More than 100 drug cases, including some in which defendants pleaded guilty, were dismissed in the District in the last two months, despite federal pledges several months ago that efforts would be made to end the costly delays in drug testing.
D.C. Superior Court judges dismissed at least 134 drug cases in December and January because chemical analysis reports had not been received from the federal Drug Enforcement Administration, according to the U.S. attorney's office.
"We're almost at the breaking point now . . . " said Richard S. Frank, chief of the federal drug agency's forensic science division that oversees the testing. "We cannot accomplish all the work that comes into the laboratory."
The U.S. attorney's office began recording the number of dismissals after The Washington Post reported in October that an average of a dozen, and often more, misdemeanor drug cases were dismissed at trial or sentencing each week because the necessary analyses were not ready.
At that time, police and prosecutors complained that the dismissals were severely blunting their battle against crime.
"It's very, very frustrating because there's a feeling 'why bother?' , " said one prosecutor. This prosecutor and others, including Frank, said that there have been no changes in procedures or funding since the problems with delays first were publicized.
The laboratory reports are considered crucial trial evidence that indicates whether or not a substance is an illegal drug, and judges will not allow defendants to be convicted without them.
"Back in October, when the situation was in the press, there was a flurry of activity to gain additional resources for the DEA laboratories," said Frank, "but to date the resources have not materialized . . . . There has been no relief."
Following the news reports, the Justice Department announced that it would begin an immediate review of staffing levels and procedures in an attempt to speed up the drug testing process.
A drug agency spokesman said this weekend that the "review is continuing."
U.S. Attorney Joseph E. diGenova, who met Feb. 14 with high ranking drug agency officials, along with D.C. police Chief Maurice Turner, said prosecutors "had presented the agency with a list of specific suggestions on how to improve productivity" at the mid-Atlantic laboratory, which handles the testing for the District.
The suggestions included ways of reducing the amount of time devoted to analyzing drug samples and eventually returning testing responsibilities to the District government. Federal agencies began performing the tests for the District under an order from President Nixon.
"We are all working to ensure that this problem will be addressed expeditiously and completely," diGenova said, adding that his office has been meeting regularly with drug agency officials in the last few months.
Frank said this weekend that new procedures will be undertaken in an effort to "maximize efficiency," but that the laboratory still needed additional resources and staffing to overcome a backlog of about 1,200 cases.
Federal funding for the testing facilities, Frank said, has remained constant for the last four to five years despite an astronomical increase in drug-testing requests, as drug arrests more than doubled in five years in the District alone, and that no additional chemists have been added to the 26 who were working in October. He said that no new funding appears imminent.
DiGenova said he was told by drug agency officials that congressional efforts this past fall to appropriate more money for the testing facility failed.
He stressed that, although the delays were "very bothersome," the "overwhelming" number of drug cases dismissed involved misdemeanor charges and not the more serious felony cases involving the sale of drugs.
According to December-January figures, 127 misdemeanor cases were dismissed, compared to seven felony cases. Included in this figure, however, were 22 cases involving defendants who had pleaded guitly contingent on positive laboratory reports.
The cases usually are "dismissed without prejudice," which allows prosecutors to recharge defendants with the crime, but prosecutors said that charges rarely are brought again because of the time and cost. The cost to the government of trying a misdemeanor case usually is more than $1,000.
Although most of the dismissals involved such offenses as possessing drugs, prosecutors said that serious charges sometimes are dismissed.
They cited the case of a man arrested in July who pleaded guilty to two felony counts of selling Dilaudid, a heroin substitute. After repeated requests for a DEA analysis, including one subpoena warning that the judge had said he would dismiss the case without the report, no report was available at the November sentencing date, so Judge Reggie B. Walton dismissed the case.
One high-ranking prosecutor said this weekend that charges most likely will be brought again in that case.
Frank attributed the lengthy delays to complex and timely testing procedures requiring the attention of individual chemists. For example, a chemist must spend an average of 3.3 hours on each sample of PCP or amphetamines, which comprise about a third of the drugs tested.
Of 2,150 requests that the mid-Atlantic laboratory received from state and local agencies from Oct. 1 to the end of December, Frank said, all but 15 came from the District.
Frank said that the drug testing time could be cut "a third or a half," if the chemists did not have to both identify the drug and measure its pureness, a factor required by judges. Frank and diGenova said efforts are being made to see if "less exhaustive" chemical analyses may be legally acceptable in some cases, particularly when a guilty plea has been entered.
While the delays cost court and police time, they also can lead to hefty lawsuits. Moshood Alatishe, who was held in jail for three months last year without bond before it was discovered that there was no evidence of narcotics in powder seized from his home, filed an $8 million lawsuit Friday against the U.S. Park Police.
The test results in his case apparently had been completed, but were not sent to the U.S. attorney's office because of a backlog in typing documents.