Overview
Of the 527 SAECKs that the assigned DAs’ offices authorized for DNA testing on or before December 28, 2021, none were shipped to the contracted private crime laboratory within 180 days of July 1, 2021. MSPCL sent its first shipment of SAECKs to a private crime laboratory for testing in January 2022.
Prolonged shipment of SAECKs can potentially delay testing of DNA profiles and input into the CODIS. Testing results could also identify perpetrators of sexual assault and assist law enforcement with holding perpetrators accountable for their actions.
Authoritative Guidance
Section 2(b) of Chapter 35 of the Acts of 2021 states,
Notwithstanding any general or special law to the contrary, all previously untested investigatory sexual assault evidence kits which are not identified by the state police crime laboratory as quantity limited evidence . . . shall be transferred within 180 days of the effective date of this act to an accredited public or private crime laboratory designated by the secretary of public safety and security for testing; provided, that the district attorney shall provide notice to individuals who submitted to the sexual assault evidence kit that their kits have been so transferred; provided further, that for untested investigatory sexual assault evidence kits associated with a case which has resulted in a conviction or a guilty plea, the district attorney for the district in which the case was prosecuted shall contact the individual who submitted to a sexual assault evidence kit and obtain consent to test the kit notwithstanding the conviction or guilty plea.
Reasons for Issue
EOPSS and MSPCL did not have sufficient controls in place during the audit period that would have ensured the timely shipping of the previously untested SAECKs. The 180-day shipping requirement was specific to that population of SAECKs.
Recommendation
EOPSS should ensure that MSPCL ships the remaining previously untested investigatory SAECKs.
Auditee’s Response
As explained in a legal opinion letter we previously provided to the Auditor, the 180-day statutory deadline must be interpreted consistently with two additional provisions in Section 2 of Chapter 35 of the Acts of 2021, and with the best interests of survivors in mind:
- First, under section 2(a), within 90 days of the effective date of the statute, the lab must determine whether the kit contains “quantity limited evidence,” and, in such a case, the lab must notify the relevant DAs office. This is because testing kits with quantity limited evidence will destroy the evidence that DAs may need to rely upon to prosecute a case. The DAs must, in turn, determine whether it is permissible for the lab to proceed to test the kit and, by necessary implication, provide the lab with notice of this determination so that the lab can proceed accordingly—i.e., test or not test.
- Second, under section 2(b), testing may only occur if the relevant DA has notified the survivor that their kit was transferred for testing and, in cases where the kit is associated with a case “which has resulted in a conviction or a guilty plea,” the relevant DA has contacted the individual who submitted the kit to obtain consent to test.
Accordingly, under these two provisions, the 180-day deadline for EOPSS to transfer previously untested SAECKs runs from the date the DA has provided the MSPCL with authorization to test those kits. The MSPCL, of course, does not control the date on which DAs provide such authorization.
To interpret the 180-day deadline as running from the date of enactment could have caused the MSPCL, in the interest of complying with that deadline, to destroy evidence that the DAs office determines should not be destroyed, or violate the express wishes of the survivor to not have the kit tested.
In any event, we respectfully disagree with the conclusion that “EOPSS and MSPCL did not have sufficient controls in place during the audit period that would have ensured the timely shipping of the previously untested SAECKs.” The MSPCL had controls in place to send the SAECKs for testing as quickly as possible upon receipt of DA authorization. The process of screening and shipping evidence is controlled by the following MSPCL protocols:
- Sample Preparation for DNA Quantification
- Forensic Biology Evidence Sendout Protocol
- Forensic Biology Evidence Documentation, Handling and Sendout Policy
- Forensic Biology Evidence Sendout Procedure For Project HB4013
As it relates to the SAECKs approved for testing on or before December 28, 2021, over 60% of these SAECKs were not in possession of the MSPCL at the time of approval. The evidence needed to be requested from the LLEAs, who needed to locate and submit the evidence to the MSPCL. Additionally, 10% required preliminary screening at the MSPCL and were not immediately available for shipment. Overall, 14% of these SAECKs did not require shipment to the private laboratory. Of the remaining SAECKs, 92% were submitted for testing to the private laboratory within 180 days of approval from the DAs. The MSPCL maintained a monthly shipment plan throughout this project.
For all SAECKs eligible for shipment, 60% of SAECKs were shipped within 90 days of approval and 91% of SAECKs were shipped within 180 days of approval from the DAs.
Finally, the MSPCL does have controls in the form of policies and procedures related to the shipment and testing of SAECKs. The MSPCL is deeply committed to the work of reviewing SAECKs and always acts with the survivor’s best interests in mind.
Auditor’s Reply
Section 2(b) of Chapter 35 of the Acts of 2021 indicates that EOPSS had 180 days to transfer the SAECKs to an accredited crime laboratory. These acts do not appear to support EOPSS’s interpretation of this statutory deadline.
EOPSS states that it had controls over shipping of SAECKs during the audit period, but these controls did not specifically address the statutory deadline of 180 days. We strongly encourage EOPSS to implement our recommendation.
| Date published: | August 8, 2024 |
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