DR. CROW: Let me call on Dr. Gainer.

MR. GAINER: Well, we met in mid-January in Orange County, the subcommittee did.

Five of those members are here with us today, aside from the staff, Jan and Darrell and Lee Colwell and Clay, and it was, I think, either the third or fourth visit and inspection of police evidence collection processes, equipment, training, as well as another look at programs designed to work old or cold or unsolved cases, depending on how you categorize those.

This time we specifically looked at Santa Anna police department in Orange County, and we continued to concentrate on two major issues, I think.

One is training in general as it applies to first responders, investigators, agents or detectives, and crime scene processors, and we also have been concentrating on DNA evidence in unsolved cases, again the unsolved sometimes characterized as cold or old cases, and we particularly focused on some outcomes that we need, I think, affirmation from the counsel on as to whether we're proceeding in the right direction on several items. Let me hit some of those.

In training, I think Lee Colwell will also add a lot to some of the discussions we've had about the overall training opportunities that could be had if more time and energy was put into that.

I think we've concluded, as one might suspect, that with this new technology there just has not been the training of law enforcement anymore so than there probably has been training of public defenders or prosecutors, and we know we need to concentrate on that.

So, we concluded that there was at least three documents that we thought we should produce.

One had to do -- we ended up categorizing it as a 10-page information pamphlet, and I think Chris has nearly drafted that, that will be shared not this weekend, I don't believe, but through the mail with us, and that document would really be entitled something to the effect of what every police officer must know or should know about DNA evidence.

Again, based on the conversations that we've had with many people across the country, we don't think that there's a good firm understanding of DNA absent everybody being able to say DNA is very important, and we thought, if we had a good, handy document that would, again, give you -- a police officer to detective to agent a view of what that is, as well as the command, that would be a good formulation basis, and like I say, Chris and his staff have already roughed that out.

A second document really needs to be focused on the training of evidence collectors, the crime scene processors, and we have been less specific and spent less time so far on this but feel that it might be an area that we would contract out, and my partners can help me, if I've got all this straight, that we would contract out, because clearly some of the things we saw again would indicate that we just need to focus law enforcement personnel on viewing crime scenes and evidence collection differently, and maybe this is an interesting or a time to bring up one of the observations or one of the evidences that was collected that I think was a surprise to all of us, and many keep bringing it up as a pretty interesting example of something that a lot of us hadn't thought of, even though we've been in the business a long time, and that was -- I believe it was a Santa Anna case, where there was a fired bullet that went through and through the offender, and the fired bullet was processed, and they recovered the DNA from that bullet, and I don't recall the whole story, whether they ultimately connected it up with the suspect or not, but it just caused a lot of us to start thinking about how you handled fired bullets, depending on the nature of the case, that we just hadn't thought about the concept of first handling a fired bullet as containing biological or DNA evidence versus the ballistic evidence.

So, there's been all sorts of ones that have creeped up like that that we really think detectives and crime scene people and cops in general have to think differently about what they're doing.

So, there's an area for an awful lot of serendipity there, and we need to introduce people to those things.

The third document -- and this is probably even less clear, and we are definitely, I think, still struggling with this and it will be the subject of some more conversations at our meetings that are planned in April, June, and in August, and one of those is in, I think, Boulder, Colorado, one in D.C. -- and that is the role of DNA in these unsolved cases, and again, we had quite a bit of conversation about whether we're talking about old cases, cold cases, and what the time frame is that makes one unsolved, old, or cold, and that has -- this whole area has to do with prioritization of cases, you know, what cases do we concentrate and which that we don't.

I mean this is actually the whole area of law enforcement, those who are even thinking about this are struggling with, too, because for instance, in Santa Anna or Orange County -- again, I don't remember which, if it was one city or the whole jurisdiction, must be all of Orange County, where they had some 5,000 homicide cases that went back to 1972, if my memory serves me correctly, that they were struggling with how to work through.

MS. BASHINSKI: Not that many homicides.

MR. GAINER: Homicides and sexual assaults?

MS. BASHINSKI: Right.

MR. GAINER: But at any rate, we had a long discussion over a couple of days at different times about the value of going back to cases from '72 versus putting your time and effort to more recent cases, and then the relevance of old cases versus making sure detectives and others concentrate on current cases, so that perhaps 10 years from now we don't have old cold cases.

So, we did talk with some of the people out there about programs they're using, and I don't think we saw -- or we are unanimous that the program that we saw was the model to prosthelytize across the United States.

It was a model, but again, I think a lot of us were uncomfortable with the prioritization. It seemed to be a little bit more hit and miss than there was any concrete approach to it.

We also had quite a bit of conversation about, again very related to this, information on non-suspect cases, just trying to get some sense of how big an issue that is, and we had agreed with some of the members there to look at the cases from Washington, D.C., Chicago, I think L.A. was one of the ones we talked about, and then, since then, Chris and I and Lisa had met about reaching out to Oakland, California, Detroit, and we have some preliminary information coming in, and we want to develop a white paper that will give us and perhaps the Attorney General a better idea of the extent of work that is not being done that could be done if money was put into this, and some of the preliminary numbers again, if I recall, was Chicago, 2,000 cases a year, of rape kits that have not been processed.

Did you have any other numbers we wanted to share, Lisa?

MR. ASPLEN: It wasn't 2,000 that had not been processed. They get 2,000 a year, and of those, there's only a certain percentage that are, in fact, processed for -- non-suspect cases that are processed, and we're looking into the other, you know, major metropolitan areas to determine what their -- processing to number of cases they have ratio.

MR. SCHECK: How long do they hold them?

MR. ASPLEN: How long do they hold them?

MR. SCHECK: yes.

MR. GAINER: Let me answer that shortly but with a disclaimer first.

One of the things we were concerned about in bringing up this whole issue is to negatively portray people who are trying to be up front about this.

I feel somewhat comfortable about Chicago because I spent so much time there, and the Illinois State Police lab now runs that, and we had talked long ago about how many of these non-suspect rape kits were being processed over the years simply because there was not time to do it, and when we built the Illinois crime lab about three years ago, it seemed to me that they had thousands of these kits that were stored.

Now, whether they were being stored appropriately or not would be a whole 'nother issue, but I also will say, in Washington, D.C., that we have seen we have a number of cases there.

So, as we reach out to these other jurisdictions, on first blush we're going to try to do this to guarantee some anonymity, you know, so that we don't -- so we can get some information and people won't be shy about sharing that, and it really goes to the same vein, Barry, when we hear so much about New York and Illinois, and I hear that now, geez, what's the matter with Illinois that we have so many of these cases, and I think it's -- from my perspective, it's a half-full glass versus a half-empty.

I mean it's a state like New York that says we've got technology, we've had some problems, we can do this better, and they're fronting it off, where as I'm telling you, some other law enforcement officials are talking about that as, see, this is why we don't want to do this, who wants to be, you know, pointed to as that you didn't do your job?

So, again, besides some conversation that we need about this, we need to have some sense from you that the pamphlet of what ever law enforcement officer should know is an appropriate one for us all, and as I listened again to the legal discussion, it certainly strikes me that some of the legal issues you're wrestling with, especially when it comes to the Fourth Amendment that would need to be addressed there, too, as we've talked about at other meetings, what it is a police officer can seize or not seize or what's your expectation of privacy, of things you throw away.

That's clearly one.

Chris has also indicated there is at least some funds to do some of these things.

That's why we've talked about contracting, and again, when Mike Smith mentioned the speed with which we might do something, we've really approached this that we'd like to do something sooner than later, because things are going on as we speak.

So, that's why we wanted to do some quick, easier pamphlets or training material before we even got into the process of trying to work with various posts, which are the training standards boards of the states, which are terribly cumbersome and slow process, we've found, to try to change training techniques.

I think that summarizes it. If any of my partners who were there would want to add or subtract?

MS. BASHINSKI: I just had a question, because there were a couple of things we talked about in the group, and I didn't know what your progress was on it, that we had suggested or I had suggested looking at some of the grant applications from some of the states which had statistics in them.

I went back and looked at ours and the statistics were very thin, because most agencies don't keep the kind of data we're really looking for in the format that we need it.

Were you successful in pulling anything out of that material?

MR. ASPLEN: We looked at a couple of them, not all of them. We don't have a good grounding in what those numbers are.

MS. BASHINSKI: I did contact Los Angeles, and Los Angeles does not have, I think, real solid numbers, but they have large numbers. They couldn't tell me how many unsolved cases they had, but they could tell me how many kits were sitting in the property room that weren't being worked on.

But Oakland, I think, does have a better handle on that.

MR. ASPLEN: It's a real -- it's been a very, very difficult issue for us to try to determine a way to get our arms around this issue of illuminating the matter of the non-suspect cases not being worked.

I mean we need to find a way for the Commission to look at that issue and come up with some recommendations, if it can.

It is such a fundamentally different and more difficult proposition than what we've done with, say, the database backlog.

You know, that was easy to determine and easy to come up with a solution on.

This is a much more complex issue, and we just haven't found the right mechanism to do that.

If we start to look at jurisdictions and say, well, this city has this number of backlogged cases and this city has this number of backlogged cases, you'll get a lot of newspaper reports, but that's about it. The question is what do we do about it?

I can tell you that generally what we're seeing is that, if they do 25 percent of the non-suspect cases, that's pretty good, that's pretty high for a major metropolitan area in terms of the number of cases they get in.

That turns into tens to hundreds of thousands of cases that aren't getting worked, the non-suspect cases that aren't getting worked.

So, we're looking for real guidance from the Commission as to how to determine the problem, describe it to the Attorney General, and come up with some recommendations.

DR. DAVIS: Chris, lots of times you have to approach these things sort of slowly, in little incremental steps, and you do have a mechanism out there of laboratory accreditation, and I happen to be looking at some for this Washington project that we're on, and one of the questions they ask is the non-suspect cases, etcetera.

I think one of the things you could do is to talk to the people who make up the survey forms and the survey data and sort of get their input into this.

Now, not all labs are surveyed, but at least that's a mechanism to start with, and let them come up with ideas of how to document this, because you get down into the situation of documentation.

Most of your national accrediting agencies, like the Joint Commission of Hospitals, they go to the records. They look at how things are documented or not documented, and if the criteria for accreditation includes proper documentation, at least that's a start, and then you can go on from there.

Jan, maybe you know more about this than I do.

MS. BASHINSKI: Well, they have a survey that they send out every year for statistics, and it's been evolving, because it's very difficult, people don't call cases the same thing, they don't call examinations the same thing, and nobody counts anything the same way, and that survey right now doesn't really get to what you're talking about, because what we really need to find out is really outside of the laboratory.

Many jurisdictions, if a case is unsolved and there's no suspect, the laboratory will be completely unaware that it even exists, and so, the lab has no way to capture that that they don't see and will never see, and that's the real issue here.

The survey as it exists won't help. You could get information about how many of the cases they work on are unsolved, but that doesn't get to the great unknown.

MR. ASPLEN: Dr. Forman, do you know if the current survey being done by -- is it BJA? -- if that's going to -- BJS, I'm sorry -- is that going to law enforcement agencies or just the laboratories.

DR. FORMAN: Only going to the laboratories.

MS. BASHINSKI: And that essentially is the workload survey, which they've been working with NIST to develop into some kind of a consistent way of counting, but I know, in my own agency, I knew that was coming two years ago.

We still don't have all the data being collected in our own lab just for the laboratory work to fill out that survey, much less what exists outside of our control in the police agencies.

DR. FERRARA: I could share with you, some of the BJS survey asks, under processes and procedures, does the laboratory have an accepted policy for DNA case submissions, yes or no? What type of DNA case submissions will you accept? Any criminal case? All known subject cases? Certain known subject cases, etcetera, etcetera.

Is there a priority system for assigning, starting DNA cases? Does your laboratory have a program of looking at inactive, closed, or previously analyzed cases, with a variety of answers.

Now, that survey was supposed to be complete December 15th of '98. We filled out one for each of our four labs, but I don't believe that data is available, because our working group was interested for the same reason.

MS. BASHINSKI: There's no way to look outside the lab.

DR. FERRARA: They have some things with numbers, and even if we had good numbers, that really isn't necessarily a reflection of casework or actual analytical work involved, because the complexity and the number of samples within a case now are really -- what number of samples do you do in a case, etcetera, etcetera.

So, it's an extremely complex problem, and our working groups have a devil of a time getting a handle on this.

MR. SCHECK: It's a very important issue, the nomenclature issue.

Michael has far more experience than anyone, I suppose, in this area, but having spent my time in the dungeon of case weighting systems for courts, public defender's office, prosecutors, how you define a case and how you define workload is absolutely critical, because we won't know how to give people money, funding, we won't know who to fund, because they're doing a job or not doing a job, and it strikes me that, particularly in relationship even to the -- you know, the recommendation on backlogs, etcetera, that one good function this Commission could serve is get together with ASCLAD and other groups, DAB, and come up with some --

MR. SMITH: What is the thing we want?

MR. SCHECK: I'll tell you exactly what I think would be the right data to get, what you would need if you were the Attorney General of the United States to make some good policy decisions.

I'd like to know for each jurisdiction, number one, when you define a case, you know, we're talking about how many suspects, how many samples are requested for analysis within that, because it could be, you know, lots of different controls, etcetera, or how many you did in any particular case.

I'd like to know, for any particular case or set of suspects that the law enforcement is asking, what is your backlog, you know, how long is it from the time that you requested to do an analysis to the time that you get to it, on an average?

Particularly, I would want one set of statistics for incarcerated individuals, another set of statistics for people that are charged but not incarcerated, and then, you know, other kinds of requests or categories.

I mean you can make up these definitions, it's just a question making them uniform, and begin to get statistics on the labs as to -- you know, I mean I agree with Jan, that you know, in terms of non-suspect cases, there's probably no way for the labs to know, that's more of a police department number, and I don't think the labs can necessarily know how many non-suspect cases they're not being asked to analyze, but they certainly should be able to tell us with some specificity what their backlogs are, how many cases they analyze, how many samples, what their turn-around time is.

I'll tell you, Chris, I was just at our New York State meeting this week, and Leslie Besher was there from Great Britain. They're now down to seven to 14 days turn-around time, seven to 14 days.

MR. GAINER: On non-suspect cases?

MR. SCHECK: On everything. Last month, they had 1,000 hits in one week.

MR. SMITH: I remember Paul, a long time ago at one of these meetings, talking about -- I thought he was talking about the need, maybe the practice of making independent decisions about how many of the samples you test in which cases.

I mean it's partly a prioritizing thing, but it's also partly kind of a judgement and experience thing, and it occurs to me that that's a valuable area in which some advice might be given, because one way in which this can become unmanageable is that nobody is exercising any judgement about what it is that we're actually asking the lab to do.

Now, if we are and the labs can't do it, that's different from we're not and the labs don't know what to do, but they'd look at the same problem from a negative point of view.

MS. BASHINSKI: Typically, what we're doing is discouraging by default submission, because we have such a long turn-around time, everyone understands that, and it isn't until a case reaches a high level of priority within the agency submitting it that it gets the level of attention that it ought to get, and that's the reality.

MR. GAINER: We do talk quite a bit about the fact that we didn't want our detectives to become, in fact, lazy through technology, that you know, you start over-relying on just the use of technology to do some of the basic things that a policeman or detective ought to do, and that is go out and work the case and start to begin to narrow your subjects.

Again, we saw that in our lab system in Illinois when I was involved in it, that if you raise the law enforcement's consciousness about the potential for DNA, then they'll just keep saying let's do everything versus working through it.

MR. GAHN: I think at the last meeting, I told you what we've done in Milwaukee County on this and how the detectives have prioritized cases.

I know that our state crime lab is not going to call in the police agency and say please send us some more work, and if police in Wisconsin find out that, oh, they can do unsolved cases, they'd be more happy just to pack every damn case up they've got and put it at the crime lab.

So, they got together and said, look, we've got to be reasonable about this and get a priority on which cases we're going to send in and look at to be unsolved, and they've had a tremendous amount of success.

I was out at our crime lab last week -- and this might help address some of these questions.

Our Wisconsin state data bank got going May 21st of last year, and only Milwaukee County has submitted to it, no other county.

So, I asked the director of our crime lab what's going to happen when the 71 other counties hear about this, and that's a real problem, a real question, because Milwaukee alone is keeping the state crime lab busy.

Anyway, we will find out soon, because the director of the crime lab and myself are giving what's called an ETM on Friday, which is a network throughout all the counties, and we're basically going to tell everybody that we've had some great success here, and I think we'll find out, but there's going to have to be this prioritizing, and Milwaukee police have really done, as I say, a terrific job.

MR. GAINER: That is the issue, I think, we were struggling with, is how to help law enforcement do their prioritization, and we've seen quite a disparity in that.

Again, as I recall, the Orange County prosecutors, the one who was running this project, seemed to focus on the desire to solve any homicide, and so, we had a lot of conversations about the value of working a 1973 unsolved homicide versus working a 1996 unsolved rape case, and some of us felt that, given recidivism rates, that there might be something more to be said about the more recent case than there is the old one, although, you know, given the parameters, we'd like to solve them all, and again, we had quite divergent views on that.

DR. FERRARA: I think one of the things that we, the Commission, have to realize -- and I think laboratories all over the country, if they aren't already aware of it, I think it's important for them to realize that we are under siege, as it were.

There's a crisis situation brewing with respect to all of the points that we have made. I mean we know the technologies, we know what's capable out there, we know we haven't even scratched the surface of the crime scene material, we haven't scratched the surface of the convicted felon samples.

We try to do things, prioritize cases, prioritize evidence within cases.

We're going to make mistakes. We made one in Virginia, if you want to call it a mistake. Certainly, one law professor at George Washington would characterize it as this, not that that carries a lot of weight, but consider a rape occurs on August 31st of last year, 18-year-old woman, she's raped and stabbed.

It's four weeks before a rape kit from the victim is collected. At that time, the investigator tells our laboratory the victim had previous consensual intercourse 90 minutes before the attack, she doesn't think her attacker ejaculated.

A suspect, somebody the police liked for this case, was apprehended on shoplifting charges in November. Now, we're talking three months later a suspect, per kit, is sent to the laboratory.

Examiner is still working with the investigator. Investigator says this guy is going to come to hearing on these shoplifting charges in two weeks, can you rush this analysis?

Now, communications being what they are, he thinks it's being rushed, the examiner is not rushing it, all things considered he's making a decision, right, wrong, or otherwise.

This doesn't rise to a drop in cases that are going to trial, and to make a long story short, the guy goes for his hearing on the shoplifting charge, the officer is not there, nor is there a prosecutor, he's released.

Eleven days later, he rapes and murders a woman, and if you read the local media or listen to a George Washington law school professor, we're responsible for murder.

Now, here is a 900-case backlog, and Barry, you're right, there's a lot of good data that needs to be collected, and we've been trying to do that, because the number of samples, types of samples, are there suspects, how many suspects, all of this is very valuable for us to try to develop this, but nonetheless, if you have 900 cases -- and I get 2,000 DNA cases in a year, and I have a capacity almost to do 2,000 a year, but a backlog of 900 cases is turning out to an average turn-around time without priority approaching 180 days, and in Virginia, a speedy trial is 150.

We try to do unsolved cases, because you really need to try to do them, but most of our resources are just trying to get the cases that are going to court.

We try to prioritize cases, and you get a court order from a judge to do a DNA analysis on the saliva of a marijuana joint found in a prison with two suspect samples, two prisoners knowns being submitted.

Now, that's a foolish waste of resources, but I'm faced with a court order.

MR. CLARKE: Judicial prioritization.

DR. FERRARA: Judicial prioritization. And you know -- and I think that gets back to our education.

You know, if I could have had the judge or if somebody could have said to the judge what are you thinking about, my folks could have been working that case, probably were working that case when they should have been working that vaginal swab with spermatozoa, despite the fact that, listen to an investigator and all things considered, you're likely to say, well, we're probably going to find the boyfriend's DNA.

The long and the short of it is we found only the suspect's DNA, no foreign profile from a boyfriend, and it caused me -- I mean, you know, as an individual, as professional, you take some responsibility for that, and yet, this is just scratching the surface.

I mean what's going to happen when we start bringing in all the old cases?

MR. GAINER: Well, I think, again, the capacity issue is one that we need to address, too, because Chris was observing, in teaching over at the Metropolitan Police Department Academy, although we have no DNA capacity right now, we are beginning to educate our officers about the potential of this.

So, what you're going to have is now, you know, 3,000 men and women out there trying to figure out where they can dig up the DNA evidence, which only raises their expectations and continues to feed the FBI lab, which continues to get further behind, and even with this primer, if we start mentioning, as we must and should, the various areas from which you have a potential to get this evidence, I mean it raises everybody.

Again, I'll go back to the bullet one. I had never dreamed in the world that I should process a fired bullet that passed through a suspect for DNA, or one of the other ones out there, that a baseball bat or something was used as a bludgeon instrument and that, typically, we would get it and preserve the end with the blood on it.

Well, they -- someone preserved the other end and got the transference of the -- from the sweat of the offender. I mean we just didn't process evidence like that, or think of it. I don't believe we did.

DR. FERRARA: We've been training, and we're getting some of the finest evidence being collected. It's wonderful, on one hand, but we've created in the process -- I mean cigarette butts from crime scenes, often which overlooked and now coming up with probative results.

You hate to discourage it, and you can't not train. It's just capacity.

MR. ASPLEN: I think it was Professor Smith at the last meeting, when we were talking about prioritization and talking about people saying, well, we just can't get ahold of parolees and probationers, you know, and I will characterize your tone as indignant, perhaps, it really was outrage, and I think we may find ourselves in the same position regarding this.

We're talking hundreds of thousands of cases not being solved, and it's a prioritization issue, but it's a volume issue, too. It's a financial proposition that, again, we need to find a way to eliminate.

MR. GAINER: Well, recidivism cases -- maybe we're beating a dead horse. The recidivism issue on the rape cases is one that has troubled many of us for a number of years.

I think there would be outrage in the public's mind if they knew that we had this evidence, and not every one of these kits that's processed is going to deliver us what we need, nor do we necessarily have, as you know, the data banks to compare it to, but if one knows anything about the recidivism of rape and the pattern of rapists, we are missing just an unbelievable opportunity to connect crime to crime, which also leads to the solving of the crime and the prevention of more crimes.

But again, sometimes it seems like we're doing a little bit too much jaw-jacking about it and not enough -- maybe it is time for the Commission to make some positive statements that we need X amount of money laid out from someone to do this because we're putting people at risk.

DR. CROW: Let me interrupt with something. I think we need to hear from Dr. Colwell, and there will be time later on to continue this discussion. So, let me just barge in on this, dictate.

MR. GAINER: Will we come back to the issues we raised?

DR. CROW: Yes.

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