Wednesday, August 8, 2012

Test the Evidence to Make the Case; Not the Other Way Around

According to a recent story by ABC affiliate WSIL-TV in Illinois (Finnegan, E. (2012) "Attorneys Concerned About Crime Lab Closure," WSILTV, August 3), attorneys in Illinois have voiced concern about a plan to shut down the State Police Crime Lab in Carbondale. It is of interest to note that this lab handles a high volume of forensic casework (more than 3600 per year), and that one its employees just won an award for forensic scientist of the year for managing that high volume along with facilitating training for police and prosecutors (see "Employee wins top forensic scientist award").

This lab closure is part of an overall plan to merge the responsibilities of two separate crime labs into one at a new facility that has yet to be completed in Belleville (the 37.8 million dollar facility, shown here in an artists rendering, is scheduled for completion sometime in 2015). Among many immediate budget cuts made by Governor Pat Quinn, this specific closure will save around $230,000.00. As reported in Finnegan (2012):

The plan is to merge the Carbondale lab and one in Fairview Heights into a new, state-of-the art facility being built in Belleville; not everyone is convinced the governor's savings plan will be worth it.
"The governor and state police are doing something short sighted," said Jackson County State's Attorney Mike Wepsiec. 
Wepsiec predicts moving the work done at the Carbondale lab 80 miles north could mean major delays in cases. He's not alone.
"It's just going to clog the courts even more," said Richard Whitney, a civil rights and criminal defense attorney. 
Whitney and Wepsiec are usually on opposite sides of the courtroom. But on the closure they're in total agreement, even using the exact same phrase to describe the situation. "The old saying is justice delayed is justice denied," remarked Wepsiec, "And there's a lot of truth to that." 
"There's a saying that justice delayed is justice denied, and I think this is an illustration of it," Whitney told News 3. 
The Carbondale lab handles everything from DNA to testing drugs and even urine samples for DUIs. In the CSI-era, labs are busier than ever and already dealing with a backlog. Both men fear adding extra travel time just to get the evidence in the technicians' hands will only make things worse. 
Time is of the essence; Wepsiec explains if a suspect can't make bond or doesn't have a bond they must be tried within 120 days.
"I only see us being pushed against the wall and having to release some dangerous people before trial, because they cannot get the work done within 120 days," he said. 
Prosecutors can file for an extension and attorneys say it's likely more of those will be necessary if the Carbondale lab shuts down. For the defense, that means clients could end up spending more time behind bars. 
"You haven't done anything wrong," said Whitney, "Because you're waiting for some crime lab to go through it. That's not justice, that's an offense against our Constitutional scheme."
As a practicing forensic scientist, it is easy to agree that relying on the hard work of police examiners is essential to justice. It is also easy to agree that justice delayed is justice denied - unless of course a defendant waives that right for reasons that are both prudent and strategic, often in exchange for some concession by the prosecution. The evaluation, testing, and interpretation of physical evidence is essential to this process, whether it is done by the state or the accused. 

In addition, I agree that closing the high volume lab at Carbondale makes little sense with the three year gap in services that appears to be on the immediate horizon, as the State Police and their forensic scientists wait for the new lab to materialize in Belleville.

However, the specific concerns voiced by the attorneys quoted in this story bely an important reality about the criminal justice system in general, and physical evidence in specific, that might be missed by the average citizen. Note that the defense attorney is worried that delays in the testing of evidence means "clients could end up spending more time behind bars". And that the prosecutor is concerned about "having to release some dangerous people before trial, because [the crime lab] cannot get the work done within 120 days". These are admissions to a strange reality that both sides have come to accept as normal: the arrest of criminal suspects (and I do mean suspects) BEFORE the results of physical evidence examination and testing are known. 

It is true that a case can be made against a criminal suspect, and probable cause developed, without physical evidence (e.g., witness statements and confessions). However, if the  results of physical evidence testing (e.g., drug identification, DNA) are significant enough that their absence means releasing a suspect that is already in custody, this begs an important question. On what probable cause were the suspects arrested and being held? And how was it so weak that compelled their release in the absence of physical evidence testing?

The reality is that many criminal cases speed towards trial without the first clear insight into the physical evidence and its interpretation. Worse, many cases involve crucial physical evidence that is untested or still undergoing examination during trial. Some of the reasons are financial, some are strategic, and others are far less than honorable. 

Whatever the reason, professional detectives will attest that it unreasonable to arrest a suspect without meeting the heavy burden required by probable cause. This means they make their case and then they make an arrest. If there is dispositive evidence that needs testing, they wait for those results before breaking out the handcuffs. Consequently, whatever the results of additional forensic testing that may be needed as new evidence in uncovered, nobody getting let out of jail because of a crime lab backlog.

Professional detectives have a responsibility to investigate and develop a complete case before making an arrest and handing it off to the prosecutor's office; the unbiased prosecutor, in the pursuit of truth and justice, has a responsibility to kick back any case that is weak enough to break should post-arrest evidence testing come back negative; and the defense has an obligation to explain when the first two have failed, with a loud and certain voice, during pretrial hearings and in front of the jury if it come to that.

Bottom line: this joint complaint by the attorneys from both sides is a red flag for a reality that should be unacceptable to both - suspects in custody without the testing of physical evidence that should have been needed put them there in the first place. If the facts of a case are unknown, and physical evidence is still being tested to figure out who was involved and what happened, then making an arrest is the least reasonable thing to do. Put another way, if a prosecutor has to release a suspect because of evidence testing, then there wasn't a good case to begin with.

And on a budgetary note, it also costs more in terms of having to let people go when the evidence doesn't pan out, or enabling miscarriages of justice that result in appeals, overturned convictions, and lawsuits.

Brent E. Turvey, MS is a forensic scientist in private practice, and co-author of Crime Reconstruction, 2nd ed, and Rape Investigation Handbook, 2nd ed. He consults as a crime reconstructionist on cases involving homicide and sexual assault.