Fact Check: Is it true Cooper 'fixed the problems' at the crime lab?
Posted September 8, 2016
Updated September 9, 2016
Raleigh, N.C. — Attorney General Roy Cooper wasted little time last month in responding to an attack on his record managing the North Carolina State Crime Lab, which was plagued by scandal during the first half of his tenure and still experiences long processing times for certain cases.
Cooper, a Democrat, is running to unseat Republican Gov. Pat McCrory in this fall's general election.
In a separate fact check, we take a look at the claims made by the Republican Governors Association, a group backing McCrory, that lawmakers stripped Cooper of his power to oversee the crime lab. Spoiler: They didn't.
This fact check takes a look at Cooper's ad launched in response to that RGA attack. It features Cooper talking directly to the camera surrounded by scientific gear.
"When I became attorney general, we discovered a backlog of more than 5,000 DNA test kits and years worth of shoddy investigations," Cooper acknowledges. "But what Gov. McCrory isn't telling you is that we cleared the backlog. We also solved over 2,000 crimes and put killers and rapists in prison from cold cases. We fixed the problems at the crime lab."
THE QUESTION: Has Cooper "fixed the problems at the crime lab?" Is there really no more backlog?
SUMMARY JUDGMENT: It is fair to keep in mind that Cooper was responding to a specific attack ad from the GOP. But it is equally fair to note that, while Department of Justice officials say "there is no backlog" at the crime lab today, the average processing time for a case is 7.5 months. Fellow WRAL News reporters consulted for the fact check summed up their reservations about the claim this way: "'Fixed' is a strong word." While it's fair to say some problems have been addressed at the lab, outside experts have told us that there is still work to be done. That's something that Cooper himself acknowledged in a 2014 WRAL News special report. Because this spot could leave viewers with the impression that the lab has fully addressed all its various problems, we give it a red light on our fact-checking scale.
BACKLOG: The backlog that Cooper refers to in the ad harkens to his first years as attorney general. Reports at the time indicated that thousands of rape kits were sitting in police departments untested because the crime lab didn't have the capacity to test them. At the time, investigators were told not to submit the kits unless they had a suspect. Reports from various news agencies around 2005 indicate that backlog was, in fact, cleared. By 2007, the State Crime Lab was earning plaudits for catching up on old work and expanding its capacity.
SWECKER REPORT: But the crime lab's reputation took another major hit in 2009 and 2010 when cases involving shoddy evidence and practices were the subject of reporting by The News & Observer, WRAL News and other media outlets. That led to Cooper calling for an outside review lead by Chris Swecker, a lawyer and former assistant director of the FBI’s Criminal Investigative Division.
That review found 230 instances of shoddy blood evidence work, all but 11 of which occurred before Cooper took office.
"After entering office, Attorney General Cooper identified and fixed systemic problems with the State Crime Lab, ultimately conducting a comprehensive audit of the lab in 2010 and receiving independent accreditation to ensure the highest-quality lab work," Ford Porter, a spokesman for Cooper's campaign, said Wednesday.
Porter emphasized that Cooper's ad was a response to the RGA's initial ad, which relied heavily on reporting that led up to and followed the results of the Swecker report.
In Cooper's fact sheet on his ad, the campaign points to assessments that say, after the 2010 Swecker report, improvements were made.
The Associated Press quoted Fred Whitehurst, a North Carolina lawyer who brought to light shoddy lab practices at the FBI when he worked there, as saying North Carolina "should be used as a national model of how to get it right."
MCCRORY WEIGHS IN: McCrory's campaign has a much different take on Cooper's performance.
"Roy Cooper hasn't fixed the problems at the crime lab because delays, backlogs and problems persist to this day," McCrory spokesman Ricky Diaz said. "In fact, his failure to address these issues is one of the main reasons the three largest North Carolina law enforcement associations have endorsed Gov. McCrory over the 16-year chief law enforcement officer."
McCrory's campaign has its own rundown of crime lab stories, all of which point to delays or others issues with the lab. They particularly highlight a recent News & Observer report that cited a previously undisclosed 2010 audit that was critical of how the crime lab documented ballistics reports.
That same sheet highlights cases like one in Fayetteville, in which as late as 2015, rape test kits weren't tested because they weren't sent to the lab.
Noelle Talley, a spokeswoman for the Department of Justice, noted that it has been a decade since police departments were told to hold on to evidence kits if they lacked a suspect.
"The lab can't work it if they don't have it," Talley said.
2014 AND BEYOND: Following the 2010 audit report, the crime lab was once again the focus of an improvement campaign. Current and former lab directors pointed to the fact that, at one point, the lab earned accreditation from two national organizations. Today, it is currently certified under one body, ANSI-ASQ National Accreditation Board.
"We have seen great strides made in the lab. It has taken a lot of cooperation from a lot of different groups," said Peg Dorer, director of the North Carolina Conference of District Attorneys. "We are not over the backlogs yet, but they have been significantly reduced, and concerns (have been) addressed, and (we) are pleased with the continuing results."
She cited the accreditation as among the steps the lab has taken to ensure confidence in its work.
"The credibility issue has long-since been addressed," she said.
However, concerns about processing time remain.
In 2014, a working group of judges and other court officials called for changes throughout the criminal justice system that would lessen the burden on the crime lab. Those changes focused on cutting down the time lab analysts spent testifying and giving the lab better notice when a case had been resolved and no longer needed to be worked by lab technicians.
That same year, WRAL News aired a special focusing on how delays in evidence processing were continuing to inhibit law enforcement and prosecutors.
Part of the issue is what Cooper described at the time as a "deluge" of evidence.
"You have 20,000 law enforcement officers across North Carolina sending tens of thousands of cases to the lab – many of them with multiple pieces of evidence – and you have about 124 scientist positions who are trying to handle all of this," he said. "The problem is that the cases keep coming and the scientists, who are working as hard as they can, can't keep up."
That resource issue has been acknowledged by lawmakers and even McCrory, whose 2016 budget proposal included $3.6 million for personnel at the crime lab to reduce case backlogs and to open a second lab in the western part of the state. That funding was largely included in the state budget that lawmakers sent him this summer.
The latest annual report from the DOJ about the crime lab showed the facility handling more cases every year as the state poured more resources in.
Some give the revamped lab good marks. Eddie Caldwell, director of the North Carolina Sheriffs' Association, particularly singled out lab director John Byrd as improving the lab's performance.
"All reports I get from the sheriffs is he's doing an outstanding job," Caldwell said.
Processing times could be faster, Caldwell said, but that's more of a question of funding than management.
Others temper their assessment.
For example, when Cooper says "we fixed the problems" at the lab, the district attorneys association's Dorer says, "It depends on what you mean by 'we.' There's a lot of people who have fixed the lab."
She and others point out that law enforcement agencies have worked to clear up lab issues. For example, in Wake County and Mecklenburg County, local police agencies created their own local labs, an effort to get better turnaround time and take pressure off the central lab. She also points to legislation that allows local district attorneys to use hospital labs and other outside facilities to test blood samples in drunk driving cases, something that has helped shorten the time between trials.
Still, others are far from satisfied.
"They are not fixed," Guilford County Sheriff BJ Barnes said of the crime lab's issues.
Barnes is a political supporter of McCrory but also heads one of the largest sheriff's departments in the state.
He says that his department bought a rapid DNA analyzer that can turn around a test within 90 minutes. If he were to send the same sample to the State Crime Lab with a rush order, Barnes said, it would take two weeks "if I have a note from God."
He adds, "To have a murderer or a rapist out there walking around for two weeks, that's not acceptable."
Barnes also said that he has had problems with testing done by labs working under contract for the state lab in alcohol and drug cases. Those reports, he said, were not always admissible in criminal proceedings.
TODAY'S BACKLOG: We asked Cooper's office for the current number of backlogged cases.
"There's no backlog figure because there is no backlog," Talley, Cooper's Department of Justice spokeswoman, said.
The current average time to process a case is 7.5 months, she said, describing it as a snapshot of the overall work of the agency.
Asked if a 7.5-month wait might not be considered a backlog by some, Talley said, "Some cases come in the door, and what's requested is pretty simple."
For example, a simple drunk driving case merely requires the lab to establish a single blood-alcohol level. Crimes such as murder and rape often involve dozens of pieces of evidence that cannot all be tested at the same time.
A typical homicide case, according to an email from Lab Director John Byrd, can involve 75 to 150 pieces of evidence. In the Stephanie Bennett rape and murder case from 2002, for example, Raleigh police developed more than 180 suspects whose DNA was compared to evidence from the crime scene.
THE CALL: Cooper certainly can point to improvements made at the lab over the years. As Dorer says, there are "significantly reduced concerns" with the lab.
What Cooper can't say is that the lab is beyond any sort of scrutiny at this point. Some of that certainly can be chalked up to resources issues such as the ability to pay and keep technicians. Other critics, such as Barnes, say that management issues still lead to long turnaround times, even for rush cases.
While Cooper's ad is a response to the RGA's original attack, many viewers will see it outside of that context. When Cooper looks at the camera and insists, "We fixed the problems at the crime lab," he ignores his own efforts to garner more resources for the lab. That's why we gave this spot a red light on our fact-checking scale.