So, our first speaker this morning is Mr. Frank Weathersbee.

Mr. Weathersbee is the elected State's Attorney in Anne Arundel County, which also houses the capital of Maryland, Annapolis, has been Assistant State's Attorney since 1967, he went on to become Deputy State's Attorney and was appointed State's Attorney in 1988.

He is the Vice President of the State's Attorneys Association in Maryland. He's a former board member of the National District Attorneys Association.

When I called over to NDAA and asked them for a representative, Mr. Weathersbee is the individual that they asked me to contact.

I am familiar with Mr. Weathersbee's office's work by nature of a case that they had a couple of years ago, that I would say that they began a number of years ago, when I was still at APRI, and did some consulting with their attorneys on the Williams case, I believe it was, and that was a case which was extremely hard-fought in the beginning, with some PCR technology.

There was a conviction. It was ultimately overturned on appeal. They went back. They did some more PCR testing and, on top of that, did some mitochondrial testing and ultimately convicted Mr. Williams again.

So, it's fair to say that Mr. Weathersbee is well-acquainted with the power and the advantages of DNA evidence, and his office has shown a real ability to utilize it to its fullest.

So, with that, Mr. Weathersbee, welcome, and we appreciate your comments.

MR. WEATHERSBEE: Thank you very much.

Good morning, all.

I did note something of great interest, though. I am listed as the Maryland State's Attorney, and I know my other 23 State's attorneys in Maryland would be interested to know that I have somehow taken over their jurisdiction, and I also note that you see by my little placard that I am the only one here, including judges, with "Honorable" in front of their name.

So, I want you to remember that as you question me, if indeed you want to do that.

I thought the discussion was really exciting yesterday. I got in here early enough to hear the discussion and then realized that almost all of it was right over my head. As my daughter says -- she's also a prosecutor in Maryland -- it goes whoosh.

But I appreciate it. I talked about SNPs and things like that, and it was interesting to see.

I did think that probably the most interesting point came at the end of the meeting, and I'd like to get in to that after I give my few comments, but I can't pass up the most important piece of evidence or statement that I saw, and it was made by Dr. Colwell of Arkansas, and I just couldn't wait to get a hold of an Arkansas map, and I didn't do that, I wasn't successful in doing that, but when he said that the county seats were chosen by the ability to ride one day on horseback from any part of the county, I'm thinking, you know, that would tend to lead to round counties, and I wonder what you do with the land in between, and I was laying awake thinking that, and I'm thinking, now maybe that's where Whitewater came from and that's the land that was being developed.

I've got to see an Arkansas map. I thought that was a great piece of evidence.

Well, you didn't want to hear me say that. Actually, you probably did.

I have been a State's Attorney for a long time, since the late 1960s. I've been the State's Attorney for a decade; I've won three elections.

As you know, most prosecutors in the United States are elected. Most prosecutors owe what they do to the people that elect them and no other organization.

That's important, because you're trying to arrive at a policy to deal with how to deal with something on a national basis, and I come here to speak for a group of people, in a way, that do things in different ways, and they have different procedures and different methods of doing things, but they all have the same goal, and that is to see that the right person is convicted, the guilty person is put in jail or punished, not necessarily put in jail but punished.

That's pretty much, with certainly some notable exceptions, pretty much what prosecutors do, and you don't hear much about most of them, and I just am kind of representative of one of those.

The jurisdiction I come from is, I think, 470,000 people now.

It starts in south Baltimore and runs down the Chesapeake Bay to the rural areas of southern Anne Arundel County, in the middle, of course, is Annapolis, and the suburbs of both Washington and Baltimore, so it has a mix of all types, from Dr. Colwell's rural areas to, indeed, the City of Baltimore, which is having its problems.

I guess what I would say that brings me here -- and it's already been mentioned -- State v. Williams was kind of a notable case, but there are many throughout the country that are being handled by prosecutors like myself, and the issues come up as to what are the advantages of DNA and what are the disadvantages of using DNA, and I'll tell you that one of the disadvantages clearly is the cost, and certainly, my office has provided -- has spent -- and I asked my administrative officer to look and find out how much have we spent in the last couple of years on DNA testing for the 10 or 15 or 20 cases that we've used DNA in, and the answer was $49,000.

That's how much the prosecutor's office, or the people, if you look, in reality, the people of Anne Arundel County have spent, and why did we spend that money?

You are talking about state labs, and the State of Maryland does have a lab, Virginia has a lab. Certainly, every state, to one degree or another, has a lab, but when we started DNA testing, when we had our first case and realized that DNA was a technology that was used in Great Britain and had been brought here by Cellmark Corporation, which is located in Rockville, Maryland, we had a murder case, it had blood that we felt could be -- was in sufficient amounts that our FLP would do it, we went to the FBI, and they said no, we can't do that.

So, we went to Cellmark, and we've been there ever since, and so, we go to a private lab. This is not a benefit that most prosecutors are going to have, but we still do it.

Some of our cases are done by the state lab, and the reason that most of our cases are not done by the state lab, I think, impacts the discussion that you're here for today, and I'll get to that in a second.

I don't think this will take very long, but I want to run down the advantages.

Clearly, the advantage of DNA, we recognized it to be, and I can't believe that in the future it will be any different than a method of determining the identity of a person, whether it's the defendant who you're trying to convict, or probably even more important, a person that you may suspect but want to eliminate quickly and move on to the right person.

So, it's in exclusion, I think, that prosecutors and police -- and you have the commissioner here to talk about that, but it's in exclusion that I think is really important.

So, whenever we have the opportunity and DNA is available, we always want to look at the suspect that we have and make sure it matches, or he's not or she's not exclude, because if she is or he is and we can move on to try and find the right person.

So, we would do that with fingerprints. I read somewhere -- I think it came from Virginia -- that in 30 percent of the crime scenes, there is DNA or there are things that are left, either semen stains or blood stains or saliva, which can possibly be analyzed. I don't know how accurate that figure is, but from my experience, that sounds like it's correct.

In a number of cases, there are fingerprints, and of course, we use fingerprints, and there are hits on fingerprints and it's now computerized, and you can put a fingerprint into a machine, the computer, and get a readout and a good idea of who the correct person is, you can get a hit.

I think, in the future, DNA will be that way. I can't imagine it wouldn't be. If the technology is there -- and I think Dr. Ferrara indicated yesterday, if the technology is there and it's demonstrated, people are going to want to use it. So, I think that's true.

The disadvantage -- I mentioned it already, the cost. It's very expensive for us. I've given you some indication of what it is. It's expensive for state labs. State labs are backed up.

All we have to do is read the USA Today -- we actually know the results of what we're doing here -- and find that, statewide -- or nationwide, 450,000 samples are backed up in various labs around the country.

So, I don't know how you eliminate that, but certainly, that ought to be one of your tasks and one of your recommendations, and clearly, the bottom line is money. I mean I don't think anybody would doubt that the bottom line is money. If you get enough money, you can develop enough labs.

The time to obtain the evidence in the past was substantial. You'd have to postpone your case if you had a case.

Now that's not quite so true, once you eliminate the backlog. Once you eliminate the backlog, that's not quite so true.

PCR testing -- and STR is a form of PCR testing -- clearly is something that can be done relatively quickly if you're not dealing with backlogs, so that, with a private lab, our use of the private lab, we can get results back within weeks, but we pay for it.

So, with state labs, it's not quite so easy.

Disadvantage is also challenging the evidence in court. It takes time.

Scotland Williams, the case we tried, was mentioned. The Frye -- we call it Frye-Reed hearing in Maryland -- Reed is the Maryland case that interpreted the Supreme Court case of U.S. -- I think it's U.S. v. Frye in 1923, which means that, for any scientific technology or new technology, you've got to establish -- the prosecution has to establish that it is accepted in the community in which it's used, and our Frye test for PCR originally took a week. In the second case, it took almost a week, and for mitochondrial DNA, it took a week.

So, the challenge in court takes a lot of time from your case, and it's something that I think, in the future, will be reduced, because as there are more chemists and as those chemists are recognized in their states, then the opportunity for contesting them and their work will be less.

I would point out a factor, as well. We talk about contested cases, but yet, if you have DNA evidence, the chances of the case being contested is going to be remote.

So, you're going to end up with an awful lot of pleas if you do the DNA testing.

As it is, 80 to 90 percent of every state prosecutor's case -- and state prosecutors prosecute something like 99 percent of all criminal cases. So, every -- 80 to 90 percent of those cases are going to be pleas.

And so, having a good piece of evidence leads to pleas not only from the prosecution's standpoint, from the defense standpoint, as well, and the defense tries to get the best deal for their client, knowing that the chances are that they're going to be convicted.

So, it's important to do those tests even when the challenge may not actually be in court, but you've got to be aware that, if there is a challenge in court, it takes -- it is timely.

In our experience, we find that the contamination, that word -- and you can -- it means lots of things. The thing that it usually means is DNA showing up where you didn't expect it to show up, and really, contamination doesn't change the DNA, it just is there, and you wonder why, and you try and find out, and it affects your results or the results that the lab can give you.

It's always an objection. Certainly, we -- those of us who watched Mr. Scheck in the O.J. Simpson case know how effectively contamination can be brought out, and I was trying Scotland Williams same time O.J. Simpson -- mine didn't take quite as long, but nonetheless, I was trying it, and it was kind of interesting looking at the parallels of a case which, of course, got no notoriety and a case that got tremendous notoriety, and they were pretty much the same.

The arguments that Mr. Scheck and others made in the O.J. Simpson case were the same arguments that the public defender made in Maryland, so -- and I would therefore assume that that is a pretty consistent argument around the country when you're bringing a contested case.

I think the most important point -- and this kind of goes to where you ended yesterday, and I've already mentioned what Dr. Ferrara said, but it's in my notes and I'll say it again.

We cannot -- we literally will not be able to do without DNA in the future. Like a fingerprint, if we could have located it, we better have looked for it. I'm talking about police departments, big or small, Dr. Colwell or New York City, doesn't make any difference. If we could have looked and we didn't look, then that's a challenge to my case in court.

Mr. Scheck and any other defense counsel's going to ask that lab technician, did you look for fingerprints, and if that answer is no, we didn't look for fingerprints, then shame on us, because we're going to have to have an answer for those 12 people who are looking at us to give them an answer, and there isn't a good one and there won't be a good one.

So, if, in the future, we could have looked for DNA, we better have looked, and if we found it, we better have tried to match it.

We better not just take that DNA -- and I disagree with Mr. Scheck yesterday that, well, we can make a determination of what we will and what we won't send to the lab, and maybe he didn't mean it the way I'm saying it, but I don't think we can make that determination. I think, maybe on individual samples, you can say at your lab or the local level, look, let's not send this, this, and this, but we better send the other things, and every time you don't send something to the lab for testing, then it leaves it open for defense to say how come you didn't do that, and we don't want to be in that position.

So, if we could have found it, we better have looked, and if we found it, we better have tried to match it to that defendant.

So, you know, to me, if I were just to say one thing about the future of DNA evidence, that's all I have to say, because that determines -- I mean you can say DNA evidence can't be used, and I suppose you could make a Federal law that says it can't be used at least in Federal cases.

I don't know that you can do that in state cases. So, each state's going to go its own way, and you have a tremendous opportunity here to create some standards for something I think is just so obvious.

You know, it's -- and I mentioned this before. I think I'm doing okay on time. It's hard enough for state prosecutors to convict in a contested case a guilty person. It's really hard to convict an innocent person.

So, the importance of DNA and fingerprint evidence when it exists is to exclude, so we can get on with what it is that we are doing, and that is trying to find the person who's committing the crimes.

I just think -- and you talked a lot yesterday about post-conviction and going back and looking at cases that are in category one, category two -- I have questions about category two, but certainly category one cases, where you could actually -- there is DNA around and you could actually test it and that result would exonerate the defendant.

I don't think there's a prosecutor around would disagree with that, and I don't think that any state's attorney who knew something about DNA and the benefits of DNA would say, well, okay, if we can test this, let's do it and see if we've got the right person.

But I think it ought to work the other way, and I think this gets in to what the Commission is talking about, and that we ought to have the same opportunity to exclude and to include individuals, and to do that, I think the database that is being created, the FBI began creating in 1994, is very, very important.

And then when we talk about, well, what about arrestees versus convicted individuals, the answer, to me, is that, you know, you just -- the bigger the database, the better chance you got, the bigger the database, the better chance you got.

So, if you can get DNA, put it into a computer, and you have a large database, then you have a better chance of a hit, and that's what happens in fingerprints.

We will frequently get hits with the computer system on fingerprints if we find them at the crime scene. You usually don't find them at the crime scene, but if you do, there's an awful good chance you're going to get a hit, and there's an awful good chance that that fingerprint will lead to the conviction of the defendant.

We talk about why take it from arrestees and not convicted defendants, and you know, I think, right now, I don't think we're at the point that you can take it.

Now, the commissioner may disagree when he talks to you, but I don't think we have the capacity in this country -- we certainly don't in Maryland have the capacity to test every DNA sample taken from an arrestee.

So, while I think it's sure to come, I don't think, at this moment, we have that capacity, but I'd bet -- I'm not a betting man, but I'd bet on this that it's going to happen.

In connection with that, I want to just point out one additional thing. The vast, vast majority of serious criminals were arrested for something earlier, and you know, maybe, as a civil libertarian, you don't want to admit that fact, but it's just a fact. It's just a fact.

So that if you've got in your computer the arrests of every individual, you've got a good chance of getting a hit if you find DNA or fingerprints at the scene of a crime, and I just think that's going to come.

The disadvantages -- you know, it's impossible now to my way of thinking, the cost.

The Federal Government has to step up, provide money, get rid of this backlog to establish standards, and I think you're trying to do that, but the money to go into state laboratories so they can get rid of the backlog just seems to me to be paramount.

I can't afford to keep spending the people's money of Anne Arundel County on DNA testing when there is a state laboratory. I just can't -- at some point in time, they're going to realize what I'm doing and say you can't justify that, and they're right, and they're right.

There's a state laboratory, shouldn't cost me a penny. So, I'm going to have a hard time justifying that in the future.

While I can get good results and I can get them quickly, both to eliminate and both to convict, not all prosecutors can do that. I've already said that.

What are the criticisms that I've heard? I looked on the Internet, I looked in the paper today, and people have mentioned it.

Big Brother comes to mind. I don't know where I saw that, but I saw it somewhere. But if it serves a good purpose, so what?

I think it's constitutional, I think it's been held to be constitutional. I think, in the great majority of the states, it will be held to be constitutional.

There's no doubt that seizing fingerprints is a search. It's been held to be constitutional.

We can't do what is done in Great Britain. We can't go around and say we want, from a given town, all their fingerprints.

It's already been decided you can't do that, but certainly, upon the arrest of the defendant, you can take his fingerprints, and that's uniform as far as I know and certainly will be uniform in regard to DNA.

So, I don't think the constitutional issue is there, I'm sorry, but I know that others do, and they can talk to that.

Computer DNA doesn't -- when you put the DNA into the computer in the form of numbers, which this CODIS system apparently does, it doesn't provide any genetic information, it just provides identification, and I think that's important, because I tend to agree that, if you've got a database around and insurance companies can get to that database, that's a serious problem.

But remember, criminal history in every state and criminal history that's kept by the FBI is something which is very restrictive and you can't get to it unless you have a good purpose, and that can, indeed, be the same thing with the samples, and I'll go one step further.

I asked Dr. Portis, who is the head of the Maryland State laboratory, why do you keep the samples around other than the fact that state law says you've got to keep the samples around, and really, his only answer was, well, technology is changing.

So, right now, their laboratory, the Maryland State laboratory, is set up to do RFLP based upon convicted sex offenders.

As you all know, every state in the country has some kind of a database, some more restrictive than others, but it's set up to do RFLP, and clearly, the FBI system is going to deal with STRs, and so, he's re-tooling and needs money to do that, to go back and retest in the PCR format, as opposed to RFLP.

Something that Dr. Crow said yesterday just seems to me so important. You've got to establish something that's going to last for a long period of time. You can't just keep changing and changing every couple of years, and if you do that, we don't need to keep the samples, quite frankly.

I mean it just establishes, in Maryland, by law, and in most states, a probable cause, and if you've got it on the computer and you've established probable cause, that's all you have, so you go take the blood of the defendant and you run his DNA, and we don't use -- you're not going to use the sample that's kept in the computer or the sample that's stored in whatever locked safe you have it stored in to convict the defendant, you're going to use a fresh sample from the defendant, but establishing probable cause is just extremely important.

So, if you wanted to get rid of it after a couple of years, shoot, I don't think that matters, doesn't matter to me, once you have a system that's going to be in place for a substantial period of time.

As far as -- I don't know what the commissioner has in mind. Certainly, citations are used extensively in the state.

In the City of New York, in the City of Baltimore, and other places, citations are charging documents where the defendant isn't booked, therefore his DNA is not taken, his fingerprints aren't taken, so it's a lot quicker.

There are certain crimes that you're not going to have DNA on, certain very minor crimes. I think that's probably good and answers a little bit of what the criticisms are.

Indeed, for a non-guilty defendant, at least in Maryland -- I think most states -- you can expunge the record of the defendant who is found not guilty, and that's a procedure that's well-known, documented, and set up in, I'm going to assume, every state.

MR. GAINER: Mr. Weathersbee, would you mind if we asked a couple of questions, because we're going to be running out of time, if my fellow panelists don't mind.

MR. WEATHERSBEE: Not at all. I'm pretty much done anyway.

MR. GAINER: If I can, one of the ones I was thinking of, in listening to you, concerns your comment about, if we could look for it and haven't, the problems that may lead in our criminal justice system.

Currently now, for instance, in homicide scenes, are the law enforcement authorities in your county actively looking for and processing the scene for DNA?

MR. WEATHERSBEE: Absolutely. I mean the requirement for a good technician in your evidence collection unit, in a good evidence collection unit, that understands DNA, is imperative, and we have one, and we've had one for some time, and every scene, every case in which you would expect you might be able to find DNA, we look for it.

MR. GAINER: So, as a rule, then, do you test or move for testing of every defendant where you find DNA at a scene? Every murder defendant -- are you routinely asking for them to be -- their DNA to be processed?

MR. WEATHERSBEE: You mean if we arrest a defendant for murder and we find DNA at the scene and we're going to compare that DNA or we're going to run it, do we ask for the defendant? Absolutely.

MR. GAINER: Again, maybe this just shows my lack of prosecutorial experience, but if you have recovered DNA from the scene but you're unclear as to whether the defendant had any secretions and you're not necessarily -- part of your case is tying the -- his -- the defendant's DNA with that recovered from the scene, do you still do it as a rule so that, again, in furtherance of your question, where we looked and didn't, that you're going to exclude him?

So, if you've made a conscious -- let me try to rephrase it -- if you've made a conscious decision not perhaps to use DNA in your case, are you still routinely asking from a defendant to get the DNA samples?

MR. WEATHERSBEE: I'm only asking for an order to obtain a defendant's DNA, or a blood sample from the defendant, if I have something to compare it to that was taken from the scene and the defendant is a person that we're looking for, we're looking at.

If there's no DNA involved, I don't ask for blood samples from defendants.

MR. GAINER: Again, maybe this is too self-evident. If there is DNA at the scene, then you always get DNA from the defendant.

MR. WEATHERSBEE: Yes. If we've got DNA we're comparing, we always ask for it. Our lab routinely -- and I was hoping by this time we would have a DNA lab of our own in Anne Arundel County. That didn't work out. It's a personnel problem.

I'm sure it will eventually, but what the lab technicians do is they screen for the stain to make sure the stain is appropriate for testing, and then we send it to Cellmark if we have the defendant. We don't send it to Cellmark if we don't have the defendant.

MR. SMITH: Could I ask the flip-side of that question?

That is, going back to your point about making sure that you look for that kind of evidence, so that you will not be challenged later for not having done so, if you have a plea, you don't need the lab analysis of all the evidence seized at the crime scene, right?

MR. WEATHERSBEE: If I have a plea?

MR. SMITH: Right.

MR. WEATHERSBEE: Well, I don't usually get the plea until after I've done the analysis.

MR. SMITH: You're not able to discuss effectively with defense counsel the early plea without that?

MR. WEATHERSBEE: On occasion.

MR. SMITH: On those occasions, though, presumably you don't need the lab tests of all the evidence submitted from the crime scene.

MR. WEATHERSBEE: You're absolutely right, and we wouldn't do that, but that's a rare case.

MR. GAINER: Has there been any specific training, additional training for either first responders or crime scene processors in the art of detecting or collecting DNA that you know of?

MR. WEATHERSBEE: Yes. They're routinely -- they routinely go to training seminars to deal with the collection of DNA evidence, and we mentioned Williams, there are other cases, but we routinely collect DNA or attempt to collect DNA from items at the scene of a crime.

DR. FERRARA: I'd like to ask a question of Mr. Weathersbee.

In your analysis of the evidence that -- in a particular case that you're going to send to Cellmark, does your state laboratory evaluate the crime scene evidence first and look for the presence of potential biological materials?

MR. WEATHERSBEE: You're talking about the county.

DR. FERRARA: Or the county?

MR. WEATHERSBEE: Yes. Actually, it's your evidence collection unit.

You have a group of evidence collection technicians who are, in Anne Arundel County, quite well trained in the -- how to process a crime scene, not just for DNA but for other things, and they go out and they see if they can find DNA.

You talked about rape kits. I mean that's a pretty obvious thing, but -- I don't think we've ever got to the bullet that went through the person yet, but nonetheless, these are things that only your -- you know, your mind is the only limit.

DR. FERRARA: Have you found it necessary, because of financial considerations, to limit the number of samples that you actually send to the laboratory for DNA analysis?

MR. WEATHERSBEE: Not yet.

DR. FERRARA: So, basically, all the evidence goes to the laboratory.

MR. WEATHERSBEE: Well, now, we don't send the evidence. What we send is -- we've taken the blood -- bloody shirt and you've taken a piece of the bloody shirt, and from that piece of the bloody shirt, you've taken a swab of the blood and put it -- and that's what goes to the lab.

DR. FERRARA: Now, if there's multiple pieces of evidence in a case with that biological material, does all of that -- do you send --

MR. WEATHERSBEE: Not necessarily. I mean the lab technician makes a determination of which are the important pieces of evidence to go.

DR. FERRARA: Now, is that decision made in concert with your office?

MR. WEATHERSBEE: Sometimes. But I think our lab people are pretty good, so we can rely upon them. I'm sure the whole spectrum will follow that, whether the prosecutor is there or not.

DR. CROW: Let me intrude on this for a minute. I'm very concerned that each of the subsequent speakers have time to make their presentations and then leave time at the end for the kind of questions that are going to be addressed to everyone.

So, I think, unless there's violent complaint, I'll thank you very much and move on.

MR. SCHECK: I have one just short followup to what Paul said.

DR. CROW: All right.

MR. SCHECK: You said you spent only $49,000 at Cellmark and that the state lab is doing RFLP. That $49,000 figure -- how many cases in over how many years?

MR. WEATHERSBEE: I'm talking about in two years, and my guess is it's 15.

MR. SCHECK: How about the testimony?

MR. WEATHERSBEE: Well, a lot of it. That's where the cost is. I mean the cost of testimony gets expensive.

Now, we're lucky, because Cellmark is close by, you can put your witnesses on call. If you're trying to have them come from Los Angeles, well, it's hard to put them on call, so I mean that takes a little time. So, we can keep the cost down a little.

DR. CROW: Well, thank you very much, Mr. Weathersbee.

MR. WEATHERSBEE: Thanks.

DR. CROW: Very informative. And you'll be staying around, I trust.

MR. WEATHERSBEE: Yes, I'll be right here.

DR. CROW: All right.

Previous	Contents	Next
Back to National Commission Main Page