Backlog of evidence at N.C. state crime lab puts cases in jeopardy

May. 17, 2013 @ 08:33 AM

Nick Hunsucker sits in a little cell at the Caldwell County Detention Center awaiting trial for murder. He is accused of bludgeoning his mother, Kathy Eller, with a golf club Dec. 18, 2011, in the apartment they shared off Mayfield Drive. Eller died four days later.

Evidence, including blood swabs and stains, taken from the home were sent to the State Bureau of Investigation Crime Lab in Raleigh for DNA testing. Nearly a year later, in November 2012, prosecutors and Hunsucker’s attorney, Herb Pearce, were still waiting for test results, so Superior Court Judge Beverly T. Beal issued a rush order and asked the DA’s office to send a letter to the crime lab asking to expedite the processing of evidence.

The evidence and lab results have yet to be returned to Caldwell County.

“There’s not a lot we can do,” a frustrated Pearce said Wednesday. “Judges issue rush orders, but it doesn’t do any good. You can’t enter a plea without the evidence. Judge Beal issued a rush order in this case a long time ago. It shouldn’t take one and a half years to do this.”

The crime lab, managed by the State Bureau of Investigation, operates a full-service laboratory in Raleigh, the Western Regional Crime Lab in Asheville, and the Triad Regional Crime Lab in Greensboro. Lab analysts examine all types of evidence related to criminal investigations free of charge to any public law enforcement agency in North Carolina, including local, state, federal, military and railroad police organizations. The lab provides consultation on the value, use, collection and preservation of evidence; analysis of evidence; and expert testimony in court proceedings.

In fiscal 2011-12, the lab received 33,915 requests from more than 20,000 law enforcement officers and 600 agencies for evidence testing. That amounts to almost 100 requests a day, on average, for a lab that employs 124 lab scientists, only 12 of whom perform blood toxicology testing, said Joseph John, crime lab director.

“Everyone’s working mandatory overtime,” he said. “We’re doing everything we can internally to be as effective as we can, given the resources.”

There’s the rub. Law enforcement agencies rely almost exclusively on the crime lab for toxicological analysis. Lenoir Police Chief Scott Brown says it's little wonder the lab is overwhelmed by the work.

“Until the state properly funds the program (hopefully that will be this year), delays in processing evidence will continue to be the norm,” Brown wrote in an email.

To meet that demand, the SBI needs more funding from the N.C. General Assembly to better staff and equip the toxicology unit in Asheville, giving western counties quicker access to analysis and expert testimony, which would also reduce turnaround, court and travel time, John

A further demand on the lab scientists' time is that they no longer can submit affidavits about their test results rather than testify in court. A 2009 U.S. Supreme Court ruling said that analysts can be required to testify in person. In the first six months following the June 2009 decision, court time for toxicologists from the crime lab in Raleigh skyrocketed 600 percent. The time spent in court increased an additional 242 percent by the end of fiscal 2010-11.

In fiscal 2011-12, being in court consumed more than 1,500 hours of the 12 toxicologists’ time -- the equivalent of more than 37 40-hour work weeks.

Funding is also needed to increase salaries, which John said are no longer competitive.

“We certainly have had several instances in which we have lost good scientists because they were able to earn more somewhere else,” John said. “We lost four alone to a city/county bureau of investigation ... (in Wake County that was paying) $20,000, plus or minus, more a year.”

District Attorney Jay Gaither said, “The inability of the lab to provide analysis of DNA on a timely basis has reached a crisis level.”

“Staff are highly trained people doing their job out of service to the state,” he said. “These people could be paid much more elsewhere and are leaving in droves. North Carolina has some of the lowest crime rates in the country. They’re not getting flooded by requests for DNA tests. They’ve fallen behind because of the lack of funding. Once you get behind, you get further and further behind."

Rush order cases, such as Hunsucker’s, are given more attention, John said. But that is no guarantee that the evidence will get to the lab for testing in a timely manner. Still, according to Beal, it would be reasonable to assume homicide cases would naturally receive heightened attention.

“I know district attorneys and defense attorneys are anxious to have the evidence processed as soon as possible for not only the defendants but also other interested parties,” Beal, now retired, said.

“There’s always a chance these delays will result in the integrity of the evidence being compromised. Judges are extremely concerned about these delays.

“The issue has to be one of the top five concerns we have, along with compensation of defense attorneys, and the workload on the clerk’s office. It comes back to funding.”

Attorney General Roy Cooper has asked the state legislature for an additional $10 million over the next two years to fund a total of 40 new lab positions and lease 25,200 square feet of extra office space. That funding includes adding toxicology and DNA analysts to the state’s regional crime labs in the Western and Triad areas of North Carolina.