MADAM CHAIRMAN ABRAHAMSON: Good. We are now going to move into our panel discussion with members of the postconviction working group. Chris will introduce this and handle it. They're going to sit behind us and people that are in this row should sit here.

Is that what you want?

DIRECTOR ASPLEN: I think that would be easier than craning our necks.

MADAM CHAIRMAN ABRAHAMSON: Chris, you take over.

Jim's working draft is here and we'll just hand them out.

DIRECTOR ASPLEN: Members of the postconviction working group, come on up and bring your name card with you so we can know who's speaking.

As you know, the past -- the first, I should say, two commission meetings Professor Berger came and spoke to the Commission regarding the progress of this particular group's work and the recommendations that were being developed. Recommendations that were originally called protocols, then became guidelines, and are now recommendations.

However, at the last Commission meeting the discussion that occurred was such that we felt when it came time to present what is a tentative final draft, that it would be best to have the entire working group come to address the Commission.

Because what we found was that while this group has had the opportunity to think about, talk about, analyze these issues for almost a year now, that it was difficult to communicate with one or two people doing that at a Commission meeting and trying to catch the entire Commission up to speed on the analysis behind the recommendation. Which is really at this stage the important thing that we want to take this opportunity to discuss.

So we asked the working group members to attend, which but for a few we were all able to do, and again I appreciate their time and consideration.

They have met almost monthly since the inception of this particular project and have been working very diligently. And it's been a challenging effort because of the extent to which you're dealing separate, independent components of the system that had to at one time express their independence and their particular advocate's view or their view their part of the system, but at the same time we had to create a document that came together in a way that worked as a system.

So that's what we have done. And we'd like to take the opportunity to have you ask questions about the recommendations of the individual Commission members that are the working group members and as a whole.

Also, what is being passed out to you are some of the results of the surveys that we sent out. About a month and a half ago we began the process of getting input from individuals other than the Commissioners. And we selected approximately 30 prosecutors, a number of law professors, defense attorneys, and scientists, sent them the recommendations and said this is what we have done, please take a look at it and give us your input. We provided them a three page survey simply to make their job a little easier, but encouraged them to go beyond that survey if they felt comfortable doing that.

And the response has been, generally speaking, very good. There are a lot of very substantive comments made. They've also, by and large, been very positive. There are one or two that are less than positive, but for the most part they've been very positive. So with that, we offer the surveys to you to review at your leisure.

With that, let me begin with the introductions. What I will do is I will simply introduce all the members at one time in an effort to save time rather than change them.

Starting at my far right we have Kevin Curran who is the Federal Public Defender in St. Louis. Kevin has provided not just a wealth of defense prospective, but a tremendous amount of humor in the process, too. Again, we appreciate his participation.

I don't need to introduce Professor Scheck.

Barbara Morgan is the elected solicitor in Akin South Carolina. Has been the elected official there for quite a while, and is a former president of the Solicitors Association in South Carolina.

To my left, Commissioner Reinstein. Again, I don't believe Judge Reinstein needs any introduction. He is a Commissioner and has been introduced to us a number of times. He is the chair of this particular group.

Kathryn Turman, again, Commissioner. Was the chief of the witness unit in the Washington D.C. U.S. Attorney's office; however, now is the acting director of the office of victims of crimes.

Charlotte Word is a noted scientist from Cell Mark and has really been the foundation of the technological aspect of this and as such has been able to provide the information and meaning to really educate the readers about the technology that we are using. And again, we greatly appreciate that very firm foundation.

Professor Berger is again one who needs no introduction because she has been with the Commission for the past two Commission meetings, has already been the force that has tied all the different chapters together. Wrote the introductory chapter and then really helped to bring the entire body of work together in what we hope is a cohesive way.

And then finally, on my far left Dennis Bauer is a prosecutor from Orange County. Dennis just recently won an honor from the Federal Bureau of Investigation as one of its pioneers in DNA technology. Because Dennis has been in this field and has been using and learning about DNA from essentially the beginning of it's history here in the U.S., and as such has provided a very sound prosecutorial base to the work that needs to be done.

So with that, let me turn it over first to Professor Burger to talk about the introductory chapters.

And I think the way we would proceed most efficiently is by going chapter by chapter. Having the representative from each chapter talk about it briefly, and then taking questions at the end of each chapter. And then we will move to some general questions at the end.

PROFESSOR BERGER: We had a number of goals with regard to the introduction. For one thing, we thought that this might be read by quite a wide spectrum of persons, ranging from family members of inmates to attorneys, to perhaps other people within the legal system.

And so we really wanted to sound a number of themes. One to explain a little about the history of DNA, the other to explain a little about the history of this Commission and why it came into being, and also explain how the working group that put these recommendations together is constituted. This really is a working group that is balanced in terms of having people from the prosecution side, defense side, victims side, judges side, scientific side, and a couple of academics rounding off the bench.

We also wanted to try to indicate up front that we were trying to balance two very important considerations. One, that clearly an innocent person should not remain in prison, but secondly that the system, legal system did have an interest in finality and did also have economic considerations for not reopening any case that came along, and had other reasons as well for requiring closure. So we wanted to sound that theme up front.

The other two big items in the introduction are what we called the hierarchy of cases and also the roles of the participants.

With regard to the hierarchy of cases, we tried to define a number of different categories and cases that would be helpful to people in seeing that not every case is the same. That there is a difference, for instance, obviously, between the case where one had biological evidence available to give DNA testing on. If ultimately one could not find this, then really this is simply a case that you could not have postconviction DNA testing, regardless of what the truth of guilt or innocence was.

Secondly, that there were cases where the evidence was truly exonerable, which would put it into category one; and other cases where the evidence, while did not exonerate, was still of the type that would cast some doubt on whether the conviction was properly arrived at, and then might be used only for executive clemency purposes and other kind of purposes.

So one of the things that we sought to do in setting up these categories was also to give you examples of different kinds of cases that were falling in these categories so that people could begin to start a classification process. And I'm not going to go through the various categories now.

Finally, when talking about the roles of the participants, we felt that it's very important at the very beginning to indicate that the kinds of proceedings that were contemplated, offered, in a postconviction setting, differed in some important respects from the adversary proceedings that you have at the guilty or innocence phase when you have a non-convicted suspect where obviously there are certain things that a defense lawyer must do, certain things that a prosecutor must do, certain things that a judge must do.

In this situation where you have someone who has been convicted, but now there is a possibility that there was a mistake, and you are in a situation where perhaps that mistake can be rectified in a case where the evidence would be truly exonerable. There are reasons for more cooperation, there are reasons why the court to assist the process may have to be more proactive than it usually is.

There are difficult problems with the victims advocate who, after all, is counseling someone who may have been instrumental, probably was, in sending this person to prison in the first place or an eye witness identification which is now suspect. These raise very difficult and troubling problems for everyone.

So we simply tried to set out some of the concerns that were reflected in the subsequent chapters and detail the recommendations of what one might do to deal with these kind of issues.

That's really all we have in the chapter. So I guess what we would be interested in is there anything more that should be added, anything that should be taken out?

DIRECTOR ASPLEN: Does anyone have any comments or questions about the introductory chapter? And I suppose that since the introductory chapter really contains I guess the theory or philosophy behind the document, do any of the Commissioners -- Professor Crow.

COMMISSIONER CROW: I just want to say that as I read this I appreciate very much your use of examples. I found the examples very, very helpful. I couldn't have made all those distinctions without them.

COMMISSIONER REINSTEIN: The only thing that caught my attention when I was reading Chapter One was on page 13. The first example there was that prosecutors should not delay responding to a request for DNA testing in the hope that the statute of limitation will run.

I think that statements says more than you want to say. I think it would be more consistent if you were to put prosecutors should not delay responding to a request for DNA testing, period. And than state immediate action may be required. Because it sounds as if a prosecutor would hope to do that.

Do you understand what I'm saying? You just put a period after DNA testing, and then as in the second example, immediate action may be needed because the statute of limitations may run. It just sounds better.

Otherwise I thought the whole chapter was done very well.

COMMISSIONER GAINER: I was just quickly looking at the hand out you gave us and the survey results and feedback, and I was struck by Professor Starrs' letter.

COMMISSIONER REINSTEIN: We were struck by that, too.

COMMISSIONER TURMAN: I should add, though, that we met after we received those comments. And there have been changes that contain some of those comments.

COMMISSIONER GAINER: That's really what I was wondering, not being able to compare before and after, but even noticing one of the ones that were truly innocent or actually innocent, those little things like that. You've obviously discussed those and acted on those you thought appropriate.

COMMISSIONER TURMAN: We spent a considerable amount of time on these letters. Is that a different one?

COMMISSIONER GAINER: It's September, something, something.

COMMISSIONER TURMAN: That came right before and we did make some changes. I know I made some changes in the first chapter.

DIRECTOR ASPLEN: Yes. We were very fortunate to get that letter before. Now all of these we had not received before the last revisions, but that is one we did make changes basically.

COMMISSIONER BASHINSKI: I had a comment on page 16 when you're talking about the role of laboratory personnel.

It really refers only to private laboratories, and I think much of the involvement of a laboratory may well be a public laboratory that is helping advise the prosecutor or the defense attorney for that matter. So I wouldn't limit your comments to private laboratory.

Also, although I don't know if it's appropriate right here because I've lost my train of thought about the context, but the laboratory would have a significant amount of data, analytical data that it will have some obligation to provide. And I think later on in the text is probably more appropriate to talk about that, the role of the lab. But really the laboratory's own records are going to provide the foundation a lot of times for decisions as to whether or not there is enough DNA there to test or anything like that. So making that data available. But anyway, primarily removing from the example the private laboratory.

COMMISSIONER THOMA: The working group doesn't have a problem with that, to strike "private," because it would be appropriate for public laboratories as well.

COMMISSIONER SCHECK: What about adding public and private, just to make sure.

COMMISSIONER THOMA: If you just strike private, it would apply to both.

COMMISSIONER SCHECK: I guess sometimes people don't know that in postconviction setting that a public laboratory will do the test. I can't say.

COMMISSIONER FERRARA: Then perhaps we should add "public" to clarify that. By addition of the term "public," it will enforce the fact that indeed public forensic science laboratories as well as private should participate in this process.

DIRECTOR ASPLEN: Paul, did you have a comment.

COMMISSIONER FERRARA: Well, Jan just answered the question.

COMMISSIONER GAINER: Well, I haven't thought it all out what the role would be, but should there be a role defined in here for law enforcement, whether it's information they maybe come across, the retention of evidence, how it's processed. I just thought that seemed conspicuously absence from roles. Maybe there is not one in this area, but I'm wondering.

DR. WORD: Well, we do mention at some time in the report that there are not consistent standards anyway on how evidence is kept. Maybe a cross reference to another one of the working group's recommendations in there.

DIRECTOR ASPLEN: That issue was one of the many kind of tangent issues that came up. As we started talking about this we saw all these other things that really needed to be addressed.

One is not just the issue of how should it be stored or how was it stored in the past context, but really shed a light on how it should be stored in the future. For these matters that may occur in the future, new technologies that may enable us to test different evidence in the future. Storage capacity, just from a sheer volume standpoint, what should the length of time be for law enforcement agencies requirement to store evidence.

Issues like that that come up that can be addressed somewhere. If we can get that is probably the kind of issue that as the Professor already said we can refer to some work that some of the other groups are doing.

In terms of an active, participatory role in the postconviction process, we didn't see a need to create a chapter on it. But a reference to that responsibility is probably a good idea.

DR. WORD: I think you certainly could indicate that that is something --

COMMISSIONER GAINER: So at least it doesn't appear to be an omission.

DIRECTOR ASPLEN: Right. Question?

COMMISSIONER SMITH: With some reluctance, because I wasn't at the last meeting, and this may have been fully covered there. But I realize I'm actually not entirely clear on what the intended purpose is of the five categories. Because as I understand them, I see the criticism level that the question is raised about, but I'm not entirely sure what they are for.

DR. WORD: I think they were really intended so that when a request for testing came in, they would guide the person passing on that request in being able to classify what kind of a case is this, in sort of what kind of questions do I have to get the answer to in order to be able to make that determination.

And since some of the categories, you get the answer this is not an appropriate case then to go further in, we thought that it would help someone in analyzing the test.

COMMISSIONER SMITH: Do I understand rightly that -- and maybe this is what you say has been changed, but if it were true that the folks who are detailed in that NIJ publication exonerated by science would not have fallen into categories one or two; if that's, is it a concern at this stage about promulgating those categories?

DR. WORD: I'm not sure.

COMMISSIONER SCHECK: Are you responding to Jim Starrs'?

COMMISSIONER SMITH: Yes.

COMMISSIONER SCHECK: I don't think he's right. It's always going to depend on how everybody looks at category one and category two.

One of the more impressive meetings that I've often had was Clay Strange from the District Attorneys' Association who showed us the Erb (phonetic) case in Texas, where the identification, I think, included tatoos and lots of extraordinary identification evidence and some other grounds through operation.

Now looking at that, one might say ah-hah, this is a category two case because even though it's not a witness identification case it was such a good identification.

Now those of us who deal with eye witnesses know that aren't going to be surprised. If you really look at this and interpret it logically, it's still a category one case because there is a vaginal swab that will tell you the answer, notwithstanding how good this eye witness seems to be. And it was an exclusion in that case. So it's really a category one case.

I mean, I think I'm as familiar as anybody with the 28th and 1st DNA report and the 28th and the following 6th in Canada and I don't see anything that would be outside of category two.

DIRECTOR ASPLEN: Any other questions?

COMMISSIONER THOMA: And I will answer as a defense attorney the categories makes a lot of sense, because just by the sheer numbers we need a priority system to regard what cases we need to work on. This is as good a system as we can come up with.

DIRECTOR ASPLEN: Yes.

COMMISSIONER CLARKE: I'm curious, did the working group discuss, really, the term exoneration? It kind of glared out at me a little bit as I was reading the most recent version. That is, exoneration versus basically other standards for lack of a better term.

When I read through the report, when I take the word exoneration. That means to me a demonstration that the person did not do it, period, as opposed to the standard of course that revolves around what should we do. What we do as prosecutors is a decision about reasonable doubt.

Now I'm curious, first of all, were those distinctions discussed by the working group and what did the term exoneration actually mean during the discussions?

DR. WORD: Certainly we discussed this at the working group, and I think that we really attempted to capture that difference in our distinction between category one and category two.

I think that we if you read the examples we give in our category two cases, these are cases, I think, where reasonable persons might disagree as to whether the results are exonerable. And I think that often you really are going to have to look at this in terms of the context of the trial transcript. And I think those are certainly the most difficult cases.

COMMISSIONER CLARKE: I think really what I'm pointing to more directly is, obviously if something is not going to be exonerating by the prosecutor, believe something is exonerating by the associate court, whatever the approach is. But there is also the secondary duty on my part as well, which is if I believe a reasonable doubt exists, I also have to dismiss those charges.

And when I went through each of the chapters, basically when I saw the term exonerated in most instances I think there is a second wrong. And that is exonerating or reasonable doubt is created.

Now we have seen most close relation cases in our own County where one was at one level and one was at the other level. And still in each instance the charges were dismissed. We may not be satisfied that this truly exonerated an individual, but it did create reasonable doubt.

DR. WORD: Well, charges are dismissed. But we're talking about people who have been convicted.

COMMISSIONER CLARKE: Same thing. Dismissed charges or whatever the level of relief is, depending on each jurisdiction, that's something different. Some it's pardon, some it's dismissal of charges.

COMMISSIONER SMITH: Does that mean that you would think you had a duty to dismiss a category two case once you're done with category two?

COMMISSIONER CLARKE: I would take it out of the categories. I'm not even making this category phase. It's really based on this new evidence. Does that leave reasonable doubt for us? I may be satisfied this is the only person who committed the crime. But if I am satisfied reasonable doubt exists amongst 12 reasonable jurors.

COMMISSIONER REINSTEIN: We talked about the difference between exoneration and exclusions and the need for an evidentiary hearing to be held for example to determine if there was reasonable probability to change the verdict or change the disposition of the case because we recognize that not all exclusions would result in exonerations, but they still might warrant a hearing to have a new trial.

So I think that we all recognize that. I'm not sure if it was in the introduction, but I think it was in several of the recommendations for the individual chapters.

COMMISSIONER CLARKE: I think maybe I'm not making it clear. My comments are not category based, they are based on where are we left in this postconviction testing. I may be satisfied that I still think this person did it, but I have reasonable doubt. Consequently, I'm duty bound under prosecution standards to proceed accordingly and dismiss that case.

DR. WORD: Does dismiss the case mean release the inmate?

COMMISSIONER CLARKE: Again, that's jurisdictional based. In my State, even though a person has been convicted and been in prison for ten years, I'm not sure. I think the proper procedure is first of all release, and second of all dismiss.

COMMISSIONER SCHECK: I guess when we were discussing this issue, the term "exonerate" in the literature of innocence, all right, and there is a not inconsiderable literature on the subject, inevitably raises exactly what you're saying.

And is that if there is newly discovered evidence of innocence, such as DNA testing in a category one or category two case that we were talking about, the standard, which is, I think, virtually the same almost everywhere in terms of getting a new trial, okay, would be that there is a substantial probability it would cause a different outcome, or words to that effect.

In other words, what we are talking about is do the DNA tests, given all the facts in the case, it would require that the conviction be vacated.

Now it's happened in many of these cases -- not many, but not an inconsiderable number, a number of them, that prosecutors will nonetheless go back and try the case again.

Just as in other newly discovered evidence cases, just like the 75 people that have been exonerated off death row when we had other conference in Chicago here just this last week, the definition of exonerated always means that your case was vacated, all right, you found some new evidence of innocence. And either the prosecutor A, chose not to re-prosecute you because the prosecutor didn't think there would be a conviction; or B, you were acquitted after trial.

Now it seems to me that that's as far as you can go in America in exoneration. Or C, a government pardons you on the ground of innocence. Those are the -- that's as far as you can go with the official definitions.

I mean, I understand that the word exonerate, maybe we should drop a footnote and make it very clear that is what we mean.

COMMISSIONER CLARKE: I think that's implicit, yes.

COMMISSIONER SCHECK: The implication is absolute 100 percent proof that this isn't the person. You may still have people that, no matter how good the proof, somebody is going to say I don't believe it. A number of prosecutors may very well say I can't convict him, it's not his sperm, but somehow I still think he is guilty. I mean, you get that.

COMMISSIONER CLARKE: I agree, at least a footnote because otherwise I think it's subject to too many interpretations.

I think frankly most people would take exoneration as a demonstration of innocence, as opposed to the legal level, which is not that high.

COMMISSIONER SCHECK: So maybe on page two.

DIRECTOR ASPLEN: Page two, on line 29, a remarkable feature helps to convict but also serves to exonerate, and at that point take the time to express what it is that we mean by exonerate.

COMMISSIONER FERRARA: And also what you mean by innocence. I mean, the average layperson may somehow avoid it. Innocence means this person wasn't even connected with the crime at all, they just got the wrong person. That is what every person thinks of innocence.

But to a lawyer, innocence means that there isn't enough in the legal system to convict the guy, no matter how firmly culpable that person is. And I think these points have to be clearly stated in here for the reader because I'm getting confused. I hear lawyers around this table use the word innocence. I don't know what they are talking about.

COMMISSIONER SCHECK: Well, Doctor, in this report when we talk about innocence, I think unless you can show me an example where it's confusing, we are talking about it ain't this guy. We are not talking about some lesser mental state or anything like that.

We are very serious when we say innocence, we mean this is not the person who committed the crime.

COMMISSIONER SMITH: I accepted that when I read it. Then I read Starrs' letter.

DIRECTOR ASPLEN: The difference between innocence and truly innocence is another issue again.

What you don't have and we will talk about next is a chapter on legal issues per se.

Would it help if in that particular chapter what we did is we explained, addressing Professor Smith's concern that what this is, is really a method of analysis.

What we intend here is a method of analysis which necessarily has to be applied in the context of one's own legal jurisdiction. And as such, there are going to be issues and to highlight those issues which say you may have an obligation not just to consider innocence, but to consider the extent to which this change in status constitutes a reasonable doubt, and you have to consider whether or not you have to dismiss on that basis.

Would that help the understanding?

COMMISSIONER SMITH: I think it would, especially incorporated in the ABA prosecution standards and so on. And I think that would be helpful to obviously prosecutors who are dealing with this issue. I think they need to know that.

DIRECTOR ASPLEN: Again, it's the kind of thing that we want to do in a way that is not preaching, is not pointing out the obvious to the ethical obligation, but simply raises the issue to someone who may be less experienced in these kinds of cases that it's not just a matter of an innocence per se, but whether or not we have to deal with the next issue of is there reasonable doubt.

COMMISSIONER CLARKE: We frequently don't have to resolve that question of actual innocence, because we resolved it at a lower level.

COMMISSIONER SMITH: Either way it is quite parallel, using a slightly different stimulus to handle the process that a responsible public official has to go through.

We are addressing one that the court has to go through, but you're saying prosecutors also have to go through it and not beg to get some advice or analytic points about why that's so and how you might do it.

MR. CURRAN: I think one of the things that you have to realize we're dealing with a progression type document. We start with a summary, introduction, then individual chapters.

So we get back to the protocol and defense recommendations and prosecution recommendations. Some of the issues are amplified and are discussed in a little more detail. Some of these are not, and part of the vagueness is left there so individual parties can discuss. Because we can't provide a document that addresses the secondary cases and the law.

And one of the things that Mr. Clarke brought up was the issue of whether he's innocent or whether he's not guilty beyond a reasonable doubt. Well, if I believe that he did it, then I don't have a reasonable doubt. So some of these things are theoretical ethical considerations and we have to decide. If I think he did it, I don't have a reasonable doubt.

COMMISSIONER CLARKE: I might have to disagree with you, especially the postconviction barrier where a jury has already determined his guilt. If I believe the jury made a mistake or the issues, the difference between whether the jury made a mistake and whether a new jury now based on new evidence would have a harder time doing that, then the postconviction arena I don't think that as a prosecutor that that's the problem.

If I believe that he didn't do, then I release him. If I believe it would be harder to prove it the second time around, I'm going to oppose a second trial. And I think you have left it open enough so that we are in that situation.

My only concern is that the prosecutors not go through that process and make a decision I think he did it, and then I'm going to proceed. That is not what we are duty bound to do.

We have to make an independent evaluation of what is a reasonable jury.

MR. BAUER: That is a little bit how we got to where we are in this document also. This is line 14. I think we have gone through quite a little bit of discussion to get here. We've gone from protocols to guidelines to recommendations. Purposefully to say these are not what you have to do in instances, this is what we recommended you do to help you get through the troubled waters that you're in that you may have not have been in before. Here are things you ought to think about.

So we are not trying to do all the thinking for everybody at every stage of the game. We are trying to give you some guidance what to do and how to do your job better.

DIRECTOR ASPLEN: And I would also point out a comment by one of our reviewers who was Rod Harmon (phonetic) from Almedacam (phonetic) who expressed the same kind of concern, but expressed it in terms of the legal issue being what are the rights at the time of postconviction hearing. It's not the pretrial can I prove this case beyond a reasonable doubt, but rather postconviction, after rights had essentially changed as a result of the system, and what is the legal dynamic at that stage of the game.

So again I think that is the kind of thing that you're talking about that needs to be highlighted and addressed in that legal issues chapter.

COMMISSIONER CLARKE: And actually I took that concept after reading chapter one and thought it might be addressed later and it was not.

COMMISSIONER SCHECK: I want to make sure I understand what you're saying because I think I agree with that.

You look at it when you -- see let's say there is postconviction DNA testing in the case and you take a look at it and you say, well, now I think that a reasonable jury looking at this evidence would have to acquit, all right. Which I think is, generally speaking, the standard for newly discovered evidence of innocence and whether or not the conviction is vacated. That's what you're saying is the standard.

COMMISSIONER CLARKE: Yes.

COMMISSIONER SCHECK: I agree with that, and that is what I think the law is. And to the extent -- and that's what we should say.

COMMISSIONER CLARKE: I think in practice that's what is happening, but I'm afraid in some jurisdictions it's not.

COMMISSIONER SCHECK: I think that is the law everywhere. As to whether or not people want to exercise their discretion on that basis is a different issue, which is the point I thought you were raising. You may have a reasonable doubt now in light of DNA evidence, but that doesn't mean in your gut you think the guy didn't do it.

So you have an obligation as a prosecutor under the law, even though your gut says you're still not totally satisfied. And remember, that's only to vacate the conviction. If the conviction is vacated, then there may very well be an additional investigation and you may develop some additional evidence and wind up with something to try somebody, but those are two difference decisions.

COMMISSIONER REINSTEIN: But what Dennis is saying is he would probably fight, and I think a lot of prosecutors would, give a hearing on postconviction lead petition to uphold the original conviction, whereas there are probably some prosecutors who, given that evidence that they will feel that there will probably be a change in the verdict, that they would pull up their tent and say okay, let's go to a new trial.

And I think what he is saying is that he would fight the hearing. And I think a lot of prosecutors would because the original conviction is the state of the law right now on postconviction.

DR. WORD: After all, we have cases where what the DNA testing shows is that some evidence that seemed to point to guilt doesn't point to guilt.

In other words, there was a bloody something found at the defendant's house that turns out not to have the blood of the victim on it. Well, do you now have reasonable doubt? That really is going to depend on all the other evidence in the case, taking out, now, the biological evidence.

And that I think is something on which people can really reach different conclusions. I don't think it's so easy to say based on this now without that other evidence in there the jury would have to acquit.

I don't know that -- I think that's gray area which different prosecutors might reach different conclusions.

COMMISSIONER SMITH: The categories are used in a slightly different way. Like prosecutors may agree to testing in category one cases while opposing it in all others.

Now it strikes me that the point you raised brings complexity to that. Because you're invited here to sit in participatory judgment about what it would look like if you were testing and it came out a particular way. Exoneration wouldn't necessarily be applied. It's a judgement whether or not it should go to testing.

COMMISSIONER CLARKE: I'm trying to separate from the categorization the decision on testing. I'm really looking at it at the end product. Now we have these results, where do we stand.

DIRECTOR ASPLEN: Chief.

COMMISSIONER GAINER: Well, you have raised for me, at least the conversation, to read this in a different light. Let me just suggest something out loud that may be more form and substance. And again, I refer back to Starrs' letter, and I don't know Mr. Starrs by any stretch, but it again to me when I read his letter it's provoking and I want to say gee, how does it fit in. And I've heard some other people here say that and I've equally heard you say you guys kind of dismiss him as some outside the box or something.

DIRECTOR ASPLEN: No.

COMMISSIONER GAINER: If I misinterpreted, then let me strike that from the record.

But it raises to me, especially in this legal area, whether there is a value in having a minority opinion on some of these issues. And it kind of ties a little bit to what Dennis was talking about, that we can't lay it out for everybody and whether this is a protocol or guidelines or recommendations.

But if it's meant to be thought provoking in some of this and not send someone down a path irrespective of that path, is there a value, especially in this postconviction legal minority opinions. I always find it kind of fascinating when I read cases. I can do what I want, I can further research it, I can strike a whole other way to think about something, and again that may be more form than substance in this area or it may apply to where the whole report goes.

DIRECTOR ASPLEN: I'm not sure what form. I mean, we're certainly and from the inception of the Commission we've talked about the need and import for dissenting opinions on whatever it is we do. I'm not sure the form that that would take in the context of a document which I think is really intended as a user's manual on behalf of the participants in the system.

Maybe there are ways that we can drop footnotes.

COMMISSIONER GAINER: As I say, the risk of thinking out loud is it's not very well thought out. Again, I will just easily go back to the Starrs thing. I just found that he raised some interesting issues. But, I mean, he just raised some issues for me and I kind of hear that give and take a little bit here. What about this direction, what about that. So I've beat that dead horse.

DIRECTOR ASPLEN: So we need to find a way to express it, to express those issues that allows for different interpretations. Is that a fair characterization.

COMMISSIONER GAINER: It is. But again I don't know the value of that. I defer to the legal scholars here on whether there is worth to that.

COMMISSIONER SCHECK: I think what was provocative about Professor Starrs is that he was telling us that there is no such thing as a category three or four case, I guess. Or category four case, where it would be DNA testing wouldn't make a difference.

We respectfully considered that and disagreed with it and thought that there are cases where testing is frivolous.

And something I think that is in this business I think it's important to recognize those frivolous cases, otherwise people won't take seriously the other cases.

And the truth of the matter is we try to embody within category one and category two the fact that Dennis and I may not look at the same set of facts and come to the same set of conclusions. So we try to create categories where reasonable people can disagree about whether or not DNA would meet the newly discovered evidence standard and cut all analysis short. That is what we are trying to put in this.

COMMISSIONER GAINER: I certainly wasn't suggesting a Starrs minority report by any stretch. But I was wondering again if there are other legal issues that are less certain that could take one down a different thought pattern that are very relevant for someone to kind of glance at.

DIRECTOR ASPLEN: It sounds like the kind of thing we can capture in the legal issues section that allows for that. That essentially divergence of view down a different part of a flow chart.

Are there any other comments on the introduction, Jeff?

COMMISSIONER THOMA: Just that in the last 20 minutes or half an hour I think that I would not relegate what he wants in a separate chapter. I think the footnote idea was very good, just recognizing that we are talking about exoneration perhaps in category one, and just recognizing that however, prosecutors, there may be cases where in light of this new evidence now you're looking at proof beyond a reasonable doubt. Just recognize that as a category.

I think the purpose of this chapter -- and I think it's been done very well -- is get these categories and I think they're categories that make sense. Everyone is going to have their own little wants. We know that.

But the purpose here I think was to show or at least get out to everyone that this technology is very powerful and you can do an awful lot now. And prosecutors, maybe your past hard-nose approaches are not necessarily required in a case where you have good DNA evidence.

I think that's the purpose behind it and I think it's done very well. And I don't know that we need to look at minority views and what other people may think. I think it accomplishes it very nicely.

Am I correct in that analysis?

DIRECTOR ASPLEN: Before we go to break, are there any other comments on that introductory chapter?

What I'd like to do before we go to break is to just kind of outline what I think we have come to some consensus on, without getting an official vote at this point, looking towards what we will need to ultimately, and that is approve or vote on the whole document.

We have page 13. Make a change to page 13, around line 229, responding to DNA requests.

Line 16 include private and public. Providing a way -- the third point would be providing a way to mention or refer to law enforcement's role, so that at least it looks like it hasn't been overlooked. That would be number three.

Number four, page two, drop a footnote there in an effort to explain what we mean by exoneration, clarify that issue again as Norm just kind of referenced for us.

And then we talked about some things that could be included in the legal issues chapter in reference to that general point as we are going to create the legal issues chapter anyway. And I think in the legal issues chapter we can find a way, or I guess I should say by it's nature, the legal issues chapter should have the effect of what Chief Gainer is talking about, providing for those other divergent views and other ways to look at it pursuant to whatever jurisdiction requirements there are.

DR. WORD: And, Chris, maybe we can add some language indicating that this is not so much categorization for the purpose of the legal consequences, as categorization to provide a frame work for analysis in other words.

DIRECTOR ASPLEN: Right. Getting to Professor Smith's concern.

Why don't we take a break for about 15 minutes. We need to ask for a show of hands of folks who might be interested in having dinner as a group or to the extent that we can have a dinner tonight. Just a general count.

(A short break was taken.)

DIRECTOR ASPLEN: Professor Scheck, why don't you talk a little bit about what is anticipated to be in the legal issues chapter.

COMMISSIONER SCHECK: It would be very helpful if all of you would agree that this sounds right to you, given the prior discussion.

But basically the purpose of this chapter is to set up what Margaret called a second ago, the framework for analysis. The idea is not to take a position about the issue of whether or not, for example, there ought to be statutes as there are in only two states, New York and Illinois, that permit postconviction testing in what we would characterize as category one or two cases at State expense without adding time limitations.

All that we are going to do is describe the statutory schemes. And it would go like this:

First, there is case law on access to evidence. That is, whether or not you're seeking newly a discovered evidence motion accord or you're going to go to a governor. Is there any case law on just getting access to the evidence for purposes of testing.

Yes, there is. All the reported decisions that directly address access actually permit it. There are some decisions that in effect don't permit access on the grounds that it doesn't have anything to do with getting executive clemency, it only has to do with getting postconviction motions and there's a time limit.

So there are just a few like that. And then there are some unreported decisions that don't allow access, but presumably on the ground that the statute of limitation prohibits bringing a motion in Court.

We will discuss the postconviction statutes and outline them briefly in states on terms of newly discovered evidence of innocence, discuss executive clemency as an option, and then briefly discuss the question of is there a Federal constitutional right to have DNA testing in a case where there would be, quote, truly persuasive evidence of innocence under Herrara (phonetic).

And it seems to me those are all the legal issues that we would just describe indicating what's been decided one way or the other without taking a position as to what the law ought to be.

But I should note in the passing in the introduction to this chapter we will indicate that our recommendations are based on the premise that the lawyers and the Court may find themselves in jurisdictions where there may or may not be time bars to bringing newly discovered evidence of innocence motions. And you would have to proceed from getting the evidence, getting the testing done, and go to executive clemency, or waiving time limitations.

What we have to report, and we have found this in numerous cases, is that notwithstanding the statute of limitations that in theory would prohibit the motion, in many of these DNA exoneration cases -- and I use the term exactly as we defined it -- what has happened is that the prosecution and the Court simply by consent dismiss the case in light of the DNA evidence, even though the statutory scheme would not seem to permit it if anyone interposed an objection. And that's been true in quite a few of these cases, so we should probably just note that.

So the whole concept, frankly, behind these recommendations is that we are saying if you're in a jurisdiction where a motion could properly go before the Court within the time bar, within the statute of limitation, you would do this. If you're in a jurisdiction where the only relief is to go for executive clemency, you would do this. And then what hangs out there is the whole question of going to Federal Court if all else fails and just sort of outline what the arguments might be.

Does that sound -- does that help or does that sound too complicated?

DIRECTOR ASPLEN: Dr. Word, would you like to talk about the biological issues section?

Are there any questions, given the fact that there is nothing in front of you right now, and the fact that I think we've talked about some of those things.

I apologize, if anybody does have any further input into that? Again, that will be forwarded to you as soon as it's done it.

COMMISSIONER THOMA: Chris, I do have one question with regard to our working group, the legal issues working group, we have been wrestling with the statute of limitations on appeals and I don't know whether we wanted to have that addressed in a working group, whether we want it addressed in your working group, or both. That's something that I would like to be able to take back to our working group, some decision on where we go with it, if anywhere.

DIRECTOR ASPLEN: The way that kind of developed again, that's one of those tangential issues that came up and we kind of talked about the appeals issue in this group and then we started talking about the issue of filing of cases and statute of limitations there and said, well, that's the purview of another group.

But we should certainly get the groups together on that, at least representatives of the group together on that.

Professor Smith, do you have a preference?

COMMISSIONER SMITH: We talked a little bit about that and I don't know whether this working group has done so. If it has, of course we'd want to know the product of the conversation, talk through the question of whether there ought to be guidance, recommendations, or whatever out of the Commission on the question of time limits and statute of limitations that come from this group.

DIRECTOR ASPLEN: What we will do then is I think we will put together a document that essentially summarizes the conversations that we've had about it and forward them on to your particular group.

COMMISSIONER SMITH: That will be fine.

DR. WORD: Chapter three is on the biological issues. And as Margaret said at the beginning, this whole document has many different audiences and I think this chapter was largely aimed at being basically an educational chapter, not knowing who might be reading this.

And it was meant to be a fairly basic and just simply go through some simple scientific concepts that may be covered or questioned by victims' families, defendants' families, attorneys who have no experience with DNA testing, law enforcement, judges who have had no experience with DNA testing. So this is basically designed to be a background chapter covering general scientific issues.

The first section is largely just broken into types of samples that may or may not be tested. I know from my phone contacts a lot of people are not aware that certain types of samples can be tested and that they should be considering these. And in going back to look at old cases, perhaps evidence that people thought couldn't be tested is now suitable and should be considered.

There is some discussion on age of samples and where samples have been deposited.

A key part is previous testing and understanding whether testing has been done in the past at the serological level or the DNA testing level and what the meaning of those test results are. Was an inclusion a meaningful inclusion or was it simply at one locus.

The section on types of DNA tests again is meant to be a very general overview for people who have never heard the words RFLP or PCR or mitochondrial, and just need to understand that there are several different types of tests that have different levels of discrimination capabilities and mainly to get some of the words out in writing.

Possible conclusions and results are simply outlining what is meant by an inclusion or exclusion and what that might mean.

Finally, just a very brief discussion on the CODIS databases and things that would be coming in the future that will effect or certainly could effect testing.

I don't know if anyone has mentioned in here but our group is planning on doing a glossary which will have a substantial amount of scientific words that I'm embarrassed to say I had no time to work on them. But some of that will be reiterated in a glossary as an appendix.

DIRECTOR ASPLEN: Thank you.

Any comments on the biological issues?

COMMISSIONER THOMA: Just a couple points. At page 30 with regard to appellate rulings regarding RFLP, actually I'm doing this research for our legal issues group and I have come up with over a hundred right now with regard to RFLP. I can get you a fairly exact figure I think for the next week or so. I notice there is a question as to how many.

DR. WORD: I have that from the FBI and I just never had it with me when I was working on this to fill in the numbers. So I do have that number. Things didn't happen at the same time.

COMMISSIONER THOMA: Second, at page 31, at line 505 you have a portion with regard to PCR testing being used and accepted in the courts.

I do have a problem personally with that, I guess legally, with lumping all different types of PCR testing together since at least in California it's differentiated quite a bit, significantly between DQ Alpha, STRs, different types of PCR testing.

So lumping them all together for this purpose, I realize that you're talking, Dr. Word, in general terms with regard to this section, but that particular sentence is a problem because DQ Alpha certainly has some wide acceptance for a lot of cases with regard to it, but there are several other types of PCR testing that hasn't become so widely accepted through the courts yet.

DR. WORD: I'm certainly speaking from personal experience, and perhaps widely accepted in the courts to you means the appellate courts and maybe I'm incorrect in wording it this way.

Even in California where I've testified in a lot of admissability hearings, the different types of PCR testing are tending to be lumped together. And I'm aware of only a very few trial level decisions across the country for any type of testing at this point where DNA testing is not getting in, and it's usually for some non-scientific issues, discovery or something else.

So at least in my experience -- and if other people have other experiences we certainly should correct this -- the PCR testing is being largely lumped together and there are appellate rulings on all the forms that I'm aware of with the exception of mitochondrial at this point.

So that's why it's worded that way, but we can certainly modify it if that's not the correct way to state it.

MR. BAUER: If that topic needs to be gone into in more detail maybe the legal issues working group might be more appropriate rather than in the science chapter. Because the experience across the nation is quite different.

In Commonwealth vs. Salk in Massachusetts, for instance, they basically said is that PCR is PCR and all difference types are admissable because PCR is admissable. And even in the trial courts in California we've had differing results by hounding that same issue and I've had several kinds of PCRs, including STRs, admitted because it's just another application of accepted technology.

COMMISSIONER THOMA: I may be a little bit off myself, Dennis, but with all due respect, I think Salk actually did admit one type of PCR evidence and declined to admit another, rather than say all are admissible. The very case that you're citing I think stands for a different premise in a way.

But it really has to do with a difference of opinion I think. What I'd rather do is leave that out of this and if you would like us to bring it up in legal issues, it might be more appropriate.

MADAM CHAIRMAN ABRAHAMSON: Perhaps I could say something about the clear trend seems to be the direction of ever growing acceptance of. I mean, I think that is certainly true.

DIRECTOR ASPLEN: So we can modify the language then.

Norm.

COMMISSIONER GAHN: Dr. Word, I have three comments.

The first is at page 26, line 425. You say "conversely a five-probe RFLP match." I question whether we want to put a number of probe on that. We know from NRC1 the three probe match is strong evidence, four, five, labs are doing seven, eight now.

Why don't we just state that if a RFLP match was obtained previously, and not put a number on it. I think that could be confusing for people who may not be all that familiar with it, our technology. And by putting the number five on it they might get stuck in it.

Because we know there could be a three-probe match but too inconclusive and I think just by stating RFLP match would be sufficient.

The other thing which struck me is on page 27 under line 438, I noted as I read through your document that you talk about -- let me back up here.

I think that if there is going to be questions raised between a defense attorney and a prosecutor in this area, often times it may revolve around what are inconclusive results. And I think that is something that is very important and has to sort of be spelled out for the person reading this document.

I note that you refer to inconclusive results on page 27 here. You also do on page 35, 43, 48, and 50. And on each of the pages you hit all of the things that can be inconclusive. And it's kind of disjointed, a little awkward. I thought it might be better if you were to right off the bat the first time on page 27 list what could be inconclusive results.

Basically it could be lack of sample, it could be sample that's there but degraded, or it could be what the different laboratories call whether it's faintness, whether it's off the sizing ladder, within the sizing ladder. List all of them. Then on future pages just refer back to that. It might read clearer.

Because I found it confusing. You hit everything that's inconclusive, but they're all in different places.

And the last thing I thought might be helpful and help clarify matters, on page 34, your sentence on 568, I found that first sentence sort of confusing, but also I don't know if it's true. I think that you could have a case where not all of the results from a known individual may not necessarily be in the reference in the evidentiary sample.

DIRECTOR ASPLEN: I'm sorry, that was line number what.

COMMISSIONER GAHN: Line 568 and 569.

Again, I don't think that it's necessarily true, but also it very confusing. Why don't you just strike that sentence and state line 570 and 571. Simply with limited exception an exclusion of an individual at any one genetic region eliminates them. Just have that sentence.

Those are my thoughts.

COMMISSIONER SCHECK: Norm, on your first suggestion on page 26 , instead of saying 5-probe, how about saying multiple probe.

COMMISSIONER GAHN: I think that would be appropriate, too.

COMMISSIONER BASHINSKI: I think that would be acceptable also.

I had a few comments. I think that throughout the document we talk about dried evidence, dried or frozen. It's my experience that dry and frozen is the most expeditious way or most effective way of storing DNA evidence.

I also recognize that even if you don't freeze it, you may still get a result. But I don't think we should be encouraging people not to freeze things. So I would suggest that we talk about drying and frozen being optimal, but that you may get results and often do with PCR on dried samples. And there are several points in this document where this comes up.

On page 23, at line 365, nuclear DNA from stains of more than 20 years old have been analyzed successfully, generally not by RFLP. I think I probably would make the statement that when you're talking about samples that old, unless they have been stored and frozen you're not going to get an RFLP result. So you might want to clarify that the ability to get a result with the different technologies would depend a lot on how that's handled.

COMMISSIONER SCHECK: So just say by PCR based tests.

DR. WORD: Well, I'm thinking about some old tests that were provided by the California Association of Crime Laboratory Directors that two or three labs participated in that many of those samples were quite old and RFLP testing was done on those successfully.

COMMISSIONER BASHINSKI: And had been stored frozen is the point.

DR. WORD: My understand was some of those were dried, so maybe I'm incorrect.

COMMISSIONER BASHINSKI: We should look at that data because I don't think you want to imply that you can get an RFLP results typically on something. And I believe those of those were frozen if you can get results at all. We can go back and I can look it up just to verify.

DIRECTOR ASPLEN: If we modify that through some general statement.

COMMISSIONER SCHECK: What about if you say most frequently by PCR based tests.

COMMISSIONER BASHINSKI: I don't believe those were frozen samples. I mean, I believe those were frozen samples that she got her results on. Because I don't think you should imply something that isn't likely to be true.

The 48 hour cut off on the postcoital interval collection of samples you have on the line 279, I can't speak to this with any data, but I'm wondering if that is adequate or should be even a longer period of time with PCR based tests. I don't know.

DR. WORD: Well, I know there are some studies that have been published that show that you can go out to 72 hours for the detention of sperm. But at least in our laboratory in cases where we had information on how long it took the victim to get in and have samples collected that we don't get results after 24 hours.

COMMISSIONER BASHINSKI: That's something I just want to make sure because I don't have the data on that.

DR. WORD: This is based on practical experience. If other people know otherwise and are concerned, we will modify it and obviously the times are going to be loose, depending on the information provided. There are some published results that say sperm can be detected further out, but they must not be getting collected or they're not in sufficient amount to get any results from.

COMMISSIONER BASHINSKI: I don't disagree with that.

DIRECTOR ASPLEN: It might be appropriate to drop a footnote there to that effect.

COMMISSIONER SCHECK: I'm confused. You're saying that there have been anecdotal reports of finding at 72 hours. Is that what' you're saying?

COMMISSIONER BASHINSKI: You definitely will find sperm up to 72 hours, the question is in her experience are you finding samples typeable with postcoital interval longer than 24 to 48 hours.

COMMISSIONER SCHECK: Isn't the answer generally no?

I will tell you why I think this is a very important point that we speak accurately. I don't think, as you said before, we should mislead people. I mean, if you tell people well, in our experience somebody has typed sperm 72 hours out.

COMMISSIONER BASHINSKI: I don't think that's the case.

COMMISSIONER SCHECK: I haven't seen it myself. And if you tell people.

COMMISSIONER DAVIS: Would it be worthwhile to comment on a dead victim? Because a dead victim, the sperm survives longer.

COMMISSIONER SCHECK: Yes.

COMMISSIONER DAVIS: Would it be worth it, just a note.

COMMISSIONER SCHECK: What's your judgment about how long that does happen?

COMMISSIONER DAVIS: I think of some British case where they identified sperm -- this is not by DNA but by morphology some weeks later. I don't know the exact time, but it was quite a long time.

So apparently the processes by which sperm are degradated, lost in the living, cease in the dead. And it's just worth stating it. I'd hate to see people say, well, we can't do it.

COMMISSIONER BASHINSKI: You're absolutely right. And that's a matter of it's very well known that in dead victims you will have semen not disappearing as fast as in a live victim for variety of reasons.

COMMISSIONER DAVIS: Another point, what about in reference to the methodology of collection of the specimen? It says here the vaginal cavity, but then there is some techniques of collection, certain areas are more prone to give you a usable sample than just a blind testing.

And I'm not too familiar with the details, because it's been a long time since I worked in the rape treatment center, but things have changed a little bit as to the techniques of acquiring the materials.

DR. WORD: This chapter was written with the idea that we are looking at all the samples that have previously been collected and are lying around someplace waiting for re-testing. And I think that the types of evidence, collection, and preservation are going to be the work of another group.

COMMISSIONER DAVIS: That makes sense. The only thing is there still may be some samples lying out there in a dead person or removed from a dead person that should not be overlooked.

COMMISSIONER SCHECK: I can't resist telling you this, but I was in Mississippi yesterday, or two days ago. The medical examiner asked me if you could exhume a body that was two years old and do a D&C to see if they could get sperm from the vaginal vault.

COMMISSIONER BASHINSKI: On page 26 at line 413, 412, you talk about tests that have been done in the past on the sample. I would include conventional serology typing in the list of tests, because that information would be very helpful to you in deciding whether you've got a sample that would be used for further tests. You have a list of tests.

DR. WORD: What did I leave out?

COMMISSIONER BASHINSKI: It just said identifications of blood and semen, you didn't talk about genetic typing, serology typing, or protein typing.

DR. WORD: Okay.

DIRECTOR ASPLEN: When it says generally or serology analysis, that doesn't --

COMMISSIONER BASHINSKI: But she lists a lot of different things. I think it's important that if there has been genetic typing, conventional genetic typing.

DR. WORD: Would you provide me a list of some of the things that should be included, and we can certainly add them in.

DIRECTOR ASPLEN: Just genetic typing?

COMMISSIONER SCHECK: Why don't you just say A/B/O testing and protein markers.

COMMISSIONER GAHN: I think you should put that in light of the fact that so many of our code hits and our databases that go back so many years where they did do conventional A/B/O enzyme testing.

COMMISSIONER SCHECK: Virtually all the innocence cases they had, A/B/O typing.

DIRECTOR ASPLEN: Dr. Forman, did you have a comment? Anybody else have any other questions or comments on this particular chapter?

COMMISSIONER SMITH: I just was curious what the relationship would be between the last bit of that chapter and the work that Dr. Crow's going to do in his group.

Testing in the future is a topic in a way that you'll be covering in a draft we haven't yet seen and presumably there ought to be some marrying of the predictions of future testing.

DIRECTOR ASPLEN: What is the connection between this document and that document?

COMMISSIONER SMITH: That document not yet having been produced, might have in it material that needs to be reflected here. If we're going to have this section in this chapter.

DIRECTOR ASPLEN: I think what was anticipated, given the extent to which this document also provides a certain educational function, I think that's why it was included.

Let me ask you this, Dr. Crow. Is there anything that you see in this section that you would disagree with or you would believe is not concrete or determined enough so that it would be ill-advised for us to include it.

COMMISSIONER CROW: No, I didn't mean anything like that. But there clearly is going to be some overlapping, but I think we can worry about that later. But even I'm not sure it does a great deal of harm to say the same thing twice.

DIRECTOR ASPLEN: Anything else?

COMMISSIONER FERRARA: On that subject, I would simply add near the end of the paragraph on page 32 those after lines 530, and this is -- there is nothing wrong with this, but I think it ought to end with a description of what is going to be the standard practice in laboratories for some time to come. Obviously the STR, the 13 core loci.

You allude to it. You say the use of PCR with short tandem repeat sequences, but then you throw in the NTRs, and D1S80 have become common in many laboratories.

I think it might be good at that point, at some point, again, it marries it to Jim's work as the standard to which the forensic science community is focusing is 13 core short tandem repeats.

DR. WORD: I think this chapter was written before those were decided on.

COMMISSIONER FERRARA: It's all that would take, to bring it up today.

DR. WORD: I noticed that, reading it today, that there needs to be probably a little more discussion of CODIS in this and the application of STRs.

DIRECTOR ASPLEN: If I could just kind of try to encapsulize or kind of highlight what we've talked about on chapter three.

Page 30, we need to put the appropriate numbers in there.

Page 31 talked about the PCR acceptance, make that change accordingly.

Regarding Norm's comments on page 26, we want to take out number five and replace it with multiple probes.

The issue regarding page 27, taking that opportunity to really define what we mean by inconclusive and then be consistent thereafter.

Then on page 34 eliminate lines 568 and 569.

Regarding Jan's comments, I think try to I guess promote the use of the phrase of the combination of dried and frozen. Is that a fair way to do that? Find ways to do that.

Page 23, line 366, look into the particular facts of what we are using there as data and straighten that out.

Page 23, line 379, we can drop a footnote there to explain that a little bit better. And also, pursuant to Dr. Davis' comments, include dead victims from an educational standpoint.

And then on page 26, include the specific genotyping from a conventional serology standpoint.

And then on page 34, include Dr. Ferrara's comments regarding STRs and the standard nature of where we are at historically with STRs. They're here to stay for a little while.

The next chapter is the prosecutor chapter, and as such I will ask Dennis to take a few moments to kind of explain where we are going with that.

MR. BAUER: I'm not going to go through it page by page or issue by issue just stick to giving an introduction of what we've done and where we've come. As I said earlier, this is the 14th draft and we have taken an input from a variety of sources. I've got two very thorough letters from Jim Wooley who is on the full Commission. And after the first one of those, took it to our State of California District Attorneys' Association's forensic science committee, had some very energetic discussion -- Jan was there, she's smiling -- and got a lot of very good input.

And I took the notes from all of that input and incorporated the suggestions into the subsequent drafts after that.

There is the concern that there has to be some kind of compromise in understanding that we're dealing with very experienced prosecutors from very large offices all the way down to the part-time prosecutor or sole practitioner in a rural jurisdiction. So we have to address a large outline that would be meaningful to a large variance in the audience.

So we tried to address some large issues. Some of those including the cooperation, coordination with the other parties that are involved; the witness, the defense, and the judiciary.

And the other, one of the other main ideas was to make it explicit and perhaps redundant that it's necessary to consult with the vast body of experts that are already in existence both in the legal and the scientific fields when you get a request.

And also, as far as the input, you will see if you've read the handouts that were given to us today on some of the inputs and surveys, et cetera, that we have accommodated not only in chapter four but the other chapters a lot of the input that's come in, including as we're sitting here Margaret and I were discussing adding in a phrase or a footnote that would address insuring the maintenance of chain of custody, which hadn't been addressed very well in any of the guidelines anywhere. So that when we are subject to a defense request that the prosecution is opposing, that we seek whatever insurance we can get that the chain of custody will be maintained including a request for judicial orders to insure that chain of custody is maintained.

DIRECTOR ASPLEN: Thank you. Questions and comments on the prosecutors recommendations? Recognizing we've already addressed a number of those in the introductory chapters.

Woody.

COMMISSIONER CLARKE: I'm going to throw more gas on the fire. It really relates to the category five. Perhaps I should have brought it up earlier.

One of the aspects of a case where a request for testing would be deemed frivolous is when a defense at first trial, it may have been consent, self-defense, or entrapment.

Now the comments I'm about to make are not going to apply to the majority of those cases because defendants normally have to testify factually in those cases and they would fit the criteria that the working group has described as frivolous.

There are some instances in which defendants don't testify. A lawyer may rely on the state of the evidence and establish self-defense by testimony of other witnesses and there are some other instances, I think consent as well as rape cases.

I'm not sure that should be held against the defendant. Because that is a tactical decision made based on the state of the evidence. So to lump those cases -- and they are few in number, I know -- into a category of five I think may be unfair when this technology might be able to resolve guilt or innocence in those cases.

So I think it's a consideration that has to be made. But again with a caveat that defendants usually do testify in those cases, and if they do then I think it does become a category five case.

MR. BAUER: Professor Starrs has also addressed a couple examples also of what you're talking about and we've discussed that since we got Professor Starrs' letter which I think is a couple of three months old by now.

But I think that as the Chief mentioned earlier it may be appropriate to put a footnote in there also to indicate that there are occasions where even where reasonable minds can differ and the factual analysis can also differ.

Maybe this is more important for the judicial chapter also to be aware of that sometimes even when prosecutors are very sure that this is a frivolous category that there still may be one where you want to order testing anyway.

COMMISSIONER CLARKE: I guess the bottom line of what I'm saying, you can't hold a defense tactical decision against a defendant.

Just a couple of other comments. There is an underlying -- not theme but process, whereby if the defendant or inmate asks for testing he's informed that basically his known sample will be uploaded, I supposed it would be in the CODIS system.

Has it been explored whether or not that is lawful.

COMMISSIONER SCHECK: I think the assumption here was was I told that it's not lawful if you're not in the category of offenses covered by your State. You can't do it. It's that simple.

In theory, virtually everybody who is asking for these testings, in theory, is probably going to be typed already as a convicted offender. But maybe not.

COMMISSIONER BASHINSKI: That wouldn't be true certainly in our State because we have limited categories. The person could have been convicted of some other type of offense. So I think that's not stated properly.

COMMISSIONER SCHECK: It would be illegal, you're right.

COMMISSIONER CLARKE: I think it's appropriate, but I'm just concerned that it might need some further provision or a stipulation. I'm not sure it would still be legal.

COMMISSIONER SCHECK: I think you can't get it in.

MR. BAUER: Chris and I got this similar input two days ago in Arlington in some oral comments by a couple of prosecutors also. And I think that part of the problem is dealing with 51 different jurisdictions. The issue was, well, if it fits the legal criteria for entering the database, he's already there. If he doesn't fit the criteria you probably can't put it in there.

And this is perhaps maybe going to be true in the 51 jurisdictions, but it may also be an opportunity to stipulate by an agreement by the defense to allow his profile to be entered in even if it's not provided for by State law. And I'm not sure that is going to automatically be illegal or not proper in every State depending on how the law is written.

So again, it's one of the things that we can put another footnote in, but we're getting so specific. I think this will work itself out.

COMMISSIONER CLARKE: Obviously the biggest concern is we don't want people committing unlawful acts.

DIRECTOR ASPLEN: An excellent point.

COMMISSIONER CLARKE: The last one is just specific to one section, on page 47 on the goals which I think are excellent. The one on line 773, when it talks about providing a split sample to the defense for duplicate testing.

That's I assume not really what it's for. Since this is joint testing, wouldn't it be more appropriate to word this something on the order of retaining a portion for duplicate or additional marker testing. In other words, the idea is to retain a sample, but it's not really giving it to the defendant to go test on his or her own.

MR. BAUER: I look at it this way. If you look at the whole chapter, one of the things that we've mentioned is in category one cases I suggest the prosecutors on their own have the evidence tested, even if there is not a defense attorney involved.

So if the prosecutor decides he's going to have it tested and it comes back to further inculpate the defendant the defense attorney or defense team may decide they want to re-test it on their own again.

So try to keep those categories of goals to cover all situations. How would you re-word it then with that comment?

COMMISSIONER FERRARA: Just put the word, where feasible, where possible. Because you might be hurting both the individual who is perhaps wrongfully convicted by requiring the sample be split in which case neither laboratory can develop enough genetic information to make a conclusion. So it's preferable to indicate that where possible, sample should be preserved for future testing, but also knowledge and that is often not the case.

DIRECTOR ASPLEN: Anyone else?

COMMISSIONER CROW: Does split mean split into two? I think maybe divided or subdivided may be closer to what you mean.

COMMISSIONER FERRARA: Again, where that is possible. Sometimes it's not possible to split the sample with any meaningful fashion. It may not be. It usually isn't.

DIRECTOR ASPLEN: Any other comments on that section?

COMMISSIONER SCHECK: Actually it's a more puzzling thing than even that, to be honest with you.

What you run into in these situations is that if you have old degraded samples, the most important thing is to get a result. And you would like to get the best lab that is capable of extracting it to get a result.

Then you would like to have a sample left for replicate testing; you would like to have a sample left for replicate testing that you could put into the database, because if there is an exclusion you want to find the real person through the database; and then finally you want to have a sample left over if you ever a catch another individual that you can do testing yet again so that you're not relying on old testing but on new stuff.

I just think we want to rephrase that instead of provide a split sample so much as maximize the opportunity to do new run tests for a variety of purposes.

MADAM CHAIRMAN ABRAHAMSON: Someone have any other comments on it?

COMMISSIONER SMITH: I just wondered what a judicial officer was? Because sometimes a judicial officer might have to decide. Maybe that's entirely clear, but in some sense it's not. I thought maybe prosecutors might be within that group. Does it mean the Court? Maybe just say the Court.

DIRECTOR ASPLEN: What page?

COMMISSIONER SMITH: You said it several times, but I'm just looking at page 45. The decision on whether retention should be done may have to be made by a judicial officer.

COMMISSIONER BASHINSKI: It could be clearer.

COMMISSIONER SMITH: If you mean the Court.

DIRECTOR ASPLEN: Any other comment on that section?

Norm?

COMMISSIONER GAHN: Just as I spoke with Dr. Word. I think in those areas where you talk about inconclusive results, I think if there would be a battle, that battleground is very ripe between the defense and the prosecution in these cases.

Maybe a little more amplification of what we mean by results would be helpful in the area.

The other comment I have was -- and maybe Mr. Ferrara can answer this. Does the DNA advisory board require accreditation?

COMMISSIONER FERRARA: For purposes of Federal funding yes. I don't think we flat out required in general.

Very strong recommendations.

COMMISSIONER BASHINSKI: You don't require it until 2000-and-something even for Federal funding. It's not a mandate, there's a time frame where you say you encourage it.

COMMISSIONER FERRARA: Currently it's not.

COMMISSIONER BASHINSKI: Currently it's not required.

COMMISSIONER GAHN: The reason I ask is on page 55 when we talk about selecting a laboratory, perhaps you might want to put down an accredited laboratory when the defense and the prosecution are selecting.

The reason I asked it because I didn't know whether the DAB required it. But since it doesn't, maybe we should put down an accredited laboratory.

COMMISSIONER FERRARA: Certainly we should.

On that same subject in that same area, Norm, we ought to remove the reference to technical working group because they no longer exist.

COMMISSIONER GAHN: I agree with that.

COMMISSIONER SCHECK: But on the issue of accreditation there are a lot of excellent laboratories that are not accredited, so I would oppose that.

COMMISSIONER GAHN: I mean, maybe just a recommendation that they look at accredited laboratories.

COMMISSIONER FERRARA: Does this Commission not want to take that position?

COMMISSIONER SCHECK: I think as long as somebody complies with the DAB guidelines, I just feel a lot of these -- some of the best private laboratories are not accredited.

COMMISSIONER FERRARA: But how do you determine compliance with those standards without accreditation?

COMMISSIONER BASHINSKI: There is a middle ground in that there is a mechanism for those laboratories to have their DNA programs inspected without becoming accredited initially by the ASPLAB (phonetic) lab.

COMMISSIONER FERRARA: Through NFSDC you mean, but that is under the auspices.

COMMISSIONER BASHINSKI: Right, but it's not accreditation.

COMMISSIONER FERRARA: Yes, it is.

COMMISSIONER SCHECK: You see, this is the point. That there will be disagreements in that.

COMMISSIONER FERRARA: I think it's a worthwhile issue to discuss if this Commission does or does not want to make that recommendation. But given our -- given the strong interest in maintaining high quality of work throughout, I don't know why we wouldn't want to require any laboratory doing this to be a strong recommendation at least to be accredited if not an absolute requirement.

That furthers the -- I mean, we all know that absent some mandate for accreditation, the next best thing we have to do is try to encourage it.

DR. WORD: In any event, it seems to me this somehow has to be consistent with whatever is recommended and it needs some kind of cross reference to ultimately the laboratory.

DIRECTOR ASPLEN: I think maybe the way we can address that -- I don't want to fill the document up with footnotes -- by way of saying there are certain considerations regarding what laboratory you wish to use for this particular testing. The current trend is towards accreditation, and explain that briefly, which would make a suggestion that that is the best way to go. But really put it in the contention of here is your prosecutorial decision making issue.

Would that help us to analyze it? It wouldn't get us into any potential conflict or commit the Commission to a recommendation on that ahead of time if you in fact decide to address that specifically. Does that help the issue?

COMMISSIONER GAHN: One further comment for Dennis then.

This is one of those questions where you asked where you do it at your peril, where everyone would look and say boy, is he ignorant. But on page 43 on 714 what is a "West" plea?

COMMISSIONER THOMA: North Carolina vs. Alford.

COMMISSIONER GAHN: I know the Alford, but what is a "West" plea?

COMMISSIONER THOMA: It's the same. It's a California case out of Monterey County.

COMMISSIONER GAHN: Since we have 49 other States, why don't we leave that out.

DIRECTOR ASPLEN: Do you want to keep Alford?

COMMISSIONER GAHN: Yes.

DIRECTOR ASPLEN: Charlotte has a comment regarding the lab accreditation issue.

DR. WORD: In chapter eight there is a paragraph on page 95 in the section where consideration in choosing your laboratory, and one is whether your laboratory is accredited. So perhaps a cross reference to that would be appropriate.

COMMISSIONER BASHINSKI: I have a comment if we're done with the accreditation issue.

DIRECTOR ASPLEN: Okay.

Paul, is that fine?

COMMISSIONER FERRARA: Yes. I knew we had it in there someplace.

COMMISSIONER BASHINSKI: This is on page 48, full discovery of previous DNA testing not used. I'm uncomfortable with the wording, but I don't know what better wording there would be.

This comment, "there are numerous outside experts from universities, research, and medicine with excellent credentials who are capable of rendering a fresh opinion." That's true, but there are also a lot of people who are very willing and ready to render opinions they are not really competent to render.

And I don't know how you want to say this in a way that gets at that without unduly limiting people's freedom to select experts.

I think the emphasis here maybe should be going back to the original laboratory and seeking to have it. You sort of make -- this paragraph somehow implies that the lab isn't going to rethink its work or won't look at it again.

MR. BAUER: Should we put in a cautionary statement there saying but beware of experts with lesser credentials.

COMMISSIONER BASHINSKI: I would like this to be affirmatively encouraging you to go back to the original laboratory and encourage that laboratory to review and consult with you and say that in a very positive way before you start recommending other avenues I guess is what I'm trying to say.

I don't know how to say it. Paul, maybe you have a more graceful way.

COMMISSIONER FERRARA: No, I have sort of a less graceful way of saying it.

MR. BAUER: Actually that was in an original very long version that we chopped mercilessly to make it not so long a document.

COMMISSIONER SCHECK: Jan, would it help if we got rid of the phrase "even if a laboratory has a policy against," and just say there are numerous outside experts. Limiting it to the fact that you can get a fresh opinion.

COMMISSIONER BASHINSKI: That would be fine.

DIRECTOR ASPLEN: Say that again, please.

COMMISSIONER SCHECK: Just get rid of the phrase.

COMMISSIONER BASHINSKI: There may be laboratories that do.

COMMISSIONER SCHECK: He is talking about the FBI.

COMMISSIONER BASHINSKI: They are in the minority.

COMMISSIONER SCHECK: I think it's wrong to say things about the FBI and I think we should get that sentence out of there.

COMMISSIONER FERRARA: I thought Jan was going to take issue with the statement on line 789. One, I sort of challenge the factual basis for making that statement.

COMMISSIONER BASHINSKI: That was my next statement. You can go ahead.

COMMISSIONER FERRARA: How do we come up with this statement? "Forensic DNA laboratories, especially State run laboratories are notorious for being extremely conservative in interpreting their own results."

COMMISSIONER BASHINSKI: I think that's definitely excessive.

COMMISSIONER FERRARA: There are a set of standards for declaring samples inconclusive, so maybe to be commended for going extremely conservative. But we are following standards. And one, I don't think any State lab versus a local or Federal are more or less conservative.

DIRECTOR ASPLEN: Let me guess, you'd like us to strike that particular sentence.

COMMISSIONER FERRARA: I'm not crazy about it. It's a compliment in a way. My note is, is this such a bad thing.

MR. BAUER: It wasn't meant to be an insult at all.

COMMISSIONER ABRAHAMSON: Maybe what the point is that in light of more data and experience some of those matches might now be seen differently and that's what one really has to put in. Not about being conservative and whatnot, and just say therefore, it is worth going back to the lab to reexamine the data.

COMMISSIONER BASHINSKI: And it's more aggressive, this whole wording here is just --

COMMISSIONER DAVIS: Perhaps there is a better word than notorious.

COMMISSIONER BASHINSKI: Or aggressive call.

DIRECTOR ASPLEN: Let me suggest that we agree to take lines 787 to 797 and rework that section, that paragraph. Would that be more comfortable?

COMMISSIONER BASHINSKI: Yes.

COMMISSIONER GAHN: Chris, I think that goes hand in hand with the issue I had on what is an inconclusive result. That's basically what I'm talking about.

And we know as prosecutors -- and I'm not finding a we know -- how many times have we gone through cases where while the K526 is a little light I'm not going to call this and we get frustrated with the analyst at times. There are so many examples of what's inconclusive, and I think that is what is important here, to bring that out.

COMMISSIONER FERRARA: Again, that is the correct thing for the laboratory to do.

COMMISSIONER GAHN: Right. It is correct.

COMMISSIONER BASHINSKI: And shopping around to find someone who is a little bit less careful isn't the right way to fix it.

COMMISSIONER DAVIS: Isn't your idea that the laboratory was properly careful, but the newer techniques will bring out what they didn't see before.

MR. BAUER: Part of it is just experience based, because we have a recent case that both Barry and I were involved in, unknowingly on the opposite sides where the outside expert turned out to have been the supervisor in the laboratory. And the outside expert now said yes, that's clearly a match, where his own laboratory originally with lesser experience at an earlier date would not because it was faint bands.

So I think the key here is experience. But I understand the footnote and maybe the dissenting view that Jan says that you're shopping around for somebody who will make a call for a price maybe.

COMMISSIONER BASHINSKI: Or out of lack of experience.

DIRECTOR ASPLEN: Any other comments on that?

I would summarize then as follows:

In the prosecutor section we need to look to the extent in which prosecutors must consider defense tactics. By the way, to find a way to incorporate that in there, essentially where it's appropriate, not to hold the defense tactics against the defendant, not to do that.

Secondly, we need to clarify that the CODIS admission issue and the extent to which that's legal and appropriate in various settings.

Third, page 47 I think line 773, what is that? I can't read my own writing.

Maximize the ability to do further testing.

Page 48, change to the Court from what was I think judicial officer. Make that change.

Again, to address the inconclusive phraseology, be more specific and exacting maybe refer back to the original clarifications that we made earlier on in the document.

Page 55, I have a footnote regarding the accredited laboratory issue and we can refer back to page 95 on that since we have done that later on in the document.

Line 9, 13, and 14, the issue regarding the guidelines. Line 7, 14, take out "West" for that kind of plea. And then rework line 787 to line 797 appropriately. And then that is the issue on line 792 and 792.

With that, I will ask Barry to talk briefly about the defense chapter.

COMMISSIONER SCHECK: I don't think I have anything more to add than what is there.

DIRECTOR ASPLEN: Any comments about the defense counsel section?

COMMISSIONER BASHINSKI: On page 74 at the top, I don't agree with the dry atmosphere at room temperature. I say again, freeze the evidence, don't keep it at room temperature. Page 74, line 1216.

COMMISSIONER SCHECK: But you don't disagree.

COMMISSIONER BASHINSKI: I don't disagree that dryness is the most important thing, but you are making a statement that the best way to store is dry at room temperature and I don't agree with that.

COMMISSIONER SCHECK: I think the only thing I want to put in here is that when you are looking at these old cases you're going to be finding dry samples at room temperature.

COMMISSIONER BASHINSKI: I didn't say that those samples couldn't be tested. I said if you are going to say what the best way is or imply what the best way is to preserve it, that that's not the best way to preserve it. And that is all I'm saying. And I think that sentence implies that.

COMMISSIONER SCHECK: Well, the only problem, Jan, is if you look at it in the context of what we are saying you do at this point in time establishing the chain of custody, we are now at the stage where you have found the rape kit vaginal swab in some courthouse in Virginia in a paper bag, okay. And now we want to send it to the Department of Justice for testing, all right. And we call you up and we ask what is the best way to send this.

Are you suggesting that you would at that point suggest that we freeze it and put it in the cooler.

COMMISSIONER BASHINSKI: No, but when you send it to us we will put it in the freezer. And this statement says the important factor is storing the evidence in a dry atmosphere and at room temperature. I think dry is the most important, but at room temperature.

DR. WORD: Jan, I agree with what you're saying and the sentences you're pointing out have two directions. And we are looking at old cases and you're looking at new and our statements are misleading and we need to revise some of these.

Because clearly most of the postconviction evidence isn't going to be frozen. Everyone knows that. But for future, if available, it should be frozen. I think we need to tighten up some of these sentences.

COMMISSIONER SCHECK: Right. But what I said, I don't want people shipping things in coolers because when you start doing that they're going to ruin the evidence.

COMMISSIONER BASHINSKI: Just strike at room temperature.

COMMISSIONER SCHECK: I got it.

DIRECTOR ASPLEN: Any other comments?

COMMISSIONER FERRARA: My editorial comment. On page 70, line 1164, the 1996 NRC publication DNA Technology and Forensic Science. Well, NRC, as we know, did two studies, one in '92 entitled DNA Technology and Forensic Science, and one in '96, a Valuation of DNA Evidence.

COMMISSIONER THOMA: The Valuation of Forensic DNA Evidence.

COMMISSIONER FERRARA: So whatever one or if you may include both of them.

COMMISSIONER THOMA: I'd suggest using both.

COMMISSIONER SMITH: I think this is what Barry was talking about before. On page 74, if the results are favorable to the applicant defense counsel and prosecutor should join in either a motion to vacate a conviction or where such motions are time barred and application for executive clemency.

I take it that you wouldn't discourage them from joining in such a motion if the bar would be waived. And if that is the most common way of doing it, maybe we should encourage them to do it.

COMMISSIONER SCHECK: Yes.

COMMISSIONER THOMA: It depends on your prosecutor. I remember we talked before in our group about that.

COMMISSIONER SMITH: I understand that.

DIRECTOR ASPLEN: Any other questions or comments?

Then I would summarize by saying on page 74, we will take out "at room temperature." Line 1215.

On page 70, clarify which report we are addressing.

COMMISSIONER THOMA: Change the name.

DIRECTOR ASPLEN: Clarify and add.

On page 74, add "consent to waive" or language to that effect.

At this point in time we are running a little bit behind. However, I think this is a wonderful discussion. What we are trying to do is really convert a document which is a working group document into a document which is a Commission document which is why we are doing this.

Our goal is really to try to finish this this evening on a conditional basis. And what I mean by that is that we essentially vote on it theoretically to approve it with the changes that we have listed here.

What would happen then is we would make those changes, send the documents back out to all the Commissioners, and gets you to sign off on it or make changes as you feel is necessary.

That way we would not have to come back to full session before we actually get underway with producing a full document. We would have final approval at that time. That is what we are trying to accomplish here.

However, we are in a situation where we have people in this group who will have to leave this evening and our next speaker has to leave this evening. So what I would ask is there any objection to going to about 6:30 this evening in an effort to accomplish those goals. Any objection?

Seeing none, hearing no objection I should say, then what we will do is I will ask Dr. Carl Selvaka if he is in the room. There he is. I would ask him to present to us so he can then catch his plane and then we will come back to the discussion on the recommendations.

So the folks up here can go back to their seats. We can put the power cord into position, and I will take this time to introduce Carl to the group.

Carl is the director of the Massachusetts State Police Crime Lab. He is also the president of the American Board of Criminalistics. He is the former director of forensic sciences with the New York division of criminal justice services.

He has also worked with the Bureau of Alcohol, Tobacco and Firearms, the U.S. Army forensic toxicology drug testing lab system, the National Medical Services, a private forensic laboratory near Philadelphia.

As I mentioned earlier today, I asked Carl to come and talk to us about issues surrounding prioritization because prioritization came up at our last Commission meeting and we wanted to deal with it so that we could then discuss the CODIS backlog issue tomorrow.

Carl is going to talk to us about prioritization as it pertains to backlog samples, and then some of the issues that come up with regard to prioritizing collected samples, et cetera.

So with that, I will turn it over to Carl. Thank you.

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