October 26, 2020 Feature

Pandemic Disruptions to Forensic Crime Labs Present Opportunities for Permanent Change

Andrea L. Moseley

The pandemic has caused one of the most unforgettable and extreme interruptions in the functioning of the criminal justice system that I have experienced in my 21 years as a criminal defense attorney. Like so many other parts of our justice system, forensic crime labs have experienced a wide variety of changes as a result of this ongoing pandemic. If the opportunity is seized, some of the forced adjustments crime labs have made during this long pause in regular business could be beneficial to criminal defendants in the long run. This is an opportune time to examine how the pandemic has and is currently affecting the essential tasks of analyzing fingerprints, ballistics, DNA, chemicals, drugs, and other vital forensic evidence. It is not known whether the changes impacting crime labs are temporary or permanent alterations of the landscape upon which they operate. While it may be too soon to fully appreciate the long-term effects on crime labs, some trends have begun to emerge.

Decrease in Crime

In April, the Associated Press reported that crime was dropping as COVID-19 kept people in their homes. S. Dazio, F. Briceno & M. Tarm, Crime Drops Around the World as COVID-19 Keeps People Inside, AP News (Apr. 11, 2020). For example, drug arrests in Chicago have plummeted 42 percent since the city shut down. Overall crimes rates have reportedly declined since the pandemic stuck, except for domestic crimes. Id. New York experienced a reported 12 percent decrease in major crimes between February and March. Id. Likewise, Los Angeles saw a 30 percent drop in crimes as of March 15, 2020. Id. It is easy to see how opportunity crimes such as residential burglary would decrease because people are not leaving their homes vacant. But the decreases were not limited to home invasions. In New York, a major epicenter for the virus, decrease in major crimes also included murder, rape, robbery, burglary, assault, grand larceny, and car theft. Id. One former police officer and criminal justice professor compared the phenomenon of dropping crime to a giant blizzard that hit and there’s 10 feet of snow on the ground. S. Jacobs, & D. Barrett, New York City’s Crime Rate Plummets Amid Coronavirus Shutdown, Wash. Post (Mar. 26, 2020). The Washington Post reported that some data suggest criminal suspects are staying home. Id. This conclusion appears to be based on information gathered from Flock Safety, a company that sells license-plate-reader technology. The company reported that its cameras in Florida, California, and Texas showed a significant drop in “hits” on stolen cars and cars belonging to people with outstanding warrants. That drop was consistent with the overall decline in cars on the road, the company said. Also, with fewer cars on the road, one would expect to see fewer accidents, thefts of cars, and arrests for driving while under the influence. Crime rate statistics are certainly multifactored and vary by location, but there does appear to be a noticeable trend downward so far this spring.

Reduced Operations Lead to Policy Adjustments for Low-Level Crime

These dropping crime rates impact the volume of evidence that is submitted to crime labs for analysis. Also, the COVID-19 crisis caused some crime labs to reduce their working capacity to protect workers. The reduction in working capacity in turn has impacted law enforcement’s focus on certain low-level, nonviolent crimes. For example, in March, Cook County, Illinois, prosecutors announced they would be dropping all new drug cases as the COVID-19 crisis has led the state crime lab to reduce its operations to only urgent work involving violent crime. M. Crepeau & J. Gorner, State Crime Lab Scales Back Operations Amid Coronavirus Spread, Leading to Shelving of Drug Cases, Chi. Trib. (Mar. 20, 2020). The Chicago Tribune reported that this decision came after the Illinois State Police laboratory decided to dramatically reduce the number of forensic tests it would perform. Id. One reason for the cutback in testing was reduced staffing at its forensic services facilities to protect employees and facilitate social distancing.

As a result of the lab’s decision to cut back routine testing to confirm whether any suspected drugs are, in fact, narcotics, prosecutors had to make policy adjustments. Cook County State’s Attorney Kim Foxx cited concern over COVID-19 outbreaks in police and jail facilities as an additional reason to cut back on certain types of low-level drug cases. In support of her decision, State’s Attorney Foxx was quoted as saying, “[e]veryone deserves to be protected, especially during these uncertain times, and we are obligated to ensure all members of our community feel safe, including those behind bars.” C. Mitchell, During the COVID-19 Pandemic, Low-Level Drug Cases Won’t Be Prosecuted in Cook County, NPR WBEZ Chi. (Mar. 23, 2020). Prosecutors in Cook County were reportedly instructed to dismiss all low-level drug cases that have not yet been indicted or had a preliminary hearing. This policy announcement will mainly affect cases in the early stages of prosecution. These dismissals may not be forever; it remains to be seen whether those cases will be resuscitated down the road.

As criminal defense attorneys, a trend worth tracking is whether there will be a sudden spike in the prosecution of these low-level crimes once the crisis stabilizes or whether these changes will result in a permanent policy shift. Perhaps many jurisdictions will decide that this type of temporary change is worth long-term consideration. The value of giving forensic labs the freedom and space to focus on more pressing matters may indeed outweigh the need to prosecute certain low-level cases. The unusual circumstances brought on by this pandemic provide our law enforcement decision-makers a real-time opportunity to study the impact of scaling back on low-level arrests. Under these conditions, law enforcement may gain greater insight and have a better opportunity to weigh whether continuing enforcement of certain low-level offenses is necessary. In some places, this evolution was already afoot. R. Arnold, DPS Says It Won’t Test Low-Level Pot Cases Leaving Texas Counties Scrambling to Find Solution, KPRC Click2Houston (Feb. 28, 2020). For example, see how the Director of the Department of Public Safety in Texas expressed concern that new hemp laws in Texas will impact the district attorney’s offices’ ability to prosecute misdemeanor drug cases. Id. Reportedly, crime labs in the state are not set up to handle the type of testing that would be needed to differentiate hemp from marijuana. COVID-19 may very well add fuel to accelerate the trend away from the prosecution of low-level drug offenses in a more permanent way. Id. Similarly, in Columbus, Ohio, one city attorney remains committed to declining the prosecution of low-level marijuana cases, even after Ohio’s state crime labs have been upgraded to differentiate between legal hemp and illegal marijuana. P. Cooley, Columbus Won’t Go After Minor Marijuana Cases Despite Upgrades at State Labs, Columbus Dispatch (May 4, 2020).

Challenges Posed By Pandemic Spark Innovation and Efficiency

Forensic scientists with the Illinois State Police (ISP) are using their laboratory skills to help the state during the COVID-19 pandemic. Ten scientists and one DNA research coordinator with ISP Division of Forensic Services (DFS) are lending their expertise to help the Illinois Department of Public Health (IDPH) with COVID-19 testing. M. Heller, ISP Forensic Scientists Help with COVID-19 Testing, CBS KFVS-12 News (Apr. 28, 2020). Ordinarily, these individuals are valuable members of the lab analyzing crime scene evidence, but their skills are needed elsewhere right now. These scientists’ time are better spent on lending help during this crisis or processing major crime evidence rather than conducting testing for low-level crimes. As criminal defense attorneys, we can hope that many of these temporary changes become a persuasive argument for permanent change in the investigation and prosecution of low-level crime.

Furthermore, the machines that forensic labs have access to can be used to assist during this crisis. The Washington State Patrol Crime Lab in Vancouver has loaned two complex testing machines to the University of Washington to help increase COVID-19 testing. J. Shedlock, WSP’s Crime Lab in Vancouver Loans Equipment for COVID-19 Testing, Wenatchee World (Apr. 2, 2020). If we can relieve the strain on crime labs by reducing evidence submission volume, then the labs may have the time and capacity to focus on more critical needs during this crisis and beyond the pandemic.

In other parts of the United States, interesting patterns across forensic crime labs have been noted. Crime lab directors from both Maine and Ohio provided valuable insight during a panel discussion on how the COVID-19 pandemic has impacted their state labs. Tracker Products, Evidence Management Webinar Series Episode 10: COVID 19 and Crime Labs, You Tube (Apr. 23, 2020). These two labs are different from each other in many respects, but COVID-19 has impacted them in nearly identical ways. The Ohio lab has a staff of six employees including the lab director and serves multiple law enforcement agencies in a cooperative. This small Ohio lab is equipped to analyze controlled substances, blood alcohol, firearm evidence, ballistics, and fingerprints, carrying approximately 4,200 submissions. The Maine State Lab has a staff of 22 scientists; they do not perform blood-alcohol or drug analysis but provide testing for DNA, firearm evidence, ballistics, and fingerprints. This lab is responsible for forensic analysis in all homicide cases in Maine and supports federal evidentiary submissions.

The first change that the Maine lab noticed in the months of March and April was that law enforcement personnel were less certain about when to submit evidence that might have been COVID-19 contaminated. Another initial transformation was that some chiefs of police were reluctant to allow their officers to travel outside of their jurisdictions to submit evidence due to travel restrictions. The Maine lab is in Augusta, Maine, and some officers must travel across multiple counties to make submissions. In some instances, this translated into the need for officers to travel from counties with COVID-19 cases through counties that had no reported cases. This clearly affects the timeliness of submissions and reduces the amount of evidence being dropped off. Early in the onset of the crisis, laboratory staff had a lot of questions about working in tight spaces in the lab and how to transition to doing work at home. There is only just so much that can be done at home before a scientist must get back in the lab to complete the work. The Maine lab has benches for six to seven scientists to work from in very close proximity to one another. The lab needed to organize its schedule so that each scientist would have time to work in the lab by him- or herself. The idea is that the scientist could come in to do the lab work and then could return home to write the reports.

The Ohio lab did not encounter the same problem of crowded scientist workspace because only two of the six staff perform scientific analysis. However, both labs did have to address the mechanics of making lab submissions to protect health and safety of law enforcement delivering evidence and any people entering the common areas. The intake process for both labs had to be clarified and refined to encourage officers to social distance from one another and from lab staff. In the Ohio lab, there are few evidence technicians dropping off evidence. The small number of evidence technicians made it easy for the lab to track whether these officers entering the drop-off area of the lab had become infected. Lab personnel were checked for fevers and masks were readily available in the evidence receiving room. The biggest challenge noted from the Maine lab was anticipating the need to reduce any long line waiting for officers to submit evidence. At first, the evidence submissions were way down, but as of the end of April, the number of submissions was on the rise. The Maine lab did what most grocery stores have done at this point: put up plexiglass and put out hand sanitizer and gloves for those waiting to submit evidence.

Just like state crime labs in Maine and Ohio, Kentucky State Police laboratories have had to figure out how to continue working. The Kentucky State Police Crime Lab director reported that her labs, with 140 employees statewide, instituted a system where analysts would work three days in the lab and two days at home, followed by a week of two days at the lab and three days at home. J. Mayse, As Pandemic Continues, Ky. State Police Lab Adapts to New Normal, Police1 (May 18, 2020).

Both the Maine and Ohio lab directors agreed that labs in general were already better equipped to handle the risk of transmission because protocols have always included the regular use of personal protection equipment (PPE), hand sanitizer, etc. The labs already had a stockpile of gloves, masks, and other PPE when some state offices did not. Sanitizing is business as usual for these environments, although the depletion of PPE has been clearly more rapid according to the Maine lab director. Interestingly, the Maine lab had a contract for PPE that the Centers for Disease Control did not have and wound up providing them with a portion of its stockpile of gloves.

The Maine lab director observed that, in this COVID-19 world, nonscientist lab staff are getting a feel for what it is like to live in a crime scene. The lab director is describing what it is like to exist in a “Locard” environment. In the study of forensic science, Locard’s principle holds that the perpetrator of a crime will bring something into the crime scene and leave with something from it, and that both can be used as forensic evidence. Dr. Edmond Locard (1877–1966) was a pioneer in forensic science who established the first crime laboratory in 1910 and became known as the Sherlock Holmes of France. Forensic Criminology (W.A. Petherick, B.E. Turvey & C.E. Ferguson eds., 2010); The Locard Exchange, Modern Microscopy; Edmond Locard, Forensics Library. He formulated the basic principle of forensic science as every contact leaves a trace. G.L. Kelling et al., Police-Crime-Scene Investigation and Forensic Sciences, Encyclopedia Britannica (June 11, 2020). With all of us focusing on the prevention of the spread of this virus, many of us are getting a feel for the first time about what it is like to live in a crime scene. This opportunity to view life through a new lens could lead to meaningful reform for all of us.

The Maine Crime Lab director noted that at the beginning of the crisis, it was very difficult to get his staff used to working at home, and now he thinks it will be difficult to get them to come back. The ability to work from home and to teleconference has greatly benefited his crime lab operations. The newfound comfort with crime labs using teleconferencing in lieu of in-person meetings appears to be an area of change that could become permanent. For example, in a situation where the processing of a homicide crime scene is hours away from the crime lab, initial meetings to plan evidence submission can more readily take place over a teleconference platform instead of waiting for an in-person meeting. Previously, a crime scene tech might drive hours with evidence to meet in person and plan out what is going to be submitted. Now, the laboratory and evidence technicians processing a crime scene can coordinate well in advance to plan out what needs to be submitted and what the lab will ultimately receive. This technology was always in place, but now the readiness and familiarity with these platforms as a result of the pandemic makes this efficient coordination much more likely. This is a prime example of how the landscape for certain crime labs has been positively altered because of being forced to explore alternate avenues. There is no doubt that lab officials will continue to evaluate the techniques they’ve used to keep working during the pandemic to maximize efficiencies going forward.

Catching Up with Backlog

Another unpredictable, but fortunate, consequence of this pandemic is how crime labs can use this downturn in submissions to catch up on testing backlogs. With the processing volume down, the Maine lab director reported that they previously had a backlog of 100 cases in the latent prints department; now there are just 6. In the Chemistry Unit, one year ago there was a backlog of 110 cases, and now they are down to 20. The DNA backlog is typically around 250 cases, and now they are down to between 175 and 185.

Kentucky State Police Lab Director Laura Sudkamp reported that because courts are closed, they are completing more cases than they did last year. Mayse, supra. Instead of spending extended periods of time testifying in court, she said that the analysts are now able to spend more time in the lab. Id. In Kentucky, evidence delivery was suspended for several weeks and the decline in new evidence coming in has allowed analysts to work on their backlog of cases. According to Sudcamp, Kentucky labs have made a big dent in their backlog. As expected, now that Kentucky labs are taking in evidence again, there have been some mass dumps of evidence from larger police agencies, but the submissions are still less overall than the same time last year. Like the Maine and Ohio lab directors, Sudkamp attributes this, in part, to crime rates being down. Id. Both the subtle and explicit changes crime labs are experiencing due to COVID-19 could be blessings in disguise for criminal defendants. The Innocence Project has noted the dangers that the accused face in places with overwhelmed and underfunded crime labs. “When crime labs don’t get the funding they need, cold cases go unsolved and wrongful convictions become more likely.” Innocence Project, The Dangers of Crime Lab Backlogs (Apr. 1, 2009). The fact that there are crime lab backlogs all over the country is well-documented. U.S. Gov’t Accountability Off., Report to Congressional Requestors: DNA Evidence (Mar. 2019). The Washington Post reported that from 2011 through 2017, the backlog of state and local government requests for DNA analysis grew by 85 percent, from approximately 91,000 to about 169,000. J. Davidson, Uncle Sam Surrenders to Growing Backlog of Crime Lab DNA Tests, Wash. Post (Mar. 26, 2019). The Innocence Project reports that “364 people in the United States have been exonerated by DNA testing, including 20 who served time on death row.” Id. The Washington Post cited one paragraph from a 111-page Government Accountability Office report on the growing backlog as evidence that we are losing the battle on eliminating backlog. Id. “Justice Department officials ‘reported that eliminating the nationwide backlog is not a program goal. Officials stated they believe the goal of eliminating backlogs is unachievable in the foreseeable future because increases in demand for DNA analysis are driven by factors outside of NIJ’s (the department’s National Institute of Justice) control. Thus, officials said they are not comfortable setting an unachievable goal. . . .’” Id.

Notwithstanding the vital need for accurate DNA testing to prove both innocence and guilt, Justice Department officials indicate that funding is not expected to be forthcoming. Id. If there can be a silver lining in this pandemic, knocking out backlogs in forensic testing is hopefully one. In addition, with this respite in the number of submissions, crime labs have had a chance to improve infrastructure. The Maine lab reported that it was able to finally install upgrades on computers, explore the validation of a new testing procedure, review lab protocols, and focus on improving report writing skills.

Conclusion

This year, the drumbeat of the United States’ criminal justice system was radically altered. Courts closed for nonemergency matters and prosecutors were challenged to prioritize critical needs over the pursuit of low-level offenses. The backlog in forensic crime labs has been haunting the criminal justice system for a sustained period. Adequate funding has not been forthcoming as a solution to this problem and, overall, we are losing the battle nationwide on eliminating backlog. The backlog potentially keeps innocent people in prison and fails to prevent wrongful convictions or, even worse, execution. Many terrible injustices have fallen upon the accused and the incarcerated as a result of COVID-19. But perhaps, for forensic crime labs, this moment is a critical opportunity to recover from backlog and to take other remedial measures that further our efforts to protect the accused and the innocent.

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Andrea L. Moseley is a founding partner at Kropf Moseley in Washington, DC/Virginia. She specializes in white collar defense, investigations, and legal ethics.