MR. ASPLEN: I'll begin to introduce Mr. Levy while folks are kind of getting their cups of coffee and having a seat.

When I called the National Association of Criminal Defense Lawyers and asked their suggestion as to who I should get to come in and speak to this commission on these issues, one of the top three names that they gave me was Mr. Harlan Levy, and as soon as I heard Mr. Levy's name, I said, well, of course, that would be a wonderful idea.

Mr. Levy was exceedingly helpful to me when I began working at APRI, because it was actually his book that I read, called "And the Blood Cried Out," when I first started there, that gave me a good grounding, I think, in the history of the progression of the application of DNA in the criminal justice system of the United States.

Mr. Levy, however, as Barry noted, was a prosecutor. He has now fully entrenched himself in the defense lawyers community and, as I said, is a representative of the National Association, but again, this is an individual to whom the disclaimer does apply in that he does speak for himself but does have that perspective in mind.

So, again, thank you, Mr. Levy, for being here. We appreciate your time.

MR. LEVY: Mr. Asplen, thanks for having me.

I come here today as a person who's spent a good deal of the last 10 years being an advocate for DNA testing, both professionally, when I was in the District Attorney's office and also in the book that I wrote about DNA testing, and I find myself today in the position of offering some skeptical comments about a proposal that I think has its visionary aspects but that I believe, in many respects, is the wrong proposal at the wrong time.

Let me begin by noting that one of the things that's been most striking about the area of DNA data-banking is the broad consensus that has surrounded it.

We're now at a point where 50 states have laws that required that DNA samples be taken from people who commit serious felonies.

That broad consensus was shattered on December 16, 1998, when Commissioner Safir made his proposal, and if I may share some quotations with you, USA Today said in its editorial pages, "From high on the slippery slopes of truly dreadful law enforcement ideas comes this doozy from New York City Police Commissioner Howard Safir." The New York Times described the proposal as "a threat to personal privacy that is unnecessary for fighting crime," and that hotbed of radicalism, the Indianapolis Star, stated that "to make such a testing part of a routine arrest turns it into an unwarranted exercise of police authority."

In response, Commissioner Safir's boss, Mayor Rudolph Giuliani, described opponents of the Commissioner's plan as captives of, quote, "old left-wing thinking," and the Mayor further said that he would have, quote, "no problem," close quote, with a DNA database of all newborns.

Strangely, in a world where the Soviet Union is now defunct, we've come upon a dialogue that I think has much resonance of the cold war, and Commissioner Safir's own words have fueled that dialogue.

While merely, I think, intending to make his point that DNA data banks will only identify the guilty, he has stated that "the innocent have nothing to fear," a phrase which I think is Orwellian in its resonance.

Still, despite taking an area that had been an area of consensus and turning it into an area of controversy, we have a provocative proposal here, and it comes from a team that has cut crime very dramatically and very commendably in New York City.

Obviously, anything proposed by that team deserves a very close look. So, amidst all this controversy, I've tried to think about how to assess this proposal, and today, there are four areas that I'd like to take you through in thinking about it.

First, I'd like to address how the testing proposed by the Commissioner compares to fingerprints; second, how it's different from fingerprints and the implications of that difference; third, a variety of problems that I see in the Commissioner's proposal; and fourth, my own proposal to this commission for a study that I believe that it could commission which would help to achieve many of the goals of the Commissioner's proposals at less controversy and at less cost.

Let me begin by comparing this to fingerprints. In many respects, taking DNA samples through buckle swabs from a person's mouth would be consistent with existing practice regarding fingerprints. Fingerprints are, after all, routinely taken at the time of arrest.

They are routinely check by law enforcement in an effort to solve unsolved crimes. There is no suggestion that that presents any constitutional violation, nor has there been any suggestion in any case law that I am aware of that it is in any way inconsistent with the presumption of innocence.

One way that DNA testing is different from fingerprints is in terms of the information that is contained in the DNA, and we heard Mr. Steinhardt talk about that at some length this morning. That has been a rallying cry of the civil liberties union.

Realistically, at this point, the principle information that could be of interest in DNA is susceptibility to disease. That is information that is primarily, as I understand it, of interest to employers and to insurance companies.

While there's been much discussion of predisposition to commit crimes, there are currently no genetic findings to that effect.

We heard yesterday about possible findings regarding impulsivity. As someone who, as a lawyer, spent a good deal of time with the DSM in terms of litigation psychiatric issues, there's a wide gulf between speaking of impulsivity and speaking of criminal conduct. It's very wide gulf.

It's possible that the genome project may reveal extraordinary secrets, but it hasn't yet.

One view, obviously, is that what we do to remedy this problem is that we criminalize the use of these data banks for any other purpose, providing that they may only be used for that purpose, and attach the most serious sanctions possible.

Counter to that view, of course, there's the question of how much one trusts government, there's the fact that we're in an era of relative tranquility and that there certainly have been abuses in our history of private information again and again, and there obviously have been periods where there has been much less tranquility in our history.

I guess the question is how do you weigh this concern?

My view, in terms of my own particular preferences and views, is that I don't give it great weight.

Today, I find it hard to see any governmental initiative to analyze DNA for employment purposes or to provide to private employers for insurance purposes, and I think that to decline to take action on this ground is to rely on something that is extremely speculative and then would have to be compounded by a governmental misuse of information.

So, while that is an area that gives many people hesitance, it's not one that particularly gives me pause.

Another distinction between fingerprints and DNA is if we look at the historical use of fingerprints. Fingerprints were initially taken to maintain a record of a person's identity.

As technology developed, at the point when I became an Assistant District Attorney, fingerprints were used primarily to conduct a check of a person's criminal record to assess the extent to which there would be a bail risk.

It's only in the last few years that we've had automated systems to make it possible to search a person's criminal -- to search a person's having committed other crimes through fingerprints.

Still, that is something that is done routinely, without challenge today, and it seems fairly well-settled that that is appropriate.

It's possible to criticize the Safir proposal on the ground that we already have fingerprints. Since we already have fingerprints to identify people and to maintain a personal record of their identity, why do we need DNA?

But I think that would be premised on the idea that all governmental intrusions at the point of arrest must be for the purpose of identification for that particular crime.

I don't think most courts would find that a compelling argument. There's obviously a governmental interest in knowing whether an arrestee has committed other crimes.

Government is permitted to put an arrestee in a line-up to investigate other crimes. Photo arrays are routinely shown of arrestees without any requirement of probable cause or even reasonable suspicion of other criminal conduct.

So, I think that there's, based on that precedent of fingerprints, good reason to think that courts would approve the constitutionality of this plan without too much hesitation, except for one wrinkle, and that's a wrinkle which I think becomes more clear the more that you look at the governing case involving the taking of blood samples, which is Schmerber.

The Schmerber case talks about the significance of intrusions beneath the body's surface, and it says that the interest in human dignity and privacy forbids any intrusion beneath the body's surface on the mere chance desired evidence might be obtained, and it speaks about the integrity of an individual's person being a cherished value in our society.

We have to remember here that the plan that the Commissioner is proposing does involve the probing of an orifice of the body.

How would the courts weigh these factors in assessing the constitutionality of the proposal? They would do what they generally do in Fourth Amendment cases, which is engage in a balancing test, and the question would be is this more intrusive than fingerprints?

If so, how much more significant is the intrusion? The question would be what would be weighed of how strong the state interest is. The fact that these are arrestees rather than convicts would certainly figure in the analysis on the balancing test.

It may be, I should note, that this concern about the invasion beneath the body's surface may not be present in a few years.

As I understand it -- and I will defer to the forensics people on this, but I understand that there is research going on which would potentially allow DNA to be taken through moisture from the fingerprints, that that is something that is underway, and it could be that, as a technological matter, that this concern will evaporate in several years.

There are a number of other questions that I'd like to raise about the Commissioner's proposal.

I think that probably the greatest concern that we have to focus on is what might be characterized, if one were to be critical, as its grandiosity.

In New York City last year, there were 360,000 arrests. If you look at the New York State experience today with data-banking, New York State has taken DNA samples from 7,000 convicted offenders, and it has analyzed 1,000 of those samples.

The other 6,000 are sitting in laboratories, sitting in refrigerators, sitting in crime labs. So, if you think about overwhelming a system, just think about the magnitude of that distinction and what that would mean for a system that is already overwhelmed.

Another concern that I would raise about this proposal is that it is a mass program, and mass programs are going to be more subject to mistake than smaller, carefully-tailored programs.

I think the one area that the people who have worked on this commission and on prior commissions deserve tremendous credit for is the tremendous emphasis on quality assurance and on quality control.

That's been something that has been of concern to all actors in this whole process, and the question of the extent to which those kind of standards are going to be maintained and to which a system that is of the magnitude that is proposed will still be a high-quality system is, I think, something that has to be of concern to everybody here.

Beyond that, I think that there's a question of typos.

To what extent, because we have a mass system, because we will have people who are data-entry operators putting numerical values into a system and then premising arrest on retrieval of that data, how many situations are we going to have where people are being called in to account for their whereabouts, to explain their relationship to a crime that they had nothing to do with?

This is something that I think we will see over time with our more limited data banks.

I think we'll get some sense of experience over time of the extent to which this is a risk and the extent to which it's a problem, but it's certainly a potentially Kafka-esque aspect of this proposal, the innocent person being called in to account.

I think that, in this regard, we all know that there is a history of situations where there have been search warrants executed at the wrong premises.

That's been a particular problem in my city, where people will show up and they will be the wrong description and it will be the wrong apartment and people will be terrified for no reason, because people wrote something down wrong.

It's something that may happen here, it's something that I think we need experience with with more limited data banks first.

One other matter that I think is going to strike people immediately about this proposal is why are we placing the time of collection at arrest rather than at conviction?

I know that, from a practical point of view, that the reason that it's being posed at that point is (a) because it's the broadest possible point and (b) because there is a very coercive nature to that time period when a person is first arrested, where they are not represented by a lawyer, where the police essentially own them, and that, I think, animates this.

There is a counter-argument, which is that many people who are guilty, if their DNA is going to be taken at the time of conviction, probably won't return to court, assuming that they're calculating and thinking, if they know that when they return to plead guilty that their DNA will be taken, they very well may make the choice to warrant at that point a law enforcement look at the benefit of their DNA.

But I think that something that has to give us particular pause in this regard is the very large number of arrests that don't result in convictions, and we have to ask, to what extent is it fair to be taking samples from people simply on the basis of an arrest?

I checked in my own state on the statistics, and for both felonies and for misdemeanors, approximately one-third of the people who were arrested finally have non-criminal convictions. The charges are dismissed or they are acquitted.

I mentioned the Schmerber case before. Another aspect of the Commissioner's proposal that gives me some concern is the fact that, under it, the DNA sample would be taken by a policy officer.

Schmerber draws the distinction between the taking of a biological sample by a police officer and medical personnel.

It states that there are serious questions if a test is administered by someone who is not a medical person, and I think that you have issues of sanitation, you have issues of roughness, I think you're even going to have issues about the attitudes that the cops have even taking these samples.

I think there's going to be a lot of resistance on the part of police officers to doing this, and we have to ask to what extent it's really what you want. Do you really want a police officer in a station house probing the inside of a person's mouth?

There's the logistical question of redo rates. Again, that's something which the forensics people have more expertise on. As I understand it, the redo rates based on the testimony of David Warrett this summer are such that approximately 10 or 15 percent of the swabs have to be redone.

There is the question of whether expungement actually takes place. The Commissioner's proposal says that there would be expungement in the case that an arrest did not result in conviction. That relies, obviously, on the good faith of the police.

Traditionally, as a legal matter, there is no remedy where there is not expungement. If, for example, a photograph is not expunged and is shown to a victim of another case and the photograph should have been expunged, the principle is that there's no remedy, the evidence can be used.

It is commonplace that photographs are not expunged where they should be.

For example, for robbery cases, typically there are photographs taken in a precinct, as distinguished from the photographs that are taken at central booking, and while central booking will usually, after a time, destroy photographs, usually the photographs in the precinct tend to sit there forever and to be used in further investigation of other robberies, and you also have to ask, in an age of computers, in an age of copying, to what extent, even with the best faith in the world, expungement will take place.

There is the issue of the investigative arrest. This arises in a couple of contexts. It arises in terms of the legitimate investigative arrest.

There is a case, United States v. Scarpa, where the police followed around a person 24 hours a day, and then, one day, they found him go over the yellow line on a road and they pulled him over and they searched his car and they found a gun and that was held to be entirely legitimate.

The other risk is the risk of the phony arrest, the risk that we are here giving the police the potential to take DNA sample simply by making an arrest. I think that's something that should give all of us some concern.

There is -- and this is something that obviously will apply to all data-banking and that I think we'll need to see experience on -- there is the problem of identical twins.

All of us who are active in this area know that we have to qualify those statements that we always made about no two people having the same DNA with the statement that that is except for identical twins, and I don't mean to get into far-fetched concepts about people being separated at birth, but it does happen.

We live in an age of fertility drugs, where there are more and more multiple births, and while this is a subsidiary concern, it's certainly a concern.

Obviously, a proposal of this magnitude would be an expensive program. I think all of us have learned that there are many things in life that are expensive but you have to pay for because they're important.

The question here, though, is is this worth paying for, is this worth doing, and I think that that brings us to the largest flaw in this program, which is the question of priorities.

All of us want to be tough when it comes to crime, and we also want to be smart. As a person who's been an advocate for DNA, I would advocate spending millions and millions of more dollars in every state in this country on DNA data-banking.

I think, though, that this is the wrong proposal at the wrong time.

We have a scandal right now in terms of the way that DNA is being used in this country. We have tremendous backlogs in terms of data-banking. We have crimes where the police could be developing leads and patterns where they're not doing it.

We have suspects who are sitting in jail for crimes that they did not commit, and you know, some people are more concerned than others about that, but even if you don't care that much about the suspect who's sitting in jail for a crime that he didn't commit, that means there's someone sitting out there who actually committed the crime, and meanwhile, the leads are growing cold.

So, I think we have something here that is a scandal, something that is outrageous, something that needs to be addressed, and yet, here we have distinct to that a blunderbuss approach.

It's a pretty basic principle. You have to walk before you run, and I think that, when it comes to DNA testing in this country, we're still not walking, we're barely crawling, and I think that our resources have to go to getting ourselves going on that front.

That raises the question, what's the best way to target people who commit serious crimes? What would be most cost-effective? What would be most consistent with our values as a free society?

And I would suggest to you that you could play an invaluable role here.

We all, I believe, accept the premise that the cases where it's most important to do DNA testing are cases of violent crime and cases of sexual violence, and I think that probably many of us would, because of the extent to which DNA comes up in cases involving sexual violence, put the highest priority on those cases.

I would suggest that, as a matter of serious study, we evaluate the prior criminal histories of people who commit those crimes, that you actually do that study.

Are there patterns to the prior crimes committed by people who murder and who commit sex crimes?

It may be that they are burglars. It may be that they are residential burglars, as distinct to commercial burglars. It may be that they are misdemeanor sex offenders. They may be Commissioner Safir's benighted turnstile jumpers.

But I would suggest that, once we've done that study, if the correlations are sufficiently strong, then we might want to consider taking samples at the time of conviction or even possibly at the time of arrest from people who commit those gateway crimes.

DNA data-banking, though, I believe should proceed on a targeted, rational basis. I think that's the best way to stay away from controversies about George Orwell, the best way to move this forward, and the best way to combat crime.

Thank you.

DR. CROW: Thank you, Mr. Levy.

Yes, Judge.

JUDGE REINSTEIN: I don't know who could answer this, but how far are we from being able to take DNA from fingerprints, either moisture or oil, and the other comment, Harlan, is you know, you talked about intrusion into body orifices.

I know that they've got this new device, the laser lancet, where you just put your index finger in, and it's like $2,800, and I'm sure the costs will go down, that can be placed in law enforcement agencies around the country when people are booked in.

That's not much of an intrusion. That's not into an orifice. You're just sticking your finger into a lancet where they use a laser. There's no blood, even.

MR. LEVY: Tell me more, Judge, about the laser lancet, please.

JUDGE REINSTEIN: All right. We were at at conference in the fall, and they had a demonstration of this little machine. It's about like so, and you just stick your index finger in, and a laser beam comes and it takes your DNA sample, like blood.

DR. FERRARA: Instead of a physical pointed object penetrating the skin, the laser cuts through far enough and deep enough to get a normal blood prick, and that sample could then be placed on a treated blotter card for preservation. That's an alternative to the buckle swab or venous blood sample.

MR. LEVY: I think the implications of that are that technology is going to increasingly solve this problem.

Remember, I'm not saying that I know where the courts are going to come out on this issue in terms of the buckle swabs. I just think that there is -- I think that you've got a question there that may give courts some pause.

My hunch is that most courts would come out and find the Safir proposal constitutional. I think some courts wouldn't. I think that the aspect of intrusion into the body is something that would give many judges pause and that this is a problem that technology is going to solve.

So, as the technology solves that problem, then the constitutional issue, I think, will diminish and perhaps even go away, but we're not there yet.

DR. CROW: Phil.

DR. REILLY: If I could ask a question, I'll begin by saying that I -- proceeding from your comments about Schmerber, I actually think that the future for the argument over intrusion is not physical intrusion but informational intrusion, and I think there remains to be an argument you can make on that.

I think the physical intrusion argument is going to disappear.

Nevertheless, let me ask you this hypothetical.

If some state were to benefit from a large appropriation of funds so that that state could rapidly solve its backlog problem, thus dealing with the prioritization issue, and then decided to focus, because it was fully up to speed on its backlog problem -- then decided to focus on a program that did take DNA from arrestees, would you have less trouble with that program?

MR. LEVY: Much less trouble, and I just am very skeptical about whether we're going to get there, but if we get to that point, if we get to the point where the first priorities are addressed -- I think this is all a matter of prioritization and that the greatest priority has to be on the matters that the crime labs would typically address but aren't addressing in terms of investigating crimes, in terms of running data banks, and in terms of handling cases, in terms of individual cases that need to be analyzed.

But assuming the backlog can be addressed, assuming that the technological issues recede with further developments, and assuming also experience with DNA data-banking that's generally positive in terms of issues like typos, issues of that nature.

I don't see -- this proposal -- it has, on one hand, I think, a sort of a pie-in-the-sky diverting, controversial aspect to it, given where we are now technologically, given where we are now in terms of where the labs are.

I think, at the same time, that it has its visionary aspects in the very long-term, but whether that makes it a good allocation of resources -- I mean, in the long run, we're all dead, as Cain said.

So, in the short-term, is this a good allocation of resources or is it something that's going to rile up the public, scare people, and move us away from what I think is so much the main issue?

I don't understand why the Commissioner isn't standing out there shouting about the backlog in labs. Maybe this is a good way to get people here to hear about the backlogs in the labs.

DR. REILLY: May I have just one quick followup?

DR. CROW: Yes.

DR. REILLY: One of the things that the preceding speaker addressed was the whole DNA issue. I didn't catch much emphasis from you about the retention of whole DNA sample. Can you speak to that?

MR. LEVY: Well, I think it's a tough question. I think that, if you destroy the DNA samples, then you do away with the whole concern about misuse of genetic information.

On the other hand, if you retain them, to the extent that the technology evolves and develops and to the extent that there is a need to refine the technology down the line, then you have it and can use it.

So, it's a call about the extent to which you feel that we've now locked into a system that we're going to stick with for a long time, have to stick with for a long time, because there are proposals that Dr. Crow raised yesterday.

If that's where we are and you can satisfy the civil libertarians by destroying the sample, then let's do it.

MR. KENNARD: Mr. Levy, if I may suggest a couple of things, first of all, I think I can speak for all 3,500 sheriffs in the country, having 28, 29 years of law enforcement myself, we in law enforcement will not be resistant to this.

You suggested that law enforcement is going to be resistant to collecting this. I present to you we will not be resistant in collecting this.

Second of all, you suggested that we should prioritize. Are you suggesting we prioritize so that we can get convictions or that we can even get those who are responsible for the crimes?

The high priority of what you're suggesting, of rapes, murders, sexual assaults, those conviction rates are near the high end anyway. What is it you're suggesting we're going to prioritize, and why would we prioritize them for convictions or identity of the perpetrator?

I guess my question on the priorities -- are you asking for us to prioritize so that we get convictions?

MR. LEVY: Sheriff, when I said prioritize, maybe I didn't make myself clear. The prioritizing that I'm speaking about here is, above all, going to be a priority on the part of the Federal Government and of the states to give you the money that you need to do the job that you want to do, to do the job that the people in the crime labs want to do.

That's what I'm talking about when I talk about priorities.

MR. KENNARD: And if you suggest the priority should be that we eliminate these backlogs, that would have a lot to do with it.

MR. LEVY: I think that eliminating the backlog -- I think that -- from what I hear from the people who I know who are in the DA's office in crime labs, I hear that they're doing tremendous work at developing patterns and solving crimes through development of patterns, work that would never have been dreamed of years ago.

That strikes me as a very high priority, to get those samples analyzed so we can get the information in the hands of people like you to investigate crimes and find people who are out there raping lots of people. I think that's a very high priority.

So, I think that the priority should be on making this work as a tool in your hands, that the funding should be there for the matters that I think will be of the highest priority to you and the other sheriffs in this country.

MR. KENNARD: Thank you.

MR. LEVY: You're welcome.

DR. CROW: Paul?

DR. FERRARA: Harlan, as the forensic science community has centered and standardized upon 13 genetic STR loci, the arguments that I used to have regarding retainage of samples for changing technologies is somewhat muted.

However, we continue to retain the samples in Virginia.

You alluded to a concern about typos, and clearly, when we're dealing with tens and hundreds of thousands of samples, clearly there is an opportunity where humans are involved for an error to occur.

How do we reconcile, however, the ability of retaining the samples for quality assurance purposes when a data bank hit is made to confirm it before that person who has been identified is investigated?

In other words, on one hand, there's the risks of retaining the sample and the benefit of the quality assurance and assuring that a typo in entry did not occur. Which is better?

MR. LEVY: Paul, let me ask you something. In Virginia, do you have an ironclad rule that you do that testing before you share the information with the police investigating the crime? Because my understanding in New York is that that's something that they try to do, but it doesn't always happen, and so --

DR. FERRARA: I don't have an ironclad -- we've struggled with that issue, because on one hand, we try to determine, when a hit is made, if the -- based on the information we have, is the individual still in -- is he in a prison someplace so that he doesn't represent a risk. In that case, we afford the time to do a rerun.

If, on the other hand, that person is, to our knowledge, free, we don't want to waste anymore time in getting the information to the law enforcement agency.

So, there isn't an ironclad rule, but I wanted to point out that there are some advantages and disadvantages to the retainage of the sample.

MR. LEVY: So, if you draw that distinction, the person who is in the prison obviously will be more readily available to take a fresh sample from them pursuant to court order.

So, then they start to address -- that distinction may start to address the concern that you've raised and might be a reason that would then militate against it being necessary to retain the sample.

DR. FERRARA: That's right. I agree.

MS. BASHINSKI: Can I speak to this just one moment?

We have a different policy in California. We will not make any announcement until we've not only rerun the sample, we also run samples that were run contemporaneously with that sample to ensure that there hasn't been any sample mixup, and we feel very strongly, especially when we start having a much larger sample throughput, that we need to have that kind of quality control.

Now, time may tell us if that's an excess of caution. We don't think that it is now, and we would feel very vulnerable if we weren't able to go back and do that quality control step at this point.

DR. CROW: Let me call next on Woody and then on Barry.

MR. CLARKE: Harlan, I want to see if I have your thoughts correctly. You don't have any difficulty with the concept of taking samples from arrestees, it's simply the timing that now is not the time?

MR. LEVY: I have some difficulties, Woody. I think that there are technological issues still. I think that, if we make progression to the point of the kind of technology that Judge Reinstein described, that then some constitutional issues that might present themselves start to recede.

I think that there's something to be said for experience before we expand into a huge new governmental program.

If the logic of the law is experience, let's get that experience first on a more limited basis before we engage on an undertaking that would be unprecedented in its magnitude.

I think that, even though the presumption of innocence does not generally, in the view of the courts, have much constitutional significance in analysis like this, I think that, also, from a public perspective, that there is a ring of this, that it is somehow not fully consistent with the presumption of innocence, that there's something slightly unseemly about it.

So, for that reason, too, I hesitate also, Woody.

MR. CLARKE: So, you do see a distinction between fingerprints and taking a sample of biological material.

MR. LEVY: I see a distinction that I think will recede over time.

MR. CLARKE: All right. Thanks.

DR. CROW: Barry.

MR. SCHECK: When you're talking about backlogs, I think we should all be clear. Let me see if I've got this right.

We have a backlog of, what, 350,000 or however many, of currently-drawn samples that haven't been typed.

We have a million owed samples, estimated, of people that are eligible to have their DNA drawn under existing statutes but are on supervised release or parole, who we can't find, who are in the community, who, as I've been saying for meeting after meeting, should be our highest priority.

Then we have the turn-around time problem that we've discussed, which I also put into the issue of backlogs, correct, and I think Harlan mentioned this, people who are awaiting trial whose DNA has not yet been compared, and the turn-around times are -- we hear from Virginia and California -- are high, much higher, I know, in other jurisdictions.

We also have the backlog, in a sense, of new unsolved cases where we all would agree DNA would be relevant. We have no suspect yet, but it would be very helpful to get those new cases in and type them so we can solve a crime. That's a backlog problem.

We have old unsolved cases, rape kits that have never been typed and, in some jurisdictions, are being destroyed, although I'm glad to say Commissioner Safir has issued a directive that that not be done after five years anymore in New York.

Now Harlan has raised another point that we shouldn't lose sight of in terms of the arrest proposal, and here I'm just talking about practicalities.

There's another turn-around time issue. If you think you've got turn-around time problems now, think about what the turn-around time problem is going to be at the time of arrest, because as Harlan is pointing out, I'm not so concerned about police taking it, because we'll hire doctors or nurses, and we do that right now in our New York data bank to take blood from inmates.

That's not so much an issue, but from the time that you draw the DNA sample from the inmate, let's even assume you do it by a buckle swab or any high-tech fix you want, you still have to process it to look at the unsolved crimes to fulfill the purpose of this proposal. How long is that going to take?

If that takes two weeks, well, I am telling you right now, we have in -- when we train lawyers in New York, be they prosecutors or defense lawyers, I'm sure you'll agree, Harlan, we have the New York Post/Daily News rule, which has to do with the judge is going to think about should I set bail for this person at a level that the individual can make, and you make that decision by saying how's it going to look in the New York Post or the Daily News if this person goes out and commits some other crime? You know, how's that going to look, and then they make the bail decision.

I think you're going to find far more people in pre-trial incarceration for those two weeks awaiting the results.

I mean we don't let people out right now unless we process their fingerprints.

So, there's yet another backlog problem that's of no insubstantial size and nature, and if you begin to calculate how long it takes, how much it costs to keep people in pre-trial detection awaiting these DNA results, you've got a real big number.

MR. KENNARD: Mr. Scheck, let me counter one thing you just stated. We do let people out of jail before we process their fingerprints. That has been part of the problem. We take them, but they're not always processed, and they are released.

MR. SCHECK: Well, in New York, there are certain offenses -- in other words, if we print somebody, we run it in the computer to see if there are any open cases, and we don't let them out of jail until the fingerprints are back.

MR. KENNARD: That fingerprint has been run NCIC and you have got every --

MR. SCHECK: No, just state, and I think most jurisdictions have that policy. So, if we're going to take the DNA, there's going to be some turn-around time, and that's a logistical and an expense issue.

DR. CROW: I don't know whether those are questions or not.

MR. LEVY: I think that fit in the realm of a comment.

MR. SCHECK: It's your idea, Harlan. I liked it.

MR. LEVY: Thank you, Barry. That's a new experience.

[Laughter.]

DR. CROW: One thing has changed, if you look at your schedule, and that is that the representative from the bar association is apparently not coming. So, we have more time than we thought we had, and the suggestion is that we have the lunch a little earlier than is scheduled here and the have the Commissioner speak after we've eaten rather than during it.

MR. ASPLEN: On the original schedule that went out, there was a listing for a representative from the ABA. However, that individual is not here.

When you arrived, we gave you a revised agenda that does not include that person.

However, the space is open, and as such, what we're going to try to do, if we can, is to move lunch up a little bit so that we can actually eat first and then return to our seats and actually begin with Commissioner Safir's remarks at about 12:15 or 12:30, rather than actually eat through his discussion, which was, no offense, part of the original plan.

I'll explain later, it's a funding issue, but we'll take our chances on the, quote/unquote, "requirements of a working lunch," and I'll deal with that when they get back.

DR. CROW: Let me emphasize that questions or comments related to the earlier speakers this morning are in order, too.

Judge.

JUDGE REINSTEIN: No matter what we do regarding the database issue, I like Harlan's suggestion regarding doing a study on patterns of crime, but hasn't that already been done, when David Ware spoke to us regarding burglaries and the drug cases and the like as being precursors to more violent crime?

DR. CROW: Didn't someone say something like that here?

MR. SMITH: We ought to have some independent expertise presented to us. I think it's pretty tricky.

MR. THOMA: I think there's two issues, Judge. I think there's one with regard to the proclivity for recidivism with regard to specific crimes, and I think the second is the type of crimes themselves, that lend themselves to DNA evidence being left, and I think those are priorities -- we've talked about priorities on this commission, and I greatly appreciate the way that we've done that, and I think that this is an issue that particular lends itself to that.

I think Harlan spoke on this with regard to priorities as well as anybody, and I think those are two aspects that we really need to talk about.

I think Barry's comments with regard to Michael's original suggestion on priorities, when we made the recommendation on the backlog, that that is a very important priority with regard to us, but I think both these aspects are things we need to take into account, because what we end up doing is we've got the intrusion issue, it's there, but the priorities with regard to what backlog that this is going to create far exceeds whatever backlog we've got now, and I think Barry just brought that up, but I think it's on all of our minds.

JUDGE REINSTEIN: I don't mean that any study that's done in Great Britain should be utilized here to compare like in an urban setting here.

I mean the environmental differences between the urban environment in Great Britain, I think maybe are totally different than, say, New York or Chicago or Los Angeles or thereabouts.

At this point, we just have the anecdotal evidence.

MR. SCHECK: I'm against the study that Harlan was proposing.

MR. LEVY: Now I'm on familiar ground.

[Laughter.]

MR. SCHECK: Now it feels more like usual, right?

MR. LEVY: Old times.

MR. SCHECK: Just because, you know, first of all, you can get any criminologist to crunch these numbers in terms of looking at people in the past who have committed homicides or rapes and compare them with their prior crimes, and yes, there's no question -- and New York has really, in some ways, led the way in this -- that you can target criminal activity and you know that certain offenders are going to go out and commit other kinds of crimes.

But what I don't like about it is the policy justification is that the notion of being able to predict on this or that even recidivism, per se, is the constitutional justification for doing these things, I think, is wrong-minded, and not only that, it falls into the very danger that we're worried about.

I don't like the idea of justifying, in terms of constitutional principles or even neutral principles, databases on the grounds that we can begin to identify a certain class of people that tend to have proclivities towards crime, because we know in advance that data of prediction is never going to be that good, but it also feeds into the idea that we're going to go take the DNA and try to find a genetic basis for those kinds of predictions.

So, I think that's really the wrong kind of data to collect and the wrong justification.

MR. LEVY: You're more confident than I am about what the study is going to show before it's done. I think it could be that there are very strong distinct patterns where there are associations with certain crimes and with later crimes that are the crimes we most want to solve. It may not be.

MR. SCHECK: We know there are. That's my point. We know there are, but that doesn't help you predict in any individual case.

MR. SMITH: But Barry, there's two separate questions here.

One is whether or not the degree of distinctions that might be drawn to a further study are sufficient to be of constitutional importance.

The other one is whether or not priority setting within a law enforcement agency might be governed by a better understanding of patterns.

DR. CROW: One thing that's sort of implied by what Barry said -- that is that doing a study in which you ask how many people who have committed serious crimes have committed minor crimes before. It's quite a different question than asking how many people who commit a minor crime will later commit a serious crime, and it's easy to confuse those.

MS. BASHINSKI: Also, we need reasonable data on which to set our priorities. I think we've made a lot of assumptions without cases and data, and we might as well test those assumptions with data.

MR. LEVY: I spoke before I came here this morning with my former colleague, Linda Fairstein, who told me that she and my former boss, District Attorney Morganthal, both strongly support the Commissioner's proposal, and she also told me that, in the most serious serial rape that they've recently solved in New York City, that the one prior arrest that the defendant had was for a computer-related crime.

So, Barry says that we know what the answers are going to be. I don't think we know what the answers are going to be until we do the study.

MR. SCHECK: That's not what I said. What I said is that this is the wrong data -- it's not going to answer the question you want answered, and we already know that, for reasons that Dr. Crow has already pointed out, and criminology is not even your field. Statistically, we already know that.

There is a lot of data that we need. I mean I thought yesterday we were talking about how the labs can't even count a case for budget purposes. You haven't collected that data, you know, and we talk about a million old samples and we're not too sure about all these various numbers, and yet, I can think of about 12 studies that we've gone over in our last three or four meetings that we really need to decide how much money to spend tomorrow and where to prioritize it.

This study as to finding crimes that are particularly prone to recidivism, that may or may not be helpful in terms of DNA testing, gateway crimes, I mean the example you cite shows that computers are not necessarily going to be a gateway crime to serial rape. I mean I think that one's doomed from the start.

MR. KENNARD: What is the question you suggest we want answered? You've suggested that that is not the question we want answered.

MR. SCHECK: The way we should do it is that we should begin looking at our actual DNA hits and exclusions. We should deal with real empirical data that are coming in from the labs, and we should try to find out -- as the cases come in, we should count them systematically, we should count how much it costs, how many samples you do per case, and you see how many you clear, you know, in different ways. In other words, build empirically from the work that the labs are actually doing right now and expand their capacities to do the work and tie them into the law enforcement that are giving them the cases.

MR. KENNARD: To do that, we have to have a database.

MR. SCHECK: I'm with you on the database.

MR. KENNARD: Again, our priority should be the backlog.

MR. SCHECK: The priority should be the backlog. They should be focusing on the new unsolved cases and how those will lead to other kinds of crime solving and catching the guilty and exonerating the innocent. We have so much money that we need to spend in those areas where at least we have a handle but we have no data, and this study is one of the last one.

DR. DAVIS: Let me comment a little bit about money.

I've been hearing a lot of talk about money here, and a legislator who is faced with the problem of slicing up the money pie is going to ask, well, if we invest this much in the backlog, how much, in the long run, are we going to save, and I think that, somewhere along the line in here, I'd like to see somebody who is a sharpie on business practice or the economics of crime and the economics of solving crime and the economics of preventing crime, what the bottom line in dollars is going to be.

I think that would be a very cogent argument to make for the legislator who has to ultimately come up with the dollar figure.

Now, the legislator is going to do -- or vote -- he's going to vote one way or the other.

It's either going to be on the basis of sound economic principles or it's going to be on the basis of a stampede of political expediency, and I'd rather see it on the basis of sound economics, but I have no feel for what -- if we estimate it costs so much to clean up the backlog, how much, in the long run, do we estimate or do we have the capability of estimating what the dollar value of that will be in the future, and then sort of subtract one from the other and come up with a plus or minus number.

MR. CLARKE: Then again, how do we put an economic rating, so to speak, on victims of crime like we've heard from in Chicago, you know, who had to deal with that situation?

DR. DAVIS: I don't know, but juries -- in the civil lawsuits that I sit there and look at from the outside, or read about in the paper, there apparently are people out there who can come up with all sorts of money numbers.

DR. CROW: Let me call on the Chief next.

MR. GAINER: I just wonder if we could maybe go back to crime scene processing, if you will, because we seem to spending a lot of time on, once we get this sample, what we might do with it, and thinking from a law enforcement perspective, do you anticipate that there will be a strategy that will hold police accountable for what they fail to find at scenes or look for at scenes?

In other words, it's pretty easy for us all to discuss the easy things -- blood, semen, and saliva -- but more and more we're learning about these other places where we can get these cells, and I think our experience in the law enforcement field and, I suspect, from both prosecutors and defense, is that there are a lot of things we are not yet picking up.

So, I'm wondering if, one day, that we're going to see a photo of a crime scene that would be presented at the trial, and what you would do is pick apart the detective and the evidence technician and said did you sample this, did you sample this, did you pick up that, did you do this, and at the moment, the answer to that would probably be no, and therefore, have we left ourselves open in law enforcement that we failed to exclude the very person that we're trying to convict? Is there going to be a strategy like that?

MR. LEVY: In the debate about the exclusionary rule, one of the ideas that's always been discussed as an alternative to exclusionary rules was that police officers would be fined or penalized in some way for failing to advise a defendant of their constitutional rights.

The general view has been that responding to police officers in that punitive way was something that nobody in the system had any taste for, that it wasn't an appropriate remedy for the violation.

I don't know why you go to the punitive aspect rather than starting with the training aspect and with the problem of resources, with the number of situations to which a crime scene unit responds.

The Commissioner can address this much better than I can, but my understanding is that, in my city, at least, that the crime scene unit only responds in a very limited number of very serious cases.

So, I think that, before you get to questions of sanctions, which, as I understand it, has never particularly been how police departments work, you want to look at questions --

MR. GAINER: Actually, I wasn't thinking about sanctions or discipline of the officer. I was really thinking about the inference of doubt that it would raise if you didn't exhaust what we now know could be limitless possibilities.

Like someone said how close are we to getting DNA evidence from simple fingerprints? Now, that may be further down the line, but there are a lot of things that could be processed at the scene that we hadn't been processing before.

MR. LEVY: I think that that's very much a part of criminal defense and that that's going to be very much the flip-side of DNA investigation. Why wasn't this done?

It's typically done now in cases involving guns, where there is a gun that's recovered and the gun was never fingerprinted, and a prosecutor will have to jump through all sorts of hoops to explain why the police officer didn't have the gun fingerprinted, the fact that the police officer saw the suspect with the gun, testimony by the fingerprint expert to the effect that guns are typically a bad surface for recovering fingerprints.

So, I think that you're going to see the same kind of work done by defense attorneys in terms of what wasn't done at the crime scene. I think that's going to be a very active area of attack.

MR. GAINER: As it is already.

MR. LEVY: As it is already.

MR. GAINER: But generally, it's an active area of attack on obvious things, and I guess what we're picking up more and more is there are lot less obvious things that we are discovering, and as we develop pamphlets and guidance for police officers, I can think of almost limitless things you might pick up at the scene that have some potential of transferring some cell that would reveal --

MR. LEVY: And Chief, I think they should begin with bullets that go through the body.

[Laughter.]

DR. CROW: Let me break in on this to say that lunch is ready, so I suggest we eat, but I want to thank all three of the speakers this morning. It's been a stimulating time, and a pleasure.

[Applause.]

DR. CROW: So, we'll lunch and then reassemble here.

MR. ASPLEN: At the risk of indigestion, I'm going to ask that we kind of expedite the lunch process as much as possible and really try to start at 20 after, no later than 20 after.

[Whereupon, at 11:50 p.m., the meeting recessed, to reconvene this same day, at 12:20 p.m.]

Previous	Contents	Next
Back to National Commission Main Page