MR. GAINER: My remarks will be brief. I think we are all pretty excited about this. An awful lot of work went into it. Writing the script was a wonderful exercise, I think, and the members of the committee are to be applauded.

Writing anything in a group is difficult. Writing a script like this was exciting and fun. So, I look forward to -- Chris is going to walk through this and share it with us and perhaps we should start at least, Chris, by introducing our subcommittee because they worked very hard on this.

COMMISSIONER ASPLEN: If we could, those members of that working group that are here --Robin, do we have enough chairs up front for folks?

Chief Gainer is the chair of that particular working group, but we also have as a member of that working work Ms. Susan Ballou, who used to be, at the time, with the Montgomery County Crime Laboratory. However, now, she is a program manager for the Forensic Sciences at the NIST Office of Law Enforcement Standards.

Sue is someone who is not new to NIJ and is a constant valuable source of information and expertise for the institute.

Commissioner Jan Bashinski is also on that particular working group. So in addition to her time spent at commission meetings, she has also flown all over the country for meetings on this particular working group also.

Sue Brown is not here today, but Sue Brown runs the same program out at INOVA Fairfax Hospital. Now, what was originally listed as Commander Tom Cronin of the Chicago Police Department, I am proud to announce is now Chief Tom Cronin of the City of Coeur D'Alene, Idaho, and congratulations to Tom on that.

(Applause.)

COMMISSIONER ASPLEN: I know Superintendent Hillard was not happy to see Tom go, but I know the people of Coeur D'Alene will be as well served as the people of Chicago were.

Also, we have Superintendent Hillard, who was also on that working group. Master Sergeant Mark Johnsey, who you will see more of when you see the actual CD ROM, who is the R and D Program Administrator in the Division of Forensic Sciences for the Illinois State Police Department, has really done an extraordinary amount of work on this particular project, including going to Lexington, Kentucky for a week to supervise and participate in the actual filming of the video that you will see.

We also have Cheryl May, who is not with us today, but she is the Associate Director of the Forensic Science Education Center at the University of Arkansas Criminal Justice Institute.

Bill McIntyre, Atlantic County Prosecutor's Office, Violent Crimes Unit in Hamilton, New Jersey, and I believe recently retired. Congratulations to you for that. Bill's input and interest in educating law enforcement officers goes beyond this.

Dr. Forman and I had the opportunity to participate in a program Bill put together for McGaughlin (phonetic) about a month ago in New Jersey which brought together -- you must have had 150 to 200 people there -- senior investigators from all over the Northeast, and it was an excellent, excellent program. So, I commend his efforts in that regard also.

Chris Plourd of Chris Plourd's law firm is a defense attorney in San Diego, but specializes in forensic evidence cases and criminal defense cases and oftentimes acts as a consultant for other defense attorneys who may not have the particular expertise that Chris has.

We have appreciated Chris' perspective in all of this because we understood early on that having a good defense perspective to these particular issues was crucial to being successful in training officers how to do this.

Chief Sanders -- who I heard a rumor was here, but I don't know where -- was as also a member of that particular working group, and again, was good enough to take the time out of his schedule to fly not only to the meetings, to the full commission meetings, but also to the working group meetings.

We also have Mr. Clay Strange, who is an Assistant District Attorney in Travis County, Texas, which contains the city of Austin. Before being Assistant District Attorney there, Clay was the Director of the DNA Unit for the American Prosecutors Research Institute, to which I owe him a great debt of gratitude because if he had not left that particular position, I would not have entered that particular position.

So, I took over for Clay when Clay left. Clay created not only the finest, but really the most significant training opportunity for prosecutors throughout the country, and it stills exists today.

In a world of limited funding and year to year funding, the fact that APRI is still able to provide that training to prosecutors, and they do so now probably five or six times a year between the National Advocacy Center and different conferences they have throughout the country, they are able do that because it is so successful.

It is a week long training which goes from the science all the way through the courtroom presentation, and that has been a great, great benefit to prosecutors' offices throughout the country.

Clay continues to be a marvelous source of inspiration and expertise to folks like myself when press or other folks call me and I can direct them to him for information on things.

I think finally, Anjali Swienton, who is a Senior Analyst at NIJ who, while she worked particularly on this project and was one of our subject matter experts, is also a great value to this commission as kind of utility player as a staffer.

Whenever we are over-worked or, quite frankly, Dr. Forman is out of the office and we need some more specific scientific expertise on issues, Anjali is always there to help us out in that regard too. So, we owe her a great debt of gratitude.

Finally, before we get going with all of this, as I have said before, but it bears repeating, this product would not be before you today in any shape or form were it not for Robin Wilson. I appreciated Chief Gainer's comments on how interesting and fun this was. I am not terribly sure Ms. Wilson shares that sentiment.

It was a good learning experience, but the amount of detail that goes into something like this is rather incredible. If it were not for her hard work and her talent at being able to deal with all the things that needed to be dealt with, we just would not be at this point by any stretch of the imagination.

I am sure the rest of the working group members would agree with me on that. So all of that having been said, I am going to move my seat to the back here so I can work the computer equipment.

If you recall, the training was designed to have a number of different components. One was the initial educational overview portion, but we wanted to provide a real application experience, if you will.

(Video shown.)

COMMISSIONER ASPLEN: That disclaimer at the bottom, which you may not have been able to read from where you are sitting, says essentially -- it is just that; it is a disclaimer.

It says these are recommended ways to proceed in these matters, but it is recognized that different situations require different demands. It is, quite frankly, an attempt to keep this training tool as a training tool and not have it be something that ultimately winds up as a, quite frankly, cross-examination tape.

(Video shown.)

COMMISSIONER ASPLEN: We decided to include a glossary which, as you can see, is printable for any officer who wants to print it out and take it with them; and contains, as you can well imagine, various and sundry definitions as things go on.

The way we designed it was the first three or four times that a word that is in the glossary comes up, it is highlighted in red, I believe, so if the officer gets to it and doesn't know what it is, they can click immediately to the glossary. After the fifth or sixth time, if they don't have it by then, well, they can go to the glossary itself.

We also have a notebook function which is designed so that as -- and it actually requests this throughout out the CD ROM -- but officers can take notes as they are moving along to those particular things that are of interest to them, but also as an exercise in, you know, instead of walking through these crime scenes, you can just type in all this. As you can see there, it is also printable. We won't go to the test right now.

(Video continued.)

COMMISSIONER ASPLEN: To give you an example of how the glossary works, there, you see it highlighted and then it comes up.

MS. BASHINSKI: Chris, can you turn that voice over off? The reason I ask is when I am trying to read, he is reading more slowly than the eye, and it is distracting. Is it possible to turn that off when reading?

COMMISSIONER ASPLEN: I think probably not, probably not, but we will ask. We cannot build it in at this late stage. However, we can ask if there is a way to do it as it is already programmed.

MS. BASHINSKI: For me, it is just distracting.

PARTICIPANT: You can turn your speaker off.

COMMISSIONER ASPLEN: Bill says that is why Terry is the chief.

(Video continued.)

COMMISSIONER ASPLEN: The executive decision was made to go back and have them repronounce polymerase. It would have been too expensive and time consuming, and we could simply argue the basis of some sort of geographical dialect.

MS. BALLOU: Just so everybody knows, the subgroup was aware of that.

COMMISSIONER ASPLEN: As you go along through this program, there are little testing opportunities, if you will, that we will describe. I will show you how they work.

(Video shown.)

COMMISSIONER ASPLEN: You will notice it did that automatically. It referred, after the wrong answer, it referred directly to the section that the training was on. We call that, in pedagogical terms, that is remediation.

(Video shown.)

COMMISSIONER ASPLEN: Ultimately, these individual questions we are going through now then kind of compile at the end to be the test.

(Video shown.)

COMMISSIONER ASPLEN: I guess one thing to point out is one of the things the group had to do was to walk a fine line between going into all the general responsibilities of a police officer and keeping it limited to this particular function on one the hand; and on the other hand, recognizing what should be included here and what will be included in the subsequent CD, which will be for the evidence technicians themselves.

So, there may be some things that, in the back of your mind, you are saying -- well, what about this and what about that. It was probably considered for one reason or another, and we have tried to stay as focused as we could, recognizing there is going to be a blending of issues, given departments and given particular roles, that is going to take place.

(Video shown.)

COMMISSIONER ASPLEN: We are also clearly just reinforcing what is basic evidence handling procedures.

(Video shown.)

COMMISSIONER ASPLEN: We are seeing if you can click out of those, and apparently, you cannot.

(Video shown.)

COMMISSIONER ASPLEN: You will note the note at the bottom there. This particular issue was one of great discussion -- the idea of wrapping somebody in the clean blanket, sheet, et cetera, et cetera -- and the decision came down on the basis of we recognize that this is the best way to do it, but we recognize that it is oftentimes not done that way due to lack of preparation or resources or whatever.

It was kind of our responsibility to point out what the best method was and essentially raise the bar a little bit. Again, that is why the disclaimer that they could refer to department policy for those particular issues.

What we tried to do was emphasize -- obviously, by the big, bold print -- that whatever you wrap the victim in, make sure that it is clean; i.e., don't take the blanket off the bed or whatever.

So, if you are sitting there saying to yourself that is somewhat of an unrealistic proposition that they cover the victim like that in transportation, we recognize that, and we just kind of fought through it and came up with the best decision we could.

PARTICIPANT: We discussed what clean is quite a bit too.
COMMISSIONER ASPLEN: Yes, we did.

MR. FERRARA: Chris, when you say policy for the introduction of trace evidence, I don't quite understand what you mean by introduction.

Is that to be construed as preventing introduction of trace evidence?

MS. BALLOU: Yes, you are right, Paul.

I mean that was our concern because obviously, if somebody looks at a bed and says that is a clean sheet, they are going to wrap the victim. They are introducing trace evidence.

MR. FERRARA: That is the way you mean the introduction?

MS. BALLOU: Right.

MS. BASHINSKI: I want to know how much does it cost to change the pronunciation of polymerase.

COMMISSIONER ASPLEN: Robin reminds me that we actually sent it back and we had them re-do it and they did it wrong the second time too.

MS. BASHINSKI: Well, then it should not cost you anything. Frankly, it should not cost you anything.

PARTICIPANT: There must be some people who studied Latin in high school and learned how to pronounce the word.

MS. BASHINSKI: I mean that is just awful.

MS. BALLOU: We thought we would put fingernails across a black board instead.

MS. BASHINSKI: I think it is going to, well --

PARTICIPANT: These are policemen. Remember who the audience is.

MS. BASHINSKI: Policemen are not the only people who are going to see this. There are a lot of people who are going to look at this and say who the heck are those people. I am serious.

COMMISSIONER ASPLEN: That would set this project back significantly.

MS. BASHINSKI: How much? How long?

COMMISSIONER ASPLEN: As much time as anything; I don't know how long it would take them to do it specifically, especially since the biggest problem is the extent to which this is the final form.

So, we recognize that, that is -- but the other thing to understand is this is not going to, it is not going to grate on most peoples' nerves who are using this because they don't know.

I mean they are using it because they don't know. It is only going to grate on the nerves of the people who know the correct pronunciation, and this is not going to be used for people like yourself and such. We will certainly make sure it is corrected for the Level Two, where people might understand it.

MS. BALLOU: I would just hate to be corrected in court by a police officer.

(Video shown.)

COMMISSIONER ASPLEN: We have got everything in this. Also, to be clear, you can well imagine, after having done this, you could, and we probably have, come up with, even under wrong answer scenarios, somebody inevitably could go, well, but what about, you know, so things are not always as clear as we would like them to be, but we think we have it pretty much right.

(Video shown.)

MR. FERRARA: Chris, can you back up to that previous --

COMMISSIONER ASPLEN: Sometimes backing is difficult on the test portions. See, this monitors -- does this part monitor as you go along?

PARTICIPANT: No.

COMMISSIONER ASPLEN: What was your question on that, Paul.

MR. FERRARA: Among the other possible answers on the previous questions -- and Barry's remarks reminded me of it -- if we put elimination samples up there as would be a wrong answer in terms of being able to be entered to clarify that elimination samples are not included in the database.

PARTICIPANT: You are asking whether the objective is a wrong answer?

MR. FERRARA: It is a wrong answer.

MS. BALLOU: It is a wrong answer. He is saying add it.

MR. FERRARA: Just to clarify, you know, as we indicate which samples cannot be entered in the data bank --

COMMISSIONER ASPLEN: I see what you are saying.

MR. FERRARA: -- but what was not listed in that category were elimination samples. Perhaps -- again, I don't know how much trouble it would be to add one more choice.

MR. SCHECK: I take it, it is easier to add things to these questions than it would be to add things to what is locked-in audio.

COMMISSIONER ASPLEN: Correct.

Let's skip through the lesson summary. We won't go through all of these, but we will go through the homicide.

(Demonstration continues.)

COMMISSIONER ASPLEN: You actions will be the determining factor influencing a jury verdict. You will see why we say that at the end.

(Demonstration continues.)

COMMISSIONER ASPLEN: Whose voice is that?

(Demonstration continues.)

COMMISSIONER ASPLEN: For those of you who know that Robin got engaged not too terribly long ago, that is not her boyfriend.

(Laughter and demonstration continues.)

COMMISSIONER ASPLEN: You see when it turns to that arrow, you can click on that, and you go into the next room.

PARTICIPANT: Whose house is this?

(Demonstration continues.)

COMMISSIONER ASPLEN: When it turns into a hand, you click on the hand to get you close ups. So, you can see that, that is how this particular panoramic view works. Then while the officer is doing that, they can, again, you know, take notes here and, again, they can print those out.

MS. BALLOU: Chris, hit on the tutorial there so I can see the --

(Demonstration continues.)

COMMISSIONER ASPLEN: You actually have to get all of them to go forward.

(Demonstration continues.)

COMMISSIONER ASPLEN: Now, if even one of those questions we had marked off a wrong answer, she would have said the jury finds the defendant not guilty.

Rather than go through the next three scenarios, you all have copies, you all received copies of the CDs themselves. That is generally how it works, and then again, there is a test at the end of it which is, again, you just go through that.

MR. GAINER: I had a chance to share this with some of our officers just on a pilot basis, and they were bedazzled by as much as the technology as anything else as were a lot of our people.

Also, this past Wednesday, Chief Ramsey and I had a chance to meet with the Attorney General on a couple of different issues and we talked about this just to keep it doubly on our plate as well as the conference, and I can tell you she is awfully excited about; but you ought to see the officers take a look at this thing.

MS. BALLOU: That word, polymerase --

MR. GAINER: We are going to try to create 3,600 officers who will now be using that word.

COMMISSIONER ASPLEN: A couple of other points about it and things, so that you know, we thought about: First of all, it is recognized that a whole bunch of different machines are going to try to run this CD.

The company that developed it for us assures us it is going to run on a whole lot of ones, a whole lot of machines. They have done a lot of testing on a lot of different machines, but at the same time, you know, we have difficulty getting our police officers in this country bullet-proof vests and things like that.

There are certainly people who are going to say, hey, what good is this to us; we don't have computers; you know, we are still working on 386s, so how can we possibly do this. That is a very real consideration.

Our hope, though, is that if that is the case, number one, you know, cops may have their own computers, to say the least, but also if there is some sort of regionalization of training that could occur, that this would still be very beneficial in a group setting.

This is the kind of thing that can be done not only in an individual department, either on the officers' own time or on their own whatever in-house training, but it something that you can bring people together from a whole bunch of different departments and run through just like we did here.

It is anticipated that this will be utilized in training academies for, you know, officers who are just getting into the business. It is not Internet friendly. We cannot put it out through the Internet. You have to develop something in a completely different fashion to make it Internet friendly also, although originally, that was one of our thoughts, but we cannot do it that way.

We do recognize there will be some limitations from a resource standpoint in that regard. We do plan --

MR. SCHECK: Can you stream it?

COMMISSIONER ASPLEN: I'm sorry.

MR. SCHECK: Can you create that streaming video thing, the digital form of this?

COMMISSIONER ASPLEN: Streaming video, as I understand it, is actually some of the technology they used for the videos here.

How that converts into a broader thing -- what you could possibly do, I suppose, is run this via a teleconferencing mechanism where what you would do is you would be, you know, we would be running it here on this machine, but if that were teleconferenced out over video, you could then do it that way, which would not be much of a problem I would imagine. Obviously, you lose some clarity and things like that. Again, those are considerations we do recognize.

We are not exactly sure how many copies we are going to print or burn as we say. However, we do anticipate burning enough for every department in the country and, hopefully, some excess beyond that.

I don't know if I told you at the last commission meeting that while we printed a million of those little pamphlets upon which this is based, the response to that was so miraculous that we have printed another five hundred thousand because the first million are gone. We have just had a tremendous response to that.

The only other thing, before I ask for questions and comments, would be, number one, acknowledge Eastern Kentucky University and their participation in the development of the product.

This was done through a grant to Eastern Kentucky that, quite frankly, Eastern Kentucky already had, which I think was an excellent example of Federal agencies kind of working together and kind of understanding where money was at the time.

If we had, had to come up with the money to do this out of the blue, we probably would have been able to, but because we spoke to Eastern Kentucky and they recognized the value in doing this also, they changed some of their plans with some of their original money and helped the commission out in that regard. We certainly appreciate that.

That is Dr. Pam Collins and Case Farborough (phonetic), who the commission has seen before. They have presented in front of the commission before. Also, while she was not sitting up here when I kind of gave the initial run through the members of the working group, Dr. Forman has also been to most of those working group meetings and, as always, is an active participant and invaluable contributor to the product that has come out of this.

So with that, I will ask for any questions or comments by either the commissioners or the members of the working group who are here.

MR. THOMA: Great product; actually, it is fascinating. I went to some of the meetings earlier on before you had gotten this far, and it is amazing, since the last meeting I was at, how far the product has come.

COMMISSIONER ABRAHAMSON: The technology is astounding.

COMMISSIONER ASPLEN: You should have seen us the first time we saw that. The first time we saw it, the camera would come in on the animation and then saw that double helix come out of the blood. We were thrilled.

MS. BALLOU: It just made you want to wash your hands.

PARTICIPANT: I appreciated the advertisement for CODIS. I was wondering if we could get copies to The Hill to maybe get Federal convicted offender abilities.

COMMISSIONER ASPLEN: Well, you know, your point is well taken. As you probably picked up, there was a little bit more than just here is how to look for this DNA evidence, and there was a little bit of preaching there.

I mean that was very intentional on our part, that there were some policy issues there also; and quite frankly, yes, we will be sending it to The Hill. It is important that they understand what we are doing and what some of the issues are.

MR. PLOURD: One of the things I wanted to comment on is that this product is going to have a shelf life in the sense that you saw a lot of the descriptions of the technologies and some of things we are doing, but how long will this be really viable?

One of the recommendations I think the commission should at least look at or address is timing this out and saying, you know, in five years, let's update this; let's, you know, put it together again so it continues to be timely and useful. That, I think, would be a fair recommendation.

MR. SCHECK: In that connection, do you have anywhere in the rest of it somebody picks up a hair and does mitochondrial testing on it?

COMMISSIONER ASPLEN: No, not specifically.

MR. PLOURD: I though we did mention mitochondrial somewhere in there. There is an explanation of the two. We don't really get into depth, I think, of the differences other than -- but that is a good example of where is the technology going; what is going to be the viability of it.

COMMISSIONER ASPLEN: Remember, we have a second CD that is coming for evidence collection; and you will notice that most of what we said was simply don't touch it. That is part of that. So when we do get to the actual evidence collection standpoint, that is when we can address that particular issue in more depth.

COMMISSIONER ABRAHAMSON: When is that going to be prepared or finished? Do you know?

COMMISSIONER ASPLEN: The second CD?

COMMISSIONER ABRAHAMSON: Yes.

COMMISSIONER ASPLEN: That is a mean question. We anticipate, well, certainly by the next commission meeting, we will be able to present that you at the next commission meeting.

MR. CLARKE: That is faster than most rock stars put out their next CD.

COMMISSIONER ASPLEN: The only reason I say that --

MR. GAINER: They don't have the trouble with equipment that most rock stars do. It is the video that is causing a little bit of problem.

COMMISSIONER ASPLEN: Actually, most of that is done as I understand it; right? We were wise enough to, when we sent both Robin and Mark to Kentucky to do this, we shot all the video at the same time.

So, the video is done, and that was pretty time consuming. Now, it is the story board work and stuff, and obviously, a lot of the initial stuff that is in this will be contained in the second one also. So, that is the only reason that I say with some confidence that we will have Module Number Two done.

MR. CLARKE: I can see the scenario after about four or five. The last one will be labeled greatest hits or something of that nature.

COMMISSIONER ASPLEN: That is a bad phrase.

(Laughter.)

COMMISSIONER ASPLEN: If we could now turn to the issue of -- let me do this.

COMMISSIONER ABRAHAMSON: We have the law enforcement summit and proposed law enforcement training and education.

COMMISSIONER ASPLEN: You should have contained in, again, the voluminous materials that you were given today, a tentative agenda for the law enforcement summit, National Law Enforcement Summit on DNA Technology which is here in Washington.

Again, this is an outgrowth of a former recommendation by the commission which was approved by the Attorney General. It was approved and then scheduled very shortly after the approval, but the Attorney General -- it is on the Attorney General's schedule to appear on the second day, as you can see from the agenda.

What we did was we decided to bring in 150 police chiefs, assistant chiefs, sheriffs, emphasizing decision-makers, policy-makers from the departments. The way we selected them was actually we had them select themselves.

We identified, first of all, a large number of major law enforcement organizations such as IACP,sheriffs, NICOP (phonetic), a bunch of organizations like that. I think there were probably ten of those.

We sent letters and contacted those organizations and said please nominate, you know, however large your organization was, three, five members of your organization to come to this law enforcement DNA summit. What we also did, though, was we contacted -- Robin, help me out there -- the 50, was it the 50 or the 30 largest police departments, did we do that, by population or just five.

MS. WILSON: 50.

COMMISSIONER ASPLEN: The 50 largest departments and asked them to send their police chief. We also contacted the Institute for Rural Law Enforcement, if I have that name correct, from University of Arkansas, Lee Caldwell's (phonetic) organization there, and asked them for a recommendation for 20 rural law enforcement agency police chiefs.

So, we have got the large; we have got the small, and then we sent letters of invitation to the president of every state chief's association. So, we hopefully also have geographic coverage also. Ultimately, that works out to 150.

We are now working through what is a very arduous task of identifying who is coming because obviously, you know, the people that you send the letter to may not be able to make it, but then they want to send so and so and such and such.

So again, the logistics are daunting, but between Robin, and I also take the opportunity to introduce the commission's new intern for the summer, Amy Garvey. Amy, if you could, stand if you will.

She has been a tremendous help in this process also, and Dr. Forman and Anjali, everybody is working very, very hard to pull this together. We think it will have excellent representation there.

The goal of the summit is several fold, concentrating on these particular issues. The idea is to educate law enforcement so they can essentially take ownership of some of these issues, issues like funding. I am sure I have told a number of you this story before.

When Dr. Forman and I spoke to the National Conference of State Legislators where Dr. Forman and I were talking a lot about these backlogs and we were talking a lot about unfunded mandates and really kind of legislator bashing, if you will, at some point in time, a legislator raised his hand and said hey, wait a minute, let me tell you how this works; we are law and order type people. Our law enforcement agency comes to us and gives us their top five priorities, and we give them their top three based on whatever our resources demand we can.

Until DNA reaches that level and until law enforcement begins to ask for it, they are not going to get it. That was a great bit of information for us because it told us that what we needed to do was really make sure that law enforcement understood the potential of the technology; understood what some of those issues are so they could make real informed decisions.

Nobody is going to tell law enforcement that DNA is more important than bullet proof vests or cars or weapons or anything else, but the most important thing is that they understand what the potential of things like the database is; they understand cost benefit analysis of doing DNA testing and getting database hits as opposed to traditional investigative techniques; understand the value of DNA in a context of cold case investigations now that we have this database. So, we really want to use this opportunity to provide that educational function.

Another really important goal that we want to achieve here is understanding and educating about the importance of the relationship between the laboratories and law enforcement. Now that we are sending out a million and a half copies of this little pamphlet and now that we are going to send out all these CDs and we are really going to turn first responding law enforcement officers on to DNA and everybody else in the department on to DNA more so than they already are right now, we are going to create just a tremendous, tremendous volume for laboratories that are already overworked, backlogged, et cetera.

It is more important now than ever before that law enforcement agencies and departments work together and have good communicative relationship about these things so the right evidence gets tested so we really do utilize our limited resources to the best of our ability.

Then there is the big issue of training and education: How do we train, effectively and efficiently train law enforcement officers for these particular issues given what are very, very limited educational resources in most departments? Again, those are, I guess, the general goals that we hope will be achieved by the schedule that you see there.

As you can see, we have a lot of participation by actual commissioners although it is not a commissioner meeting. It was something that was done as a result of a recommendation, but it is not a commission meeting.
Chief Gainer has agreed to present to those individuals, and Dr. Forman agreed to present data on DNA and how the database works and how to put it in context.

Paul has agreed to come and talk about some of their experience in Virginia. Dwight has agreed to come and talk about the Bureau's perspective on this, and Dave Kaufman (phonetic) from Florida Department of Law Enforcement has agreed to also talk about some stories there also.

Originally, Commissioner Schaffer (phonetic) from New York was going to come and present. However, his offices called and asked if Deputy Commissioner Casey (phonetic) could do that. We certainly had no problem with that.

Chief Sanders is going to help moderate the session on educating law enforcement where we will bring Dr. Caldwell in, again, for the rural perspective of training and education issues, and then Mark Dale from the New York State Police will come in and also help us out in that regard.

What we hope is that these particular sessions are something much more than a couple ofpanelists speaking and then maybe a few questions afterwards. What we really hope is that we can generate some genuine discussion amongst the attendees. Quite frankly, discussion among them is probably more important than what the particular panelists may have to say.

So, we are going to try very hard, and we are going to come up with particular questions that will facilitate that discussion so we can get that input from them rather than just have a 20 minute presentation and a few questions.

We decided rather recently that it would be important to have a section on post-conviction testing. Oftentimes, post-conviction DNA testing is not thought of as a law enforcement issue as such because they are kind of out of the loop at that point in time; but given the implications of evidence storage now for post-conviction testing issues, it is really important that law enforcement also understand the implications and what this post-conviction testing is all about and how that relates to the storage of evidence.

We will present the CD ROM at the coffee service half hour in the morning. We will also provide copies of the CD to all of the participants. Mary Lou Leery (phonetic), the Acting Assistant Attorney for OJP, will speak, and then we will have the presentation by the Attorney General.

I don't know if this is first time that Mr. Wooley has seen the sequence of events on the second day. That is probably pretty intentional so he could not, not agree to do it; but quite frankly, I think he is the only one who can really pull that off.

What is also critical in encouraging, you know, the effective integration of the technology is an understanding of what the legal implications are for certain actions when using DNA.

One of the concerns that we have talked about before in the context of the commission and some of the working groups is taking particular actions, be it an intelligence screen or be it arrestee testing or elimination sample testing kind of on the spur of the moment because we heard it was a good idea.

We saw the show that Australia or England is doing this, and therefore, hey, we are at this homicide scene and before anybody leaves the building, you know, I want to ask for a sample from anybody who is here, a voluntary sample, but I want to ask for the sample nonetheless.

You know, the general concern is that if that is done incorrectly without a lot of thought into what is legally voluntary according to the jurisprudence in that particular area, you know, that the next day the newspaper reads, you know, the big headline is this is what occurs and then a day or two later, you know, there is a bill introduced in the state legislature that these issues of what can be done in terms of mass screening, intelligence screening, arrestee testing, elimination samples, it is going to be very jurisdictionally specific; and what we need to encourage is that law enforcement work with their prosecutors and attorneys to decide what the best approach to some of these matters is. So Mr. Wooley will be extremely valuable in that context.

Then we have a section on police and prosecutors working together. Superintendent Hillard will moderate that panel. Clay Strange and Norm Gahn -- Clay, who you met earlier; you probably all met before, but who is on the working group here -- and Norm will help participate in that.

Kim Shellberg (phonetic), who was presented to the commission before on legislative issues will give the participants kind of an overview of what the legislative landscape looks like, what the trends are in state legislation in terms of things like post-conviction testing, what the trends are in terms of expansion of the databases, et cetera.

Then there will be a discussion on legislation and the extent to which, if law enforcement chooses to do so, what they can do to help facilitate matters. Charles Bronson (phonetic), the state legislator from Florida has agreed to participate. He was instrumental in some of Florida's legislation.

We are going to have somebody else that we have not heard back from yet who may participate in that session, and David Boyd, the Director of LST. Then finally, we have the section that I talked about -- the importance of laboratories and law enforcement working together to preserve their scarce resources. The to-be-determined and the 3:30 to 3:50 slot will be Master Sergeant Mark Johnsey.

Any questions, comments, concerns?

MR. REINSTEIN: Chris, are these mostly chiefs of police?

COMMISSIONER ASPLEN: Yes.

That is who we invited. We invited all chiefs of police and sheriffs and such. We may get assistant chiefs of police, et cetera, due to the unavailability of particular chiefs.

Everybody okay with that?

COMMISSIONER ABRAHAMSON: No victim representation?

COMMISSIONER ASPLEN: Well actually, we had spoken about that and had a full plenary session on that and realized a couple of things: Number one, that this is not new to police officers, that of all of this, dealing with victims is not a new proposition.

Secondly, we realized that given everything else that needed to be done, that given the extent to which it is not a new proposition from them, that these other issues from a policy standpoint were important to deal with.

COMMISSIONER ABRAHAMSON: What about defense counsel?

MR. THOMA: There is nothing, no presentation from defense in some areas that you might really want to consider.

COMMISSIONER ASPLEN: We have had some discussion about that issue. Chief Gainer and I have discussed that possibility, and that is a possibility that, that could generate some good discussion, some good perspectives, and while it is designed specifically for law enforcement and as such is not intended to reach that scope, there may be a benefit to law enforcement to have someone come in and rattle the sabers, if you will. We are going to talk more about that.

COMMISSIONER ABRAHAMSON: Isn't there a an issue that the crime labs' neutrality is very important in terms of witnesses so that what you do have is a crime lab that, in effect, should be working for inculpatory as well a exculpatory evidence? So, does that raise any issues?

I mean it doesn't for me about law enforcement and crime labs working together, but it does in the sense that I thought the crime labs would want a neutrality issue. I am just raising the questions.

COMMISSIONER ASPLEN: That is a question that comes up a lot in a whole lot of different contexts, and there are a lot of arguments that are made that, you know, forensic laboratories in Virginia, for example, are not part of the law enforcement function.

You ask state police laboratories whether or not they should be, they will tend to disagree with you although recognizing that, by nature, the science itself is neutral. That is a big, broad policy and, to some extent, a philosophical issue as opposed to the more practical.

MR. FERRARA: In a more practical sense, we should address as to whom the laboratories provide their services and who they can particularly in post-conviction cases as well as well as active criminal cases. I mean we are almost more defined by the agencies we serve and can serve than any position that the laboratory has with respect to an organization, whether law enforcement or otherwise.

COMMISSIONER ASPLEN: You have something to say, Tom?

MR. CRONIN: I think one of the things we are going to be talking about in that law enforcement crime laboratory issue is now that we are educating law enforcement, the tendency might be for everybody to go out and pick up anything and everything that is within possible connection to a homicide scene and bag it all up and send it to the lab, and we just overwhelmed them again.

I think one of the things I am going to be talking about is trying to get the detectives and the crime scene technicians working together at the scene and then the detectives also working with the crime lab people just telling them prioritize; we have to prioritize because if you don't, we have sent out a million pamphlets and now there is a whole lot of policemen out there that didn't know what DNA meant last year and now they do and they think that anything and everything that could be possibly in this house that an offender may have touched, I am going to bag it up and send it to the lab, and we have just done another big disservice. That is, I think, what the theme for that section would be.

COMMISSIONER ASPLEN: Any other questions or comments?

Between now and tomorrow, we can talk about, I mean we can talk about all of it, but particularly the defense attorney issue. I would like to have that discussion a little more.

MR. SCHECK: I guess what is very hard for me to get a sense of, looking at this, is that I see all the names of all the people and the general categories, but you know, do you have some specific idea of what people are going to be talking about?

In other words, I can look at this and say are they going to discuss all the rape kits there are be thrown away across the country without testing in unsolved cases? What are you going to do about that? Is that on the agenda here? I assume it is somewhere, I don't know. I can think of a lot of questions you might want to be asking.

COMMISSIONER ASPLEN: Go ahead and fire them off. I mean go ahead and tell us the issues that you think should be addressed.

MR. GAINER: Maybe, Chris, another way you might can do it is to further define the subject of the speakers so that would give a better perspective. I think that is what you were getting at a little bit, too, weren't you, Barry?

MR. SCHECK: Yes.

I mean just looking at this, I cannot figure out what is going to be covered and what is not so I can give you any useful feedback.

MR. GAINER: Similar to what Chief Cronin just did, that there would be some sense of the subject area they are going to do.

MR. SCHECK: I mean I just threw out that whole issue of, I mean if I had all these people in one room, I would immediately say, for example, you know, How many old rape kits do you have in your labs? Do you know where they are? Can you find them? Can you preserve them? Do you have any idea of how to test them? What about your old homicide cases?

I am sure Woody is going to discuss, in his section, his approach to the post-conviction cases, but I mean just as a point, it seems to me that is not an insubstantial one.

Of course, I mean the issue that I raised at the very beginning that you are discussing now, which I think -- I am telling you I said this from day one -- these intelligence screens, unless there is a sensible approach to that, I can see this as a looming disaster.

I will tell you right now, I mean we have been -- and Mr. Wooley is in the audience here, and I noticed he wrote this wonderful article -- how long ago was it?

PARTICIPANT: Twenty five years or so ago.

MR. SCHECK: A while about these intelligence screens that we were looking over the other day,you know, if you were to put your finger on one thing -- that is, you were saying you just tell people okay, let's go and the look at the video and they go we got to get elimination samples, right, you know, without a written instrument that defines exactly what we are taking this for, what the limited purpose is and what we are going to do with the samples afterwards.

I doubt very much whether, in many of these instances, it really is informed consent, and it is really an issue worthy study and thought. It creates resentments, serious resentments and paranoia if not handled correctly, but as soon as people start understanding the power of the technology, that is the first thing they are going to do, as they should, but if it is done inappropriately it is going to whip up a lot of hysteria, which people should not want.

COMMISSIONER ASPLEN: Which is why I used a couple of those examples in talking about the kinds of things Jim will probably talk about, those kinds of proactive considerations really is what it is; I mean how to be proactive about the utilization that you are going to make of the technology.

MS. BALLOU: Just out of curiosity, being past with Montgomery County Crime Lab in Rockville, Maryland, I know jurisdictionally, they had their own set up for reference samples as to the requirements and what can be done with that. So, I would say assume that what you are stating is not to just open it initially, but to clarify that each agency should have these in place.

MR. SCHECK: Yes, no, I mean my position on this is you should have written informed consent; it should be clear it is for elimination in this case; that the samples will subsequently be destroyed; and people will be notified when that is done; it will not be saved in the local crime lab and accessed as a data bank sample.

MS. BALLOU: Out of curiosity, per CODIS, that is not an allowable assertion into that.
MR. SCHECK: It is not allowed in CODIS, no.

MS. BALLOU: Exactly, which might be a good idea to bring up in the summit that you are having, that people are aware that it will not go into CODIS, which might be an assumption on some parts as well.

MR. SCHECK: Right, but I think that actually what is, in fact, going on is that state and local laboratories, some of them across the country, are creating these data banks. They are in place right now, and that is an issue. It is a debate. There are many people who think we ought to save this, we ought to do that.

MR. GAINER: Probably rather than having proscriptions that you should or should not do something, you would at least raise the issue that one must make the decision about what you are going to do. I mean because maybe some jurisdictions, maybe some states, maybe some legislators will want to say the opposite of saving.

MR. SCHECK: Sure.

COMMISSIONER ABRAHAMSON: Dr. Crow?

MR. CROW: I can see two things, really quite separate things. One is just representation by a defense attorney. It would just have to do with the procedures and whether they have been correctly followed and how important the evidence is.

The other is the privacy consideration that you raised. I can see the need for two more. This is going to be a three day meeting before we are through with this.

MR. THOMA: Figure out the 15 minutes in Phil's schedule.

COMMISSIONER ASPLEN: I do think that a lot of the considerations Barry speaks about can be fit into some of the things we are talking about, like Jim's presentation; and when Chief Gainer, again, defines the issues, you know, it is the kind of thing that, you know, this backlog of rape kits is one of the issues. It is a funding issue.

You know, it is one of those financial considerations that we need to deal with. So, that is why I kind of asked, you know, what are the particulars that you think should be addressed, and then we will find a way to fit them into that structure.

MR. SCHECK: I would be happy if there were somebody in law enforcement who would express the point of view that I just put forward, took that position. It would be much more effective if you could find somebody who would state that point of view who wears a uniform.

COMMISSIONER ASPLEN: I understand that, but I really don't think that is -- I guess it is really what the chief said. The point here is not to tell law enforcement one way or the other what to do. The issue is to educate them as to what the issues are. I think that is the point.
MR. SCHECK: I am not disagreeing with that. I guess what I really am saying is that somebody, you know, I have made this argument many times here. I mean I think it is enlightened self-interest of law enforcement to do this with great respect for the privacy interests of citizens to make sure that the taking of samples and the so-called intelligence screens or DNA dragnets is done with clearly informed consent, and I think that actually is difficult.

I think that is not a trivial issue. I think people feel that if they don't give the sample, that they are immediately a suspect and they have to give it and that people in more difficult circumstances or the more oppressed in society are the least likely to necessarily give informed consent unless it is really spelled out.

So you know, I think it is in the long-term interests of law enforcement to do that and understand exactly the implications of that issue. Then they can choose not to.

MR. ADAMS: Barry, I would like to address one comment you made just for clarification. It does not relate to this topic other than the issue you brought up, and it had to do with your comment of state labs utilizing elimination samples within CODIS.

MR. SCHECK: No; they cannot do that.

MR. ADAMS: I know, but you made the statement that state labs across the country were utilizing these elimination samples within their databases.

MR. SCHECK: No; within their own separate, private data banks.

MR. THOMA: They are creating their own separate, like a parallel database somewhat like CODIS, resembling it, but not the same.

What they are doing is putting different cases together and trying to establish a database with as many different types of offender samples, not necessarily convicted samples, as they can, but absolutely what Barry was talking about is outside of CODIS, and lot of law enforcement agencies are doing it.

I think Rock Harmon (phonetic) spoke to us about a year ago about him establishing such databases in there is Alameda County.

MR. ADAMS: I just didn't want there to be any confusion; that these were not allowed in CODIS; and, in fact, the Office of Inspector General has recently conducted several audits of state laboratories to include Virginia, Florida, and others, and they look at this very thing: What samples are in there and are they the correct samples, and elimination samples are not the correct samples.

MR. SCHECK: Dwight, I could not agree with you more because you and I were there when these rules were first set up in 1992, and there were these definitions of forensic identification purposes, which I think are clear ones and are good ones.
The problem is that those are put out. Those are contained, hopefully, in most of the statutes now that authorize DNA data banks; and then there is going to be, I am telling you, this disconnect when all of a sudden it is, quote, discovered that there are 50,000 elimination samples sitting in some lab that are routinely searched.

I am not exaggerating that this is what is contemplated by many state or local laboratories. It is going to come as a surprise.

MR. WOOLEY: Jeffrey, are you saying that, that is actually going; that labs and states are keeping on their own databases of elimination samples?

MR. SCHECK: Of course.

MR. THOMA: Yes.

MR. SCHECK: Rob told us day one he was going do to that.

MR. WOOLEY: Of elimination samples?

MR. SCHECK: Yes.

MR. THOMA: Yes.

In fact, the State of California -- Jan is very familiar with it -- is actually, at the state level, contemplating legislation to allow such a parallel type of database that would be outside of CODIS, which is amazing thing because I had actually thought that there were somewhat limited resources in California for this, but it seems that --

MR. SCHECK: Yes.

In California, they testified in front of the United States Senate that there were going to be 1,000 post-conviction DNA tests at $7,500 a piece, costing $7.4 million which, of course, there has not been anything close to that in ten years.

MS. BASHINSKI: Could I speak to what we are talking about?

In California, we are trying to amend our existing data bank law to allow us, when we have a legally obtained sample from a suspect, to search that sample against other cases that were contemporaneous and to retain that sample for a period of time. We are not proposing to create a data bank of elimination samples. So, I think maybe I am --

MR. THOMA: Excuse me; we actually have been working on amending it, but it was open-ended. We have moved it from five years. I think we have moved it down to two years for the keeping of those samples, but that certainly isn't just for a very limited amount of time, and it certainly was over some pretty vehement opposition that we even got it reduced to that level; but we should stop because actually, we should have this dialogue back in Sacramento instead of here.

MS. BASHINSKI: Well, I think it is important. I think it is extremely important for you to understand, though, what we are, in fact, doing in our state, which is to use a, attempting to use a legally obtained sample from a suspect to search against other types of cases, not to retain a file or create a file of elimination samples. That is a different issue.

Right now, we are prohibited from searching a suspect against any other case, any other unsolved case by our data bank law, and we are the only state that has a law like that other than Vermont.

MR. THOMA: We will continue to disagree on that particular --

COMMISSIONER ABRAHAMSON: I think that what the discussion indicates, though, is that there are many legal and privacy issues, as we all know, in this realm; and that is an educational, part of the educational program.

As Chief Gainer indicated, people, the police chiefs should be alerted to them to the extent they are not already alerted, and that would include the elimination samples and informed consent, etcetera. So, the question is who is going to be doing this?

I assume that you will, Mr. Wooley, in part, and then I would -- we have got a lot of lawyers on this program: Norm Gahn.

MR. THOMA: And me, the lawyer on the right side of a law judge.

(Laughter.)

COMMISSIONER ABRAHAMSON: I am not going to take that on. I am the neutral, remember. We have got Ms. Leery and others, so I think these are issues that I would hope would be raised in one form or another.

MR. CLARKE: Actually, it would not -- may they not be important at the November symposium.

COMMISSIONER ABRAHAMSON: That is right. That is another place for them.

COMMISSIONER ASPLEN: We will have the opportunity tomorrow to talk about the commission's input as to what should be on that agenda also.

MR. THOMA: Actually, we have it pretty ironed out.

COMMISSIONER ASPLEN: Right; a number of individuals have, from the commission, have been communicating with David Lazer on that.

COMMISSIONER ABRAHAMSON: I don't know whether that is still prevalent, but for a while there, many police departments had in-house counsel. Still do?

MR. GAINER: Yes.

COMMISSIONER ABRAHAMSON: So, it might be interesting to, perhaps, have one of them on the program who, if he or she has faced these kinds of issues in detail or thought about them, that would be from a perspective inside that would be, perhaps, heard well by the participants.

I just don't know the field as well as I did several years ago, some of the outstanding counsel.

Any other comments about the summit?

(No response.)

COMMISSIONER ABRAHAMSON: Looks good; looks good. I am sure it will work well. Thank all the participants who have participated in the technology today and who have participated in the summit.

Chris tells me we ought to take our break now, so we will be back here at about 3:30 and then we will continue on with the proposed recommendations regarding law enforcement training and post-conviction issues report.

(Recess from 3:15 p.m. to 3:30 p.m.)

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