining what I want done in my case with the crime lab and the detective," Gahn said.
Those kinds of conversations have always happened on a case-by-case level, St. John said.
Van Hollen and lawmakers are reviewing options for how to give the crime lab more discretion, St. John said, adding that in recent days, the Department of Justice has emphasized the gravity of the situation with law enforcement and prosecutors.
"It's taken on a new urgency," he said.
Some of the backlog issues aren't solvable, said Anjali Swienton, director of outreach for the National Clearinghouse for Science, Technology and the Law.
"A building only has so much space, and when you're talking about DNA testing, there are corners you can't cut," she said.
Still, states are stepping up funding and resources to address the problem.
Take Washington state, which developed a plan five years ago to reduce the backlog in DNA testing at its labs.
The plan included construction of two new labs and adding staff; there will soon be 48 crime lab analysts there, said Barry Logan, director of the Forensic Laboratory Services Bureau for the Washington State Patrol.
In the past year, the Washington labs received 2,146 DNA cases and completed 1,853 of them.
No quick change
Even with more analysts, results shouldn't be expected overnight. For one, it takes at least six months to train new analysts, and they're not ready to work unsupervised for a few years, said Bill Marbaker, president of the American Society of Crime Lab Directors and assistant director of the Missouri State Highway Patrol Crime Laboratory.
Wisconsin Gov. Jim Doyle has committed to adding 15 new DNA analysts, bringing the total to 44.
"Even when we add all those DNA analysts, there are going to be people saying how come we're not getting our evidence turned around fast enough," Doyle said. "It's never going to be like CSI."