CHAIRPERSON ABRAHAMSON: We'll call the Commission to order and we'll let Dr. Crow have some lunch and what we'll do is move into something we were scheduled for tomorrow, and that is crime scene investigation working group report. Chief Gainer is unable to be here, but Chris Asplen will lead that and work with the members of that Commission in discussing their report.

DIRECTOR ASPLEN: Thank you, Chief. We'd like to do a couple of things today, the first of which is to go over the pamphlet that you have all received, the different -- three different proofs, and to get a sense for, number one, what needs to be edited substantively, and we're already aware of a couple things, but then also get a sense for which one you think would work best out in the field, if you will.

As usual, sometimes we -- we probably need to understand the caveat going into it that you may select one that the Department of Justice doesn't allow us to print, for some reason, because it's got too many colors or something like that, but we will try to abide by the Commission's wishes as much as possible. So we'd like to do that and then afterwards discuss a couple of other issues once we've completed that.

So to give you a little background on the pamphlet, this is one of the deliverables that Chief Gainer spoke about at the last meeting in Dallas. This was something that the working group decided was crucial to develop as we worked towards establishing kind of a standard level of competence among all law enforcement officers on this particular issue.

It was designed, by nature, of sitting together with the working group and identifying what needed to be included in the document, what kinds of issues needed to be included, but also the approach that needed to be taken and kind of the way in which it needed to be written. We had to be very careful to write it in a way that law enforcement officers would appreciate and would essentially kind of be drawn to read, and we wanted to make sure that it was not scientifically technical. We wanted to make sure that it was not legally technical and didn't say too much, simply because we wanted to make sure that they did, in fact, become interested in it and take a good long look at it.

However, what the working group talked about was also just as important as the document itself, making the point on behalf of the Commission that this is -- that it's not as much about the document as it is about the dissemination of the document. By that, I mean striving to get something, this document being the something, out to every law enforcement officer out there.

And when we talk about what can the Commission do, what actual recommendation does the Commission make to the Attorney General, the thought was that something like, Attorney General, here is a pamphlet that we believe is important to go out to every law enforcement officer in the country and explain the dynamic of the value of the first responder on the scene and the value of these issues, and then ask her to promote that proposition, ask her to promote that this does, in fact, go out to every law enforcement officer in the country.

So the two issues regarding the pamphlet are, number one, what are the particulars of the pamphlet that need to be considered and changed and then, number two, how do we communicate the issue, the real issue to the Attorney General, and how do we express the point of we need to strive towards a standard level of competence on DNA issues among all law enforcement officers across the country.

For those who have had an opportunity to review it, and I think it was sent to everybody, what comments do you have in terms of things that you feel need to be changed or edited or amended?

COMMISSIONER BASHINSKI: I have several things, but I'm not going to burden this group with that discussion. But I did send you some minor things. So I don't really think I need to talk about those here, right? You're talking more about the general content.

DIRECTOR ASPLEN: The general content. And I will throw out a couple of things that have been suggested to me that need to be considered. One example is the use of the phrase six cells, and I apologize that --

COMMISSIONER BASHINSKI: That was one of mine. Yes. I wouldn't --

DIRECTOR ASPLEN: A couple of people have mentioned that we really need to change that to a few, and not be that specific. Another issue is -- and it's from a broader context -- is how do we prevent -- no -- how do we encourage the judicious use of this and discourage law enforcement officers from just picking up everything and flooding the laboratories and essentially getting over-excited about the proposition, because there is a concern on the part of the laboratory personnel involved in this that that is what will happen.

COMMISSIONER SANDERS: I didn't think the purpose of this was as much for the collection as it was for bringing all law enforcement on the line or on the same page as to how important DNA evidence is and how important it is to how they adjust their containment as first responders, and it would seem to me that to address the concern that you have would be through the training of the evidence technicians themselves and the collectors of the evidence, because those first responders are not going to be collecting the evidence.

What this thing is supposed to is to suggest to them that as they approach a scene, that there is new evidence and where it can come from and all those things, to help them contain, so that it's not contaminated.

That's what I thought the purpose of this pamphlet was and that the evidence technicians themselves are the guys you're going to be concerned with as to making them understand what they deliver, they don't deliver. Collection, in my mind, is not the problem. It's the submission of it.

I would think that you should be able to do that with some sort of protocol as to what the labs will accept or won't accept.

DIRECTOR ASPLEN: That's certainly true that that was the anticipated purpose of it and it still is, but I think the thought from the laboratory personnel was that it was still going to encourage that dynamic of having them collect a lot of things that may be out of excitement over the possibilities.

Because especially considering the extent to which a lot of times your first responders are also your evidence collection personnel.

COMMISSIONER KENNARD: Chris, let me add to what the Chief has said. I like this idea. I would intend to add this to my field officer's manual. You've hit it right on the head. Many of the first responders, if they don't collect it, they're going to be preserving it. They're going to be another eye to make sure that when that crime lab does get here, did you get that piece of glass, did you get whatever, and this is a very valuable piece of evidence that we could use in our training to make everybody -- I mean, yes, the crime lab people need to be trained in how to gather it and preserve it, but it does not hurt my people, because it may be in the next six months, this guy that was the first responder is now going to be transferred to the crime lab.

COMMISSIONER SANDERS: Chris, I still say the protocol as to what the crime labs will accept, it would seem to me, I mean, that would be the way to address it, because they're not going to be submitting all DNA evidence that's collected no matter what the crime is. If there is only -- you know what I mean?

It's like this thing, though, I'm telling you, the collection, to me, is you would want to encourage it, I think you should, and collect everything you can, because you never know what's going to turn out to be evidence or what's going to be important or those kind of things, when and where.

But the fact that it's collected does not mean that it's going to be sent to the laboratory, I don't think. So all I'm saying is I can see where the lab would be concerned that everything we pick up we're going to send to them for them to do an analysis on, but I would think you wouldn't do that except in certain cases or you would -- it would be up to the laboratories to establish what they will accept and what they won't accept.

COMMISSIONER BASHINSKI: Were there specific things on this list that people reacted to more strongly? For example, I don't want every baseball bat sent to me to see if there's the perpetrator's DNA on the handle or probably -- probably every toothpick. But most everything else on this list are normal ordinary. In fact, I was suggesting we add another one, and that would be a used condom, to tell people that the victim's DNA could be on that condom, if it's found in this person's possession.

Were there other things? I mean, what kind of specific concerns were raised?

DIRECTOR ASPLEN: I'm not terribly sure that there were specific objections to anything that was here. I'll give you an example. Paul Ferrara, who got the document and looked over it for us, suggested that in the evidence collection and preservation section, that something was included to the effect of investigators and lab personnel should work together to determine the most probative pieces of evidence and establish priorities.

COMMISSIONER BASHINSKI: Yes.

DIRECTOR ASPLEN: Which is exactly what you're saying.

COMMISSIONER BASHINSKI: Yes. That's a perfect addition.

COMMISSIONER SANDERS: That's what I meant to say. I just forgot to say it.

DIRECTOR ASPLEN: It's great. The great thing about it is to hear it from the law enforcement representative and the laboratory side and that both are comfortable with it.

COMMISSIONER BASHINSKI: I remember voicing the same concern when we created this list.

COMMISSIONER CLARKE: I would echo what Chief Sanders said, also, about the collection. I don't know that we want to discourage evidence collectors, as opposed to the prioritization of what's been collected, and then submitted to the crime laboratory for analysis, and there's a lot of different models we know around the country in terms of prioritization and they're essential.

Otherwise, a laboratory, especially a laboratory like White's, ends up getting what may be 100 samples, when there might be only five that are probative, should be probative.

So that prioritization level, to me, is much more significant than trying to pare down what the evidence collector gathers.

DIRECTOR ASPLEN: So are you comfortable with Paul's addition to the document?

COMMISSIONER CLARKE: Yes.

DIRECTOR ASPLEN: That helps that concern.

COMMISSIONER BASHINSKI: Yes.

DIRECTOR ASPLEN: I'd just give you another example of the kinds of changes that have been suggested to us. Adding sunlight to the enumerated environmental factors.

COMMISSIONER BASHINSKI: Yes.

DIRECTOR ASPLEN: That are included in the section of what is DNA, in the paragraph that starts "Forensically valuable DNA can be found on evidence," et cetera.

COMMISSIONER BASHINSKI: Yes. That's very appropriate. If we're going to talk about minutia, I think under contamination, the last sentence is misleading the way it's worded. PCR process can distinguish DNA from different people. What it can't do is tell you -- I would reword that to say the PCR process will copy whatever DNA is present in a sample, whether it is from a suspect or from another source, rather than say it can't distinguish between, because actually you do use that test to distinguish between DNA from different people.

Also, plastic bags don't generate moisture, they trap moisture, I think.

COMMISSIONER SANDERS: It would seem to me like that's not supposed to be an all-inclusive list anyhow. Just examples of things that are inspected. Are you going to list everything?

DIRECTOR ASPLEN: No. The example that Paul gave was the example of having it in the police vehicle. Not just the heat, but he said the actual sunlight itself is a real problem. And I think it's, yes, not meant to be an exhaustive list, but I think he felt that one was important enough to include, given the recurrence of that particular problem.

COMMISSIONER SANDERS: I can see where that would be more important under evidence collection and preservation. If he's saying by leaving it in direct sunlight in a squad car is going to deteriorate the DNA or something, I just don't see why it's a big deal to -- cops, first of all, aren't going to read all that stuff. So all you're doing is trying to give them food for thought, so that we have a sense of these are the kinds of things that have an impact.

COMMISSIONER BASHINSKI: Right.

COMMISSIONER SANDERS: I would have never excluded or included sunlight.

COMMISSIONER BASHINSKI: I think it's one that's important.

DIRECTOR ASPLEN: Another example of a specific editorial request from Paul was on the elimination samples section at the end. The second paragraph, when investigating the rape of a sexually active woman, it may be necessary to collect and analyze the DNA of any recent consentual partners. He suggested that we put in parentheses within 72 hours, within at least 72 hours.

COMMISSIONER BASHINSKI: It just says that may be 72 hours.

COMMISSIONER SANDERS: It's defining recent as the last 72 hours.

COMMISSIONER BASHINSKI: I wouldn't do that.

DIRECTOR ASPLEN: Okay.

COMMISSIONER BASHINSKI: Because you could be looking at clothing, sheets, anything else, 72 hours is not necessarily the main issue. It just says may.

DIRECTOR ASPLEN: Okay. General consensus around this table that it's okay the way it is.

COMMISSIONER SANDERS: I kind of like Paul's idea, though.

CHAIRPERSON ABRAHAMSON: This was a very good, informative pamphlet for everybody.

COMMISSIONER GAHN: Chris, I have just -- under the evidence where you have the half-bend Danner mask and the source of the DNA, generally, if it's Danner mask, chances are it will be saliva.

COMMISSIONER BASHINSKI: Yes. The mask.

DIRECTOR ASPLEN: On the mask.

COMMISSIONER BASHINSKI: On the mask.

COMMISSIONER GAHN: I would put saliva, also.

DIRECTOR ASPLEN: And include it at the end there.

COMMISSIONER GAHN: No. In the box, you see what I mean?

DIRECTOR ASPLEN: Yes, at the end of the box there.

COMMISSIONER GAHN: Put saliva there. The only other thing after reading this, and just something to think about, and I see -- and just knowing, you know, dealing with the police daily on every level, and I see where it says wear gloves, change them often, you go through all the stuff they should do.

Do we want to have something in here to just let the officer know that still this isn't to take away their common sense or creativity and get the job done, they're at the scene. What I'm saying is that because they don't have gloves or anything, you get there and all of a sudden -- I think we talked about this last night at dinner -- the storm clouds are forming, the rain is about to come, the blood is gone, it's okay to go in and take your McDonald's napkins from the front seat or your car and swab that stuff. You know what I mean? You still -- common sense, you do what you have to do at that crime scene and if you have to get creative or -- this isn't to take away from that.

Sometimes they'll get to a scene and may not have all -- are we constricting them or even intimidating them thinking that they've got to have all this. It's just something to think about. Do we want to have something in there about common sense on that scene?

DIRECTOR ASPLEN: In the collection aspect.

COMMISSIONER GAHN: Yes.

DIRECTOR ASPLEN: Or preservation.

COMMISSIONER KENNARD: Good point, because if we get them to where they're really afraid of this, then --

COMMISSIONER GAHN: That was my -- when I read the whole thing.

COMMISSIONER SANDERS: That's kind of what happened in the O.J. Simpson trial, where the officers thought they were doing the right thing by going into the residence and bringing the sheet out to cover the bodies. I mean, they introduced trace evidence and contaminated the whole crime scene.

I think the more that you put in here that causes them to think, the more difficult it is. But I would think a cop that's capable of thinking that quick to do it isn't going to care what this thing says. He's going to do it because he knows that's the right thing to do. And those that aren't, when you put that in there, all of a sudden, people are starting to think, now, wait a minute, what am I supposed to do, that kind of thing. That's just my experience, because I couldn't believe they covered those bodies.

COMMISSIONER CLARKE: Could you think of another example?

CHAIRPERSON ABRAHAMSON: There isn't one.

COMMISSIONER KENNARD: But, also, think of the opposing part of that. When we, as law enforcement officers, get lambasted because we haven't done just that, we have not covered this body that's being so offensive to all these people because we're trying to -- and the Littleton, Colorado was a prime example. They've taken some shots because of their slowness and their thoroughness in doing the crime scene and there have been some families that are very, very angry because of just what you suggest, Chief, that why didn't you at least cover the body.

We got covered when we took down a guy that was holding hostage and he came out and we took him down and we didn't cover him for quite a while.

COMMISSIONER SANDERS: I guess the only thing -- of course, we don't want to debate it, because then we'll get sidetracked, but there's a difference between taking a sterile blanket from a squad car and covering somebody, it doesn't introduce trace evidence from the crime scene itself, that's all I'm talking about, is that common sense thing. Somebody thinks it's common sense because they've not been exposed to it. All they care about is covering the body, they're not thinking about the investigator that's going to collect the evidence that's going to be analyzed and then there's going to be a court battle about whether it was tainted, it wasn't tainted, all that stuff.

That's all I'm saying. This thing is only intended, I thought, to give them food for thought and suggest to them, hey, here's the greatest thing since sliced bread. Does anybody know what was greater before sliced bread? Sorry. You know what I mean? That's what it was about, so that they would pay attention to it, because I've traveled all over the State of Illinois, when I talk about DNA, people, police administrators look at me like they don't know what I'm talking about.

Well, most of the time, I don't know what I'm talking about, but I have a comfort level.

COMMISSIONER KENNARD: So why don't we indoctrinate this into a training -- I intend to indoctrinate this into my training manual and have it part of my field officer's manual, to whatever degree, and if it means having a disclaimer, fine.

COMMISSIONER SMITH: It almost looks a little bit like a control manual.

COMMISSIONER BASHINSKI: Let me ask a question. Don't most of your officers have gloves for other reasons now, for biohazard protection?

COMMISSIONER KENNARD: Well, some do, yes.

COMMISSIONER BASHINSKI: Matter of fact, don't you issue them and require them to wear them under certain circumstances?

COMMISSIONER KENNARD: It's just kind of a standard procedure. We have the gloves and instead of giving --

COMMISSIONER BASHINSKI: Exactly. So you already have barrier protection as a part of the normal --

COMMISSIONER SANDERS: Also, a lot of them carry a glove pouch on their belts in conjunction with their magazines.

COMMISSIONER BASHINSKI: I guess what I'm saying is I don't think we're suggesting something here that's beyond the normal tools that the officer is going to have today that he wouldn't have had a few years ago.

COMMISSIONER KENNARD: I move adoption of this one, if that's what you're looking for, Chief.

CHAIRPERSON ABRAHAMSON: I'm looking for it.

COMMISSIONER BASHINSKI: Second.

DIRECTOR ASPLEN: I'll take it, with the editorial changes that had been made. Yes, I guess that would be the appropriate way to do it.

CHAIRPERSON ABRAHAMSON: I think that is. So let's take it in terms of the substance of the information given. How many favor that? Do we need a roll call? How many favor the adoption of this?

[Show of hands.]

CHAIRPERSON ABRAHAMSON: Anyone opposed?

[No response.]

CHAIRPERSON ABRAHAMSON: So all present have voted in favor of that. Do you have a preference? Not that we have the final word as to what you like. I know that the Chief and I were talking about it beforehand.

COMMISSIONER SANDERS: The thing I suggested was that if you're trying to catch the law enforcement officer's eye, this one here, whatever law enforcement officers should know, you see that. On this, even though it's unpared, it's a lot better than this one. What I get from it is DNA when I'm scanning. If I was looking at something that the Chief passed out to me to read, if I saw this thing, I wouldn't even know --

COMMISSIONER KENNARD: I don't know that I got a black one.

DIRECTOR ASPLEN: Robin, can you give -- the Chief, he's got one. A couple people have said that. I think that's something we could certainly adjust without any problem.

COMMISSIONER REINSTEIN: Maybe we could --

COMMISSIONER KENNARD: I'll amend the motion to include this one. You're probably right, something that would be eye-catching to a law enforcement officer.

CHAIRPERSON ABRAHAMSON: General consensus seems to be that the black brochure is better, although there has been a suggestion to lighten up the blue on the front, first page.

COMMISSIONER KENNARD: And the one argument against this, Dr. Davis here had mentioned in some of the articles that we have been getting out, it's tough to mimeograph or copy some of these things that are so dark.

COMMISSIONER BASHINSKI: Right. This needs to be much greater contrast and a lighter background.

COMMISSIONER KENNARD: If somebody wants to mimeograph it, this thing here needs to be lightened up, so it doesn't get caught, because it does not mimeograph well.

DIRECTOR ASPLEN: What we'll do is we'll go back to the folks who developed this for us and talk to them and see if they can't lighten it up for those purposes and lighten it up and make sure you can read the inside cover there.

COMMISSIONER TURMAN: Chris, if you're talking about multiple colors, have you seen that What Every Law Enforcement -- about the civil protection order? It's five colors. ICP did that.

CHAIRPERSON ABRAHAMSON: And I gather the general consensus is the preference for this, the black one, with lightening at least the text stuff.

Okay. Anything else on crime scene investigation? What else?

DIRECTOR ASPLEN: The other thing that we need to do in conjunction with that is, and we've learned quite a lesson here with the first recommendation that went to the Attorney General, we can't just send this to the Attorney General and say here's a pamphlet for your consideration.

What needs to occur is some sort of action, request for action. She needs to know what it is that we want her to do.

As I said earlier, my impression is what we want her to do is to take that that pamphlet and promote its dissemination. So I guess the issue is how do we communicate that aspect of it to her. Again, talking about the issue of establishing a standard level of -- or moving towards or working towards a standard level of competence among all law enforcement officers in the country, recognizing that some citizens are protected more or less based upon the knowledge of their particular police department of this technology.

So the issue is how do we do that.

COMMISSIONER BASHINSKI: How do you normally distribute materials that you want to have this kind of wide dissemination? What's the normal route?

DIRECTOR ASPLEN: We print a whole bunch of them and we advertise it and let people know who -- and start sending it out pursuant to a mailing list and then pursuant to requests.

I think the bigger issue is how do we define the issue. Do we want to say that we believe that we should work toward a standard level of competence on these issues across the country.

COMMISSIONER BASHINSKI: Baseline level of understanding.

COMMISSIONER KENNARD: The training issue for public safety for law enforcement.

COMMISSIONER BASHINSKI: Understanding and awareness. The very basic level for everyone.

DIRECTOR ASPLEN: And that this is one method of doing that. Tomorrow we're going to talk about more specific actual law enforcement training with the folks from Eastern Kentucky and we'll do more of that tomorrow.

CHAIRPERSON ABRAHAMSON: And this is part of that, it seems to me.

DIRECTOR ASPLEN: Yes, part and parcel to it, absolutely.

COMMISSIONER SANDERS: So we're saying raise the level of awareness.

DIRECTOR ASPLEN: Correct.

COMMISSIONER BASHINSKI: And understanding.

CHAIRPERSON ABRAHAMSON: It's part of the training.

COMMISSIONER TURMAN: I think you have to tie it -- for her, you have to tie it -- I mean, she's got so many priorities, you have to tie to an event, something, some campaign or something that is fairly concrete. She's got all kinds of priority issues.

CHAIRPERSON ABRAHAMSON: Is she talking to law enforcement officers somewhere?

DIRECTOR ASPLEN: I'm sure she is.

COMMISSIONER SANDERS: I just think if you're just trying to communicate, then there's different ways. She can go through major city chiefs, she can go through the IACP, as far as having workshops and things, I think the eye-catcher for her is to say that we have identified this as a basic need for raising -- if your eventual goal is to go towards raising the standard, we've certainly got to make sure that everybody in law enforcement knows about it and we think that this is the first step towards that.

COMMISSIONER BASHINSKI: I don't want to keep bringing population that Los Angeles case, but Woody and I and others have sat on an awful lot of panels and attended a lot of conferences where the issue was raised how are you training your officers, what are we doing. Now we've found out there was a problem, which really wasn't as much of a problem of collection as it was a lot of other things, but now that we've found out there was a problem, what have we done.

I don't know if there's any other cases or other examples. Maybe in your lab's experience, you see court cases being overturned because of -- do we have any other examples? Otherwise, we're probably going to have to go back and beat that dead horse maybe.

COMMISSIONER SANDERS: But we talked about that. Remember, we talked about it, we don't want to get into the position of where we're suggesting that the mandated training for law enforcement, because everybody is going to get defensive and we're going to have all the post organizations, all the curricula people, everybody is going to be upset with it.

This is saying we think that there is not enough, for lack of a better word, public awareness of what DNA is, what it can do in the law enforcement community, and we want to raise that level of awareness.

Now, whether that's toward the eventual goal of raising the standards and all that kind of stuff, you might want to make it part of that, but I'm telling you, you come out of the blocks with a statement like that it's training, that we need to be able to train, and everybody that I know in our profession is going to be upset with it.

COMMISSIONER BASHINSKI: I didn't mean that there was mandatory training. I mean, the question is asked all the time, how have you modified what you do in order to address what was brought up as an obvious problem, and this is one example of how you'd modify what you do.

COMMISSIONER CLARKE: Or turning it into a positive thing.

COMMISSIONER KENNARD: Right. You've got post councils. I think every state has their post council, that this, in a positive note, could go to them. They're screaming now for additional help, what can we add to that curriculum, without changing and mandating this, send it to every state's post council.

COMMISSIONER GAHN: Chris, why don't we -- you could tell what actually happened in reality. How many years was DNA a prosecutor's tool? And that's what it was. It was the prosecution and the police weren't even brought into the loop, because it was the police -- it was the counties who were playing the tab, we were doing admissibility hearings, the local cops weren't concerned about that, and it was a prosecutory -- but now with the advent of the data banking, the law enforcement community has become more involved and we realize that there was a lack of -- that understanding or that -- of what it was, and there was a void in the law enforcement community.

This is what's going to bridge that void now.

DIRECTOR ASPLEN: Let me make this suggestion. Why don't I try to come up with a rough draft this evening of the one or two-page recommendation that would accompany this pamphlet and if we could get that done at this particular meeting, that would be wonderful, rather than have to wait to approve that later, and we'll do that. We'll identify the issue and the problem and talk about the benefits and see if we can come up with the appropriate thing.

COMMISSIONER DAVIS: Let me ask one question. The pamphlet is a good idea, too. But over the past couple of years, I've probably thrown away several dozen compact disks from AOL asking me to subscribe and Microsoft to use their product, et cetera. I get those in the mail all the time.

Apparently, that must be cheap, because otherwise they wouldn't be throwing them out all over the place. I'm wondering if, in addition to something like this, eventually, all law enforcement officers could receive a compact disk in the mail. They're less apt to throw out a compact disk than a brochure.

DIRECTOR ASPLEN: There are two ladies in the back of the room smiling and nodding their heads, because that's what we're going to talk about -- that's the kind of thing we're going to talk about tomorrow, not just internet training, but also developing some CD-ROM capacity for that exact issue.

COMMISSIONER SANDERS: But, remember, we talked about, too, the reason we went to this first is because even when we were talking about mandated -- I mean, electronic reporting of crime, there are some states that don't have it. So we thought this was the quickest most efficient way to get the information to everybody that could use it.

COMMISSIONER DAVIS: I would agree.

COMMISSIONER SANDERS: That's why we did it. But we did talk about the CD-ROM.

COMMISSIONER DAVIS: I was thinking of a supplement.

COMMISSIONER BASHINSKI: We're really talking about another level of training for the person that's actually collecting the sample. This is really for the person -- anybody who might be happening on or responsible at a crime scene, but tomorrow we'll talk about a broader training program that would get to more specifics.

CHAIRPERSON ABRAHAMSON: One more topic.

DIRECTOR ASPLEN: One more topic, and this is kind of a catch-all, if you will. What I want to do is just kind of lay out and identify some resources and talk about some numbers as we work through towards identifying and addressing the non-suspect analysis issue, if you will.

You have all received your CODIS DNA laboratory survey and the CODIS information that's contained in there. I think there would be great benefit to really taking the time to review some of the information that's in there.

If, for example, you take a look at case work, in table 11, and you take a look at things like total number of un-subs tested, and the numbers are very small. Again, I don't want to go through all of it. I just want to kind of identify it as a resource for us to kind of orient ourselves to the problem as we look to the future of dealing specifically with the non-suspect case issue.

Again, table 11, case work by state and how the individual states are doing it, if you take a look at the end of that and you look at total number of un-suspect cases analyzed, that's on page seven of table 11, the total in 1999 was 7,590. Now, those are just the cases that have gone to the laboratories in the first place. So that's just one part of the dynamic, one part of the issue. We haven't even considered those cases which are still sitting in the police evidence lockers, because they have been told not to submit them or because they haven't thought to submit them.

Given the investment that we're making in the database system, that's a number that I think we're looking at that says that doesn't make much sense in terms of how we're allocating our financial resources and to the extent to which we are or are not.

So that's one kind of dynamic to consider.

COMMISSIONER ADAMS: You're saying because the number is so small, is there justification for going ahead with CODIS and the backlogs and all that.

DIRECTOR ASPLEN: No, I don't think it's a matter of is there justification. It's where do we put our efforts, where do we put our resources in terms of really taking advantage of the investment that we've made in CODIS.

COMMISSIONER ADAMS: I don't think you can use these numbers right now as what the real number is. Look at the spike in 1999 versus '98 and '97. That spike is a result, I think, of laboratories, like my own, which used to not even accept unknown subject cases because we didn't have the time to invest the energies to look. Now, with CODIS, we've got to take the time to work with them, and a lot of states work in the same realm and I think that's why these numbers are going to greatly increase over the next few years.

DIRECTOR ASPLEN: And I don't mean that any of the numbers we're looking at right now are going to independently or thoroughly reflect the situation. Again, I'm just kind of throwing this out as indicators to look at later on down the line as we start to analyze how do we focus our investment in the non-suspect case analysis.

COMMISSIONER BASHINSKI: I would argue that we do need to do exactly what you're saying, Chris, because even though, yes, we're now accepting suspectless cases, we still don't have enough resources to analyze that huge great unknown out there and we need to focus the spotlight, even though it's an uncomfortable thing to do, on the fact that we are investing a lot of money in the data bank, which we should continue to do, but that if we don't also and additionally invest more in this other side, we won't get the payoff that we would otherwise have expected.

You can just look at that from Florida's data, because if you look at how many cases they've analyzed, they have a huge amount of success. California, by contrast, we've analyzed a lot of suspectless or offender samples, but we don't have the resources to analyze a lot of cases, so we have had much less success.

COMMISSIONER ADAMS: I don't disagree. I was hearing, though, Chris, that because these numbers were so low, that we shouldn't be as concerned with them as we should be. Maybe we shouldn't be as concerned with them. I'm saying those numbers are artificially low.

DIRECTOR ASPLEN: Right. Then I wasn't being clear. Then I wasn't being clear. The point is how low they are and I would even agree with you that they are artificially low. So yes, I wasn't making myself clear.

To give you another example of something that's going to come down the pike that we're going to be using, and the reason I'm doing this now is because I think it is such a complex issue that we kind of need to start thinking about it ahead of time.

The BJS survey that a number of laboratory folks here filled out, the 1998 national study of DNA laboratories, should be completed in about three months and it addressed a wide range of topics, and this is the one that I mentioned earlier today is something that I've been asked not to reproduce and asked to only speak in generalities about.

But I think the preliminary numbers are very reflective of the situation. To give you an example, one of the questions was what types of DNA case submissions will you accept, an important question. The preliminary results that are coming in under any criminal case, just about 50 percent would accept any criminal case.

About 16 percent would accept all known suspect cases. When we asked -- when you look at unknown suspect cases, you only get about 20 percent of laboratories that will accept all unknown suspect cases, and then the number goes up a little bit, to about 25 percent, that will accept certain unknown suspect cases. So that's the acceptance policy. I think those are important kind of telling statistics in terms of the criminal justice system's utilization of the investigative power of DNA.

COMMISSIONER BASHINSKI: But it's reflective, obviously, of the resources of the laboratory to respond to this.

DIRECTOR ASPLEN: Absolutely. Right. And the question is, how do we, as a Commission, address the resource issue. We need to define the problem first, if you will.

Then there are a lot of questions here and I don't want to spend too much time on it.

Another interesting question that comes up as we look at kind of the status of investigations, does your laboratory routinely maintain the outcome of criminal cases involving DNA evidence analyzed by your laboratory. That issue has come up in the cold case issue and where do we get our numbers in terms of what is still an active case or what is not, and whether or not the laboratories can be valuable in that regard.

About four percent of the laboratories routinely maintain the outcome of criminal cases.

The other issue, and it's one I think David alluded to a little bit in Florida, the issue is does your state criminal -- do your state criminal history records indicate whether a DNA sample has been taken. Twenty-three percent have that kind of connection between their database and their criminal history record. Again, a significant indicator of the coordination or lack of coordination of those systems.

DR. FORMAN: About.

DIRECTOR ASPLEN: Yes, about. There really was a point after the 23, so I was being general.

Does your laboratory have a program for looking at inactive, closed or previously analyzed cases? About -- about half of them do, they say. However, in terms of where that's generated from, looking at the inactive cases, they're generated generally in this fashion.

About half of those are by request by the specific agency. So if the law enforcement agency is proactive enough to request it, they will do it. There are some cases where DNA was not tested before, about a quarter, prior method tested was a different method tested, they will sometimes do it. So, again, those are some of the kinds of issues that this survey has addressed.

So as soon as I get that on my desk, I will forward it to you. Another part of the dynamic in all this, though, is the issue that I mentioned earlier that Dr. Davis brought up. From a cost-benefit analysis, what are the costs of crime. If the Commission is going to consider how much we should invest in the analysis of non-suspect cases, that has to be measured against what it costs for crime.

There was a study done by the National Institute of Justice in 1996 where the costs of -- for type of crime in the United States were as follows, based on 1992 statistics. The tangible cost for a single rape was $5,100. What NIJ did in that particular study was they added to that intangible costs, similar to what they do in civil courts and considering a lot of those issues.

The intangible costs were 81,400, for a total of $86,500 a crime, a rape. Murder came out to be $2,940,000. Robbery with injury, 19,000; assault, 9,350; burglary, 1,400.

Now, if you multiply those out across the number of crimes, that's a pretty significant number. I will make that -- I will make the whole study available to you, but what I'm reading from can be found in that KVI report that you mentioned, that I mentioned earlier today, where they look at the Kansas response to the rape investigations.

Now, the other dynamic that needs to be added to this question that the working group looked at was really what may be the biggest issue, and that is the number of non-suspect cases that are not even going to the laboratory. Everything we talked about so far are those cases that have gone to the laboratory.

The big question mark and what we don't have any data on is the issue of what are police not submitting in the first place and why are they not submitting it.

We don't have the data on that. As such, we have gone to the Police Executive Research Forum and asked them to develop a survey that they would exercise relatively expeditiously, we hope, and they estimate about three months.

It looks like -- it's called a potential for crime solution through DNA evidence, and you should have all gotten that this morning.

What PERF would do is they would set up a telephone survey and then a number of written surveys and then they've identified who they would target, but they would ask the following questions; when evidence is submitted for DNA processing, where is it sent; what types of cases are submitted; what is the cost of the submitting agency; how many cases with potential DNA evidence are not submitted; what types of cases are not submitted; what types of evidence do these cases have; what are the reasons for non-submittal; does the department have a policy governing DNA submission; and then could we get a copy of that.

It was recognized, when we spoke to the folks at PERF, that you're going to kind of get three types of responses. One will be a response which will be rather specific and they can go back and they can count the number of cases that they're not doing. To give you an example, New York City could tell us right now that they are -- that the number of rape cases, just rape cases that are not analyzed is in excess of 10,000 cases, 10,000 non-suspect DNA cases that aren't being analyzed.

So if you just kind of start with that proposition, you realize that this number is going to get pretty big.

But this will be a way for us to start the process of analyzing that issue of what are law enforcement agencies not submitting and why aren't they submitting it.

The other thing that they would consider doing in this report is using the rape scenario or rape cases to kind of specifically kind of play that scenario out and look at rapes more specifically because it will be easier to assume that you would do DNA in most rape cases, although I use the word most and that's a very loose interpretation of the dynamic, but that may be the best kind of case to look at.

Does this sound like the kind of thing that should be pursued, this questionnaire and trying to get a handle on that number? This was brought up at the Dallas meeting. This was in response to the questions raised at the Dallas meeting.

COMMISSIONER BASHINSKI: It does. I just have a question about the budget. You've got $41,000 in indirect costs which are not part of the total. So this study is going to be an $82,000 study?

DIRECTOR ASPLEN: I'm sorry?

COMMISSIONER BASHINSKI: The total cost.

DIRECTOR ASPLEN: The total would be --

COMMISSIONER BASHINSKI: Is that a typo?

DIRECTOR ASPLEN: I have to believe that that's a typo, quite frankly.

CHAIRPERSON ABRAHAMSON: That's more than the total.

COMMISSIONER BASHINSKI: And it isn't included in the total. So that's -- I'm just --

DIRECTOR ASPLEN: We haven't even spoken to them since we got it. Our concentration was on the elements themselves. We will certainly talk to them about that.

The other big reason to do this is to enable us to also look at the -- what we talked about at the Dallas meeting, in the context of the arrestee question, whether or not we should take DNA from arrestees. Remember, we talked about kind of the third area of analysis is what are the logistical issues, what are the practical issues of trying to collect DNA from individuals who are arrested.

The point being with the numbers that we're looking at preliminarily that are not getting done now, with the non-suspect cases that are not getting analyzed, what would the effect be of taking DNA from arrestees.

The hypothesis is that there is the potential that it would be do more damage than it would be good at this stage of the game.

COMMISSIONER ADAMS: I like David Coffman's analogy of climbing Mt. Everest versus step-wise.

DIRECTOR ASPLEN: And we look toward the recommendation to the Attorney General, if that's ultimately what we decide, that is a tremendously, tremendously important point to make. And I will tell you that it's not just on the Attorney General's level. We have had a number of inquiries from individuals in individual states wherein state legislatures are considering taking DNA from arrestees, and we've gotten calls from laboratories with people saying my state is considering doing this, however, we've got all these other backlog problems and while we recognize that it's an attractive proposition for the legislature to consider this, we're terribly concerned that it's going to be another unfunded mandate and if this passes and we don't get the appropriate financial backing, it's going to be worse than if we didn't do this at all.

So the states are also looking for some guidance as to how to react to the suggestion that DNA be taken from arrestees. Surely, from a logistical practical standpoint, not in consideration of the constitutional and other issues.

COMMISSIONER DAVIS: You raised a very good point, unfunded mandate. The recommendation would be do not pass legislation along these lines that are unfunded mandates and then let people go ahead -- I wouldn't put anything -- I would not like to see anything done that would put the squelch on people who want to do this kind of stuff from doing it. I think we ought to encourage this. Let's encourage climbing to the top of Mt. Everest as fat as we can and if there is somebody who's got the rules and the resources to do it, have at it, let them do it, and not try to say because we can't do it here, here and here, therefore, nobody can do it, would be wrong.

I think our whole approach should always be to encourage the doing.

DIRECTOR ASPLEN: So I think as a Commission, I think what the group was talking about was trying to find a way to communicate that, again, and thus, the reason we're going through all these is because I guess it makes the point pretty clearly ultimately.

CHAIRPERSON ABRAHAMSON: Did you want approval of this?

DIRECTOR ASPLEN: Sure, I'll take approval of pursuing this course of action in terms of the survey.

CHAIRPERSON ABRAHAMSON: They do survey -- surveys before, so that this is going to be scientifically correct.

DIRECTOR ASPLEN: Yes, that's what they do. It's the Police Executive Research Forum. This is exactly the kind of work that they perform as their function.

COMMISSIONER GAHN: How long will it take them to do it?

DIRECTOR ASPLEN: They tell me about three months.

COMMISSIONER GAHN: And when we are told the answer, basically you're looking for a number? I mean, we know that there is a substantial case load of unsolved cases throughout this country out there that are not in any case index and nowhere close to being there. We know that already. Why do we want to do this to tell us something we already know?

DIRECTOR ASPLEN: Because I don't think we know how big that number is and I think how big that number is is really important.

COMMISSIONER GAHN: But I think you can estimate fairly well how big that number is. I think that Mr. Coffman could probably -- it's fairly substantial. In Wisconsin, I could tell you, in Milwaukee County, I could tell you.

CHAIRPERSON ABRAHAMSON: What would your guess be?

COMMISSIONER GAHN: In Milwaukee County, I can tell you, we had 2,300 cases, unsolved, non-suspect cases, just sexual assaults. We looked at 6,000 police inventories. We only culled that down to about 150 cases that we sent to our crime lab. We have thousands. But we did a very systematic selection to go and that's why I think we have those successes we talked about in Albuquerque.

What concerns me about all of this, especially this morning when we talked about this arrestee stuff, let me tell you what happened just a few weeks ago in Wisconsin.

I'm not saying that I think that people in Wisconsin should ask a question of me, because I'm very small person, I'm the COG there, but I went into work and all of a sudden I hear on the news these legislatures and people from our Attorney General's office saying we are introducing legislation to take DNA samples from all convicted offenders, all felons.

Now, our data bank is just sex offenders and we still have this awful backlog. We're still out-sourcing. And I called the crime lab, Dirk Jansen, who you heard, some of you, in Albuquerque, and I said what do you know about this. He doesn't know anything about it.

And what I'm worried about is these legislatures and people get all wound up on this tough on crime and it sounds neat, but we've learned lessons from our convicted offenders; for how many years did thousands and thousands of samples and still today sitting in freezers unanalyzed.

And now someone in Wisconsin wants to multiply that by 12. No funding for it. What I'm worried about now is some legislators who want to get on the tough on crime bandwagon and say we're going to take it from all arrestees. I think as a Commission, I'd like to put the skids on this. We've seen -- this should be put on the back burner for quite a while, just all the issues. This is a monumental task of arrestees. It is monumental.

As a Commission, I think we should just stop that, put the skids on it and make a recommendation that now is not the time to discuss it. Maybe a year from now, but right now, we have too much going on in our backlog already that we have to work on.

CHAIRPERSON ABRAHAMSON: So your position would be that you don't need these numbers.

COMMISSIONER GAHN: I don't think so. We know it. We know it's out there and I think we know it's large. And whether we know it's real large or kind of large or pretty large I don't think makes any difference.

COMMISSIONER BASHINSKI: If you want to get funding and you want to get someone's attention, you're going to need to tell them how large and you're going to need to have solid data to back that up.

I think that's what we're trying to do. I think we're trying to say there is something we need to do here, nobody can afford to do it, it's going to cost a lot of money, and we need to set priorities as to how to get there.

COMMISSIONER SMITH: I have a couple questions. One is it seems to me, if I understood your remark a moment ago, these are actually diametrically opposed points, and it raises the question which I think might be worth our considering.

In order to accomplish a bunch of the things this is trying to accomplish, it needs to articulate a vision about how the nation gets to where it should go. It seems to me that sort of making good points about the sort of foolishness of some of the courses proposed by others isn't nearly as effective as putting forward really kind of attractive notion of how we could actually do it.

I think that's hard, because the numbers are big, and so it's how are we going to do that and respond about what that's going to cost. I think we have a hard time, but if we don't do it, the other things I think are not worth much.

So I'm skeptical about the value of the cost-benefit analysis. First of all, because I don't think the sorts of cost-benefit analyses you're talking about hold up very well to examination, but, secondly, because I don't think people make decisions that way.

This is my experience that tells me those things and I worry about us investing an awful lot of time.

I'm sort of sorry to bump them there, but it's on my mind.

CHAIRPERSON ABRAHAMSON: What would you say about this PERF proposal?

COMMISSIONER SMITH: Well, I don't know as much as other people around the table about those questions, but I'm inclined to agree with Norm about it. There's nothing wrong with somebody doing that, but more important than how to do it would be to figure out what we think given our sense that it's very large, what we affirmatively put forward so as to draw attention and money to the next steps that need to be taken.

If that helps fine, but I don't see how that helps, frankly.

COMMISSIONER DAVIS: One of the reasons I was so much interested in this cost-benefit is that practically every piece of propaganda that we have in this country for movements for this and movements for that has got a fiscal note attached. Somebody comes up and says it's costing us this and this and this and that and that, and to me, it's part of the PR program. We are faced with a very large PR problem in this country in reference to the future of DNA. The people who are going to pay for this are the taxpayers and they're going to have to be brainwashed, if you want a better term, propaganda-ized, taught -- educated, maybe that's the more polite way -- as to the benefits of this and every possible way that we can show the benefits, I'm for.

Now, in terms of DNA arrestees, if Sheriff Kennard, in his district, has found a way in which he can do DNA on every one of his arrestees, and find the money locally to pay for it and they do it, I don't think we, as a Commission, should say that shouldn't be done.

I'm all for demonstration projects. If he can come up with a way of doing it and it works, that's great and I'm all for that. And I'm worried when I hear people say, well, it's too big a problem. It's like the medical examiner system in the State of Florida. In 1956, when I started, it was too big a problem, but after we demonstrated it and gradually worked on it, and now 40 years later we've got the system, but if we didn't start off by doing things in the beginning where we could do it, we wouldn't be anywhere -- well, we wouldn't be where we are today.

CHAIRPERSON ABRAHAMSON: Chief, and then Ron, and our time is flying. Go ahead.

COMMISSIONER SANDERS: My only question is why did you select PERF? You're saying they're going to represent 40 percent of the population and we're still going to be doing a guesstimate on the other 60 percent of the population.

DIRECTOR ASPLEN: We obviously can't survey every law enforcement agency in the country. They felt like they could do a decent study based on that, a basic representative study based on that.

We can't survey every law enforcement agency.

CHAIRPERSON ABRAHAMSON: They're doing a telephone survey of non-PERFs. That's number three.

COMMISSIONER SMITH: Is it more important to do that or to find out what's going on with the failure to get the samples over from probation and parole, because that also could be surveyed, and it seems to me that it's sort of obvious that if we have excess capacity to make contact with people whose DNA we want, then one can at least put forward a proposition that that capacity could better be directed to getting it from the people who owe it to us, to get out and get it.

Why should we -- if we don't have probation and parole officers capable of finding probationers and parolees, why should we have the police do it?

COMMISSIONER BASHINSKI: But they're not mutually exclusive.

COMMISSIONER SMITH: No, but there are important differences. I think we discussed in previous meeting s about the value of the two. Maybe we don't have those views anymore, but initially I thought we agreed that the value of getting probation and parole owed samples in and tested was high, very high, and that as a national issue, that was an important thing to do.

So there's a whole bunch of things that lead me to say that there is some value in this Commission focusing attention and suggestions of investment on those things.

COMMISSIONER REINSTEIN: Before, we were talking about in terms of the pamphlet about public awareness and about law enforcement awareness of these things, and I think that we have to seize on the opportunity to educate the public that this is really the most exciting investment in criminal justice, forensic science, and the justice system in the last ten, 20 years, and that the possibilities for crime-solving and eventually crime prevention are limitless and you seize on the proof in the pudding argument, using Great Britain, the number of cold hits they get per week. I know they only have one laboratory and they're able to centralize everything, but when the public hears about what's being done in England and now I guess in other parts of Europe as they expand over there, it's so essential to get that message out.

I agree with Joe, I think that you've got to not limit what some jurisdictions can do. And I was talking to Sheriff Kennard, I guess, because of the resources that they have, not just in the lab, but through the university in Utah, they've got this genome project there, that they actually -- he says that they don't have a backlog there.

COMMISSIONER DAVIS: They can do 10,000 cases at the drop of their hat. That's nothing to them.

COMMISSIONER REINSTEIN: If we could ever get California to get there, when they get funding and resources, then we can really get this problem knocked. But I think the only way you do it is by exciting people with what is being done in some places and what can be done here.

COMMISSIONER BASHINSKI: I think you have to define the whole problem, because your data bank and building it up isn't worth anything if you aren't also working at the cases.

So however you can, I just don't think we should leave out a part of the equation and I would disagree that people don't make decisions based on those dollars, because legislators and their fiscal analysts do.

COMMISSIONER SMITH: Anybody can make a decision on the basis that a rape was worth $7,000. It's just not what people think about.

CHAIRPERSON ABRAHAMSON: I'm going to have say we have a break now and then we're going to do Jim Crow's report. I don't think that we're focused yet on PERF, at least from my hearing of the discussion, and I don't know if we'll come back to it tomorrow or the next time, but we'll put it in a broader focus, instead of a discreet topic.

DIRECTOR ASPLEN: I think we can talk about it tonight and think about it over -- and talk about it tomorrow morning and see how we get to the issue.

CHAIRPERSON ABRAHAMSON: All right. Good. So we'll take a break, let's make it ten minutes, come back, then Jim Crow is on.

[Recess.]

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