Michael Smith.

COMMISSIONER SMITH: In sum, since this is easier because of the way Chris has organized this, our working group has met even less frequently than others so we have even less to report. But I just want to frame it appropriately by reference, everything that you approached was preliminary, freewheeling, there was some stats, that was about it.

On the other hand, this meeting is very useful I think because of the frequency these legal issues are popping up and, I think, very quickly.

So let me very swiftly summarize the territory barely covered by our first meeting.

It's fairly clear to us that we must do some work on statutes of limitation and on times for filing of postconviction relief. And yesterday, mainly at the request of the postconviction relief group that whatever thoughts you might have on that be shared with us so that we can go forward with that. So we know that is on our agenda.

There are questions about the admissability, the law of admissability covering DNA evidence. And I think we were uncertain in our first meeting just exactly how much use could be contributed to that discussion by this Commission. But Jeff Thoma has been looking at those questions and I haven't had a chance to talk to him about it, and he has a report to make.

COMMISSIONER THOMA: Fairly briefly, I have reviewed the state trial and appellate cases, as well as codes and statutes of the various States, and I intend to have it complete by our next meeting which is December 4th, but I have it pretty well along now.

There are over a hundred RFLP cases with varying admissability standards with regard to populations statistics. For example, California, just as an example, when a Negus (phonetic) case came out this year and approved the modified ceiling principle, at least for now, with regard to cases in California.

But a case out of Dennis' office actually is about to be in front of the California Supreme Court which probably will decide whether the numbers go beyond that, and I would imagine that they probably will. And also, it's a case that involved PCR as well, it's a small PCR case involved in that statute there.

Regarding admissability, there are cases out of 43 states, seven states which had previously denied admitting DNA, six of those states have now reversed those opinions by subsequent decisions of either the same level appellate court or the State Supreme Court.

At the trial level there is a great percentage of admissions. I'm trying to get a handle on that, but it's fairly difficult to do. I'm using the help of some district attorneys that I know that are involved, as well as public defenders.

But the reasons for denial are generally concerns over the reliability of a given test, of a given criteria of that and not the science itself. There are very few cases right now that are being denied admissability of DNA for the science.

We'd also -- I don't mean to go beyond our chair's discussion, but we did also talk about -- going onto a different subject now -- certification of testifying laboratories with regard to what type of proficiency testing, the testing that we might want to decide upon, if any. And I know we haven't reached any agreement or consensus, but it's just one of the vary areas that we are involved in. Again, we are having a meeting December 4.

COMMISSIONER SMITH: The December 4th meeting is as described a little bit by Jim Crow yesterday, in part a product from the sense of both committees that the evolution or development, trajectory of the technology is likely to be raising a set of legal issues not yet before us.

And they have to do with some identifiable trait identification and possibilities that seem to be emerging in the future. There is at least that on the agenda for December 4th between the two committees.

There are some other issues having to do with future speculation which is characteristic of the first meeting of all the groups. For us, I think part of that was we asked questions, we had a discussion, but I'm not really sure we came up with an agenda about what indications, if any, there for the fact finding process upon which we rely ordinarily, from the advances in the DNA area and the challenge that it poses to either this identification testimony and the use of the inherent lie detector on evidence of other kinds.

Now, that was a fascinating discussion, although I do think it probably lies beyond this group's mandate, but that is a question for this group.

Other issues like that, well, there was discussion again I think that led not to consensus that we should take it up, but to discussion whether or not it was learned in the last ten years or so of DNA wars, stuff that we brought to the Court for future reference by those trying to introduce or consider how to consider the admissability of other scientific evidence.

I think we did not decide this would be a useful exercise for us, but it was on the table, and still is for our working group.

I think the issues which we will be wresting next are who owns the DNA, who owns the biological samples, who owns the code, how firm are the notions of privacy and confidentiality that surround this area, as practiced anyway, and how likely is it that the principles that are being brought to bear will survive the pressures of law enforcement necessities as they emerge one by one over the years.

I was fascinated this morning to think about the police officer's alert extraction of the DNA saliva from the pavement when the suspect spat. And it just seems to me that we have some conflicts that need to be worked out about our notions of the privacy of the code and the likely law enforcement practices, some of them very efficient, some of the barriers to the collection of DNA evidence in the ordinary course of life.

This is particularly so, because although we haven't considered this very much, I talked a little bit with Lisa about this, the availability of DNA evidence in a sample, biological samples, and DNA code databases in other realms, other domains, far greater than the database available for CODIS itself for example.

What are the likely pressures to be brought and what law is to be relied upon as the efforts to make use of the databases come on-line. Particularly, I think, we are going to have to deal with those issues when we ask questions, which we haven't yet, about the law that might govern DNA collection efforts.

Are they like the DNA roadblocks that we are talking about, or is there some other way that we should be understanding that kind of attempt to make use of our DNA.

So there is a whole host of issues that I find that rely directly on our agenda. But I also think that if I understood the DNA probe effort our second meeting is likely to be both productive of issues for us, but more productive as to specifying those issues in a way we can attend to them properly.

I think we are in the market for demand from the other working groups on what questions we have directed to us. I think that is all I have to say.

COMMISSIONER SCHECK: I have a question from the report. What are the specifics of this Illinois case where a semen sample is estimated to be a frequency of one in 400,000 in the African American's population and one in 1,000,000,000 among Caucasians and the police were looking for an African American. Where did that come from?

DR. FORMAN: That is a case, State vs. Josenbowski (phonetic). The police weren't looking for anyone, they actually had their suspect in hand. And it was a case where a prostitute accused a police officer of requiring her to perform certain acts so that he wouldn't charge her.

There was a semen stain on her T-shirt. The semen stain was estimated by PMDQ Alpha and D1S80, it was one in 400,000 in the African American population, it was one in one point something million Caucasian population. The police officer was Caucasian and obtained that DNA profile.

MADAM CHAIRMAN ABRAHAMSON: Jim, did you want to add anything further?

COMMISSIONER THOMA: No. Actually I agree with Professor Smith that if we were left to our own devices, literally our working group would go into too many areas. And I think what Professor Smith is mentioning is we could use a little sense of direction since the other working groups are a little more concise in what areas they are going to go into.

For example, the privacy issue I think we have got pretty much a general consensus on but for one person that isn't on the Commission but is in a working group, but I think Bill's points were pretty well taken by most of us.

I think that is an area that we genuinely should go into as a legal issue. I think with regards to certification and with regard to what the issues are in the cases, that is pretty clear. But I think beyond it I agree with Professor Smith. Whatever direction we give that other working groups aren't able to address that are legal nature, we will consider.

COMMISSIONER BASHINSKI: Were you not talking about model legislation?

Some of the problems that were spoken to earlier this morning can be dealt with somewhat by fixing loopholes and problems in existing law.

COMMISSIONER THOMA: It's interesting that you should mention that, and I do agree that that is something that we should talk about.

The one person that I disagree with in our working group actually on the same piece of legislation in California, we had differing opinions as to how it should be implemented.

But I think that genuinely must be an issue that our working group deals with. And because we are doing research on the codes and statutes I think I'm going to look to how --

COMMISSIONER SMITH: We will keep you working hard.

COMMISSIONER BASHINSKI: I would think this issue of expanding the databank to include other offenses which relates to the recidivism data and so forth might be something that you want to pull into that consideration.

COMMISSIONER SMITH: I think that's right. The question of privacy and confidentiality to this newcomer to the field are quite imprecise. The definitions and understanding seem to be fairly imprecise and probably not fruitful.

And therefore, there probably is a need, though I'm not sure we can do it. But if there is a need we probably could come before this Commission to state more precisely and more clearly and persuasively what the privacy issues are, who has them, what instruments of law or otherwise there are available that are appropriate protecting those interests, and what principles, if any, ought to be applied if the claim is made that these interests be overridden.

At least one can imagine certain cases under which very, very powerful claims can be made. And I think if we could be of some use to lay that out to the newcomers so they understand you grew up in this field five or ten years ago, about the examination.

COMMISSIONER THOMA: And our group does focus on that. I think we are going to continue to focus on that, among other things.

COMMISSIONER FERRARA: Can I ask if the group -- I'm hesitant to bring this up and I think it's a good legal issue and it's one I have struggled with in our laboratory.

This refers to something we call low stringency searches of a databank. A crime scene profile is developed at the crime scene. Search the databank under normal moderate or high stringency looking for an exact match. None is found.

However, one can ascertain with a lower stringency search that the sample might be a sibling to the person.

I had this exact case arise and my examiners came to me and said what should we tell the law enforcement agency. And I looked at our statute which says only when a match occurs, may the law enforcement agency be informed.

Based on my interpretation and reading of that statute, I said no. Yet, I have spent a lot of sleepless nights thinking that I was letting somebody --

COMMISSIONER SMITH: But did you report to the law enforcement agency that you had not been able to match it or did you just say nothing at all.

COMMISSIONER FERRARA: No match.

COMMISSIONER SCHECK: But did you conduct a low stringency search in the first place?

COMMISSIONER FERRARA: Yes.

COMMISSIONER SCHECK: Well, isn't that part of the problem?

COMMISSIONER FERRARA: Yes, but the examiner did it anyway.

COMMISSIONER SCHECK: Because, I mean, this was actually brought up in your report in that Massachusetts case. Maybe somebody could tell us about that.

This is the one where I take it there was a DNA databank search, yielded a partial match with the brother or other close relatives, and then a Massachusetts case says that a hit on a close relative could not be used as evidence.

COMMISSIONER SMITH: I couldn't understand what that meant.

DR. FORMAN: I'm not remembering this case.

COMMISSIONER SCHECK: It's written in the report.

MADAM CHAIRMAN ABRAHAMSON: What page are you talking about?

COMMISSIONER SCHECK: It would be the fourth page in and it begins, "Investigative Leads from DNA Databanks Searches." There is a reference to a Massachusetts case so I was wondering where that came from.

COMMISSIONER FERRARA: An Illinois case you mean.

COMMISSIONER SCHECK: It's the fifth page, I'm sorry, "The Interpretation of a'Cold Hit' and Other DNA Evidence."

COMMISSIONER KENNARD: And it's your second to last paragraph.

COMMISSIONER SMITH: The author of this report is not with us today.

DIRECTOR ASPLEN: This is a condensed version of about a 20 or 25 page report that our note taker took. We can go back and look. It was quite probably Phil Riley who mentioned it, since Phil is from Massachusetts and he may know the details.

COMMISSIONER SCHECK: Just so we are clear on what we are talking about, in New York we dealt with this issue. And I was informed, and I even looked it up myself and correct me if I am wrong, that CODIS has very stringent guidelines, and in theory the examiner when you search the computer, you're only supposed to look for a hit at X number. What was the number?

COMMISSIONER FERRARA: Well, you mean the full 13.

COMMISSIONER SCHECK: Whatever number it is you're searching for, I can't remember. We actually had a number in our New York guidelines as to how many markers we would look for. And you simply wouldn't report out or do a low stringency search of anything less than that.

COMMISSIONER FERRARA: I don't recall.

COMMISSIONER SCHECK: The problem only arises when you start doing low stringency hits.

COMMISSIONER FERRARA: NRC1 does address that to some extent and recommends against it.

COMMISSIONER BASHINSKI: Doesn't it depend on how your statute is written? For example, ours says the information can only be used for law enforcement purposes. That certainly would be an interesting law.

COMMISSIONER FERRARA: Right. Had my law not been so specific and say only when a match, I would have loved a little wiggle room.

COMMISSIONER SCHECK: I would love that you didn't have it.

It seems to me that the initial statute that Congress passed, as you well know, Paul, is limited to forensic identification purposes only. And the idea is that you shouldn't be allowed to do low stringency searches in the database just because you will be in the same position that you are today where you're getting a hit or at least you're focusing suspicion on a relative of the defendant or relatives who are people who shouldn't be in the database in the first place. And that seems to be a very sad recommendation.

COMMISSIONER THOMA: I was just looking back in my notes. The case that you brought up at the working group at least according to Dr. Gates' (phonetic) notes.

DIRECTOR ASPLEN: That was the Massachusetts then. The Massachusetts was wrong and what I was referring to was Paul's case. I thought that that was also a possibility. Because Paul and I have talked about his case before and the error is probably in the Massachusetts case.

COMMISSIONER GAINER: But a relative could be appropriately in the database though.

COMMISSIONER SCHECK: No. The idea behind this, just so we are all clear about this, is you get a match of an individual with let's say four markers for the sake of argument, and the person is excluded in the fifth. What that tells an investigator is let's go look for siblings. Because the siblings could be the perpetrator. And that it is, in my judgment, an improper use of the databank.

COMMISSIONER SMITH: I guess what I'm thinking, although I obviously have to think some more about it, is that although this is the step, that's meeting of the intent at the time of CODIS' inception.

I think what Jim Crow is telling us is that there are going to be other ways in which this kind of technology will be brought to bear or made to be brought to bear it's going to be much harder to say that. Unless the CODIS statute means we can't do it that is the end of it, it's hardly going to be an issue to be concerned about the development on -- I forget the term -- for identifiable traits.

But identifiable traits are much more like this, aren't they, than a hit. So it seems to me that territory is opened up. We are going to have to explore it and look for principle.

MADAM CHAIRMAN ABRAHAMSON: Now is not the time for us to decide whether that is correct under the statute incorrect interpretation of the statute, and what the next step will be. So the issue it seems to me is can you or should you, should the law permit this kind of, quote, sibling non-match. Don't debate that that's an issue.

COMMISSIONER SCHECK: Well, if somebody wants to make it an issue, it's an issue. We are not writing on a clean slate here.

As Paul well notes because he was on that commission, there was a recommendation and then the Federal legislation was passed. And similar issues, which I think you should explore because they were troubling, have to do with CODIS.

As I understand the statute and regulations and what the thinking initially behind it was, limits what you could put into the databank and what you can't put into the databank. It doesn't prohibit in theory local law enforcement from creating it's own mini databanks in other ways.

And in addition, I guess the biggest contradiction of all is that the various States -- I think you should address this -- in various States, most States -- in fact, I don't know of one where there is an exception -- if you want to get biological evidence, you want to get a blood sample from an individual for purposes of criminal investigation, a search warrant, meaning probable cause or reasonable cause, however you define it. But that one example of the police officer surveilling the suspect, to pick up the DNA that is left, that raises more problems for me than it solves. I mean, as I understood the story actually, it wasn't even a cop.

COMMISSIONER GAINER: It was a police officer.

COMMISSIONER SCHECK: But you could surveil somebody and if you want the DNA from somebody you could subvert the warrant by just surveilling somebody and taking the DNA.

COMMISSIONER SMITH: Are we encouraging that by the restrictions we place?

COMMISSIONER GAINER: I guess I would hold from the law enforcement's point of view that the legal look that we are going to look at this is going to be a very conservative one.

Barry, are you saying there is an expectation of privacy when you spit on the street?

COMMISSIONER CLARKE: I think that would be expectoration of privacy.

COMMISSIONER KENNARD: What about the drug dealers if you search the garbage.

COMMISSIONER SCHECK: Look, I would be the last to say that because I'm suggesting frequently to law enforcement that they do this to get clues, right.

COMMISSIONER SMITH: To do this just to create a database of people.

COMMISSIONER SCHECK: I mean, I see a problem here. I'm not going to answer this one, but I see attention between on the one hand where there is a clear warrant requirement, and on the other hand organized surveillance of somebody to collect DNA data. Do you want to just take it all from the community.

COMMISSIONER CLARKE: Literally in Canada the only way they can obtain a sample is by that method.

COMMISSIONER SCHECK: Before they amended the statute in Britain it was the same thing.

MADAM CHAIRMAN ABRAHAMSON: I'm assuming these are the kind of issues that you're going to raise.

COMMISSIONER SMITH: And these are the kind of issues we are going to put to rest.

MADAM CHAIRMAN ABRAHAMSON: That was my next point. I'm assuming also that you will explore that issue, probable cause, privacy, surveillance techniques to avoid or evade subpoena, et cetera.

And I'm assuming that that is what your report will do is lay out these issues and lay out a discussion of this and that you will not be the United States Supreme Court or any other Court in final determination of the issues. But if I am wrong, and you are going to do that and make a decision, let me know.

COMMISSIONER SMITH: Absolutely. You will be the first to know should that decision be raised.

MADAM CHAIRMAN ABRAHAMSON: But I'm assuming that you will have all these considerations of law enforcement, privacy.

COMMISSIONER SMITH: I think we definitely have.

COMMISSIONER GAINER: I was going to say at least Paul's dilemma raises a police issue for me that I'd like our group to look at. And that is the interpretation of a lab's record in the answer to a question what is a match and what isn't. If that means that police officers have to be more clever or more clear in asking a lab person what is a match or what isn't a match.

That's a new issue for me and I haven't looked at it that way, that a lab director was making some type of subjective determination as to what he would disclose to the police officer.

MADAM CHAIRMAN ABRAHAMSON: Or what he is allowed to disclose under the law if I understood Paul. But at least advise you.

COMMISSIONER GAINER: But in this case, Paul himself and I suspect his legal staff made a determination. Now in the Illinois system where the lab director would work for me directly, the State Police hopefully that would be bumped up to my level to make that decision or my general counsel.

COMMISSIONER SCHECK: Then you would have talked to the lawyer and the lawyer would have told you that it might be unauthorized disclosure of the information, and you're also aware that.

COMMISSIONER GAINER: That may very well be true, but at least I'm saying there is a difference from a law enforcement perspective whether I as the law enforcement officer who has sent the sample and asking for the information is at least having a fair read from my perspective of who is making the call on the law.

COMMISSIONER SCHECK: He is not telling you any different.

COMMISSIONER GAINER: I would not know that.

MADAM CHAIRMAN ABRAHAMSON: You're saying, Chief, that what the information you're getting is not how you would interpret that. You would say you would think no match meant absolutely not even a hint.

COMMISSIONER GAINER: That's correct.

MADAM CHAIRMAN ABRAHAMSON: Right.

COMMISSIONER SMITH: There are other ways of talking to investigative officers.

MADAM CHAIRMAN ABRAHAMSON: And maybe what you're suggesting is there is a different response in a different dynamic when the laboratory part of your operation, versus a laboratory that is either governmental but not part of your operation or non-governmental.

COMMISSIONER GAINER: That is part of it, yes. But even making sure that the investigator is framing the question properly to any lab technician.

I mean, again I hadn't thought through the process of whether I have a low stringency answer, a medium stringency answer, or high stringency answer. I have to educate my people to ask better questions.

MADAM CHAIRMAN ABRAHAMSON: If they can under the law.

COMMISSIONER SMITH: This is Barry's point.

MADAM CHAIRMAN ABRAHAMSON: Any other comments?

COMMISSIONER CLARKE: Just a comment on low stringency search because they go on every day in fingerprints. Because generally when a fingerprint search is made, the results are an order list of candidates and then the examiners start going through this list to decide who may be related to this case and who isn't.

COMMISSIONER SCHECK: But those are all people whose fingerprints are in the system for some reason, that has been determined by law that they lost their expectation of privacy in fingerprints.

Now what you're asking for here -- some people may want to do it, I'm firmly opposed to it -- is for the lab to give you information based on a low stringency search, which is like a dragnet. It says let's go for the relatives of the convicted offender as opposed to the actual offender.

The answer to your question is this offender X's DNA profile? The answer is no. What you're really looking for is if I have a low stringency search, tell me about his brothers and cousins.

COMMISSIONER CLARKE: Of course there are people in there who are perfectly innocent and never been arrested. People like myself. All licensed individuals in the State of California are in the database.

COMMISSIONER SCHECK: For DNA evidence?

COMMISSIONER CLARKE: No, I'm talking about the fingerprint database.

COMMISSIONER DAVIS: What is the entry level for CODIS? Isn't that an arrest just like a fingerprint?

COMMISSIONER BASHINSKI: No, convicted.

COMMISSIONER DAVIS: So if the brother is a convicted felon and he is in CODIS and a low stringency search brings up the brother, I don't see the issue of privacy.

COMMISSIONER SCHECK: The issue is this. You're looking, you have a DNA profile of crime scene evidence. Let's say, for the sake of argument, whether there is 13 loci or something that you're looking at. And you look at it and you don't get a hit. No one in the offender database matches the DNA profile in the crime scene.

If you run it, though, and you ask the computer instead of giving me back everybody that hits on 13, get me back the names of all the people that hit on ten or on eight.

Then you may get, for the sake of argument, eight names. And what you look at is you say here are eight individuals. It would be a good investigative lead to say these eight individuals may have a sibling, because they match on so many of the loci they are likely to be perpetrators, let's go look for them. That is the investigator's strategy that is being proposed.

The problem with that so far, at least as far as the Commission looking at this is concerned, is that is a bad idea ethically and in terms of privacy interests because these other people shouldn't be targeted.

You learn something about DNA of my siblings when you have my DNA. And these are people whose profiles are not in theory supposed to be in the system at all.

COMMISSIONER GAINER: That was a different dilemma. Is that what your problem was?

COMMISSIONER FERRARA: Right.

COMMISSIONER GAINER: What Barry just described?

COMMISSIONER FERRARA: Exactly.

COMMISSIONER GAINER: Even I could be offended by that, I guess.

COMMISSIONER SMITH: It depends on how pressing the investigation is.

COMMISSIONER FERRARA: If this was a high profile case.

COMMISSIONER GAINER: Like Jon Bennet Ramsey or something?

COMMISSIONER FERRARA: Good example.

COMMISSIONER DAVIS: Or the World Trade bomber.

COMMISSIONER FERRARA: This gives me an awful lot of angst, and I'm still not sure about that decision.

MADAM CHAIRMAN ABRAHAMSON: So again, assuming that this is the kind of issue that you're going to raise as a legal issue and put the various considerations down why we all can see them.

COMMISSIONER SMITH: And we will be back with a decision.

COMMISSIONER THOMA: And privacy has really been in front of us.

MADAM CHAIRMAN ABRAHAMSON: Welcome with us, Superintendent. We watched you on TV.

COMMISSIONER HILLARD: I just heard talk about Jon Bennet Ramsey, but it's public record so I guess I can go ahead and talk about it.

You know this case that we had here this summer with this 7, 8, 11 year old. I have worked with that case for a long time and finally the DNA came back from the State lab.

The DNA came back and we look at the blood, the blood indicates it was male who did it. After the state lab went through their procedure and talked to the Superintendent, they called the chief of detectives and said we don't have a match, but what we would suspect is you need to look at a brother, a sibling, okay.

They do some more investigation and they come up with a brother Floyd. Floyd has been convicted of two other homosexual assaults in the State, but that was before we started registering our sex offenders. He is supposed to register, but he hasn't come in to register.

So we go in and look for Floyd. Get a search warrant, it's his DNA. How does that play on the scenario you're talking about? Is that okay?

COMMISSIONER SCHECK: I think what you did is okay and for this reason. That at each step of the way you had a specific predicate. In other words, you looked at a crime scene sample, you had a sample suspect, you had somebody in custody so you're matching those two.

It's you matched on more loci than you ordinarily would expect. And this would be a frequent development I think in sexual assault cases where family members might be within a universe of suspects.

So you're proceeding from that specific case forward and developing leads using proper means at every point, satisfying probable cause at every point. You already had probable cause to suspect individual number one who you eventually excluded. So that seem to be following a very sound and traditional and sound law enforcement motto.

The other issue is doing universal searches which can create fragments. So it's a different proposition. It sound to me like because you proceeded from the crime scene evidence it meets all the safeguards that previously have been.

MADAM CHAIRMAN ABRAHAMSON: Rather than using CODIS.

COMMISSIONER FERRARA: I agree, Barry. As a matter of fact in actual practice in a situation like that, without having any statute hanging over my head, we have done just that. Told the law enforcement agency this ain't the guy, but you better look at his sibs.

And when they do, once they develop probable cause to get a blood sample to make the identification.

So the situation here with, dealing with databanks, as Barry has articulated, is somewhat different.

COMMISSIONER GAINER: Forgive me now. In your case, then, if Paul's technician through error in breaking his own rules ran the low stringency, let's say he was outside the scope of that, and in order for Paul to solve his dilemma as we just laid out he would go back to law enforcement and not mention the low stringency. But he can go back and say I have no match. But you know what, I would look at relatives. That would make you feel better? I'm trying to get the distinction.

COMMISSIONER SCHECK: It's sort of like we accidently broke into the apartment and we conducted the search without a warrant or without probable cause, but we may have some useful information and you may want to take it and run with it.

COMMISSIONER GAINER: There is a difference, if it was illegal.

COMMISSIONER SMITH: Barry is coming to our meeting on the 4th of the December.

Can I ask a question? One of the questions that came up, and maybe somebody will have anecdotal evidence or a story we could sort of follow, I just wonder whether there is anybody who knows of efforts to develop probable cause search warrants for DNA samples in the custody of medical facilities, for example, where probable cause has been established apparently for the search, but the DNA had been collected previously by a non-law enforcement agency.

COMMISSIONER BASHINSKI: We have PKU samples collected in California and on more than one occasion, but I don't know how many, for the purposes of identifying a deceased person.

But I can see it being for other purposes as well. But for the purpose of identifying a deceased person, I have gone after those samples to be reference samples for comparison with remains that have been found. And there probably were legal proceedings around that.

COMMISSIONER SMITH: Any other things that we talk about, peoples memories to be used?

COMMISSIONER SCHECK: I did the same thing. In the Woodward case we got the PKU sample from the infant to conduct DNA tests to see whether or not there was a genetic disorder such as osteogenesis. And when I called the people in Massachusetts lab, I was very, very worried that they wouldn't object to turning it over.

COMMISSIONER BASHINSKI: But they objected.

COMMISSIONER SCHECK: Eventually I suggested a court order would be a good idea, they said yeah.

MADAM CHAIRMAN ABRAHAMSON: Dennis Bauer.

MR. BAUER: We had a case where we suspected there was a problem with transfusion blood, so we had a search warrant to get the identity of the donor of the transfusion blood and were able to identify that the transfusion blood was the source of the problem.

MADAM CHAIRMAN ABRAHAMSON: Thank you.

MR. BAUER: If I could add something, though. One of the things we are very interested in is the ability to get a search warrant for third party exclusion purposes.

COMMISSIONER FERRARA: This may be a little beyond that, but one of the other difficulties I have had is when the defense and/or the prosecution has asked that the known blood sample of a rape victim be examined for the presence of drugs to establish an impairment. And I refused both sides. But you can start thinking about this stuff that comes up.

COMMISSIONER SMITH: Keep yourself awake at night.

COMMISSIONER FERRARA: Yes.

MADAM CHAIRMAN ABRAHAMSON: They keep awake during the day because they actually happen.

Is there any further discussion? Then we are going to close that. But we are going to have a lunch that is going to be a working lunch, with Paul talking about the laboratory funding issues working group report.

But we have to know whether any of you are going to leave before 4:00 o'clock so that we don't lose people because one of the suggestions is going to be how we are going to handle CODIS.

COMMISSIONER REINSTEIN: I will leave about 3:30, 3:45.

COMMISSIONER DAVIS: My plane leaves at 5:30.

COMMISSIONER GAHN: I have to leave.

MADAM CHAIRMAN ABRAHAMSON: Anyone else? Thank you.

Paul.

COMMISSIONER FERRARA: The Hotel, for a lot of us, we have to check out at 1:00.

MADAM CHAIRMAN ABRAHAMSON: For those of you who have not checked out, you have until 1:00 to check out so if you would check out. Who has to check out.

Several of us. So if you would check out and come back and have lunch, would that be all right? Check out as promptly as possible.

(A short break was taken.)

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