DR. CROW: Let's move on to Judge Reinstein, then.

JUDGE REINSTEIN: Well, you all have the latest draft dated February 15th of the post-conviction DNA testing recommendations for handling the applications.

The latest thing that you have that was different from what we had in Chicago is chapter two, the legal issues that Barry prepared. We went over it with a fine-tooth comb in Phoenix about a month ago.

Professor Berger, Margaret Berger, I think, did some editing in the last couple of weeks, and as Barry told me in an e-mail earlier this week, he thinks that we've got it knocked finally, and I think it's a really good addition to the report.

We've taken the Commission's comments and suggestions and amended the draft report that we tentatively approved at that last meeting in Chicago, contingent upon the preparation of the legal issues chapter, and we're going to be meeting again in Washington, I believe, in about three weeks, March 22nd, thereabouts, and so, at this point, we're seeking the Commission's final approval, but also, we'd like to have some direction as to where the Commission would like to go next, what else you'd like us to do.

Our committee is pretty incredible. I think virtually everybody, other than -- we also have a minority of one, except the minority of one in our committee has never been there, except for one time, and a lot of us would argue whether he was really there that time, as well.

But other than that, virtually every time everybody's been there and the spirit of collaboration and cooperation that we've had has made it really a pleasure to chair the committee, and because of that, Chris, at the last meeting, asked us to sit down and develop a list for your consideration as to other issues that we might delve into.

So, the list had to do with some of the things that Michael was just talking about, as well, regarding statute of limitations.

We started with compensation statute. Illinois, New York, and Wisconsin are three states that have compensation statutes. That's something that we could look into.

We talked from the beginning, I think, in our original charge at our first meeting, when Chris talked to us, whether we should developed model rules of statute, particularly -- that are particular to DNA issues.

Regarding time bars, statute of limitations, we discussed that, I think, two or three Commission meetings ago.

Judge Webster and Jim Wooley had some comments regarding the statute of limitations issues that, you know, we're happy to look into unless it impinges on something that the legal issues committee is doing.

MR. ASPLEN: And if I could just add to that, there are some efforts already underway throughout the United States to address the issue specifically.

I know Florida has, I believe, passed a law regarding the elimination of statute of limitations in certain cases where there's biological evidence in rape cases.

JUDGE REINSTEIN: Another one was evidence retention rules and statutes, particularly DNA evidence for -- both for a defendant's access and also maybe to extend as far as the prosecution also on statute of limitations, say in sex cases, where, right now, there are statute of limitations in many states on sex crimes cases, but with the biological issues, with DNA evidence, that may not be well-founded.

It may be a good idea to eliminate those or extent those.

As far as the retention issues, we talked about lab retention, retention in the lab, retention in police stations, property rooms, the clerk of court offices and the custodian of records and the like.

We talked about wanting to get into legal issues related to post-conviction relief and how to define those, such as what -- between unsolved cases and solved cases, how long things should be retained, how to retain them, the space issues, which is a real issue, I know, in courthouses and in police stations and in laboratories around the country.

Whether you wanted us to get into guidelines for payment for testing -- we discussed payment in the five categories that we developed as to who should pay, and if you wanted us to get into guidelines in regard to that.

We talked about issues regarding indigent representation in post-conviction cases, and we also talked about something that's a kin to what they have in Great Britain, a criminal case review commission, somewhat like a DNA advisory board for post-conviction relief cases, state or local review panels made up prosecutor, defense attorneys, lab personnel, maybe retired judges.

I know, in Great Britain, they have -- and Barry and Dr. Rau, I think, are more familiar with this than I am, but we talked about that early on, in one of our meetings, that they have subpoena power, they have access to the national laboratories in Great Britain, and these are cases when claims of actual innocence are made that this board would take a look at it, rather than go through the formal post-conviction review process.

But we're also concerned and cognizant of the issues, I think, that Norm raised, I think that Jim raised in one of our earlier meetings, that, you know, are we remaking the whole system because of DNA on post-conviction cases?

But it's something that, you know, we just want to see, you know, whether you want us to delve into that.

Canada, evidently, has decided to do the same thing as Great Britain. I think that was reported at the last meeting.

And the last thing we talked about was whether there should be a plan to collect -- really, I don't know whether it was as to our committee to do that but to develop a plan for collection of data on DNA exonerations. These should be tracked, because there's no appellate decisions in a lot of the cases.

Should there be a clearing house, a registry of cases where a finding of actual innocence was made based on DNA post-conviction testing?

Right now, I think the Innocence Project tracks as many as you can, but it's all -- other than the work that you do yourselves, it's all word of mouth, for the most part.

So, those are the things that we came up on a list as to whether the Commission wants us to delve into that now that we've hopefully completed the work on the report.

MR. ASPLEN: If I could just add a quick story to the Judge's --

JUDGE REINSTEIN: The other thing I was going to say, after you finish, Chris, is if Barry wanted to add anything to describe anything regarding the legal issues chapter, but go ahead.

MR. ASPLEN: A quick Commission staff story regarding some of these issues, particularly as pertain to indigent representation.

We've gotten a great example of the two ends of the spectrum, I think.

We have, in the past couple of weeks, received two requests from indigent defendants saying I understand you have these recommendations, could you please send them to me, and actually, they went first to -- I think they went to the Chief Justice's office, who then referred them to us, and our response was to try to track down the appropriate representative agency of that particular individual.

Well, in one state, which was Florida, there was a relatively expeditious process, and it was very easy to identify when and where or who the appropriate people were.

I don't think we've figured out who it is in Texas yet.

MR. SMITH: The appropriate authority for paying? The appropriate authority for petitioning?

MR. ASPLEN: To send these recommendations to.

We called the bar association. We tried to track down -- what we did was we first went to where the inmate's being housed and then tried to find out -- realizing that may not be where the person was convicted but try to figure out where they were convicted and perhaps get a number for the public defender's office where the person was convicted, etcetera, went through the whole thing, and we still don't have an answer to that question, and that's about two weeks.

Now, again, we did that with Florida and zeroed in rather expeditiously on who we needed to contact, but it was an excellent example of the kinds of things that we're talking about, especially the context of indigent representation. Couldn't get anybody to take the recommendation.

So, it's probably going to default to the Innocence Project.

MR. SCHECK: Thursday and Friday, the justice department had a huge conference, actually, in Washington on indigent defense, which did not just bring together Washington, D.C., representatives from the major public defender's offices across the country but also lots of judges, a number of prosecutors, and other people within the criminal justice system, and the theme of this meeting Thursday and Friday was, for lack of a better term -- and I guess it's appropriate now they're giving Elia Kazam an academy award -- collaboration, which was to say that they were looking for instances where public defenders and prosecutors and courts collaborated on certain projects, and one of the things that we discussed in our meetings, Chris, and you were the first to raise it, actually, in terms of these recommendations is that I think we've really succeeded in putting forward recommendations that, in many ways, are mirror images of each other.

That is to say that what we say for the defense, we say for the prosecution, we say for the -- we have a consistent position, essentially, with minor variations due to the roles that everybody has within the system, but there's the same policy that we advocate for all sides, and these recommendations are not going to be self-executing, and whether it's money to the prosecutors or money to the courts or money to the defense bar or whatever appropriate agencies there are, I mean I really think we should think seriously about coming up with recommendations so that this class of cases, which hopefully won't be around forever, as DNA testing in the future becomes routine on all relevant cases, to the point where we won't be having a group of people that are in jail who we have real reason to believe are innocent, or claim they're innocent, and DNA testing could resolve it, which is the essence of our recommendations, you know, we have a fairly short window of opportunity here, and it probably would make sense to figure out some strategies for funding these recommendations in a serious way across the system, and I know we've had a lot of discussions with that in the working group, and maybe that's something that -- that would be part of the agenda, as much or more as anything else, and you persuaded me of that point better than statutes.

MR. ASPLEN: So, generally speaking, is that the kind of -- the issue of developing a recommendation regarding, let's say, indigent defense resources --

MR. SCHECK: Well, it's more than that.

MR. ASPLEN: Or coordination.

MR. SCHECK: Yes, coordination, because I mean the one thing that we encountered, I think, in our meetings and discussed at greatest length, where these cases come from -- sometimes they come -- the requests come into the prosecutor's office. Now we have requests to the Commission directly. Sometimes they come in to judges.

How are we going to find the evidence? How are we going to -- which cases should we pursue, which ones shouldn't we pursue? Who's going to figure that out expeditiously?

You know, that -- those -- how's that going to be funded in various different jurisdictions, and who's going to pay for the testing?

Those are the nut-crunching questions here, and some recommendations on funding wouldn't hurt.

I mean I'll give you an example.

I was looking at the -- you get in the mail justice department or NIJ grant proposals, and there was one grant proposal -- I'm sure the prosecution had its kind and defense got its kind -- saying funding for teaching people about DNA in the various defender offices, you know, but it was so narrowly tailored that I couldn't figure out a way to stick various Innocence Projects or anything else within it, you know.

I mean there's got to be some funding mechanism to make these work.

MR. ASPLEN: Is that an issue that the Commission would like to see that group work towards, the idea of recommending something in regards to the collaborative effort?

I assume you're talking about something like pilot programs to develop --

MR. SCHECK: Yes. I mean I think that we should -- you know, it's like -- the one thing that occurred to me is that, you know, the prosecutors have a legitimate claim like who's going to spend time dealing with these things, and where does that come out of the budget, and the big objection to testing in what we're calling category one and category two cases is not so much that there shouldn't be money for testing but who's going to pay for it, and each jurisdiction is going to differ.

Is it going to be the lab, come out of the public defender budget, court-appointed lawyer's budget, the judicial budget?

You know, looking at those kinds of questions, making recommendations, and even for where Federal funding could go appropriately and effectively, and how much of it, you know, I think would be useful.

MR. SMITH: It might be useful, but it seems to me it would be very difficult to design a Federal funding program to accomplish a purpose.

MR. SCHECK: You're right.

MR. SMITH: If this group were to try and do that, the first thing we'd do is get all those Federal agencies in here to tell us about their experience. I don't want to hear it.

MR. SCHECK: No.

MR. SMITH: Okay.

MR. SCHECK: I don't mean that.

MR. ASPLEN: One thing we probably should make note of is that APRI have really begun to incorporate this aspect of the training into their standard DNA curriculum. I mean they're really the only national agency that trains prosecutors on DNA, and they train them a number of times a year throughout the whole country, thanks to the work of folks like Kim and Clay, but they have now really incorporated the whole post-conviction process into what was originally established as, you know, from crime scene to jury has now extended beyond that, and I think that that group can certainly look into the bigger issue of those coordinated efforts and what resources might be required for some of that.

JUDGE REINSTEIN: How about compensation or who is going to look at the statute of limitations and time bars? Is that legal issues? Do you want us to do it?

MR. THOMA: We are going to, and Barry and I agreed at our last working group meeting to put it together, but I don't think it's beyond any working group's calling myself. That's just my opinion.

JUDGE REINSTEIN: I guess the issue is whether or not you want to have duplicated efforts or whether you want to break it up and have us look at something, you know, for the Commission.

MR. SMITH: I think you've got -- you have a list of topics there that could be assigned out, most of them to your group, and that would be happy with me. I don't know, though -- it sounds like we ought to -- maybe the three of us -- put our heads together and talk about that.

MR. ASPLEN: The particular issue of compensation for wrongful convictions, as a general issue, is that the kind of thing that the commissioners want this Commission to get involved in?

MR. CLARKE: Which compensation issue?

MR. ASPLEN: I believe the way it's been discussed in that working group is the issue of someone who is wrongfully convicted and has been in jail for 10 years, what is that 10 years worth?

MR. CLARKE: As opposed to compensation for the testing.

MR. ASPLEN: Correct. Compensation for that -- is that something that the commissioners want this group to get involved in?

[No response.]

MR. ASPLEN: Okay.

DR. CROW: We're ahead of schedule, assuming this topic has been taken care of.

Are you satisfied, Judge Reinstein?

JUDGE REINSTEIN: Yes. We're open to doing anything, is the bottom line.

One of the things that we've discussed a couple of times is this issue of should there be a advisory board where you take it out of the courts, because a lot of the stuff doesn't even come to the courts as long as there's the collaboration between the defense and the prosecution, they agree on things, but are there instances where you would want to have this group of representatives of the defense bar, prosecution, laboratory, law enforcement, retired judges to make these determinations?

MR. SMITH: In the first instance. Is there any jurisdiction that's done that or moved towards it?

JUDGE REINSTEIN: Canada.

MR. SMITH: As the first place to go? They don't go to the courts first? They go right there?

MR. CLARKE: Well, it depends on how it's prompted, how it starts.

MR. SCHECK: In Great Britain -- I guess it's now close to two years old -- they have something called the Criminal Case Review Commission that was set up in the wake of the Gilford Four and the Birmingham Six, and for those of you that do it by movies, "In The Name of the Father," and this board does have free access to that same laboratory that's doing all the DNA testing, the forensic science services, and to say that it's constituted -- that its heads are both prosecutors and defense lawyers is a little odd, because in Britain, the same lawyer sometimes -- very frequently takes both sides, but it does have subpoena power, and the way their processes work is that they don't quite have the same elaborate collateral attack system that we do, but once you exhaust final appeal, you go to that Commission, you present your case, and it sort of functions as a -- the way that -- it's not -- it takes over the function of what used to be called the home office in Great Britain, which would essentially be the equivalent of a state clemency board, if your jurisdiction actually has a state clemency board, which in theory is empowered to look at claims of actual innocence, although I think, when you look at the literature, you'll see most state clemency boards are really not in the business of reviewing convictions for actual innocence, they're more in the business of looking to see whether or not somebody deserves to get clemency on a sentence because they're guilty but they deserve early release for some particular reason.

They don't -- they're not set up to litigate actual innocence claims or even research them. This board is specifically supposed to do that.

It does its review, it makes its findings, it has subpoena power, and then, after it reaches its conclusions, it sends it back to the court, saying, in British terms, this conviction is unsafe in our judgement, do what you will with it, and they have actually also reinvestigated, interestingly, executions, and some of the first things it's done in its first two years of existence is that, in the Hanratty and Bentley cases, they decided that the British had executed two innocent men and made official findings to that effect and sent it back to the courts, where they were, in fact, proved that they had, before they abolished the death penalty, executed innocent people, and we have no such entity in the United States that would take on that assignment.

MR. CLARKE: They operate under one legal jurisdiction, do they not?

MR. SCHECK: It's the United Kingdom. No, I don't think it includes Scotland. In fact, I'm certain of it. Nor Ireland.

JUDGE REINSTEIN: If you have a claim that comes in, let's say, in Eloy, Arizona, a small county, and the prosecutor there and the defense -- public defender there and the judge there -- they don't have a clue.

So, if you had a state-wide advisory board where a defense attorney there, a prosecutor there could say, here, you guys have at it, we've got a lot to do here and we don't have time to look at this, but you guys have all the expertise in the world, and there's this loosely-formed advisory board made up of a prosecutor who deals with this, a defense attorney who deals with it, somebody from the state -- the DNA lab, maybe a retired judge, a law enforcement officer who has some knowledge of DNA, will you take a look at this for us, kind of a loosely-formed board to review it.

Because you know, like in my county, I can see us being able to handle it within the court, but there's a lot of other small counties in our state that -- what happens is they call me or they'll call a prosecutor in Maricopa County or they'll call, you know, a defense attorney, but they won't be able to handle it locally.

So, that's another version of it, you know, loosely drawn.

MR. SMITH: But you see it coming into play before figuring out into what category the claim falls, for example? Would this group decide whether it's a category one or category two claim?

JUDGE REINSTEIN: I think that the local -- whoever -- somebody locally can kind of draft up a synopsis of what the case was about probably in, you know, a page or two and somebody could take a look at that and just read it, and they could almost set it up so that, on a rotating basis, a member of that board just looks at it and says, well, this is -- there's nothing here, we don't need to look at this.

You know, you have to set up a structure, and I would not want to see a whole bureaucracy being set up, you know, especially for the numbers that you would see in some states. I don't see there being a vast number of cases, for example, in Arizona, but it's something that you could set up in different jurisdictions.

MR. SCHECK: I think that the answer to your question, Michael, is yes, but I think, again, we never envisioned this as something that is necessarily going to be adopted by every state.

MR. SMITH: Exactly. But there's a recommendation that you consider doing this --

MR. SCHECK: A proposed model.

MR. SMITH: Why wouldn't you make it Federal?

MR. SCHECK: I think it actually isn't a bad idea. For example, there are only two states that have these statutes that allow for post-conviction relief through DNA testing without statute of limitations, and if you can't afford it, they pay for it, New York and Illinois.

But New York -- the way we do it is we say, yes, you can have a free test, but the state lab does it, or one of the labs approved by our commission in New York will do the test for you. That's our free test.

Now, one of the issues that we -- if you had like a small commission, if a state decided to do it that way, that had like a prosecutor, a defense representative, a judicial representative, to screen these cases, is one way of executing the mandate, and I'm not proposing this would work everywhere, but the kind of thing that it can do -- and this fits into the lab committee issues -- is it can find the evidence.

One of the problems that Paul and I have had many times in Virginia is I have to call him up and ask him to go look for it, and that's true in many different jurisdictions, and those are essential issues, you know, for lab-funding committees, because not only do you want to find old evidence in cases where somebody is claiming innocence, you want to keep track of your old -- you know, unsolved cases and in all kinds of cases, because it's going to have relevance as we implement data banks.

So, you know, a very rational response by a particular state might be to set up some kind of an entity that, you know, can make these evaluations, and the other thing that came across in our meetings that -- is that the prosecutors were the ones that were telling us we can expeditiously deal with these things better when we have a prosecutor who's knowledgeable about DNA, but it's harder when we don't have -- when you call and you say we want post-conviction testing and you're calling an office where people really aren't as familiar with the technology.

So, that kind of entity, you know, maybe one way to implement these recommendations.

JUDGE REINSTEIN: In many jurisdictions, a judge has to appoint a special master. You know, they do it in the asbestos cases.

So, it's akin to appointing a special master. You appoint a board.

Right now, if I wanted to, I guess I could say, you know -- pick out a prosecutor and a defense attorney and say, here, you guys have at it.

MR. SMITH: Surely this would have happened if there had been more pressure on the courts for more cases to be processed. You'd expect that to happen, but it hasn't happened, I think, in anyplace we know.

It was just sort of cautionary on whether you could have the state board, sort of set it up, have it do good work, having good people involved in it, if the flow isn't big enough.

MR. THOMA: You're missing the vehicle to do it in a lot of states. I think the people that are convicted are more willing to attempt it.

MR. SCHECK: A lot of it is why is it -- yesterday or two days ago in Illinois, probably another case you should all know about, we had our 38th Innocence Project exoneration, the 58th overall, a guy named John Willis, but from the point of view of this Commission it's an important case.

Mr. Willis was convicted, and the testimony against him at trial turned out to be that a serologist said that ABO testing of a piece of toilet paper that the victim had the presence of mind to spit into, knowing that it could eventually identify the perpetrator, had been analyzed by a serologist whose notes reveal a clean ABO exclusion.

However, the testimony at trial said it was an inconclusive, for reasons we still don't understand, and the DNA testing just completed in Toronto by Pam Newell exonerated him, he walked out of jail two days ago, after serving many years in jail, but that's one that called the whole lab system into question, but why are all these things happening in Illinois, where they've now had 11 exonerations and 11 executions, many of those from DNA testing.

The only reason it's happening in Illinois is that there's a group of people that are fomenting this kind of activity among people coming forward and making claims.

I think that we also see, since the DOJ report in 1996, where we had 28 post-conviction exonerations, now it's 1999 we have, you know, 58 here and six in Canada, I mean I think that the pace will accelerate.

MR. CLARKE: I'm just wondering, though, with this concept -- and I think it should certainly be explored by the working group, but I wonder if the concept would be such that there would even, frankly, be enough cases for such a group to look at. That's the only thing that really concerns me.

JUDGE REINSTEIN: It doesn't have to be something on an ongoing basis. It's just something that you know exists and you say -- you know, it's like a SWAT team and you say go out and get it.

MR. CLARKE: Absence of legislation, it's just going to be voluntary anyway, and to some extent, that goes on already.

MR. GAHN: But I would endorse doing that only from my own experience in this.

When I get these cases, you can well imagine, when you've got your normal calendar and everything you're doing, there's a tendency to go down at the bottom of the pile, and you don't get to them, but maybe it's 10 years old, the DA who tried the case is gone.

I just got a file that had been -- if we can even find the file. Just locating that evidence -- some of it may be at the crime lab, some with the police, some with the court system. The amount of time that I will spend on one of those cases is just horrendous, especially if you have to get transcripts, because you can't tell from the file who testified, what it was about, just as Barry was talking about, what did the serologist say about this, to make an informed decision on whether this is category one, two, or three.

It's a horrendous amount of time, and it's tough when it falls -- and you get a couple of those, which I have -- it's tough with your normal calendar. So, I endorse looking into this.

DR. CROW: Let's see if we can come to some sort of a resolution of this.

MR. ASPLEN: What I think I'm hearing is that that working group will, in fact, investigate that kind of proposal, a model, if you will, that could be entertained by varying jurisdictions, be they state, local, Federal, etcetera, but to develop a model that would promote that kind of advisory committee approach.

Quite frankly, as I think about it, though, what would be important to attach to any model like that would be recommendations for how that should be disseminated, for example, if it is created, if it is endorsed by the Commission.

I think the appropriate place to send that would be places like the ABA, the AJC, etcetera, because that's -- really what you want to do is implant it in the minds of the judges and the prosecutors and defense attorney more so than on the statewide level, but rather, make it an option for them to create as they will, to see if they can get partners in the proposition to do it, given a model that works. Does that make sense?

DR. CROW: Judge, does that suit your intentions?

JUDGE REINSTEIN: That's fine. We'll talk about it in three weeks.

DR. CROW: We have two alternatives. Why don't we take a break now and come back in 15 or 20 minutes? I want to get one other thing in this afternoon, and that's from Paul Ferrara, but I think we have the space to do it.

[Recess.]

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