CHAIRPERSON ABRAHAMSON: We'll move on to the post-conviction issues working group report, Judge Reinstein and Professor Berger. We're supposed to have some materials. Is this the statute that we're supposed to have? We have a chapter one, background.

COMMISSIONER REINSTEIN: Also, the statute that we handed out earlier in the week, Robin was copying that.

DR. FORMAN: May I suggest a five-minute relief break, for a moment?

[Recess.]

CHAIRPERSON ABRAHAMSON: We're back in session. Nobody is paying attention to me. We're back in session. You have here a proposed uniform statute, from Professor Berger and two of the members of the working group. Judge?

COMMISSIONER REINSTEIN: Well, if you recall, back at the Dallas meeting, we discussed where the Commission wanted our committee to go after we had finished the draft that had been tentatively approved by the Commission on post-conviction recommendations.

I gave various options that we had discussed and one of the first things that the Commission charged us with and gave us jurisdiction, because this was something that the legal issues committee was going to be working on, was to look at drafting a model statute regarding time bars and statute of limitations on post-conviction issues.

So we took that charge and on Monday, we met in Albuquerque, in conjunction with the National Conference on the Future of DNA Evidence, and knocked out a proposed uniform statute. This is very rough. We had almost all the people on the committee there, Kathryn wasn't there and Barry was not there, and things went very quickly without Barry there.

I e-mailed Barry the other day and told him that we had knocked this out. I haven't gotten an answer back from him yet. But Margaret had done some great work on what you have in front of you, the memo, the members of the working group, and then the second page is our first cut on it, and neither of us had a clean copy. So I've got some notes in here and you can just kind of ignore those, but Margaret's copy actually had more notes and she's going to add some things when she starts talking to you.

But, again, this was in answer to the issue of what happens when you have states like Virginia that have a 90-day time bar after conviction, after sentencing, and you had a case where there was no DNA evidence that was analyzed, the DNA really wasn't in existence for forensic ability, the testing in, say, the mid `80s, and now you've got somebody who said, hey, I was innocent and I'm innocent and nobody ever tested the DNA and I'd like the evidence to be tested.

It hearkens back to Barry's most recent case in Oklahoma, where the two fellows were exonerated with DNA evidence, one who -- both of them had been in prison for 12 years and one of them was five days from execution. So we've heard about those horror stories, and I'll turn it over to Margaret to talk a little bit about the statute.

PROFESSOR BERGER: Thanks. When we looked at the legal issues surrounding this issue, I think we were all impressed by the fact that the procedures out there dealing with newly discovered evidence and getting a new trial or whatnot on the basis of newly discovered evidence just didn't jive correctly with the problem here.

The problem here wasn't really newly discovered evidence at all. It was evidence that had always been in the possession of the prosecution and we want to make quite clear in this statute that we are not talking about going out and collecting new evidence, that you're going to the victim's house and starting a new search.

That we are talking about testing or retesting evidence that has been in the possession or control of the prosecution ever since the time of the original trial and conviction and that what the defendant needs is some mechanism for, first, getting access to that evidence. And frequently, until that evidence is tested, one is going to have no idea of what the results are going to be.

So we wanted to set up some procedure where, in a case where there was an appropriate showing by the defendant that this might lead to favorable results that could either exonerate or really lead to reasonable doubt, that the defendant would have the opportunity to request from a judge access to the evidence for testing.

If you notice that in our first paragraph, we attempted to do that without any time bar in terms of how long has elapsed since the time of the conviction. We did not put in any provisions, and we'll stick that in our comments, for where one makes this new kind of motion. We thought that probably states would like to take care of that themselves, if they adopted this statute, some kind of a version. We know that for some statutes on newly discovered evidence, you have to go back to the trial court, trial judge, if available, and maybe some states would want to have a special person in charge of this.

But that's a detail that we felt that the uniform statute should not deal with.

And then we broke the -- we had two different scenarios, mandatory testing and testing in the court's discretion. We thought that the mandatory testing should be for those cases where we thought that the petitioner would not have been prosecuted or convicted if exclusionary results had been obtained through DNA testing; in other words, a very high standard.

The reason we distinguished between that category and category B, where the court would have to find that the verdict or sentence would have been more favorable if the results of DNA testing had been admitted in the trial, resulting in the judgment or conviction, is because there are procedural consequences that follow, one of which is who is going to pay for the test.

We had discussed this at length in our committee and there was some feeling that the mandatory payment for an indigent defendant or indeed anyone should be limited to those cases where, if the results were favorable, you really would be -- a judge would be able to conclude that there is or would have been no prosecution or no conviction.

That for cases where still you might have gotten a less favorable -- a more favorable result as a defendant, and you really have to relate this to some of what we did in our chapter one with categories of cases, we felt that in those cases, maybe there would be a right to the testing, but that the petitioner would have to bear the cost. Though, again, we have given the court a good deal of discretion in this matter because the court could order, for instance, a state lab to do the testing, which isn't quite the same situation as payment.

We have also added both in the mandatory and in the testing in the court's discretion section, both of which start off "The court may order testing if it finds that," we've added -- you don't have it on this draft -- "after notice to the prosecution and an opportunity to respond, the court shall order testing," are the words. The prosecution has to be notified that this is happening. The prosecution has to have an opportunity to respond and the prosecution really will have an opportunity to request a hearing in a case where it feels that the judge is going to have to do some fact-finding.

We also changed in two, in both of them it says the evidence is still in existence and in such a condition that DNA testing may be feasible, we changed the word "feasible" to "conducted," because we didn't want it to sound as a legal requirement, the feasibility. This is really a question of the state of the DNA, of the state of the evidence, whether one could do DNA testing on it in terms of its degradation and whatnot.

Then as you can see, we have a section on procedures, which provides for this difference in payment for the two different categories, allows the court at any time to appoint counsel for an indigent petitioner, and we put in a fairly broad discovery requirement giving the court, again, discretion, it says "may order" the prosecution or defense to provide all parties and the court with access to the laboratory reports that had been prepared in connection with DNA testing, as well as underlying data and laboratory notes.

That's for the case where DNA testing had been done at the time of the original trial. And now the defendant is really claiming that the technology has advanced so that it's much more discriminatory and retesting might lead to results which, in the past, were considered inconclusive.

We felt that there might be cases in there where if you now looked at the original testing, you would see that it wasn't really inconclusive if all of the underlying data was provided. So for that type of case, we thought that rather than going into new testing, the court should have an opportunity to look and see whether you might be able to resolve this simply by taking a second look at the original test results.

You can see that the court, in connection with any testing that is ordered, new testing that is ordered, also has the discretion to order production of some of the underlying data.

Now, we also added a sentence, a four to our procedures, which would say that if the court orders testing, then the court may, in its discretion, make such other orders as may be needed. We thought that in the comments, we would talk about a whole host of possible things that the court might want to consider, such as splitting samples if there was going to be retesting, allowing the defendant to observe, allowing the defendant perhaps, in some instances, to test on its own in those cases where payment was not going to be automatic, allowing the court to consult perhaps its own experts, special masters.

One of the other things that we were sort of looking at was the possibility of perhaps setting up some commissions within states that could act as sort of advisors to courts when these kinds of issues come up, put in a reference to that.

And which I guess has become more complicated as a consequence of David's presentation this morning, the question of whether elimination samples might have to be ordered from third parties, which I don't know, David, if you have considered at all in terms of search and seizure, but we'd certainly like to have your comments on that.

Somebody who is not a suspect at all, but for purposes of giving meaning to the DNA samples, one might need a sample from. I don't know. Anyway, then we have the section, which really shouldn't have a number, because it really balances that request for testing, the second stage, which is suppose testing has not been done and one has results.

At this point, you can see that we're saying that if the results are unfavorable to the petitioner, the petition gets dismissed, and if the results are favorable, we are really kicking it back to the post-conviction system that the state has. So that we have not, at least at this point, set out a standard in this statute as to what a court would have to find in order to set aside a conviction or grant a new trial or whatever.

That would be governed by the standard in the state's own post-conviction remedy statute and might presumably be different in different states, depending on how they phrase their tests for granting a new trial.

We have not as yet compiled all of the statutes, but from the ones we've looked at, we can see that there really are different standards in different states.

So that's really what we have done so far.

COMMISSIONER REINSTEIN: The other thing that we didn't address on Monday, but I know it's something that we've talked about before, and for those of you who saw the USA Today article earlier this week by Richard Willing regarding our committee's work, Barbara Morgan, who is on our committee, talked about the issue of what's good for the goose is good for the gander, and the statute of limitations on prosecution, of what to do regarding those when you have crimes that the statute has run, but now DNA evidence, the technology has improved so much, that we can go back on those types of cases, and we haven't knocked out anything on that.

The other thing that I know that are issues that we could discuss are the flood gate argument, that just open up the flood gates. I mean, we'd be na1ve to think that once this comes out, that there won't be a flood of inmates who will be making requests for DNA testing for offenses that really have nothing to do with DNA. Every time there's a new case that comes out, I see a lot of the post-conviction relief requests from our jurisdiction and even though it has nothing to do with the case, it doesn't stop an inmate from filing a post-conviction relief petition on that issue that they've heard about through the prisoner grapevine.

The comment that Margaret made regarding the DNA advisory team, we got into those discussions because we're thinking in terms of, whereas in Chicago or Phoenix or New York, there may be numerous people on both sides of the table, of the argument on this, who are skilled and knowledgeable about DNA, what happens in Ajo, Arizona, or Atumwa, Iowa, when there's no prosecutors, no defense attorney, and the detective may really not have a whole lot of knowledge about this.

Do you set up, in effect, a DNA swap advisory team among the states, within the state, so that anybody could refer to this group of, say, prosecutor, defense attorney, and investigator, a laboratory, expert, a scientist and the like, to take a look at one of these requests and screen it out, as opposed to doing it within this county that doesn't have the jurisdiction, that doesn't have a whole lot available to them.

Anything else?

PROFESSOR BERGER: Well, certainly, we did not want to put in a system that required a judge to hold a hearing in the case of every one of these requests. We contemplated that in, I don't know, a huge percentage of the cases, the court would look at the paper submitted, decide this was a case that had nothing to do with anything that DNA could resolve, and that would be the end of the matter.

CHAIRPERSON ABRAHAMSON: Norm.

COMMISSIONER GAHN: How do you tie in the -- I'm looking under your mandatory testing. How do you tie in the judge to the categories? You know, those categories that you talked about. What concerns me as I read your mandatory testing, that there exists a reasonable probability that he would have been prosecuted or convicted if exclusionary results are obtainable. As I read that and I'm trying to think back over the many years I've -- that applies to every sexual assault I've ever prosecuted and I get a sense that there may be a flood gate opening this up.

I mean, I'm thinking back of -- and what concerns me also is with our new victim crime legislation of notification -- you know, back -- I used to deal with all the post-conviction motions, without notifying the victim of the sexual assault, because I never saw any reason to reopen that and have her keep reliving this over and over again every time they filed this.

This, as I read this, could open up every case I've ever prosecuted, because if I got exclusionary results, I wouldn't charge in the first place, and I do a pretty good job at trial, but I don't think I'll convict if there are exclusionary results.

So this seems to open it up. Am I reading this wrong?

PROFESSOR BERGER: I think that we certainly saw some cases, I mean, multiple assailant cases, and there are cases where we think that you could not reach that conclusion in terms of the evidence in the case, that you still would not be able to get an exclusion; that even if there was an exclusion, that would not be an exoneration.

COMMISSIONER CLARKE: I was struck by the same thing. Every non-DNA case with a sexual assault would be reopenable or actually be mandatory to reopen, by my reading of it.

COMMISSIONER GAHN: And my reading, too. Even every one we've prosecuted on consent issues.

PROFESSOR BERGER: Well, no.

COMMISSIONER GAHN: Well, that's how I would read this.

COMMISSIONER CLARKE: As opposed to the narrowing that occurred in the guidelines, the guidelines were very --

PROFESSOR BERGER: Well, the consent cases we never put into our category one -- our category at all in terms of if the defendant took the stand and testified to and made the claim of consent. I mean, we specified that quite clearly.

COMMISSIONER GAHN: I think we're happy with that.

COMMISSIONER BASHINSKI: But maybe it needs to be here.

COMMISSIONER REINSTEIN: And this is a working first draft and I think our intent was to tie this into the category one and category two pieces.

PROFESSOR BERGER: To cases, exactly.

COMMISSIONER REINSTEIN: The category one cases being the mandatory testing, the category two being the discretionary testing, and not anything beyond that.

PROFESSOR BERGER: Right.

COMMISSIONER REINSTEIN: And the category two is kind of the loose issue that we need to look at.

COMMISSIONER GAHN: That was my initial question. How, when you're reading this, does this tie the judge into the category one? How do we get to that, so that it's meaningful here? Do you see what I'm saying?

COMMISSIONER REINSTEIN: I do, and it's a good question, Norm. I think it's something we need to address. You've got to remember, we did this in about, what, four or five hours.

PROFESSOR BERGER: Three hours.

CHAIRPERSON ABRAHAMSON: But three is where the present state of evidence was going to be inconclusive. So I guess that would come under two, A-2, the DNA testing may be feasible. I assume it would not be feasible if it's going to be inconclusive.

Do you know that ahead of time, whether it's going to be inconclusive? I'm just looking at the categories again.

See, category three consists of cases in which, because of the present state of evidence or technology, testing will be inconclusive.

COMMISSIONER GAHN: I understand. My main concern is that without directing the judge to those category one, to those ones where it seems that this number one, mandatory testing, opens up almost any case without some reference to, now, wait a minute, there is a category -- there is a pecking order that we have developed and it should fit in here.

Otherwise, I read this as being able to open any case.

COMMISSIONER REINSTEIN: That's something we definitely will have to do in the content on the next go-around on this.

CHAIRPERSON ABRAHAMSON: Yes. I understand. It's limited to one and two, though, because three, four and five just drop out.

PROFESSOR BERGER: Right, and we really were planning to tie these comments, the comments to our categories and make quite clear what was intended. We certainly did not want to reopen every sexual assault case.

COMMISSIONER GAHN: Right. Good.

COMMISSIONER REINSTEIN: But as I said before, it will not stop an inmate from filing a petition. It's up to the judge then to have guidance with some recommendations, model statute, whatever it's going to be, to be able to screen out the vast majority of these.

COMMISSIONER GAHN: May I ask Kathryn what your -- under the victim legislation, where we have this notification, how do you see this as a post-conviction as far as notifying the victim of every post-conviction issue that comes up?

COMMISSIONER TURMAN: Well, I don't know any way to get around the state -- I mean, each state statute is different and some states don't even have statutes on post-conviction notification.

But I'm with you. I have the same sort of concerns, that you don't want to unnecessarily sort of raise these issues, but I think that has to be addressed really sort of at the state level.

But I agree very strongly with Ron and Margaret and your comments that it needs to be made very clear what kinds of cases we're talking to, so that there is a mechanism to screen out the frivolous or the ones that just wouldn't be dispositive at all.

CHAIRPERSON ABRAHAMSON: When you talk about mechanism, you're really going to whether this standard there appears to be a reasonable probability is fine enough or descriptive enough or narrow enough or broad enough, whatever language you want to use.

PROFESSOR BERGER: Reasonable probability we took out of the New York special DNA statute, statutes of limitation that uses that phrase. Again, I'm happy to accept other suggestions.

COMMISSIONER SMITH: We need a definition of exclusionary results, which would then give meeting to the reasonable probability.

COMMISSIONER ADAMS: Or exculpatory.

CHAIRPERSON ABRAHAMSON: Right. There's a difference between exclusionary and exculpatory.

COMMISSIONER REINSTEIN: Actually, the glossary of all those things is going to be within the recommendations. I think we've figured that all of those would cover it.

PROFESSOR BERGER: And we thought that there we would refer to the laboratory chapter and explain exactly what that meant.

COMMISSIONER CLARKE: Jan and I were discussing that really at least consider the use of exculpatory as a much broader term, because a lot of inclusions are exculpatory when you reverse what the evidence is on, like blood on a victim's clothing or blood on somebody else that's inclusionary, which is, in reality, exculpatory, but not exclusionary.

COMMISSIONER REINSTEIN: I'd like to have some comments from anybody regarding the advisability or how practical it would be to do one of these DNA advisory teams, swat teams within a particular states, and really how workable that would be.

COMMISSIONER KENNARD: It would be a good idea, great idea, very workable, especially the smaller states.

COMMISSIONER SMITH: This hasn't been happening anywhere. Is there experience on this?

COMMISSIONER GAHN: I think it has. I mean, I've had a number of cases where Barry Scheck called our office. We have an attorney in Milwaukee, her name is Robin Shellow, and she will come to me and we'll sit down and meet and discuss the case and go over it and call Barry back in New York, and there has sort of been a -- I think it just forms automatically and you'll get the prosecutor who prosecuted the case, get his or her opinion on it, maybe many years -- so there is a process that just naturally evolves when one of these comes up.

Nothing is formal in it, but all the players eventually are there talking and you get the crime lab involved and, say, the detective came in and met with us, well, you go look for the evidence, find it. It just naturally evolves.

COMMISSIONER SMITH: When something happens in Superior or some other place where they don't have the experience, that you guys do it -- are you helping the other parts of the state?

PROFESSOR BERGER: That's what we're concerned with.

COMMISSIONER REINSTEIN: Our issue was that the rural community, where, in 1989, there was a sexual assault conviction or a murder conviction, and the prosecutor isn't there anymore and they get one of these petitions, a judge gets it, the prosecutor gets it, they say I don't know anything about this DNA stuff.

If there is something set up, either loosely or firmly organized, within the state to say we've got a prosecuting agency or that the state prosecutors organization says, yes, we've got this, you can go to this particular group and this is who to call, that type of thing.

COMMISSIONER GAHN: I've had them around and I usually end up getting -- once it gets to the Attorney General's office, and usually they do, somehow they rope me into it.

COMMISSIONER REINSTEIN: Ours is the same, Norm. I mean, every judge in the state seems to end up calling me whenever the word DNA gets used. But if you've got a new judge or you got some prosecutor just gets the petition in or a request or a letter from somebody, should there be something that's formalized.

CHAIRPERSON ABRAHAMSON: Would it make it harder or more difficult for you or easier for you if it were formalized?

COMMISSIONER GAHN: I'm not cheering for anything.

CHAIRPERSON ABRAHAMSON: All right. In the abstract, is it easier for the system, the legal system to work with an informal advisory board than it is to work with a formal one? A formal one, you have to call meetings, you've got to have appointments, who makes the appointments, do you keep minutes, et cetera. Informal.

COMMISSIONER GAHN: My experiences in Milwaukee County is informal is working and will continue to work that way and working well. But I understand your concerns. If this happens up in Ashland County in Wisconsin, will they just take it and run with it alone and not even know anything about this, and that is a possibility. That is.

COMMISSIONER SANDERS: It just seems to me that one of the reasons we came up with this was to help law enforcement at all levels to understand it. I'm just speaking for myself. Anytime that there would be a resource, especially if it was readily available, that you would avail yourself of it. I can't speak to the prosecution end of the judicial system, you guys may be more organized or more formal, but with law enforcement, it would definitely be beneficial for us.

COMMISSIONER CLARKE: I was going to say, my experience with -- the informal seems to work pretty well. Of course, the scary one I was mentioning to Jan is when you get the call the day before and the execution is set the next day, but clearly those jurisdictions that don't have access to those resources, at a minimum, I think they need to be informed about here are some places to turn, whether it's formal or informal, they need to have that information at their hands.

DIRECTOR ASPLEN: It may be the kind of thing that is appropriate for the development of pilot programs. We need to think towards what can we suggest to the Attorney General about this issue. What we could suggest is some programming money being allocated through OJP, through National Center for State Courts or something, but some program that would develop pilot programs to which other states could look to find successful best practices.

COMMISSIONER GAHN: Might I add, just from personal experience, these can take an incredible amount of time and a prosecutor is busy enough, but to go off -- most of the cases are off-site -- searching for them, and if you're going to do a thorough job, you're going to read that case file, you're going to get some transcripts, and it can take incredible amounts of time, just determining whether we should do a retesting, and it's something to keep in mind.

CHAIRPERSON ABRAHAMSON: Kathryn.

COMMISSIONER TURMAN: I think that most victims would feel better when these comes up if they knew there was some sort of formal mechanism. How formal it doesn't matter, but that there is some body, a multiple group of experts who are looking, to sort of weed out the frivolous or the irrelevant. I think that would be reassuring for most victims.

CHAIRPERSON ABRAHAMSON: Unless I hear an objection, I'm going to -- I'm sorry. I should first ask Professor Berger and Judge Reinstein, is there any other information you want to give us or that we can give you before lunch?

COMMISSIONER REINSTEIN: I guess the only other thing is we're going to continue to work on these issues, but I guess Chris can give us our charge, as well as anything else the Commission wants our committee to look to.

CHAIRPERSON ABRAHAMSON: That's a good question that we're going to let Chris answer.

COMMISSIONER REINSTEIN: We can talk about that in our discussion period tomorrow, too.

CHAIRPERSON ABRAHAMSON: Yes, that's what I was going to do. There is a discussion period first thing in the morning. So we've got Professor Kaye on and you for further discussion and comments.

I think this is a good idea about the potential pilot project, if you're interested.

We have a break for lunch. Lunch is going to be right here. It's a working lunch, and David Coffman will speak with us. Then we come back in session at 2:00 and Dr. Crow is being picked up at the airport as we speak maybe.

[Whereupon, at 12:50 p.m., the meeting was recessed, to reconvene at 2:00 p.m., this same day.]

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