Local judge worries about Constitutional violations due to forensic backlogs
by Madasyn Czebiniak
mczebiniak@annistonstar.com
Feb 15, 2014 | 6981 views |  0 comments | 76 76 recommendations | email to a friend | print
Sgt. Owen weighs marijuana in the Anniston Police Department evidence lab. Photo by Stephen Gross.
Sgt. Owen weighs marijuana in the Anniston Police Department evidence lab. Photo by Stephen Gross.
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In December, Calhoun County District Judge Chris McIntyre dismissed a pending drug case against an Anniston man charged with attempting to manufacture methamphetamines in 2012.

The court had been waiting on a lab report on the drug evidence found in that case from the Department of Forensic Sciences for nearly two years. And that case did not stand alone.

Nine other cases against six other defendants have been dismissed since December because of the same issue, according to prosecutors. McIntyre figures he will dismiss more.

The Sixth Amendment to the U.S. Constitution guarantees defendants the right to speedy trials. Any further delay risked violating the defendant's rights, McIntyre reasoned. Those who prosecute drug cases in Calhoun County do not bring defendants to trial without a drug evidence, or toxicology, report.

“I’m the first judge who has actually decided that it is too long and these cases should be dismissed,” McIntyre said.

Law enforcement officials in Calhoun County said they anticipated this happening in 2011, after DFS closed its lab at Jacksonville State University’s complex at McClellan.

DFS director Michael Sparks told The Star in 2011 that mid-year budget cuts were the reason the McClellan lab and two others, located in Dothan and Florence, were closing. Evidence that would have been tested at those labs now goes to labs in larger cities.

DFS has continued to see its budget decrease by millions of dollars. Aside from a lack of funding, the labs also lack employees.

According to prosecutors, an estimated 1,000 drug cases in Calhoun County are two years or older, which means they’re also in jeopardy of being dismissed.

Statewide, drug evidence in at least 30,000 cases awaits the attention of DFS scientists, each case representing a defendant waiting for his day in court and a prosecutor hoping to close a file. In some counties, judges are beginning to consider action like McIntyre's. In others, prosecutors say, they're moving ahead without the lab work, banking on guilty pleas from defendants.

A local loss

In a small, locked room in the back of the Justin Sollohub Justice Center, mustard-yellow envelopes containing different kinds of drugs fill rows of gray shelves against a wall.

Once every three to six weeks, Anniston police officers drive a load of evidence for drug cases the 70 miles to the DFS lab in Hoover. That's where evidence that once would have been tested in the lab at McClellan now goes.

Mark Hopwood used to be the lab director at the McClellan DFS lab and Shane Golden used to work as a chemist. After the lab closed in 2011, they worked with local law enforcement agencies to re-open it and are now forensic scientists employed by Jacksonville State University. They help law enforcement agencies, in Calhoun and in other counties, process crime-scene evidence such as blood and gunpowder. Without the state-owned equipment to test the chemical makeup of substances, they cannot test drug evidence in a way that is court-admissible.

With the right equipment, Hopwood could identify methamphetamines within an hour and cocaine and prescription pills within seven minutes. Now it takes longer to get the evidence to the Hoover lab than it takes to actually analyze it, Hopwood said.

Calhoun County District Attorney Brian McVeigh also feels that if the McClellan lab were still open, cases wouldn’t take as long to prosecute.

“In the past, we would have been able to go to them and say this case is getting so old it is in danger of being dismissed, could you work it first, or could you speed up the process?” McVeigh said. “We don’t have that ability anymore.”

For those in Lauderdale county, drug evidence used to be sent to the now-closed Florence lab.

Lauderdale County District Attorney Chris Connolly said the county’s toxicology reports have also been delayed since the close of its local lab, but they haven’t dismissed any cases.

Connolly said delayed toxicology reports don’t really affect trials in Lauderdale because prosecutors don’t always wait for a report before taking a defendant to trial.

“What we do is we indict without the tox,” Connolly said, using common shorthand prosecutors have for toxicology reports. “We take the position that our trained drug task force officers can testify that probable cause exists for the arrest and for the charge. I know there are a lot of jurisdictions that wait on toxes, but we don’t. And that’s worked well.”

Problems with the General Fund

Sparks told The Star in 2011 that the McClellan lab was closed due to budget cuts. He said in January that the same problem is behind the delayed testing. DFS is processing evidence as quickly as it can with the staff and funding it has.

In 2009, the Legislature appropriated to DFS $14.1 million in the state's General Fund budget. The department then had 223 employees, and Sparks said they were current.

“And when I say current, I had less than 30 days worth of drug cases that were unworked,” he said.

Over the past five years, the Legislature has cut 40 percent of the funding DFS got from the General Fund in 2009, Sparks said. The proposed appropriation for DFS in the 2014 budget now being considered in Montgomery is $8.5 million.

DFS today has 32 fewer employees than it did in 2009, Sparks said. Of the employees he had in 2009, 42 were drug chemists. There are 191 employees today, 19 of them are drug chemists, the director said. That’s not enough staff to work quickly through the backlog of about 30,000 drug cases, Sparks said.

“That's why they're waiting longer to get the casework,” Sparks said. “There's no other way, that's just as simple as I can put it to you.”

Sparks said other DFS departments, such as Forensic Biology and DNA, aren't as backlogged as the drug chemistry department because they take in fewer cases a month. Combined, DFS’ drug chemistry labs take in about 2,500 cases a month, he said.

McIntyre said he hopes his decision to dismiss drug cases will influence the Legislature to give the DFS the funding it needs to speed up testing.

“I’d like to see them come back within six months,” McIntyre said.

State Sen. Arthur Orr, a Republican from Decatur, is the chairman of Senate General Fund Budget Committee. Orr said he was not aware until two to three months ago that drug cases were being dismissed in Calhoun County due to a backlog of testing.

“It’s a bad situation,” Orr said.

General Fund appropriations for DFS have gone down since 2008. However, in addition to its General Fund appropriation, DFS gets millions each year in revenue from other state funds, much of it earmarked for specific uses. Funding from those sources has risen in recent years, to $10.5 million in 2013 from $8.5 million in 2010, Orr noted.

“It’s up 20 percent or so,” Orr said. “I find that many times agency heads, and we have the same situation in the court system, will focus on their General Fund number which in years past has usually been declining and not focus on the overall picture.”

Repeated attempts to reach Sparks for follow-up questions about DFS' earmarked funding were unsuccessful.

Gov. Robert Bentley has recommended a $1 million increase for DFS in the General Fund budget for 2015, an appropriation of about $9.5 million.

“I’m confident we will keep that $1 million increase and we’re going to do all we can to add to it,” Orr said.

The right thing by The Constitution

Bill Broome, president-elect of the Alabama Criminal Defense Lawyers Association, agrees with McIntyre’s decision to dismiss cases.

“I think he’s doing the right thing by the Constitution and the law,” Broome said.

Waiting two years for a test affects the lives of the defendants and denies them the right to a speedy trial, McIntyre said. It stops defendants from finding jobs or traveling overseas, he added.

Some of the defendants in the dismissed cases were unable to pay bond. That meant some were behind bars for nearly two years while prosecutors waited for DFS to test the evidence against them. Some still are, according to defense attorneys. Those who do manage to make bond face a different set of problems.

“They run the risk of having their bond revoked, and I’m sure there’s a certain amount of worry having a felony charge hanging over your head for a couple of years not knowing what’s going to happen,” said Shannon Page, a Calhoun County assistant district attorney who prosecutes drug cases.

District Attorney Randall Houston, who prosecutes cases in Autauga, Elmore and Chilton counties, said no judges in his counties have dismissed such cases. Houston said he understands why McIntyre would want to do something about the situation, but doesn’t agree with his decision.

“I would be very upset if my judges were dismissing cases where people were out on bond and the only reason was because of toxicology reports,” he said.

For defendants who cannot make bond and are waiting on toxicology reports, Houston said, “Lowering the bond would be the remedy I would pick rather than the dismissal.”

Officials from DA’s offices in Cleburne, Talladega and St. Clair counties said in January that the judges in their counties had not dismissed such cases, either.

“It’s not a trend, yet. I believe there are only one or two judges who have taken this step,” McIntyre said.

But the drug evidence delay from DFS isn’t just a problem for the defendants — it’s also a problem for the court system.

“The problem is a lot of folks plead guilty before indictment just to get the case moving,” Broome said. According to Broome, some defendants who aren’t guilty still have to wait two years to have their day in court.

“To wait over two years for a crime lab or a drug lab to come back from DFS ... it’s ridiculous,” said Anniston defense attorney Carey Kirby. “It keeps cases from settling as quick or being tried as quick.”

Carol Boone, an assistant district attorney for St. Clair County, said she once waited for more than two years for evidence to come back from DFS on one of her cases.

Boone said prosecutors in St. Clair don’t go to trial without toxicology reports -- unless the defendant is willing to stipulate that what prosecutors say are drugs are indeed drugs.

"And I don't think I've ever had one do that," she said.

Houston, on the other hand, said toxicology reports for his counties usually take a minimum of six months to process. The Montgomery lab, where local law enforcement officials in his counties send their drug evidence, has accommodated Houston when asked for special consideration on some toxicology reports. Chris Connolly, the district attorney for Lauderdale County, said the same thing about his county’s relationship with the Huntsville lab, where it sends its evidence for testing now.

“At one time I had an issue with lengthy times on toxicology reports but only from one agency,” Houston wrote in an electronic message. “In checking, I discovered that the agency was only going to the forensics lab once every three months. After we worked it out to every couple of weeks, the backlog worked itself out.”

Staff writer Madasyn Czebiniak: 256-235-3546. On Twitter @MCzebiniak_Star.





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