JUSTICE REINSTEIN: Okay. If you thought Chris was unprepared, I thought the meeting was beginning in half an hour.

I guess the next thing on the agenda is the Postconviction Issues Work Group discussion and work on the uniform statute for obtaining postconviction DNA testing that you all have and was sent to you. I think the only person on the work group here other than me is Kathryn at this time. Barry is not here yet. And I just want to acknowledge Margaret Berger's work on this. Margaret has been working very hard on drafting after our meeting in -- we met in Albuquerque. The commission discussed this for the first time in Santa Fe, I believe, and then we had a telephone conference kind of refining a little bit more based on some of the discussion at the Santa Fe meeting. But it follows the lead, as Margaret indicates in the commission's notes of Illinois and New York, and what we decided was to do a statute that would be as simple as possible and then follow it up with a much more descriptive comment or note, and you see, you know, the following two and a half pages are a comment, which is pretty much what you see in most statutes around the country.

The reason for the statute, of course, is pretty much what the Work Group has been involved in, and that is the unique aspect of DNA testing as it relates to postconviction relief when, in fact, there in most jurisdictions -- I don't think -- I think it's even more than many jurisdictions, most jurisdictions there are time bars, such as the Virginias where you have 60 days from the time of judgment in order to file for a new trial or for postconviction relief or appeal.

Is that right, Paul, pretty much?

PAUL FERRARA: I thought it was 21 days.

JUSTICE REINSTEIN: Oh, is it really that short?

PAUL FERRARA: It was really -- it was really grossly short, at least a lot of peoples' opinions, but I think 21 days.

JUSTICE REINSTEIN: Okay.

PAUL FERRARA: Before the introduction of new evidence or something like that.

JUSTICE REINSTEIN: And also the recognition that this really isn't newly discovered evidence, which is what you see in many of the postconviction rules and statutes around the country. This is preexisting evidence in many cases that just was not subjected to DNA testing, or was subjected to, let's say, RFLP testing, and now STR with 13 loci is available.

What we tried to do was to break it out into two areas, mandatory testing and discretionary testing, and I'll just walk through a little of the statute.

For the mandatory testing, we talk about the standard that I think is taken from both New York and Illinois about the reasonable probability that the petitioner wouldn't have been prosecuted at all or convicted if the exculpatory results had obtained -- had been obtained through DNA testing. And then the issue whether or not the evidence is still in existence or in a form that where DNA -- it could be subjected to DNA testing.

And, finally, that the evidence was never previously subjected to DNA testing, or that it wasn't subjected to testing that is now being requested.

One concern that, you know, we talked about at the meeting was that does this create a greater loophole for just a slight difference in the type of testing so if now we have STR with 13 loci, if there is some slight variation from that, you know, if somebody filed a petition and said, well, it wasn't subjected to this particular testing that has been developed, therefore, does the door get opened. I think I would like to see that door maybe get shut a little bit more, because as we discussed at the last meeting, I think that Doctor Crow mentioned that STR with 13 loci is probably going to be the standard for at least another ten years, but do you really have to go beyond that for postconviction testing, unless something miraculous comes up where that is actually going to benefit a defendant at some point later on.

Then as far as in the court's discretion, if it's -- there is still -- it's not as definitive with the mandatory testing for the person, you know, may have been prosecuted, and they may have been convicted, but there is a cloud that -- I mean we grant postconviction relief now if the verdict or the sentence probably would have been different. So in this case it would be a reasonable probability that the verdict or sentence would have been more favorable if the testing had been available at the trial and also go through the same analysis of whether or not the evidence is still in existence and was it ever previously subjected to DNA testing or the testing that is now being requested.

So a slight variance from the mandatory testing that has some impact as we go on in the statute regarding payment for the testing and the like.

As far as payment goes, we have made a recommendation that for mandatory testing, subdivision A, that the court shall order the test and shall pay for testing, but we recognize that in most cases that, you know, an agreement could be reached that the state laboratory would do the testing, and then there wouldn't be any cost to the court or to the defense.

In fact, I have a case right now where the parties stipulated to the Department of Public Safety laboratory in Phoenix to do the testing.

And then for subdivision B that the court may require the petitioner to pay for the testing.

No mandatory appointment of counsel. We say that the court may appoint counsel for an indigent petitioner. I think many jurisdictions, if there is some reasonable basis that is shown in the petition would appoint counsel just to assist the petitioner in going through the process.

And then discovery, as we have discussed throughout the Postconviction Work Group, we hope that there would be cooperation and collaboration between the parties. We anticipate based on everything that we have seen in some of the jurisdictions that are involved in this that there is that cooperation and collaboration, but if not, the court is always going to be interjected into entering orders for discovery for location of the evidence for retention of the evidence and the like.

I don't know what the resistance will be to laboratories, as far as providing access to lab records and underlying data and laboratory notes, but we thought that that was appropriate and necessary.

And then after the testing results are obtained, we contemplated that if they are unfavorable that the petition should be dismissed and other orders may be entered, such as entry of the profile into the CODIS database and any other orders that would be deemed appropriate. If they are favorable, then the court would order an evidentiary hearing, unless there was some stipulation between the parties, which just based on experience is usually going to be the case, but the hearing would have to be notwithstanding any time bars that the jurisdiction in dealing with currently has. And then go through the normal postconviction process of that jurisdiction despite having the time bar.

And then as far as we go into the comments, we make mention of the fact that this evidence really is different that unlike the reasons that you normally have postconviction time bars and really strict standards for not allowing somebody to come in years later, or in some jurisdictions even months later because of the staleness of evidence, that memories fade and the like that with DNA evidence, in fact, that the evidence actually does get better over time because of the advances in technology and the like.

But we also in the comments recognize as well the need for finality, and that that is an extremely important interest, not just for the system, but also for the victims of these crimes, and the concern that we not -- that we try to limit frivolous and meritless claims, because no matter what happens when the statute comes in, I would anticipate that you are going to receive -- that jurisdictions are going to receive a number of frivolous claims. Although the experience in New York and Illinois from what I understand has been that the floodgates really have not opened up as far as these claims, and maybe Barry and Terry Hillard can respond to that as far as the jurisdictions in New York and what is happening in Illinois, as far as the frivolous claims go, but it is a concern, and finality is important.

That is all I would want to say right now, you know, as far as except for taking questions, and maybe going through the comments, unless Barry or Kathryn have anything that they want to add from the Work Group's discussion.

BARRY SCHECK: I guess that what I probably should add is that I think that this is an extremely moderate form of the statute given the reality of what is in the courts. I would be remiss if I didn't tell you that we encounter every day across this county cases where DNA evidence has exonerated individuals, and the court system is extremely reluctant to let them go.

I don't know if -- were you able to get the articles that Bob Herbert wrote last week in the New York Times?

DOCTOR CROW: Yeah, I read it, too.

BARRY SCHECK: Yeah, because there is that case in New York, for example, of Vincent Jenkins, who has been in jail for 17 years, and DNA testing showed that the semen, the predominant semen sample -- and I put this in the record, because I think this is very typical of what we see. A woman was raped in a park in Buffalo, New York. She was walking in that park with her husband. A man came from behind, grabbed her, raped her. He smelled of liquor. When he got up, he said: "The liquor made me do it." He left. She was immediately taken to the hospital. Vaginal and cervical swabs were taken at that time. Four weeks later, Mr. Jenkins was brought before her, exhibited for 25 minutes. She didn't identify him. He was asked to talk. She didn't identify him. Police and prosecutorial officials persuaded her that this must be the guy. He met the description. He had a prior criminal record.

Seventeen years later, when the testing was completed, she had indicated at the time of the sexual assault that her husband had had prior consensual sex with her 24 hours earlier. The DNA testing showed, very interestingly it was done blindly, that Jenkins did not match either of the two DNA patterns, either the predominant pattern that was found on the vaginal swab and on the cervical swab, and a trace amount of male DNA that was found on the cervical swab, which is exactly as everyone at this table knows, what you would expect from prior consensual sex. That would be the trace presumably of her husband. She is still married to that gentleman. And when the knowns were tested, it turned out that the trace amount of DNA did not come back and match her husband. And at that point, despite, Kathryn, requests to the prosecutor that they really didn't want to do it to these people, because going back and saying to her, well, you know, of course she was insisting the tests were wrong, but you know, I think that is highly unlikely, because it was cross validated with victim samples and everything else. And we have resistance in the court. We have prosecutors coming into court and saying, well, what really happened in this case is that there were three rapists, you know, there was this defendant, who didn't ejaculate, and she didn't notice that two other people raped her in the park that afternoon. And if you think that kind of explanation is an exaggeration, I'll show you the cases of people on death row in Texas where there are DNA tests that are exonerating people or strong evidence of innocence, and the Texas Court of Criminal Appeals, which is an elected court in capital cases in particular doesn't reverse them.

So I mean I just have to out of sheer fairness tell you that in these kind of cases where modern technology is showing that the criminal justice system has failed, and there are people still in power, as in the Jenkins case, the same prosecutor, who tried that case was the one that was in the office 17 years later making the decisions about what should be done, these people will come up with cockamaney theories you wouldn't believe, and danger frankly even in a statute. I mean in truth, the statute should -- the first, Part B, which is a court's discretion standard for reasonable possibility exists a petitioner's verdict of sentence would have been more favorable, all right, I can easily see in death penalty states, and this is designed to cover, you know, the possibility of the DNA test being put forward so somebody doesn't get executed, as opposed to life in prison, which can easily happen, let's say, if there is a murder or sexual assault, and then it turns out that the DNA excludes somebody from the sexual assault, but they say no, that doesn't clear them of the murder, that would prevent an execution or other evidence like that.

Even that kind of discretion in these old cases, I fear based on my experience, is very frequently going to be exercised against petitioners, because, you know, we put in lip service to finality of the system, but the truth of the matter is that there is a lot of people that pay a price when thesecases uncover things, and I'm just -- I guess this whole tirade is just to tell you that this is absolutely the least you can do, if you must know the truth, because it will not be easy to implement this. This is not self-executing. There is no public defender service in the state of Alabama. There is no public defender service in the state of Mississippi. We do not even get requests from the state in any great number. And don't tell me that the criminal justice systems in these jurisdictions is so much better than the criminal justice system in Illinois. I don't think it's better at all.

Yet, in the State of Illinois, there have been 14 postconviction DNA exonerations, because you have a statute, and because people recognize the power of the technology, and there are vigorous advocates who will raise the issue, and you get the tests. There have been seven in New York where there is a statute. Those are the two largest numbers out of the 64 exonerations in North America, and those are the two states where there are statutes. All right. So this is just the beginning.

And, frankly, the next order of business ought to be who is going to help pay for this. In other words, is the federal government before this administration ends going to do something to make this happen, because passing, you know, these kinds of things are not self-executing. It's very, very hard, and every piece of data we have says that there are thousands of people in jail who could prove their innocence with this kind of testing so I urge you to pass it.

JUSTICE REINSTEIN: If you look at the bottom of page two of the comments on the procedures of the pretesting phase where we talk about the fact that the court needing flexibility in handling the requests and might wish to refer it to something like the Innocence Project, which would be a resource center that specializes in that type of testing. And other than the Innocence Project, isn't there one other one that is --

BARRY SCHECK: Oh, no. No. No. There is one at the University of Wisconsin Law School now. I think by the end of -- really by the fall, we will have at least 15 to 20 law schools --

JUSTICE REINSTEIN: Okay.

BARRY SCHECK: -- and other centers that will start taking up these cases in DNA and non-DNA cases.

JUSTICE REINSTEIN: But when you talk about local public defenders officers or a court-appointed counsel in a lot of the jurisdictions, there are -- the ones who have a clue about this are far and few between, if you get beyond the specialized resource centers. And I don't know whether it's appropriate to tie in laboratory funding with passage of a mandatory statute. You know, I know there is a lot of legislation and funding that gets tied into a state doing something; for example, truth in sentencing laws, if you have an 85 percent law, you get money from the federal government for certain things. And I don't know whether this commission, you know, wants to entertain something like that.

MICHAEL SMITH: It's hard to think that that is not worth talking about. You know, I don'tknow exactly where it goes though, and we don't have a committee on that, unless it goes in your committee, Ron, if you are in favor of taking it up.

JUSTICE REINSTEIN: Well, I guess one thing that we looked to would be -- and that would probably be from a couple of people on our committee that have more knowledge about this than me is what happens in the federal process as far as, you know, when you pass legislation, as far as tying in money to statutes, and this is not just a federal statute. This would be having a state having to pass a statute, or in some instances, a State Supreme Court having to promulgate a rule and telling, you know, the Supreme Court of the State of Alabama that you have to promulgate a rule, or legislators in Kentucky that you have to pass some legislation whereas you can tie funds into that and say you don't have to do anything, but if you want this money for this purpose then you have to have this rule or statute.

BARRY SCHECK: Actually, in that regard, we passed this uniform statute so it could have applicability to any state, but it even can have federal application. I mean one way to do this that I think would be the most efficient, frankly, and is in keeping with the federal function in terms of the millions of dollars that are being put towards DNA testing is simply to pass the statute on the federal level, which says that if somebody can prove their innocence, or there is a reasonable probability that you wouldn't have been convicted if you have a favorable DNA test result that the states have 30 days to afford you an opportunity for such a test; and then if they don't afford you that opportunity for a test, the Federal District Court can order a test either by, you know, outsourcing it, payment from the Federal Court, or having the FBR or some other lab do it.

And then after that, obviously the statute could be written in one of two ways. It could be written in a way that then remands it to the state court for an opportunity to entertain a claim that the DNA results are favorable, or to let it go back into the Federal Court.

Actually, I must say that in doing further research on this concept that we have discussed, it actually seems to me that if Congress would pass such a statute, the standard that we use here could actually be sustained constitutionally in terms of invalidating a state conviction, but that is more federalism in Federal Court's discussion than you really want to entertain at this table, I think. But I do think that there is a -- without micromanaging the details of it, I do think it is a federal function.

I mean right now when you look at the crime labs all across the country, you know, we are just beginning to do the era of STR testing. I can't begin to tell you the number of conversations that I have had with prosecutors and police chiefs across the country looking at these old cases, and the argument that I think should be persuasive and often is, but not always, is why don't you do the DNA testing on this old case, because one way or another we will get an STR result. We will stick it into the data bank. If this person is really the serial rapist or serial killer that you believe, right, maybe we will, as we begin to look at old unsolved cases, we'll solve others that this person committed; and if the person didn't do it, or didn't do all of the ones you charged then we will know the truth about that.

I mean we are at the beginning of an era where law enforcement has to go back and look at old unsolved cases, and I assure you you are going to find thousands of serial murderers and serial rapists. Our data from the 64 DNA exonerations shows that close to a third of them involve multiple perpetrators -- multiple crimes. I mean in these the defendants were either charged with more than one transaction, or when they were tried, there were prior similar acts introduced to convict them; or when they were exonerated, the person who was found to have really committed the crime through DNA evidence had committed more than one crime. And the more we look at these untyped rape cases, you know, like the 12,000 we are outsourcing in the New York City Police Department now, you know it. You know we are going to find that these are serial offenders, and it just makes law enforcement sense.

I mean I am arguing right now with the District Attorney in Dallas, Texas, Mr. Hill, about a mentally retarded guy, who is accused of -- he has got an August 5th execution date for the crime. He was convicted of strangling a woman and killing her in a bathtub. The chief evidence against him in the case where he went to trial was a confession. He was -- there were three women killed, two black, one white. The strongest case involved the black woman victim, but they didn't try him for that one. They tried him for the white victim, because as you all know, statistically, there is a better chance he will get the death sentence if he is tried on that case, and indeed he was given the death sentence. And now my request to him is very simply, let's type him. I mean what is the big aggravation here? You'll get it. Let's type them with STRs by a lab that is qualified to do STR testing. It will clear all three of them, right, and maybe you will find other unsolved cases. And we are still in negotiations.

I see that certain people in the audience may be interested in hearing this.

JEFFREY THOMA: Not surprisingly, I agree with Ron and Barry on this. I think that it makes a lot of sense to tie it somehow federally, because we have an overriding concern for due process from the federal constitution; and despite that, certain states, mine among them, have passed statutes limiting discovery. Now, fortunately, we have a federal circuit that has saw to it that the overriding due process concern on discovery overrides these statutes in addition to what we have is called tentative before the due process concerns such as under Kiles and Brady and other things for exculpatory evidence.

The states, still, as California is not, alone. I mean, in fact, if anything, it's a little more liberal in this regard do not, I believe, on their own see this overriding concern for due process; and if we can tie something like this to a federal statute, with regard to funding, I think we will see, hesitantly, what Barry says is that they have -- basically the system wants itself to be perfect or considered perfect, and it's not, and it's extremely difficult to get these cases before it; and whatever we can do in that regard, I think is really crucial, and we are some of the only people that can do it in addition to Barry's system that we just talked about.

DOCTOR CROW: Let me ask whether this suggestion of Barry's goes beyond the wishes of the board group?

JUSTICE REINSTEIN: No, not really. It's one of the things that we have -- you mean as far as the funding issue?

DOCTOR CROW: No, I meant the federal aspect of this.

BARRY SCHECK: We didn't -- the idea was to pass a uniform -- a uniform statute without saying which body should pass it. I mean the suggestion that this, that this kind of remedy ought to exist on a federal level, I mean I guess my reluctance is that this -- we didn't draft a federal statute, because it is so complicated that that in some ways is best left to the constitutional and habeas wizards in Congress, or something else, I mean; but in principal to say this isn't somehow potentially a federal function, and it's a way of applying it to the states, I think --

CHRISTOPHER ASPLEN: I would have a different interpretation of that. In the conversations, particularly in the last conversation that we had, the last conference call that we had where Margaret Berger was involved, I think it was viewed as a resource for the states for a potential -- I am sorry -- you are not hearing me. A resource for the states potential state legislation, but when the issue of federal legislation came up, it was not deemed designed for federal legislation; that that really, you know, especially in the context of a habeas, it was, I think that that was somewhat rejected as the development of this, but that is a different issue than tying this -- a statute like this to federal funds, and I think that that -- that is a different issue that we need to address differently and decide which, if either of those want to do it, and I'm not saying that the idea of federal legislation is off the commission's table; but I think in the context of the working group's discussions, I think the idea, and Judge or Kathryn correct me if my interpretation is wrong, but it wasn't really perceived as quote/unquote federal legislation.

JUSTICE REINSTEIN: I had to cut out about halfway through our phone conversation, because I was leaving town.

CHRISTOPHER ASPLEN: Oh, okay. I mean is that --

KATHRYN TURMAN: I remember, yeah.

BARRY SCHECK: Actually, as I recall it, I don't think it's dissimilar to your recollection, because we agreed without any -- with very much discussion that it would not be useful for this body to try to draft a federal statute that implemented these principles, and I agree with that. All right. All that I'm really suggesting is that if we were to agree that this kind of uniform statute is an appropriate form of relief, without telling either the administration or anyone in Congress who would be thinking of trying to implement this kind of thing, I mean, in principle, to say that federal funding would be appropriate to implement this kind of relief, in whatever form they deem wise is good. That is all.

MICHAEL SMITH: So really you were talking about two separate things. One is the funding because this might be more likely to have affect if there were funds available for its implementation. You were talking about an additional matter, which might be worthy of mention by this commission, having to do with the inaccessibility of federal court help in the event that a state doesn't.

BARRY SCHECK: Yeah, I mean, in other words --

MICHAEL SMITH: Two separate issues?

BARRY SCHECK: Right. And I just didn't think it necessary. I mean it seemed to me that if we as a commission are saying this kind of thing ought to be appropriate, if we are saying for every state in the country, it's not exactly like we are saying that the federal courts shouldn't do it if it arises in the context of federal courts, but I agree with you, Chris, that to then take on the additional burden of trying to figure out exactly how one could implement this with federal legislation may be a game that is not worth the candle. In other words, I recognize that there might be a lot of different considerations in terms of whether you do this as a habeas statute, whether you do this as some other kind of statute. The relationship between state and federal court, as we all know, legally is very, very complicated, and it just seemed to me beyond the purview of the commission; but if we are on record of saying we favor this kind of stuff in principle, and we think that federal funding should be put forth to implement it in a number of ways, we are not saying that we are against the federal statute. We are not recommending a specific one either.

JUSTICE REINSTEIN: As far as federal funding goes for the state statutes, let's start there. The database issue, the backlog issue is extremely important to the states, and for them to get some federal funding to increase the ability of the labs to address the backlog issue, the old sample issue and the like, and if there is to be federal funding, you know, it's not out of the question to tie in that if you want this. Then you have to do this as well, but I wouldn't want to hurt the efforts of the labs either, because, you know, to throw it in to make it a political football, but maybe that is what, you know, what the will of the commission would be at some point.

PAUL FERRARA: I might just mention or suggest that we may want to someplace in this uniform statute just specify that the lab, any laboratory conducting the testing pursuant to this demonstrably meet the standards of the DNA advisory board. Having established that, those are the requirements for federal funding from the laboratories anyway.

MICHAEL SMITH: I mean you were talking before about the difficulty of getting -- of moving a case.

BARRY SCHECK: Yeah.

MICHAEL SMITH: I am curious. Is there -- you were talking to some extent about the psychological barriers to forward movement.

Are there financial barriers to forward movement?

I mean is the cost a significant factor do you suppose in resistance to opening an old case or not?

BARRY SCHECK: No. I think that the testing is cheap.

CHRISTOPHER ASPLEN: The testing isn't the issue.

JEFFREY THOMA: Counsel is a small issue, but as opposed to a person that is innocently convicted and the amount of money that is extended during that term, it's -- it's, you know, infinitesimal.

BARRY SCHECK: The real problem, frankly, is finding the evidence; and once you find it, getting access to testing.

MICHAEL SMITH: For that you need a lawyer.

BARRY SCHECK: Well, you need a lawyer, and you need to screen it. You need to make out -- you know that is where the expense comes. You have to get the old transcripts. You have to get the lab reports. You have to go into federal court and sue them. That is what we are doing now, we are going to federal court and filing 1983 actions. I mean I will show you things.

In the State of Missouri, we have, I think, 11 cases now, and when you call the evidence holders in the State of Missouri in cases where it's clear that a DNA test that is favorable to the defendant would exonerate the defendant, and you send them a letter saying, Please don't throw away the evidence, the evidence manager writes us back and says, I'm not listening to you. I don't care what you say. We'll do whatever we want. We will destroy it whenever we want, and we don't recognize any need to preserve this, or do anything about it. The State of Missouri, the state of Louisiana, the State of Florida; and, you know, there is other states where we just haven't even heard from that those states are aggressively resisting any effort to even find the evidence in cases would be plainly exculpatory. And we are taking them to court.

DOCTOR CROW: So the answer to his question is that it's a psychological reputation preserving what it is.

BARRY SCHECK: Yeah, it's all that.

JUSTICE REINSTEIN: The testing is easy. Appointment of counsel is not as easy, but it's -- and in some jurisdictions, like you said, in the south it's tough, I mean, to get appointment of counsel, especially when, you know, as low as they pay for court-appointed counsel if you don't have a local public defender's office, the workload, you know, if you look at the comment on page 2 in the middle, in order to determine the probable impact of exculpatory DNA test results, the court may have to examine the transcript of the proceedings below in order to consider relevant factors. In our jurisdiction what happens, let's say, cases 12 years ago, the judge is gone off the bench, has died. I screen all the postconviction relief requests. Well, it's easy for me to screen to determine on ineffective assistance of counsel whether it's time barred, whether it has already been raised before in a prior petition or on appeal. Any claims that the person is raising now, and you either move the petition along, or you dismiss it summarily based on that.

Here you are talking about a judge who has no knowledge of the case pulling together all the transcripts, reading them through. You know, see that is how I envision it. Tell me what happens.

BARRY SCHECK: No. No. No. I mean that's -- frankly that is the lawyer's function, isn't it?

MICHAEL SMITH: It should be.

JUSTICE REINSTEIN: But it is, that is what I am saying. What is going to happen is you have to appoint counsel, because the judge isn't going to do that initially, because the way it's going to be initiated is you are going to -- a judge is going to get a petition from somebody, an inmate in the Department of Corrections saying, hey, I want this stuff tested, because I've always said I was innocent. It was an eyewitness identification case, and, hey, I heard about this thing about STRs, STRs, or whatever. And so what is a judge to do. You have to act on it, and the first thing you should do is appoint counsel.

We normally on subsequent petitions for postconviction relief do not afford the right to counsel to somebody, because they have already had a lawyer on appeal; they have already had a lawyer on their first petition, but this is different. So in that regard, you are talking about a judge isn't going to look at that initially.

MICHAEL SMITH: In the inevitable that the considerations of cost and burdens, I mean are going to affect the initial reaction of the judge receiving requests of this kind, and I thought that was the financing question that you were raising at the beginning of this discussion. That is, absent in states that aren't moved on their own back to take up that challenge and appoint counsel and provide for it, that federal funding something can trigger federal funding for that purpose would seem to be necessary, or to get implementation of the statute from the state. Maybe that is wrong.

BARRY SCHECK: No. No. I think it is exactly right, but that funding is not going to be as large as it might be, for example, in the ordinary court-appointed case. I mean, in other words, there is ways of financing this at the federal level. I mean these are the kinds of cases I assure you that law schools and pro bono lawyers would take on. So, in other words, I don't think that you are going to have to spend very much money, if any, or very much money at all paying people by the hour to undertake these cases, but the expenses are doing it. In other words, you know, the expenses that we have: We have to pay for transcripts; we have to pay for reproduction costs; we have, you know, our law school picks up the overhead, and the other law schools will be doing that, but there is some amount of money there, but that is not like, you know, what they call CJA funding in a federal case. You know, I mean you are not paying people even $50, $75 an hour. It's not happening here. This is for a relatively modest kind of grant that the federal government could give various pro bono entities in states. You would get a very, very large return, and what people on this commission recognize, which unfortunately has not filtered through to people in the trenches, is that you will solve a lot of other crimes when you do this, because you are using the STRs. That just is not a message that has gotten through yet.

JUSTICE REINSTEIN: How do you address the issue in Illinois and in New York of a concern that other people would have that this opens the floodgates toward, you know, every single inmate filing some type of petition, because evidently that has not happened in thosejurisdictions. I mean I don't know.

BARRY SCHECK: Not really. It's a high standard. This is a very high standard.

CHRISTOPHER ASPLEN: Let me ask this question. If one of the considerations is tying some sort of federal funding to the passage of legislation like this, do we run the risk of shooting ourselves in the foot and not being able to provide funding to those states which need it the most, because they can't convince their state legislators to pass this legislation?

You have got the defenders association of the state saying, This is one of the most important things we should be doing; but you have got the state legislators, who are the same people who aren't funding their defenders association, saying you want us to do what. You want us to pass this legislation that is going to make it easier for these people. And, again, it may be based on a lack of an understanding of the issue, but might we run the risk of preventing those states which need the funding the most from getting it, because they can't convince their state legislators to do it. It's not true that just because you offer federal funding that that legislation is necessarily going to get passed.

BARRY SCHECK: You could tie it to the funding.

JUSTICE REINSTEIN: The backlog.

BARRY SCHECK: Well, you could do that, but I think that you are making -- you are making an argument that there is a possible backfiring of doing that, but you could tie it in a way that isn't an attempt to get major leverage here, but might help funding for this statutory execution itself. That is it could become more attractive to pass this statute and easier for judges to use it if there was federal funding available for the expenses in there. You decide all this other money. I mean I'm not leveraged. Simply a funding mandate if you like.

DOCTOR CROW: Well, is there a consensus emerging that some statement about the desirability of some federal help, a weak statement, would be in order?

Judge Reinstein.

JUSTICE REINSTEIN: Well, it definitely bears looking into, but I want to know about the implications, you know, kind of look like what Chris is discussing.

I mean I don't want to hurt the lab's effort, but at the same time should you tell a legislature, well, you know, you can't have your cake and eat it, too. If you want the money to -- if you want some money to address your backlog and your old samples and what not, which will help you with solving crimes and, you know, faster and solving cases that have been in the system, cold cases, then you also have to consider the other end and decide at the other end of the table.

CHRISTOPHER ASPLEN: Given the nature of -- given the current nature of the legislation, I am not sure that that would not be a relatively fruitless effort on the part of the commission. I mean the bottom line is that issue is going to be addressed. That funding is either going to go out there, or it is not going to go out there based on the decisions that Congress makes in the next month or two. We could spend a lot of time deciding whether or not we could attach it to that funding, and I don't think we would have any affect on that dialogue.

Now, whether or not there is -- the commission wants to establish a new dialogue or new funding for that process, I think is maybe where there might be an effective discussion, but my concern is just the state of the process right now.

BARRY SCHECK: But, Chris, and I think what Michael is saying is that you don't necessarily have to make it a condition on any federal funding, but you could -- you could indicate that if a state did pass this kind of a statute that there would be additional funding. I mean --

MICHAEL SMITH: Well, you are saying it's modest. I think that is right so long as it's not paying of lawyers, but rather for expenses. It's a modest amount of money and provides a little bit of help. That is all.

BARRY SCHECK: And you are providing some incentive for the states to do that, and the reason I think it's peculiarly a federal function is: (A) it's a national data bank system we are setting up; (B) these cases when you use STRs are going to its multistate. You are going to find offenders in one jurisdiction, when you break the case that are, you know, incarcerated in another jurisdiction, or committed crimes in another jurisdiction. We just see that. I mean what better example can we have than this -- what is the name of this serial killer, alleged serial killer that was just picked up in Texas.

PARTICIPANT: Ramierez.

BARRY SCHECK: Ramierez. Yeah, I mean there was a number of sexual homicides. I think the Kentucky family was even considering a lawsuit about the failure to apprehend him, but certainly I mean that is the kind of case. I mean even looking at we are in Boston, I guess, wouldn't be inappropriate to note that the Boston Police Department is looking into whether the Boston Strangler was really Albert DeSalvo or more than one person. I mean really that is the nature of these cases.

I mean Chief Hillard knows we had this case in Chicago, the so called beauty shop bandit, where DNA exonerated John Willis, two very peculiar MOs, you know, of somebody walked into a beauty shop, would pull out a gun, demand oral sex, put everybody into a back room, ask them to count to a thousand while he made his escape. Willis is convicted of those two offenses, and yet defenses continue in bars this time, same MO, by a gentleman who was picked up and convicted of it named McGruder, and then DNA tests were conducted that implicated McGruder in both the crimes Willis was convicted of.

I mean I can give you case after case after case like this, and these are federal functions; and states are not going to be so eager to do these things, because people pay a price when these things come out. Even if it's nobody's fault, you know, it looks look like a political embarrassment; and if you are going to effectuate civil rights, that has historically been a federal function, and this technology does that, and we should do it.

DOCTOR CROW: Judge Reinstein, tell us what to do.

JUSTICE REINSTEIN: Well, no, I mean funding outstanding, I think what our work group is looking for is any types of additional comments as far as the statute itself what people think about that.

MICHAEL SMITH: I have one question for you, Ron, about that that is in the discussion on page 2 about the things that a court might need to consider when deciding about the mandatory testing categorization, right. And the question -- there is this discussion here of if the petitioner testified in support of consent, I have got that one. So I understand that one. Although I take it that is the not the same thing as acquiescing in a plea colloquy, you know. I mean so there -- and there is sort of subtlety to this, a little bit, because I have a feeling that, you know, a failure to maintain innocence is what is triggered by reading that; but a failure to maintain innocence, we have all these cases, exoneration cases, and we have got confessions and pleas and all that kind of stuff. So it occurred to me that that may be saying more than you intend, not that the judge shouldn't consider it, but that the question of what it means is not --

JUSTICE REINSTEIN: Well, this tied into the category one through fives that we developed; and category five, we started out saying was a frivolous claim, and we took it kind of initially from what The Innocence Project was doing, that one of the things they screened for was it a consent defense; or in a murder case was it a self-defense claim; and if that were the case, then those kind of cases will be screened out. But then we did get into a discussion later on whether or not there was a tactical decision by counsel, but if the defendant actually got up on the stand, and we talked about that when we looked at the transcript and testified that he did it, but it was consensual, you know, you can only go so far.

MICHAEL SMITH: That is right. No, I hear that.

JEFFREY THOMA: Just one point, because the expense issue is a fairly modest proposal, and it may either be the courts or counsel, if there is pro bono counsel that is looking into it, and we have a pretty good statute here with a fairly high bar. Perhaps we could write something in there whether it's the court or counsel that would need the transcript or need other items that it would be our advice that those are made available in those cases that it would be most crucial to the distinction of guilt or innocence.

DOCTOR CROW: You have been conspicuously quiet.

GEORGE CLARKE: I was saving it up. Actually, just a note on the consent offenses. As a practical matter consent cases, the defendant testifies anyway so that does happen, but I'll have to admit it has always troubled me a little bit that should that tie that person in to no longer having the right to DNA typing, that might sound like a reversal of position in a sense or traditional position. But we know defendants usually adopt the weak point, regardless of what the facts are. So, frankly, it has always troubled me oddly enough a little bit that we hold that against the person if later they are deep protesting their innocence, and I think as a practical matter this is an approach that will work. There is going to be very few and far between cases where I think that applies, but I don't think that should necessarily be totally disqualified, because of the power of this technique and the fact that defendants adopt defenses that they think will be the most effective at trial, even if it's contrary to their knowledge of the facts in the case. So that is more an aside as much as anything.

But while we are on that topic, in that specific paragraph on page 2, the second full paragraph down, I think there needs to be -- and I realize there is a reference to the recommendations -- I think there needs to be an explicit comment to direct judges that this decision has to be made within the context of the facts of the case.

One example that comes to mind is a semen stain on a victim's bedding, clothing. That may be absolutely irrelevant to the facts of the crime, or it may be critical to the facts of the crime, and I think judges in particular -- well, everyone who sees these, sees such a model statute needs an explicit reference in that paragraph that what needs to be considered is that this evidence within the confines of the context or that is within the context of the facts of the crime itself.

JUSTICE REINSTEIN: Well, you know, you are right that throughout the comment we just took excerpts from the recommendations and, you know, in that particular paragraph, we said see that, but, yeah, I think that is a good point, Woody.

GEORGE CLARKE: Do you want me to keep going, Doctor Crow?

DOCTOR CROW: Sure. I insist.

GEORGE CLARKE: All right. The other is going back to the statute itself on the first page, regarding discovery. And, again, I think my comments frankly are within the confines of what you discussed and intend anyway, but I think it does or should be an explicit reference that discovery shall be provided to both sides. I think that is underlying all of this, but knowing how statutes can be read sometimes I think explicit references are genuinely needed.

Then the other -- only other major comment I had, frankly, relates oddly enough, Judge Reinstein, to both your state and mine, that is dealing with destruction of evidence, since we are -- I think the US Supreme Court cases are both from Arizona and California that deal with that that there should be a reference that if evidence has been destructed, or destroyed rather, that doesn't create any right to different relief than what is currently the case under United States Supreme Court and individual state law anyway. I know the reference in the statute is to the evidence has not been destroyed, but my fear would be that there would be an interpretation possible that if it has been destroyed that that creates some right to some relief in some fashion when in reality, governing, you know, the law in individual jurisdictions and by the United States Supreme Court should govern this whole area anyway and will.

DOCTOR CROW: Chris said at the beginning of the meeting that sitting around the peripheryof the room ordinarily we would have an opportunity to speak at the end, but we decided to provide that opportunity at various points, and I think now is a particular point, and I wonder if anyone has something to say on this particular issue.

(Pause.)

DOCTOR CROW: I hear none. Hearing none, I will proceed.

Well, I wonder if the consensus of the group is that this goes back to your committee with the request to look at it again and develop an implementation plan, something to that order.

Does it make sense to you?

BARRY SCHECK: It seems to me -- I mean the suggestions that have been made are both, in terms of drafting Paul's suggestion about adding a proviso that it should be a laboratory that is consistent with the DAB, that is -- I don't think we need to go back to committee to say that is okay, nor to put a provision in there that Woody wants that Arizona versus Youngblood is still the law and notwithstanding anything in this section. That is okay. And if we could just have a consensus that it would be a good idea to have federal mandate, to use Michael's words, of some kind of funding to implement this kind of statute, why couldn't it just go off like that? I mean, in other words, I don't know if there -- unless you want us to go back and do some larger plan as the next step, but it seems to me that those amendments and just the sense of the body that it would be good to have a federal -- federally funded mandate to implement this on a state level without telling Congress exactly how to do it with the Justice Department.

MICHAEL SMITH: Yeah, although I was thinking that there is value in eliminating that suggestion to the expenses --

BARRY SCHECK: Right. Yes.

MICHAEL SMITH: -- but for precisely the reason you and I expect how that would be implemented that makes it more manageable.

BARRY SCHECK: But I see no reason for the committee not to put before the commission another writing. I think that might be a good idea, because I do think that paragraph on page 2 might warrant some additional.

DOCTOR CROW: And the working group will have access to this discussion that has gone on here and what has been emerged from this.

JEFFREY THOMA: What is the timing of that? Do they have another working group meeting scheduled before our next meeting, or could it be accommodated or --

CHRISTOPHER ASPLEN: It could be accommodated one way or another. The group is very eager to get together. Yeah, I think -- I think we can get together before that time before the next commission meeting. We'll work something out.

JUSTICE REINSTEIN: The other thing that you wanted to raise to me. I don't know if you want to do it later at the end of the meeting was where does our group go now that the guidelines are done, recommendations are done, whatever the word we used today. And we have done our second cut on the statute, and we will refine that, but you had some ideas on other things that you might want us to do, I thought.

CHRISTOPHER ASPLEN: Well, to some extent that is really what we are dealing with now, and so you know, this discussion that we have just over the past hour is of no surprise to any of us on the working group. The implementation really was quite frankly always the issue. We needed something to implement, which is why this statute was developed. We started this process off with a working group bringing people in like from the ABA's death penalty project to talk to us about just how bad it is out there in terms of the lack of resources available to do these kinds of things. So, again, the difficulty in reaching resolution is of no surprise.

So what Ron and I spoke a little bit about on Friday I think it was whether or not we have addressed or defined that issue enough. Quite frankly, given, you know, what we have said about the past 45 minutes, maybe we haven't. One reason not to try to do this now is, quite frankly, because the experience with the Attorney General indicates that she likes detail. She wants an answer of how she should get something done. We may not be able to give her all those answers, but she will be looking for suggestions as to how to implement the changes that we are trying to effect here.

So I think there is a value to going back to the working group for a specific implementation plan on how to get these things accomplished. I think part of that is getting a better analysis of the current state of the problem out there.

JUSTICE REINSTEIN: I think it's really jurisdictional. I mean Barry talked about some states in the south in particular. I mean in our state, if I want to get it done as an individual judge, I'll get it done, and that is because the Supreme Court rulemaking power over, you know, trumps the legislation; but in some jurisdictions, that is just not going to happen evidently. It may not even happen, because as you say, the robot maybe is the judiciary, as opposed to anybody else.

CHRISTOPHER ASPLEN: And one of the -- and maybe the most expeditious way to get to that point is one of the things we anticipated, and that was sending this statute to the Attorney General with the recommendation that she essentially advocate for its acceptance by the individual states, be that passage in the legislation, or send it to the Supreme Court justices, send it to the ABA, but to get it out there that way and use the uniform statute as a, you know, as a model.

MICHAEL SMITH: Make it part of the legislative package, a recommendation for a small amount of appropriations.

CHRISTOPHER ASPLEN: Fine.

DOCTOR CROW: David Coffman, did I overlook you?

DAVID COFFMAN: No. I am on the wrong side of this microphone. I am David Coffman. I am with the Florida Department of Law Enforcement, and my primary duties are with the DNA database, and I'm all for working these old historical cases that have not submitted to the lab. In fact, we are starting a pilot project in September where we are going to identify 250 cases that were never submitted, for whatever reason, to the crime labs in the State of Florida, and we are going to work them in Tallahassee.

One thing I would like to ask. This is an interesting proposal, and I'm all for finding incentives to get people to do what they need to do, but I was wondering is it possible that this could be linked? I mean I know in our Lab Working Group, I am a very new member to that group, but we discussed offender samples, getting the backlog taken care of, and we have also identified these cases that aren't being submitted, and we have talked about funding possibly for that. I know that is in the early stages.

Could this possibly be linked, you know, this incentive be linked through working historical forensic cases, rather than to the data bank, because I'm afraid it's going to -- I am afraid the legislature is -- just some of the state legislatures -- I think ours will do fine. I mean they are trying to fund us now to get us totally converted, but I would like it linked to working old historical cases, or the cases that aren't being submitted, rather than to the data bank, because I think in our situation we have actually exonerated people that were in prison for crimes by giving the samples done in a timely manner so that you can get it done both ways. That is all I have to say on that.

DOCTOR CROW: Thanks. Yeah, Phil.

DOCTOR REILLY: I have a concern that may be too detailed for the statute this time, but I was deeply concerned to hear what Barry had to say about what I will characterize as sometimes the resistance of evidence managers to produce evidence on request, and indeed the possibility that they would actually destroy evidence.

Is there a way of statute like this, or a regulation pursuant to it could deal with evidence known to exist at the time of the request but destroyed by the time that efforts went to testing, because to me the deliberate destruction, the deliberate and knowing destruction of evidence after a request has been made for it should somehow work to the benefit of the defendant, the convicted individuals making the request, and I had never thought about this, but basically what Barry has had to said, I am now concerned that it's a possibility. I have heard nothing to say that it isn't a possibility.

What happens in that case, you have got -- you know the evidence exists. You know that it satisfies all other aspects of the statute. Then you go to do the testing, and the evidence no longer exists, because it has been knowingly destroyed, or because it has disappeared.

BARRY SCHECK: What I would suggest in that regard is that I think that -- I know Woody would be reluctant to put into a statute anything that said, even if they deliberately destroyed a sample after it was requested that that would still vacate the conviction, because you could not necessarily show that the tests would have come out in favor of defendant. Basically, we are citing Arizona versus Youngblood, but I think Phil has got a great suggestion that we probably should put in here a provision that says that once a holder of the evidence is notified that a request is being made for this kind of testing that it should be preserved, or words to that effect.

Frankly, the thing to do --

MICHAEL SMITH: Forever?

BARRY SCHECK: What?

MICHAEL SMITH: Forever?

BARRY SCHECK: No, until the -- until the application is decided, because I can assure you in many jurisdictions that is -- we send these letters out saying we are -- we have filed an action in court, or we are going to file an action in court. We think you have the evidence. Please preserve it, and it's the official policy, for example, in Missouri, they say, We don't care. We will do whatever we want. And if it takes you three or four years to get this finally adjudicated in the court, and they come back and say, now, where is evidence, if it's not there, it is not there.

JUSTICE REINSTEIN: Well, what if you ask for a court order for preservation?

BARRY SCHECK: We go to court to ask for a court order, and they say that we are one of those jurisdictions like Florida, David, there is a case called Wilton Detch in Florida -- I'm sure you are familiar with it -- that is typical. Florida has a statute that says you can't get newly-discovered evidence of innocence within three years of final conviction. So we are talking about cases in the '80s. So what we did is a sexual -- oh, my god. For the record that was thunder.

(Laughter.)

BARRY SCHECK: Wilton Detch is a gentleman. It's a one witness sexual assault. There were two hung juries. He was finally convicted the third time. Application for the evidence. The prosecutor takes the position, yes, it's true if the sperm on the vaginal swabs excludes him, he is innocent, but objects under the Florida statute to having the evidence tested. We then put a Freedom of Information Act request. That was denied. Now, we are going to have to go into federal court, and the prosecutor has now stalled us for three and a half years to get that testing.

They also say that the Florida labs -- well, there is some resistance to either -- our suggestion was let David Coffman's lab test it. They didn't like that either. So, you know, there is some concern, well, what is going to happen to that evidence. How do I know that -- in this case, I think they will preserve it, but in other cases how do I know that they will, because it can take three and a half, four years to get this in front of a judge so they will act on it. Although, as I said before, we are now going to federal court in this case so maybe it will pick up the case.

DOCTOR CROW: Well, it would seem to be relatively simple to get a statement of this kind into the report.

CHRISTOPHER ASPLEN: Would that not be a violation of some sort of evidence tampering law already?

I mean it seems to me if something is --

DOCTOR REILLY: That doesn't solve the problem for the individual seeking postconviction relief. It may punish somebody who deliberately destroys evidence, but it eliminates the one possibility the man may have of proving his innocence.

BARRY SCHECK: They are going to say there is no statute. The statutes say that I am the evidence holder, and after X number of years, at my discretion I can destroy the evidence; and I don't care if you sent me a letter, or you told me that there is an ongoing -- or an application. It doesn't matter.

TERRY GAINER: There is no doubt, Barry, you must get those, but I am just not familiar with law enforcement procedures that run labs, if I got a letter like that that I would just say I don't care.

BARRY SCHECK: It's not our lab.

TERRY GAINER: Who is it?

BARRY SCHECK: Most of this evidence is not in a lab. Most of this evidence is in court clerk's offices. It's in police property clerk's offices. It's in various -- it's in district attorneys safes.

TERRY GAINER: I will speak to either the labs, or on behalf of the police departments again, I am not familiar with the police department or any set of professional standards where they would get a letter like that even on the fly that you are thinking about doing that that they would write a letter back, a chief of police or the lab and say, I don't care what you are going to do. I'm going to do what I want. And I would really be curious to see one of those letters where a chief of police or a lab did that.

BARRY SCHECK: You want one or you want 50?

TERRY GAINER: I would like 50 of them, because I will take them to our organizations and confront them with it. This is as unprofessional as can be.

BARRY SCHECK: You're on.

JEFFREY THOMA: It happens, Terry.

PARTICIPANT: It happens.

CHRISTOPHER ASPLEN: Well, that is exactly the kind of information that would be very valuable to us.

BARRY SCHECK: Let me just be clear for the record, because I know I am not. In other words, in order to make an application like this responsibly, you have to have the transcript, right? You have to have the underlying police reports, or appellate briefs, something where you can really point to the record. So if we get a letter -- I am just reminding you of what you have already passed in the procedures. You get a letter. The inmate says, I'm innocent. The DNA can prove it. The first thing we do is send out a preservation letter, because we don't want anybody to destroy it. We can't go to court immediately, because we don't even have a transcript yet, right. We can't make a responsible showing to the judge. So we need them to hold it until such time as we can pull that together. We don't have money to pay for transcripts, right. So it may take a number of months before you go to court, and it's in that interim period where they will destroy the evidence.

GEORGE CLARKE: Actually, Barry, how many have been destroyed after you have written that letter, and as a result of that letter that you write?

BARRY SCHECK: Well, it has happened in about two or three cases so far, but everything goes out under, but the -- what I'm telling you is that in, for example, in Missouri, and I wish I had -- I could give you the exact name of the person. It's Dale something. He routinely responds: I got your letter. I consider it legally not binding on me. I'll do whatever I want, and I won't look for it.

GEORGE CLARKE: Well, what I mean though is how many have actually destroyed it because of receiving your letter?

BARRY SCHECK: Oh, I don't know. I don't know the answer to that, but I do know that this guy isn't looking, right, and won't do it. And so by ordinary operation of their procedures, he could easily destroy it in the interim, because it takes quite awhile to gather all the necessary materials to meet the very heavy burden that these kinds of statutes require, which we want to do.

TERRY HILLARD: Can I ask, who do you address these letters to? Who do you send them to?

BARRY SCHECK: We send it to the holder of the evidence.

TERRY HILLARD: Well, if you send it to a law enforcement agency, I think the first thing you should do, you should either send it to that chief of the police or the commissioner or the superintendent or his general counsel. You know, I know we receive a number of them in the City of Chicago, either come directly to me and my general counsel get it, and then he moves forward on it. But, you know, you are probably sending in some of these departments that you are sending that letter to, these might be corporals. They might be a patrolman.

BARRY SCHECK: No. No. No. We essentially get it even from the high up.

TERRY HILLARD: But I would think that, you know, not to blow anything out of proportion, but I would think that you should address it to the head of that agency, you know. That is the way to go up to his general counsel.

DARRELL SANDERS: I apologize for being late, but I got the wrong information. They canceled my flight yesterday, and then they told me the thing started later today than it did so my apology.

DOCTOR CROW: We heard that.

PARTICIPANT: Darrell, we are not meeting tomorrow either.

(Laughter.)

DARRELL SANDERS: As a matter of fact, they told me I didn't have a room. Then what I was wondering though is that the last time we met, it seemed like we spent a lot of time discussing the defense bar's concern about keeping DNA; and, in fact, that was going to be misused, and all that kind of stuff, and I apologize if you addressed it before I came in the room, but it seemed like there was a great deal of concern. As a matter of fact, people were defending you, Barry, in your absence, no, it's not true. And I thought it was great, because you weren't there to defend it. So we was trying to push it through, but there was a great deal of debate about whether we should keep DNA just because of the misuse of the allegations that we would be doing different kinds of profiling with it and stuff. I just wonder how that shakes out with this.

DOCTOR CROW: We are certainly going to have something to say about that later in the day.

DARRELL SANDERS: It's a two-edged sword though. You can't have it both ways, it wouldn't seem to me.

DOCTOR REILLY: I think it is two separate issues. Most of that was discussion about long-term, and I will have something. I wrote something on that for this meeting. Long-term retention of samples in a database versus samples directly involved in a conviction process, I do think the two --

DARRELL SANDERS: I guess the key is that maybe I have been a policeman too long and I am a bit jaded about how the defense bar does some things sometimes, but it seems to me that it's an issue that has to be clearly addressed one way or the other. You can't have it both ways, and the fact that if it's not required statutorily about how you go about those processes of those kinds of things, then people are going to establish their own rules and regulations; and of course I want my voice to be heard with the other law enforcement people. I would be shocked to hear that people are deliberately destroying evidence once they have been notified that a postconviction process has started.

CHRISTOPHER ASPLEN: Can you forward, Barry, to the commission an example where you know that something was destroyed after receiving the letter, after receiving your letter? Not after receiving the letter the evidence wasn't there, but do you have a specific example that can be forwarded to the commission where upon receiving the letter they destroyed the evidence?

BARRY SCHECK: Yeah, but I said this before, and I want to be clear on it. I don't believe that that was necessarily done intentionally in that particular case. I am not alleging that I have such a case. What I am saying happens is that they tell you in many of these jurisdictions now up front, I don't care about your letter.

DOCTOR REILLY: And my proposal did not go to intent so much as during a period of time when the organization responsible for the evidence should be on notice, it disappeared. It may have been totally accidental. I don't think it should got to intent at all. The end result is still this individual in prison lacks the last remaining opportunity to, you know, innocence.

DOCTOR CROW: Well, I think we have discussed this subject. I know we have, but I think we have pretty well done it in, and that the consensus is pretty clear as to what we think about it, or what you think about it, and it's the committee's job to -- commissioners or working group's job to put it into words.

Having said that, let me declare an intermission, and we will be back again ten minutes after.

(There was a short break taken.)

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