Police and prosecutors are failing to exercise discretion when submitting DNA evidence for testing to the Illinois State Police crime lab, contributing to a massive testing backlog that delays justice for crime victims, keeps defendants locked in jail and makes it harder for Chicago police to solve crimes, according to experts.
Law enforcement agencies may be well-intentioned in their efforts to build strong cases, but experts say advances in DNA technology require greater judgment from investigators and prosecutors before evidence is submitted for testing.
“It used to be in the good old days, when the police did DNA testing they needed a significant amount of biology, let's say a bloodstain,” said Brendan Max, the head of the forensic division in the Cook County Public Defender’s office. “And in that circumstance the DNA is relatively objective, the results are relatively reliable.”
But now, investigators can get testable DNA from a few skin cells, something called touch DNA.
“So as a result of that what you have are crime scene investigators literally collecting every piece of debris,” Max said. “So if a crime happens in an alley they're collecting every cigarette butt, every napkin, they're collecting every piece of trash around the area.”
That means the amount of DNA evidence submitted to state police for testing has exploded in recent years, and the labs have not been able to keep up. It also means a lot of the evidence being sent to the lab isn’t as reliable or useful as it once was.
‘It's used too much, on too many items of evidence’
Peter Vallone, staff scientist at the federal government’s National Institute of Standards and Technology, said a pool of blood at a crime scene is easy to test, and its connection to the crime is clear. But a swab of skin cells from a doorknob is less likely to be relevant to a case.
“Just because the profile is there it doesn't sort of indicate activity or what's happened,” Vallone said. “It still provides great information. It's just ... putting it into the context, and understanding that there's sort of different levels of confidence that comes out of it.”
Vallone’s job at the federal agency is to help advance forensic science and make crime labs around the country more efficient. He said the expansion of what’s testable requires training for investigators and understanding by law enforcement of when the evidence will be most reliable and most useful for a case.
“Context is what’s important here,” Vallone said.
Max said prosecutors and investigators are not bringing that context to enough cases in Cook County.
“You end up having testing on sometimes dozens, sometimes hundreds of pieces of evidence in cases where we're pretty confident those items of evidence aren’t going to have much probative value at all,” Max said.
In other words, prosecutors could spend years waiting for DNA results that won’t actually be used at trial.
“The biggest problem is that this technology has become so sensitive that it's used everywhere, it's used too much, on too many items of evidence, and because of that we have a state lab that's not constructed or set up to handle that volume of traffic,” Max said. “So it's really this funny situation where we have faster DNA technology, more sensitive DNA technology, more robots making it faster and yet our delays are longer.”
"There are people in jail right now awaiting DNA results"
Data from the state police show that much of the DNA backlog involves non-violent crimes.
As of June 10 there were almost twice as many burglaries awaiting DNA testing than homicides. There were 35 marijuana cases in the backlog.
State police assistant deputy director Robin Woolery said they have guidelines limiting how many pieces of DNA evidence agencies can submit for property crimes, but she said sometimes overzealous agencies will ignore those recommendations.
Woolery is in the forensic services division at the state police and she said, overall, agencies that request testing on unnecessary evidence are big contributors to the DNA backlog.
Woolery said on average, it takes 269 days to test DNA evidence submitted to the crime lab.
With all the evidence coming in, the labs have to decide how to prioritize cases, and they move cases with upcoming court dates to the top of the list.
That means that if a burglary case is headed toward trial, the evidence from the burglary takes priority, bumping down other crimes, including homicides and sexual assaults with no known suspects, meaning the attacker is still presumably free to reoffend.
Chicago Police Department spokesman Anthony Guglielmi said the backlog hinders their ability to solve cases. He said there’s a “direct correlation” between the time it takes to test DNA and the department’s clearance rate.
DNA test results could point police in the direction of a suspect, Guglielmi said, but if those leads don’t come back for nine months it can be hard to put them to good use.
Attorneys say the backlog also slows down Cook County criminal courts, because the long waits for DNA testing mean cases spend years lingering on judges’ dockets.
“The DNA backlog means that the whole system slows down. In particular it means that our clients’ jail stays get extended,” Max from the public defender’s office said. “There are people in jail right now awaiting DNA results.”
Defense attorney Adam Sheppard said the delays don’t just impact the DNA cases, but slow down the whole system.
Still, Sheppard said the solution is for the state police to be faster, not for the justice system to demand less of them. He believes the more DNA evidence collected and tested, the better.
“I do think it's a good thing for justice. It results in a greater backlog,” Sheppard said. “But I think that has to do with the resources of the state crime lab.”
Woolery contends the state police will not be able to reduce the backlog without help from the police and prosecutors submitting evidence for testing.
“We are now making a concerted effort to talk with state attorneys about only requesting those most probative pieces of evidence,” Woolery said.
Their message to prosecutors is “this helps you in the long run with being able to get your evidence quickly, and then we're not doing more work than necessary, and the other five cases that you have waiting in line can get worked faster,” Woolery said.
Cook County State’s Attorney spokeswoman Tandra Simonton said prosecutors have an ethical duty to ensure they have all the evidence needed to get a conviction.
In a statement, she said they are aware of the state police backlog and resource problems and that they have a team of specialists who help prosecutors decide what evidence needs to be tested before submitting it to the state police crime lab.
Woolery said she believes prosecutors are “starting to hear” them when they caution against over-testing, but it’s a hard sell.
“At the time everybody is thinking about their one case and what they need,” Woolery said.
Patrick Smith is a reporter on WBEZ’s Criminal Justice desk. Follow him @pksmid.