DIRECTOR ASPLEN: At this point in time I would like Judge Reinstein to come up and talk briefly about the judicial recommendations and then we will continue on from there.

COMMISSIONER REINSTEIN: First of all, you all have a handout, the recommendations for the judiciary that are in the recommendations you received by FedEx are a little draft I did and there was a glitch evidently. The most current one is listed at the bottom as draft September 9, 1998, and it has corrections and additions that were made from our last meeting and also from meetings that we had with the Committee.

I really took some of the comments that Jim Wooley made at the last meeting to heart and the recommendations to the judiciary are not meant to be preachy or telling people what to do because I know that was what Jim was saying regarding all of the protocols and recommendations that were made.

But then when I went back to judges on our court and other judges in Arizona and showed them what the recommendations were, they really do want these. They don't regard it as being preachy. Judges really like recommendations. They like whether you want to call it protocol, guidelines, whatnot, they want a checklist of things.

Some of the parts here, I think this goes to all the recommendations. When I list the categories and Dennis listed them and Barry listed them and the like, and it's also in the introduction, that was done specifically because some people felt that a Judge would go directly to the recommendations for the Judiciary and not look at anything else.

We hope that is not what people will do because we really feel there is valuable information on the biological issues and the legal issues that Barry will be doing for judges to pay attention to as well.

But I wanted to give it a touch of reality to the postconviction release process because these cases are really different. I know one of the comments at the last Commission meeting had to do with these are really not any different than the postconviction relief cases, but they are.

Because in most postconviction relief cases you have somebody who is saying we have newly discovered evidence. In these case we don't have any newly discovered evidence. There has to be an order from the court or an agreement between the prosecution and the defense to have the testing be done so that if the test is positive you do have newly discovered evidence to start working off as to whether it's going to be an exoneration, exclusion, whether there is going to be a hearing or the like.

So while an inmate or defendant may not have the right to get back into the courtroom, I think the Court oftentimes will have to use it's inherent power or make a recommendation ultimately to the governor or to the board of executive clemency because of the time bar issues that have been discussed in Dennis', Barry's, and my section.

Also, I wanted to do as far as checklists to recommend to judges the particular orders that they may be facing, that they may have to enter. But only after there is an informal conference where the court should try to foster cooperation between the parties and seek agreements.

And the orders that we talked about are similar to the ones in the defense and the prosecution recommendations; orders to preserve evidence, orders to provide access to evidence, to determine the particular protocol which is going to be used by the laboratory, which laboratory is going to be doing it, who pays for the testing in order to provide enough sample for replicate or subsequent suspect testing if there is enough there to even do that.

So that is basically our recommendations.

DIRECTOR ASPLEN: Questions and comments on the judicial recommendations?

COMMISSIONER REINSTEIN: I tell you what, Dennis mentioned before starting on the categories on the category five, the frivolous one. I recognize also from Professor Starrs' comments as well that there are certain instances where what we regard as a category five frivolous cases, that if there were a tactical decision made by the defense attorney to go for self-defense, the defendant didn't testify because it was arguable for the evidence but that the defendant is now saying he is innocent, that may not be a frivolous case. I think that the door should be opened up on certain cases.

DIRECTOR ASPLEN: Any comments?

COMMISSIONER SCHECK: On that last point, what you might also indicate is especially in instances where the defendant is maybe mentally retarded. There have been a number of cases like that. Especially if the defendant lacks mental capacity.

COMMISSIONER SMITH: Part of the difficulty here is you're looking for some efficiency and some sorting, but it's hard to get away from the need for fact finding in some subset of each of these categories. And it's the fact finding that ordinarily falls to the judge and it seems to me in a way that one of the things you want to be saying is that's so, and here is some sense of how you should do it.

DIRECTOR ASPLEN: It goes back to your previous comment about this is what these are. Kind of explain that better, the purpose behind it.

COMMISSIONER SMITH: Yes.

DIRECTOR ASPLEN: Anyone else?

Hearing nothing, we will move on to Kathryn Turman and the victim recommendations.

COMMISSIONER TURMAN: I guess the most important issue, two things for victims, whether they are sexual assault victims or surviving family members of homicide victims, is the balance that -- well, one of the things we talked about first was that the contact in the initial notification of a request for postconviction vacation would be to have it done by a prosecutor or victim advocate. Preferably from the prosecutor's office, not from the defense attorney. And the balance to be struck is between notifying a victim at the earliest possible opportunity without causing them unnecessary stress if something is really not going to go forward, and not letting them find out through the media or some other public venue.

The timing on that is really very individual to the case and it's important to have someone who knows the victim, either the prosecutor or a victim advocate from the prosecutor's office to talk or Police Department who worked with the victim. If that is not probable, then working through a rape crisis center or some other or survivors of homicide group. Someone who could provide some ongoing support.

The issue I mentioned that notifying the victim and contact with the victim is important, it's important to have one who is familiar with the victim. Recent studies have indicated that attempted suicides and successful suicides among rape victims and homicide family members is really significant.

And these are people who have been through an investigation, a trial, conviction, a sentencing. And then they have spent probably years trying to adjust and get their lives back together and to all of a sudden have something like this come up can really send them to ground zero in terms of their mental health status.

We also talked about the need to have -- if you have to get a sample from the victim try to as nonintrusively as possible. Allow the victim some choice if possible between the type of samples taken.

After, if the conviction -- the offender is exonerated by testing, then the victim will need some support. It's also important I think to provide reasonable explanations to the victim of what DNA testing is. Many victims don't know a lot about it. Most of what they know is from television, and I think it's important to provide written information as well as in person explanation to victims. To be suggested is a brochure, a sample brochure that can be provided to the victims or their families so that later they have gotten over the shock of hearing this news, that would be something they can refer back to.

DIRECTOR ASPLEN: Thank you, Kathryn.

Any thoughts or considerations?

COMMISSIONER BASHINSKI: Just on page 87 and probably elsewhere you need to make your pronouns gender neutral because there is a lot of discussion here about the female victim, I'm looking here at lines 1428 through 1434. It's probably elsewhere in the document, but I happen to notice it there.

DIRECTOR ASPLEN: Anything else?

Final section of recommendation for laboratory personnel. Is there anything we should say about that?

DR. WORD: Just very briefly it was made clear that the role of any laboratory involved in this is to provide clear and accurate representation with the understanding of the data that has either already been done or is getting ready to be collected through additional testing. And that experts had an obligation to be a consultant. Whether they have already done work or getting ready to do work or being hired specifically as a consultant, that they have an obligation to help the prosecutor, defense attorney, and the Court understand the value and the limitations of the testing.

Most of this chapter is oriented towards a list of questions that need to be considered in selecting evidence in a laboratory.

DIRECTOR ASPLEN: Any questions?

COMMISSIONER BASHINSKI: Very small point. Like on page 94 line 1547, you're talking about experience with particular markers. I'm assuming you mean forensic case experience and if not we probably should insert that. Making sure that people are accustomed to looking at evidence and not other types of analysis.

DR. WORD: So to elaborate on types of samples, and make it types of forensic samples.

COMMISSIONER BASHINSKI: Yes. Using that particular test on forensic evidence.

COMMISSIONER FERRARA: Also, on page 102 there is another discussion of TWGDAM. If we leave that in, should we put in another footnote that it's DAB now?

COMMISSIONER THOMA: I think so.

DR. WORD: I think we need to leave TWGDAM in since everyone knows about that. And maybe Paul should come in on that, but it seems like having TWGDAM and DAB, the community is certainly used to what TWGDAM is.

COMMISSIONER FERRARA: But TWGDAM doesn't have guidelines any longer.

DR. WORD: But they have existed and they're published.

COMMISSIONER FERRARA: They're superceded by the DNA Advisory Board's standards. Even TWGDAM will tell you we don't have guidelines anymore. So if you just simply say DNA Advisory Board standards and validation with non-probative evidence.

COMMISSIONER BASHINSKI: Do the DNA standards even talk about non-probative evidence in the same way?

COMMISSIONER FERRARA: No, but that is why you're saying and validation of non-probative evidence. Let's just correctly identify the standards we are referring to.

DIRECTOR ASPLEN: Any other comments?

COMMISSIONER CROW: Perhaps you ought to say that TWGDAM has vanished.

DIRECTOR ASPLEN: Anything else?

With that, let's proceed this way unless there is an objection. What we would like to do essentially is to call for a vote on the forwarding of these particular recommendations through the National Institute of Justice to the Attorney General. And what that would mean, however, forwarding them with the changes that have been suggested today that we have listed with the inclusion of the legal issues chapter incorporating the number of things we have talked about, and then those changes would be made, they would be forwarded back to every Commissioner, not just those who are here today, and then signed off on that the changes were appropriately made and sent back.

With that being the understanding, I would ask if we could take a vote at this point in time to again conditionally approve the recommendations for forwarding through NIJ to the Attorney General.

COMMISSIONER THOMA: I don't see any problem with that. Do we know when the next meeting is going to be? How far from now it's going to be?

DIRECTOR ASPLEN: The next Commission meeting is scheduled for February or March. I'm sorry, I don't have it right on me.

COMMISSIONER THOMA: I would agree then.

DIRECTOR ASPLEN: I appreciate the question, just let me explain. We are trying to balance what I think is a legitimate urgency of the issue as evidence by the conference that was had last week, and that's really the philosophy under which we have been working. At the same time we don't want to sacrifice quality for that expediency which is why we've asked to do it this way so we don't have to wait for the next Commission meeting to actually obtain a vote on the matter.

With that, absent objection, I will proceed with the roll call vote.

MADAM CHAIRMAN ABRAHAMSON: The reason that Chris is chairing this and will take a vote is because I will be abstaining.

DIRECTOR ASPLEN: With that, Professor Scheck, your vote on that matter.

COMMISSIONER SCHECK: I will go for it.

DIRECTOR ASPLEN: Commissioner Reinstein.

COMMISSIONER REINSTEIN: Aye.

DIRECTOR ASPLEN: Commissioner Turman.

COMMISSIONER TURMAN: Aye.

DIRECTOR ASPLEN: Commissioner Gahn.

COMMISSIONER GAHN: Aye.

DIRECTOR ASPLEN: Commissioner Hillard.

SUPERINTENDENT HILLARD: Aye.

DIRECTOR ASPLEN: Commissioner Thoma.

COMMISSIONER THOMA: Aye.

DIRECTOR ASPLEN: Commissioner Davis.

COMMISSIONER DAVIS: Aye.

DIRECTOR ASPLEN: Commissioner Ferrara.

COMMISSIONER FERRARA: Aye.

DIRECTOR ASPLEN: Commissioner Crow.

COMMISSIONER CROW: Aye.

DIRECTOR ASPLEN: Commissioner Clarke.

COMMISSIONER CLARK: Aye.

DIRECTOR ASPLEN: The Chief Justice abstains.

Commissioner Smith.

COMMISSIONER SMITH: Aye.

DIRECTOR ASPLEN: Commissioner Bashinski.

COMMISSIONER BASHINSKI: Aye.

DIRECTOR ASPLEN: And I will add that while Commissioner Gainer is not present, he did leave me a note. He had to go to another engagement. However, he did provide me with his proxy approving them and as such I would add that.

And I would add for the record that I discussed that resolution with Commissioner Wooley who also approved on that basis.

With that, I will thank both you folks for your hard work today, I appreciated it. And most importantly this group up here that sits in front of you for the tremendous hard work that is not over, let me emphasize, but a tremendous effort to bring these recommendations forward. And as a result, I think that justice is going to be pursued a lot more efficiently and in a much better manner in a lot of jurisdictions.

Thank you again for your hard work today, folks. I appreciate it.

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