Call to Order and Roll Call
The 3rd meeting of the Interim Joint Committee on Judiciary was held on Monday, August 24, 2015, at 10:00 AM, at the State Police Central Forensic Lab in Frankfort, KY. Senator Whitney Westerfield, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Whitney Westerfield, Co-Chair; Representative John Tilley, Co-Chair; Senators Danny Carroll, Carroll Gibson, Ray S. Jones II, Alice Forgy Kerr, John Schickel, Wil Schroder, Dan "Malano" Seum, and Robin L. Webb; Representatives Robert Benvenuti III, Denver Butler, Joseph M. Fischer, Kelly Flood, Chris Harris, Joni L. Jenkins, Thomas Kerr, Stan Lee, Mary Lou Marzian, Reginald Meeks, Suzanne Miles, Darryl T. Owens, Ryan Quarles, Tom Riner, Ken Upchurch, and Brent Yonts.
Guests: Chief Medical Examiner Dr. Tracey Corey, Central Forensic Laboratory Manager Laura Sudkamp, Executive Director of the Kentucky Office of Drug Control Policy Van Ingram, and Jayann Sepich.
LRC Staff: Jon Grate, Matt Trebelhorn, Dallas Hurley, Alice Lyon, Chandani Jones, Elishea Schweickart, Beth Taylor, and Lindsay Huffman.
Overview of Office of the State Medical Examiner
Dr. Tracy Corey, Chief Medical Examiner at the Office of the State Medical Examiner, presented information about the office to the committee. The mission of the State Medical Examiner Office is to serve the public by providing accurate, thorough, efficient investigations of death, ensuring justice, and providing solace, comfort, and protection to the living. The death investigation system in Kentucky is a combination of county coroners, medical examiners, law enforcement agencies, and courts across all 120 counties. If a death appears to be suspicious, then the county coroners can consult with the state medical examiners system, which is part of the Justice Cabinet.
The Kentucky Medical Examiner Office has four regional offices located in Frankfort, Ft. Thomas, Louisville, and Madisonville. The 12 state medical examiners who work in these offices are all forensic pathologists and conduct post mortem examinations. The Frankfort office serves the Lexington metro area along with most of eastern Kentucky. The Ft. Thomas office covers mainly Campbell, Boone, and Kenton counties. The Louisville office is the biggest and busiest office, covering Louisville metro and central Kentucky. Madisonville is a solo practice office, which currently holds a vacant forensic pathologist position. Each year, approximately 2,500 postmortem examinations are conducted at the four regional offices.
Dr. Corey spoke about the requirements and duties of forensic pathologists. Forensic pathologists are physicians who are also required to have five years of training after completion of medical school. The work and time required helps contribute to the national shortage of forensic pathologists, with fewer than 500 practicing full time in U.S. coroner/medical examiner offices.
Medical examiners not only work with the deceased, but also provide protection in both public health and public safety. Their duties may also include:
· Provision of expert testimony throughout the Commonwealth;
· Providing training to coroners and law enforcement;
· Interfacing with Kentucky Organ Donor Affiliates to ensure maximum organ and tissue donation to save lives; and
· Mass disaster planning and response.
Responding to a question from Senator Westerfield, Dr. Corey stated that real-time information on overdose deaths is provided monthly and quarterly to the Kentucky State Police. This information is also included in an annual report, which can be found on the Justice and Public Safety Cabinet’s website.
Dr. Corey discussed outdated facilities, which are a major concern for the State Medical Examiner. Two facilities, the Louisville and Ft. Thomas offices, are inadequate for current needs. Louisville Metro Government is closing the current Louisville building, so the medical examiner’s office will be moving to an existing state-owned building on the Central State Hospital campus after it is remodeled. The Northern Kentucky office has no space for storage of forensic cases and evidence, has inadequate autopsy space, and cases (including decomposed remains) must be taken through the front entrance of the hospital. Dr. Corey said that the medical examiner’s office has outstayed its welcome at both these locations, and the medical examiners in these locations need adequate buildings to be able to do their jobs successfully.
Secretary J. Michael Brown, Kentucky Justice and Public Safety Cabinet, also discussed the issues in the medical examiners offices. He discussed the outdated facilities and urged the committee to consider this problem and remember these needs in the upcoming session. He discussed the low salaries for medical examiners and how they add to the shortage of medical examiners. He asked members to remember this issue as well in the upcoming session.
Responding to a question from Senator Gibson, Dr. Corey stated that there is a forensic pathology fellowship, but applicants must have their M.D. degree first.
Responding to a question from Senator Carroll, Dr. Corey stated that Tennessee’s private practice model is not a model that Kentucky would want to emulate.
Responding to a question from Representative Fischer, Secretary Brown stated that at this time the only way he can get a new building for the Northern Kentucky Medical Examiner’s office is to get the money through the General Assembly. The estimated dollar amount is about $4 million.
Overview of State Crime Lab and Emerging Issues–Synthetic Drugs and Drugged Driving
Laura Sudkamp, Central Forensic Laboratory Manager, and Van Ingram, Executive Director for the Kentucky Office of Drug Control Policy, provided the overview. There are currently six laboratories: Central lab; Western lab; Jefferson lab; Northern lab; Eastern lab; and Southeastern lab. All labs have a blood alcohol unit and a drug identification unit. Three of the labs have a firearms evidence unit, and four of the labs have biology screening. The Central lab in Frankfort is the only lab that has a DNA evidence unit, trace section, and toxicology unit.
In 2014, 38,000 cases were received and 36,000 were completed. Toxicology cases make up about 90 percent of the state crime lab’s case load, and when it is backed up the effects not only occur within the crime labs, but also the courts. Because of the lack of funds, equipment at the laboratories has fallen behind or had to be piecemealed together upon failing by scavenging scrap equipment, which leads to back-up of caseloads. Many pieces of equipment used by the crime labs are 10-12 years old, because of the age of the equipment having to be used, many parts are no longer being manufactured, adding more stress to an already challenging situation. To keep equipment running and replaced when needed, the state crime labs need recurring annual budget money. Not only are funds substantially low, but at this time, there are only 92 analysts working these caseloads, which only adds to the back up.
With the few new instruments that are in place, the state crime lab can now identify heroin in biological samples. Several other drugs can also be identified, including Lorazepam, Clonazepam, Temazepam, Morphine, Oxymorphone, Hydromorphone, Fentanyl, and Tramadol. With the new technology, it is recommended that these drugs be added to the existing drugged driving prohibition.
Van Ingram, Executive Director of the Kentucky Office of Drug Control Policy, spoke about a bill in the 2015 Legislative session that would have addressed some technical issues with the drugged driving statute, but the bill did not pass.
Ms. Sudkamp also discussed synthetic cannabinoids, bath salts, and designer drugs. There are cases that are suspected to be sneaking through the system, simply because the lab is unable to identify them at this time. This is a nationwide problem, and because of this, there have been several private laboratories focusing on it. After the state crime lab backlog is under control, the plan is to research the chemicals in these drugs further. Although this is years away, it will hopefully end the need to outsource these cases to these private laboratories.
Ms. Sudkamp also spoke about the schedule issue surrounding Hydrocodone. In October 2014, federal law changed Hydrocodone from a schedule III to a schedule II drug. Kentucky law still lists Hydrocodone in schedule III, which is causing some problems for the state crime labs and for prosecutors. Mr. Ingram stressed that this is an issue that needs to be addressed in the 2016 session.
Forensic Biology Casework is another area that the state crime lab has had backlog issues with. The current average turnaround time for screening/identifying body fluids is 114 days, and DNA analysis is 125 days. This backlog is due to the lab being short staffed, and while the lab is trying to hire new analysts, it is a yearlong process.
Ms. Sudkamp also touched on the issues with employee retention. Between 2013 and 2015, the state crime lab lost six out of seven biology screeners at the regional labs and one DNA analyst at the Central lab. It is believed this is due to low wages. A salary survey is planned, and she will work with the Personnel Cabinet to try to update salaries. Currently, Kentucky has the second lowest mean wage average for forensic scientist salaries in the United States.
Another bill request that Ms. Sudkamp proposed relates to felon arrestees. Twenty-eight states and the federal government have enacted laws pertaining to arrestee DNA, and it has been upheld by the U.S. Supreme Court. Taking DNA samples upon arrest for certain crimes has been shown to prevent violent crimes. A study prepared by the Office of the Governor of Maryland identified 20 violent crimes that could have been prevented if DNA had been taken from just three individuals. She expressed the desire to see this legislation in Kentucky in 2016.
Ms. Sudkamp reviewed the needs of the labs. The labs have an annual operational budget of $11 million to $13 million annually. The equipment needs to be replaced every seven to ten years but the labs are unable to do so because of low funds. The labs need $3 million to $5 million annually to improve the issue with failing equipment.
Mr. Ingram discussed a current DUI mouth swab test being done across the state. This is a joint project between the Office of Drug Control Policy, the State Crime Lab, and the Department of Highway Safety. The test is voluntary, performed on persons suspected of a DUI, and is not being used in court as evidence. The kit tells an officer if specific drugs are in a person’s system by using a mouth swab.
Responding to a question from Senator Webb, Ms. Sudkamp stated that there is a protocol for the mouth swabs, and it has been given to all the officers who are preforming the test. After the lab reviews the test results, the swab kits are destroyed.
Responding to a question from Senator Carroll, Ms. Sudkamp stated that she expects about 25,000 extra samples a year if arrestee DNA becomes legal in the state of Kentucky.
DNA on Arrest
Jayann Sepich, from DNA Saves, spoke before the committee about taking DNA on arrest. There are 28 states that have passed laws mandating that DNA samples be taken on arrest. Mrs. Sepich spoke about her daughter who was brutally assaulted and murdered in 2003. It was discovered that her daughter, Katie, had fought back during the assault, and as a result, there was DNA from the offender under her fingernails. The DNA profile was uploaded into the Combined DNA Index System (CODIS), but because it was illegal to take DNA on arrest, the offender, who was subsequently arrested on other charges, went free for years before finally being charged with this crime.
Mrs. Sepich also spoke of multiple DNA studies that have been done over the years. One study, out of Chicago, followed eight convicted felons. Results of this study showed that if those eight individuals would have had a DNA sample taken with their first felony arrest, 53 rapes and murders could have been prevented. Another case, out of California, involved a man who had been arrested 21 times over a 15 years period, but none of these arrest warranted a DNA sample to be taken from him. After a rape conviction, a DNA sample was taken, and officials discovered that during that 15 year period he had sexually assaulted and murdered 12 women. Not only was this man charged with these crimes because of DNA evidence, but an innocent man was exonerated from one of these crimes. The University of Virginia did an independent study pertaining to the cost of DNA on arrest. The University found that for every cheek swab, which cost $30.00 on average, taxpayers could save up to $27,000.00.
The states that have mandated that DNA samples be taken have had good results. New Mexico passed “Katie’s Law” in 2006; since then, 928 crimes have been matched to their arrestee DNA database. California is getting an average of 10 matches every day to their DNA database. Denver just announced that since it implemented the DNA on arrest law in 2010, it has matched 500 crimes to the DNA database.
Mrs. Sepich explained CODIS. DNA holds an individual’s genetic blueprint. CODIS was developed specifically to protect an individual’s privacy, it is not a genetic or medical database. A DNA profile containing only 13 markers is entered into CODIS, not the DNA itself, and this provides privacy to each individual in the system. Once there is a DNA match to an offender profile, the state is notified, and the state then reanalyzes the DNA to assure accurately. After the results are reanalyzed, a separate and secure database is accessed with the identity of the offender. It is a federal offense to tamper with CODIS, and there has never been a federal breach since it went live in 1994. In June 2013, the U.S. Supreme Court held that arrestee DNA does not violate the 4th amendment of the U.S. constitution.
Michelle Kuiper, a victim of sexual assault, spoke in favor of arrestee DNA. Ms. Kuiper spoke briefly of her background, and discussed the assault she underwent. The perpetrator was not apprehended until 17 years after her assault. She urged the committee to consider DNA on arrest.
The meeting adjourned at 12:05 PM.