MS. ABRAMSON: We're at the last part of our conference today, and that is looking at what our final report to the Attorney General will be. We were committed when we started this project to finish timely, and we are going to do that, and it's especially important as there will be a change in the administration in January. Regardless of which party wins there will be a change, so I think it's very important that we get this report to Attorney General Reno before then.

We agreed early in this Commission's life that we would not try and rewrite a report; that what we would try and do is include in the report all of the publications of the Commission and weave then together. Chris Asplen has given us a proposed outline, and you will see that is the goal, and the outline deals with each working group. We'll have an executive summary of the recommendation and then the publications will be attached as an appendix.

We're open now to any discussion of that, but we're especially interested in discussing Chapter 8, which is on the back page, which is the identification of those issues requiring further or continued review and those issues not addressed by the Commission. So any suggestions for that are in order not only at this meeting, but thereafter, and I think that to some extent it's an overlap of the discussion we had with Mr. Lazer in that some of those topics are obviously part of this.

MR. THOMA: Before we get to Chapter 8, with regard to Chapter 4, I had a minority position on several items that I forwarded to Professor Kaye and to Professor Imwinklereid. I don't care whether it gets included in their report or not, but if necessary, if I could just attach it. It's fairly short. It ended up being about two pages with regard to about 15 different items that were included in it. I don't care whether the authorship is even in there, but I would like those areas to be addressed because some of the items were -- and Professor Smith actually agrees with me. Even though he's not here, it's easy for me to say that. Some of them when we ended our working group, just the report only dealt with one aspect of it and we really need to show the other side of it.

MS. ABRAMSON: That report is an attachment, but it was never adopted as such as a Commission's stance as I remember the discussion, and so I would encourage that Attorney Thoma's comments be included in some form.

MR. ASPLEN: Sure. To kind of explain this a little bit further, I think each chapter is going to look a little different based on how each working group kind of performed its function, so it will be a combination of things. Each chapter that is working group specific will have a narrative of sorts also that will introduce kind of what it was all about and such and then the working group membership, the meetings information. By that how many times did we meet, what did the agendas look like, et cetera, what kind of issues did we tackle, and then the particulars depending upon size, for example.

We obviously can't include the entire post-conviction report, but the executive summary is probably a good thing to include in there. A number of things will be put in as appendices, and that may be appropriate. There are two ways to handle a situation like yours, Jeff. One is to include it in its entirety in the appendices, but also to include it in the discussion in the narrative section, include poignant parts of it in that narrative also.

Also the chief justice and I talked yesterday about we'll have kind of two reports, one of which will really be the official report, I think, and that report, which will probably be contained in binders which will be a collection of just about everything, which will be agendas and meeting minutes and transcripts and things like that of which that will obviously be attached. What we're talking about here is really what will be the published report.

MR. THOMA: I think I understood that, but you've got that article being attached as an appendix already, and I know we have had discussions back and forth, but it really hasn't -- those particular aspects weren't included in the report necessarily. I know they were in our discussion and in our working group discussion. Honestly I don't care about authorship or anything, but I would like those points to be included.

MS. ABRAMSON: A caveat.

MR. THOMA: A separate appendix or part of that appendix or whatever.

MS. ABRAMSON: A reference to it and an inclusion. Do you have that listed?

MR. ASPLEN: I'm sure Robin does.

MS. ABRAMSON: Any other similar caveats or addenda? I can't remember any, but I think we should think about that.

MR. ASPLEN: The process of putting all this together will quite literally be cullng through our entire filing system and going through from the beginning and looking through everything that's there. And we have. We've kept every single thing that has come to us.

MR. THOMA: That is a lot.

MR. ASPLEN: It absolutely is.

MS. ABRAMSON: We're now trying to get ideas for I gather writing Chapter 8, which is what are issues requiring further continued review and not addressed by the Commission. I suppose one might be racial profiling, the use of the database.

MR. PLOURD: Is it going to be broken down like sort of like crime scene evidence post conviction? In other words, these are the areas. You know, you should look at this area, this area, this area.

MS. ABRAMSON: It might. That's a good way to do it and stay with the themes or if something else comes through, it might be done that way, but that's a good suggestion.

MR. PLOURD: The second question is is it going to be in the form of recommendations, like we recommend that continued study be done on let's say racial profiles or whatever?

MS. ABRAMSON: Yes, that will be part of it. One of the recommendations that came through at one of our other meetings was that there might be a need for additional study groups or commissions and maybe by subject matter and then they come in, do it, and then get out so that you have new people that may be familiar with an issue, but also people that are not so familiar with the issues so that you don't have too much in group will be part of our suggestion, but that rather than have one commission continuing, a series of commissions or committees all working groups.

MR. ASPLEN: To give you an idea of kind of how I'm thinking about putting that last section together for you folks is, using the racial profiling as an example to talk about it is why I asked the questions that I did -- to talk about racial profiling in the context of there are pretty clearly some advantages to DNA in the context of racial profiling in that it is gender neutral and talk about the scenario that I talked about. Here is why it's a good thing that helps this process; however, here are the concerns that are generated by it. There is a concern that it may exacerbate concerns about promoting the race based arrest, et cetera, et cetera, that kind of discussion, not a lengthy discussion. We haven't heard enough about it, but just to frame issues kind of like that. Obviously it would go out to everyone before the November meeting so that you all feel comfortable with the language.

The time between now and the last Commission meeting will require more interaction amongst us, the staff, and you the commissioners than we have had up to this point. There will necessarily have to be a lot of mailings and phone calls and emails because we will need to try to wrap a lot of these things up before then so that we have really a final product.

MR. CLARKE: Would sample retention also be mentioned there?

MS. ABRAMSON: Yes, I would think.

MR. ASPLEN: Yes. Actually it would probably be mentioned there and would also be mentioned in one of the other working groups as one of the other recommendations as well.

MS. ABRAMSON: And I assume elimination samples; that is, what do you do with --

MS. BASHINSKI: I think if we do that, we need to talk about the definitions, what do we mean when we say an elimination sample, a suspect sample, and an arrestee sample, but I think that whole subject of arrestee sample kind of falls under the data category.

MR. ASPLEN: I spoke to Barry about that exact issue before he left today, about including it in this and also to make sure we're all talking about the same thing, and he acknowledged that perhaps sometimes more things do go into a single definition than perhaps are appropriate.

MR. CLARKE: Suspect samples in particular is used for a variety of different things.

MS. BASHINKI: Exactly.

DR. CROW: Another issue is whether, if at all, databases should be used for any kind of research.

MR. THOMA: Mine was going to be along those lines since Phil isn't with us, and we felt particularly kind of hamstrung on the privacy issue and safeguards against misuse of databases and other DNA, and Phil felt pretty strongly about it, but we didn't really have a context to fully put it in legal issues, and it would necessarily fall I think in this area for writing legislation for safeguards once you have it, things along those lines.

MS. BASHINSKI: Sample retention is actually a subset of that issue, isn't it?

MR. THOMA: Yes.

MR. REINSTEIN: Perhaps in the investigation working group is there enough that can be done on mass screens, about the future of that?

MR. ASPLEN: I think that was handled more in the issues working group, although not to a great extent. I think it would be appropriate certainly falling under the category of things that need to continually be reviewed as more real life examples of that come up and the need to approach that very carefully.

MS. BASHINSKI: Again, that's under elimination samples the way I would think. It's the way in which you use samples from people who are not specifically identified as probable cause.

MR. ASPLEN: We may also get some valuable input into that from the summit meeting perhaps.

MR. REINSTEIN: On the post-conviction group, there were two areas that we touched on, but really never got into it about having continued review on. One of them was the compensation issue. Some states have it; most states don't. Some specifically provide it for limitation. That's one area.

The other area that we talked about is patterning something after what they have in Great Britain as far as the case review commission, and you know, Woody's project in San Diego is a good example to start with that.

MR. THOMA: In fact, the Los Angeles Public Defender's Office is doing -- well, actually Barry is helping them set up kind of a task force like that as well, but obviously from the prosecution end it's even more crucial.

DR. CROW: Is there an issue about having databases for other than criminal investigation? Identification of missing people, discovering who died in airplane accidents, things like that?

MS. BASHINSKI: That's something probably for the future should have been dealt with especially with mitochondrial DNA.

DR. ADAMS: We actually have legislative authority for that, and it's currently being used in CODIS. There is a missing persons index.

DR. CROW: I thought of that as one of the things not addressed by the Commission that could be looked at at some future time. Another one I wondered about and the Commission decided it really wasn't quite correct to discuss, and that's the possibility of court appointed so-called neutral experts on highly technical issues, which DNA is a perfect example.

MR. THOMA: I hope we can find one actually sometime soon.

DR. CROW: Everybody tells me that there is no such thing as a neutral person and I accept that, but I think it's a whole lot easier to be neutral when you're not forced to represent a particular view.

MR. REINSTEIN: Dr. Forman was an excellent neutral expert in a case I had.

MR. PLOURD: Along those same lines, we have used a neutral expert that we think is agreed on both sides get the results equally so forth and it has worked quite well.

DR. CROW: You can get a lot of preliminary discussion out of the way I think and save some time.

MR. PLOURD: When you both agree to the lab, then splitting the cost, we actually have a formal agreement that we sign, a one-page thing.

MR. ASPLEN: There will be a number of issues that I think will be identified that we'll say we didn't address them specifically and here is why we didn't address them specifically. While we may not have said this specifically before, my sense is that a number of issues such as what particular crimes should be included in this scope of the database by the individual states and issues like pending federal legislation were not discussed because either we felt like it was not appropriate to comment on pending federal legislation, which I think is that a fair statement to make?

MR. CLARKE: They also occurred kind of late in the history.

MR. ASPLEN: That's true, and is it fair to say that not considering what should be included in the scope of individual states, DNA databases was a recognition that there are certain functions that are for the discretion of the states and that it was not appropriate for us to get into those particular issues?

MS. ABRAMSON: We might have made recommendations. On the other hand, since there is such a backlog on limited felonies that are included, it seemed like in arrest cases again to go out and get more information when we can't even keep up with what you've got is a little silly, but once you get caught up it would seem to me that then the states have to decide how much further they go on, as Virginia has just indicated.

MR. ASPLEN: Let's assume that the states were caught up and we didn't have these backlogs. Would this Commission then purport to indicate to the states what should or shouldn't be included? We did things like Paul presented his statistics on that and information on it, but I was asked a number of times by press and folks whether or not the Commission would recommend what crimes should be included into the database.

MS. BASHINSKI: We wouldn't do that, but maybe we would want to recommend the data be collected. You have already heard from Paul and you will hear a lot more from this today. A study which demonstrated the utility or lack of it would be valuable. We didn't undertake that because there really hasn't been that much data generated.

MS. ABRAMSON: But I think that's perhaps for the future.

MS. BASHINSKI: And a recommendation you might make.

MS. ABRAMSON: Which Paul's kind of study might indicate the need for it.

Anything else? I would think that we would identify as an issue further and continued education for law enforcement and I guess a need for examiners, educated lab people, and resource allocation.

MR. ASPLEN: Along those lines what comes to mind in terms of communicating I think especially the issue of law enforcement training and education is putting the context of the DNA experience over the past 12 years has provided some significant insight into a number of dynamics, one of which is law enforcement training and education and the extent to which we saw that DNA technology -- we identified rather early on that training and education in DNA was something that was pretty significantly lacking on behalf of law enforcement for one. For two, it's a good example of technology law enforcement and how we're only going to ask law enforcement to do more and more with technology, not less, and as such we need to rethink our commitment to training and education to law enforcement education.

MR. CLARKE: It's actually training and education in a slightly different context. It's prior to becoming involved in law enforcement.

MS. BASHINSKI: The whole system is reacting and not always in sync or rationally to new technology, the courts, everyone.

MS. ABRAMSON: We could include judicial education.

I took notes during the day and one issue that was brought up was statute of limitations, at least thinking that one through.

MR. CLARKE: That was discussed in the legal issues working group, but I don't know how much.

MR. ASPLEN: Would that also kind of fall into the category of that might be something that while we looked at the advantages and disadvantages of and success stories of filing genetic profiles, that ultimately is a state decision to make, and as such it might not be appropriate for us to say yes or no, but just give the advantages and disadvantages?

MR. THOMA: Or maybe why we didn't address it because it is state.

MR. CLARKE: Or there must be a federal crime or set of crimes.

MS. ABRAMSON: Just generally we touched on specifics, but the privacy issues and what about relatives, the brother issue and use of the evidence for investigation?

DR. CROW: I think there is an issue here, though because the practice varies so much from state to state and it's highly predictive, you're going to find lots of brothers in the future or brothers and sisters. I don't want to be sexist.

DR. FORMAN: Full sibs.

MS. ABRAMSON: I just assume that the whole issue of these rape kits that have not been analyzed, the old cases, that's part of resource and backlog.

MS. BASHINSKI: We really didn't go into it because we didn't have the appropriate data. By the time your report is finished there will be data I think both from California and New York. Certainly as it affects police practice is something we might want to think about commenting on and maybe the crime scene.

MR. THOMA: I didn't mean to interrupt, but I actually was taking Tom's thoughts into account regarding the training and education because Tom made a good point of telling them there are limitations to what you should be picking up and doing, not just this is incorrect technology and pick everything up, bring the house in or whatever, but I think it would fit in training and education. But that's the point I was considering, too, the limitations that Tom brought up to train officers on.

MS. ABRAMSON: The whole concept of what other empirical evidence we need or empirical data and we never knew how many were out there.

MS. BASHINSKI: Or how many were destroyed that we thought would have been out there.

MS. ABRAMSON: So I guess it was at dinner last night where you were commenting on California, and there was a comment about a survey going on in New York State --

MS. BASHINSKI: That's correct.

MS. ABRAMSON: -- and Illinois. So one of the things would be make a list of what empirical data might be collected and report on what is being collected now.
Anything that has come up, Professor Lazer, in your discussions that fit in here?

MR. LAZER: One issue actually that just occurred to me, actually a colleague of mine, the presentation that we heard earlier, might be equity and access to say to post-conviction relief both in looking at race and class and what have you. I mean I think there is generally a lack of resources in that direction, but there is an interesting question of who is getting the relief, limited as it is. I think otherwise most of those things that you've talked about have come up among the discussions.

MS. ABRAMSON: That's a good point.

MR. PLOURD: Along those lines on the post-conviction and relief statutes, is there any provision for appointment of counsel? Because that's a big fundamental part of access to the effectiveness of that statute.

MR. REINSTEIN: Courts are required to appointment counsel at the time of the application and review. The first thing you do is it is referred to either an agency such as the public defender's office or if there is an Innocence project -- some of the states now I guess under Barry's pushing have gotten together with the state bar association or the MVA in forming these groups around the country.

MR. PLOURD: At what point does the right to counsel attach?

MR. REINSTEIN: Once an application is made and the court does a simple review. Let's say it's a drug case, a guy who was convicted of the sale of narcotic drugs. I'm not going to go through counsel on a DNA case regarding that, but if it's any other type of case and the same type of review, the first thing I always look to is the presentencing report, and that kind of gives me an idea about what the crime was, what the evidence was, and then the appointment of counsel.

MR. THOMA: Chris, it is covered in our model? If you don't have it, I'll get it to you.

MR. LAZER: One more thing is also the international dimension, which is that you have databases being set up across the world and the interfacing among those databases through the international standard.

MS. ABRAMSON: That's very good. Not only that, but we can learn from other countries as to what they're doing. We did bring in Great Britain's experiences.

MR. LAZER: One of the things I would like to do for the conference is to bring in people from Britain, Canada, and Continental Europe to say what procedures have they set up in their countries, both for the international standard setting issue, but also the question as to what can we learn for privacy, for example, to represent those issues.

MS. ABRAMSON: There is an international police association, isn't there?

MR. HILLARD: Yes.

MS. ABRAMSON: That's very helpful.

Anything else? That's a good start.

MR. ASPLEN: It doesn't concern me, but when you get the document and Chapter 8 is longer than Chapters 1 through 7 combined, which it would be, don't be concerned. I mean that seriously. I think it's okay that there are more things perhaps that we can identify that we didn't discuss rather than those things that we did. That's the nature of the beast, and we're in a finite time here.

MS. ABRAMSON: We know a great deal more now than when we started, and I can tell you when I first met with Jeremy Travis, the contours of this were so nebulous and so wide that it was a matter of bringing it to a series of issues and putting it into a format that we could at least take a stab at, and I think that was just very, very important.

We have done that, and each time you open up one of the little envelopes, three more are there, but that's the nature of it, and it will continue that way. Each of these is going to raise a whole series of other issues, many of which we have touched upon, but we'll need more information as we've go forth. I mean just the technology has changed dramatically or at least has changed. I always look at the cup all full, not even half full.

Is there anything to come to the house? If anybody thinks of anything, obviously you can email Chris or Robin, and I bet when we meet again in November, we will hear that he's going to have to revise Chapter 8.

With that happy thought I'm going to adjourn the meeting, but we will have somebody here -- and you all can flip -- we can have public comment now, too, but then we will come back and there will be somebody here who will stay for the time of public comment. Is there any public comment now? Then we'll close the meeting now. We will come back for public comment between 4:00 and 4:30.

(Whereupon a brief break was taken)

Public Comment

DR. CROW: Are there any public comments? I hear none. The meeting is adjourned.

(Whereupon at 4:00 p.m. the meeting was concluded.)

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