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The top two DNA scientists at the state's embattled crime lab have fashioned robust second careers as expert witnesses in criminal trials by racking up large amounts of compensatory time, then drawing on that comp time so they can pursue their side work on some weekdays.

The practice has long been accepted, even encouraged, by former lab directors as a way to bolster the lab's reputation and credibility. But with the lab now toiling under one of the country's worst backlogs of untested crime-scene evidence, including DNA from hundreds of rapes and other felonies, Carll Ladd's and Michael Bourke's use of comp time is coming under increasing scrutiny.

Ladd and Bourke are accomplished scientists with reputations that extend beyond Connecticut. They've bolstered those reputations by parlaying their extensive state lab experience to become sought-after experts. In the last two years, they've testified frequently for the defense in murder trials and other high-profile cases in Massachusetts.

A review by The Courant of their time sheets shows that Ladd took 64 full or partial days off from the state lab on comp time over the last two years. Bourke took 52 full or partial comp days off during that same period.

This doesn't include vacation time, for which each received 18 days over the two years.

"Two of the major issues at the lab are time management and the backlog,'' said Michael Lawlor, chief of criminal justice policy and planning for Gov. Dannel P. Malloy.

"If there's no backlog, then there's no problem [with the way Ladd and Bourke have used comp time],'' said Lawlor, a former state prosecutor and former co-chairman of the legislature's judiciary committee. "If there's a backlog, and two of your most highly skilled people aren't available on some days because they're testifying elsewhere, then you have a problem."

Lab Under Fire

The lab lost its professional accreditation in the summer and was the subject of federal audits critical of many aspects of lab management. As a result, the lab lost its ability to post DNA profiles of violent Connecticut offenders on the FBI's national convicted-offender database, known as CODIS. Those postings are among the most important functions any American crime lab performs. In response, Malloy in August appointed a panel of experts from several fields, chaired by Lawlor, to recommend major reforms, including whether the lab should be removed from the state police chain of command, and how a severe staffing shortage in the DNA section can be remedied.

The report is due in January. The lab's accreditation has yet to be restored and officials at the lab and in the state police hierarchy are still working on the state's response to the federal audits.

Ladd is supervisor of the DNA section, answering to lab director Ken Zercie. Bourke is a supervisor in the DNA section, and the person who oversees CODIS for the lab. He answers to Ladd.

Ladd and Bourke said they have "a five-year memo trail'' predicting that the backlog will grow out of hand unless staffing is increased, and alerting their bosses to outdated equipment, overtaxed managers and other problems.

Ladd and Bourke also stressed repeatedly in interviews that they regularly work more than 40 hours a week at the state lab.

The time sheets bear this out. The records show that Bourke, on nearly half the days he worked at the lab, earned comp time, meaning he worked more than eight hours; and Ladd earned comp time on more than two-thirds of the days he worked at the lab. Ladd said that he had offered to take a lump sum payment for some of the accrued time instead of taking it off in comp days, but that the state refused.

The two men have permission from lab director Zercie, and the state police bosses, including Maj. William Podgorski, who commands the scientific services division within the state police. Ladd and Bourke also pointed out that by contract, they must use the comp time in six months or lose it. This means that despite their long hours on some days, they are also away from the lab a fair amount of time.

For instance, Ladd was present at the Massachusetts crime lab on 22 weekdays between January and August of this year as a defense representative during DNA testing, according to a person familiar with operations at the Massachusetts lab.

Ladd said he had no reason to dispute that number. He earns $45 an hour working for the state and typically makes 50 percent more an hour as a consultant.

He said a typical workday might involve a mixture of his side work and his state work. He said he might spend the morning testifying in a murder case in Woburn, Mass., then arrive back at the lab in the afternoon and work until 9 p.m. Incidentally, if he logged more than eight hours on that day, he could put in for comp time for that extra time.

Both Ladd and Bourke said they have worked "countless'' extra hours at the lab or doing state work at home for which they never reported, essentially doing the work for free.

"Hundreds of hours, thousands, really, have never made it on the books,'' said Ladd. "We're giving the state 40-plus hours a week. What we do above that is our own business. No one is short-changing the state in any way, and the consulting work has not detracted one bit from the lab.

"The mess the crime lab is in,'' continued Ladd, "is solely because, for a decade now, we have been grotesquely understaffed. We have half the staff we need to keep up with the backlog.''

Bourke echoed those comments, adding that the side work "has had zero effect on the backlog.''

Bourke said that in addition to more staff, he feels strongly that the lab should be wrested from state police control and made an independent scientific agency, or paired with the Chief State Medical Examiner's Office, which also has a scientific focus.

Bourke noted that numerous other scientists in the various sections of the crime lab use comp time to pursue consulting work.

"The focus is on us because DNA is special and we have all these oversight agencies that audit us,'' said Bourke.

Added Ladd: "We are 100 percent committed to doing everything humanly possible to get the lab pointed in the right direction.''

Encouraged By Henry Lee

There are some rules governing the outside work. Ladd and Bourke, and the other scientists in the DNA and fingerprint sections of the lab that do consulting work, cannot testify for the defense or do any "adversarial'' work inside the state.

"If they chose to do that work in New York or Massachusetts, historically, they've been allowed to do it,'' said Podgorski, the division commander. "I believe it goes back to the 1980s.''

He was asked if he'd prefer that Ladd and Bourke were there five days a week, every week, rather than working long hours on some days and being off on comp time on other days.

"It's something we need to look at,'' Podgorski said. "What can we do to make the lab operate more efficiently?''

The shuffling that Ladd and Bourke do between their state work and their private work during some weeks has forced Podgorski to draw the line on occasion and prohibit the use of comp time on certain days.

"If there are rush cases that need to get out, and they need to do the case reviews, then they're not going [to be off on comp time.] If I have a staff meeting, they're not going. If we have auditors in the lab, they're not going,'' said Podgorski.

Ladd and Bourke said they were encouraged years ago to pursue consulting work by Henry Lee, the former lab director. Lee built an international reputation as a criminalist in part by working privately for the defense in complicated or controversial cases. For example, he was on the defense team in the double-murder trial of O.J. Simpson in Los Angeles.

Bourke and Ladd said that when top scientists at the Connecticut crime lab work for the defense, it enhances the lab's image as an independent agency willing to perform its high-caliber work for both sides in criminal cases.

But when Lee ran the lab in the 1990s, the place hummed along. Ladd and Bourke said that was because the lab under Lee had a lighter caseload. They said that as police and prosecutors began to appreciate the effectiveness of DNA, and as advances in testing methods and equipment allowed scientists at the lab to test ever smaller samples, the number of DNA samples sent to the lab by law enforcement exploded and swamped the lab.

Lawlor said the expert panel appointed by the governor is working to completely transform the lab. He said staff will be added and that there is "a general consensus'' that the lab should not be administered by the state police.

"There will be a restructuring of management,'' Lawlor said.

Will Ladd and Bourke's comp use and work patterns continue as they have?

"Once we solve the backlog and are operating as we should, I will leave that decision to the professionals who are running the reinvented crime lab,'' said Lawlor.

http://articles.courant.com/2011-11-12/news/hc-crime-lab-dna-1113-20111112_1_dna-section-crime-lab-comp-time