Well, next on our program is Phil Reilly. So I will turn the meeting over to you. There is a copy of Phil's statement available out in the hall, if any of you didn't pick them up.

DOCTOR REILLY: Thanks. I was asked by Chris to put together a short memo that I think of as serving merely as a jumping off point to further our discussions of privacy. I did not know at the time that I wrote it that a significant portion of the discussion would precede my remarks and that I think much of what we talked about in the first half of the morning really relates to privacy issues.

Some of you may have gotten a chance to read the memo. I think what I will do is really make one general set of comments about privacy and then ask us to think about privacy issues that surround conducting research on CODIS databases, because I think of that as a relatively underdiscussed topic before this commission. I am not sure that we have formally confronted that issue.

One of the things that I sense, and I could sense incorrectly in my discussions with individuals around this table is that we tend to think about privacy as informational privacy, but there is atleast one other alternative and broader sense, that is in the nature of personal autonomy. The notion that even if there is no discernible economic or physical harm to an individual from knowing something about him that there is a dignitary harm, which is dignitary harm is taken from the language of bioethics, and I can assure you that there are many individuals in our society who think it is absolutely wrong for you to know things about them, even if no discernible harm flows to them, that it is a dignitary harm. And that notion is imbedded in both the ethics and the legal literature as well.

But having said that, and I'm sure many other people will in due course have comments about privacy, let me ask you to look at the second half of the memorandum, the second page of the memorandum, and I would like to confront you. Let me go to the top of the second page. That question about sample retention. Let me remind you that not so long ago, there was a major transition in the Department of Defense's policy on sample retention for DNA databases for identification purposes. Originally, as I remember Victor Weedn was very involved in this -- I may have the actual numbers wrong. The samples were to be retained for 75 years. It took very little public challenge to that to radically change the policy within the Department of Defense. And now I think these samples are eliminated at the time of discharge from the service; is that correct or incorrect?

Does anyone know?

I think there has been a dramatic change in that direction, and my point is it happened with very little public discourse.

Yes, Sara. If you want to clarify that, go ahead.

SARA COMLEY: Excuse me. I am Sara Comley, and I have the letters from the appropriate official in the Department of Defense about their change in policy, and I have also heard it mentioned.

DOCTOR REILLY: Sure, go ahead and tell us.

SARA COMLEY: At first it was either indefinitely, or a hundred years, and then they lowered it to 75, and now it's down to 50. The destruction of the sample is not done automatically upon discharge. It has to be petitioned for.

DOCTOR REILLY: Petitioned. Then it can be destroyed at the request of the individual?

SARA COMLEY: It can be destroyed, but it has to be petitioned.

DOCTOR REILLY: Thank you very much. The point I was trying to make is that department changed significantly with relatively little public effort. There was one -- actually one or two lawsuits brought by a couple of Marines, who didn't want their samples in there in the first place.

Let me ask you to consider the question of how long may the sample be retained, and let me ask you to think about this individual that I mentioned here. I don't know if you had a chance to read the paragraph. We have an individual --

DOCTOR CROW: Well, maybe you better read this paragraph.

DOCTOR REILLY: Read it out loud. It's just so wordy.

DOCTOR CROW: I have been trying to read it while you are talking. I can't do it.

DOCTOR REILLY: Okay. Is that a comment on my writing or -- either way, it comes out as a negative, Doctor Crow.

Well, okay. Assume that an individual's STR identity has resided in the CODIS database for 22 years and that his DNA sample has been retained. Assume further that after serving a five-year felony sentence, he has led an exemplary public life, so for, let us say some 17 years thereafter. Does his autonomy interest in destroying his DNA sample that has been retained now outweigh society's interest in retaining it? It seems to me that unless we embrace the notion of once a criminal, always a criminal, we should contemplate the right to petition to destroy the sample after a period of years.

Now this is a paragraph I wrote assuming that we were not going to be automatically destroying samples. We have discussed that this morning. I distinguished the sample from the STR profile, which I think deserves the same treatment as physical fingerprints, permanent retention; however, because the existence of the DNA sample carries with it a threat to privacy, albeit small, the argument for retention is somewhat weaker and decays over time. For the sake of discussion, I ask what evidence is there from studies of recidivism and crossover crime that destroying a retained sample of an individual with no arrests for ten years after his last parole would harm the goals of CODIS?

Is there information available to challenge my point?

I know there is recidivism, but we also know that crimes committed by youths, and there is a decay over time. My individual, I now imagine, is a roughly 45-year-old guy with a clean record for 17 years. Weigh the benefit of keeping him in there, and I am thinking of the DoD where you can petition to have it out, although I would prefer to say it automatically leaves. It shouldn't be a burden on an individual against the benefits of keeping it, and prepare your answer for the American people.

BARRY SCHECK: The British data shows the correlation to youth, which is no surprise, because that is what all American criminological data has always shown.

DOCTOR REILLY: I think that my point that I make here about time actually lurking in my mind when I wrote this paragraph was my concern about how to deal with the evolution and transition of new technologies into the system, too. That was sort of in the background, if we could imagine time frames that were working.

So is there anybody here who would oppose destroying DNA samples on a man like this?

JUSTICE REINSTEIN: It might depend on what his crime was for me, and I would have to see more evidence about the recidivism rate for that crime. So clearly, if it was a homicide, I might say contrary to what most people believe, should go ahead and destroy it, because --

BARRY SCHECK: Do they have recidivism especially at multiple years is very, very low later.

JEFFREY THOMA: A sex crime might be different.

JUSTICE REINSTEIN: Yes.

DOCTOR REILLY: And of course that is where we began with sex crimes, this technology, and one might argue there are a certain class of crimes for which it wouldn't be appropriate to destroy the sample, but again, trying to answer the American people's concern about the least invasive approach to the use of this information, there are going to be, especially if we move to things like use of DNA for burglary, auto theft, things like that, there is going to be a large cohort of individuals in the database with very clean records by the time they hit 30 or 35 years old.

DARRELL SANDERS: I am not saying I understand. I am not sure why you are saying destroy the sample in the first place. If, in fact, the person is in CODIS, what difference does it make about whether he is 45 -- I mean it's 22 years later, or we are dealing with this, as long as it's not postconviction and stuff. If we decided we are going to keep the sample what difference does it make whether he is -- I mean he has got a clean record, or he doesn't. What are we going to use that sample for rather than the identifiers? I don't understand. You have got me really confused right now.

DOCTOR REILLY: Then it's my fault if you are confused, not yours, because retention of whole DNA carries with it the possibility, however small, that that DNA will be subjected to other kinds of questions about that individual; and therefore, in the minds of some people, not necessarily me, raises a privacy concern. I will give you an example, and this relates to the second half of my memo.

Let's us say that people are interested five years from now in whether or not an allele that has been associated with predisposition of alcohol abuse is found much more frequently among people convicted of vehicular manslaughter. The beginnings of behavioral genetics in criminal law. That is information that an individual might very well not want known about himself by anybody. As long as we retain whole DNA, we carry with it the possibility of asking other questions other than identity. And what is the harm to the system in throwing out this guy's DNA?

TERRY GAINER: Well, as you said, that is much of the debate we had this morning.

DOCTOR REILLY: Only there it was different in that we were -- I was among those who made the argument don't save anybody's DNA. If I lose that argument, and save DNA, then there is a subclass of individuals for which I could build a different kind of argument that is within their rights to ask to have it destroyed, because they no longer fit the pattern for which the data bank was established.

GEORGE CLARKE: We have to back up a little bit. Let's take an individual convicted of a crime, and let's say I am convicted of writing a bad check for over $400, which in California is a felony crime. There are ramifications of that that follow me for life: (A) -- at least in California, and I am confident probably in most states -- (A) I can't ever vote again. That is now gone. I can't ever possess a firearm of any sort. That is now also a crime. No matter what relief I later get, and I can go back to the court four years later and say I have fulfilled the conditions of probation, I have been a model probationer, and I am now mayor of the City of San Diego, but I still can never do either of those two things again. I can now answer a question when an employer asks me: Have you been convicted of a crime? No. But I have those other disabilities that follow me for life. So I hate to use the term balancing. That is what we do. That is what the law does. But isn't this another at least question of balancing the provision of this sample knowing that as a -- and we are only talking convicted felons at the moment in your example -- is balancing that reduced expectation of privacy. That is really the question underlying all of this discussion.

DOCTOR REILLY: And I would agree with that. My answer to you would not be that what you have just described justifies doing yet more in the same direction.

GEORGE CLARKE: I understand. And in Virginia, I would be giving a sample of my blood. Not in California, but in some states I would be giving a sample of that blood. So I don't have an answer to your question.

BARRY SCHECK: This is a very serious issue. In terms of the different way that you have what they call -- in New York, we call it relief from civil disobedience. I assume in other disabilities in other states you have similar, but there is a statistic that Brian Stevenson just collected in the State of Alabama. In the State of Alabama, 31 percent of African-Americans have been disenfranchised by some form of felony conviction. They can't vote.

And that reminds me that, you know, as part of this issue and retention and part of these other reasons that all of you in the law enforcement community ought to seriously consider throwing away the blood is that you are going to be collecting it primarily from, given current incarceration rates, minorities in disproportion to others within the population, and that makes people nervous. And when you think about the notion that 31 percent of African-Americans in the State of Alabama, disenfranchised by some form of felony conviction, which could be things like bad checks, you know, it makes you think, and there is no particular reason that, you know, some of these -- it's just another one of these things that makes people very, very nervous, particularly when you get into the area of technology, this kind of technology.

One final point in regard to this before Phil moves on to the other thing. Just throw this out for a thought, because I was very struck by Sheriff Kennard's remarks. I hope you didn't interpret my thing like, you know, who can trust the government even if they say. I am not saying that. I'm telling you that I think people, ordinary people, will say that; and the other gentleman that said if you go to neighborhoods filled with people that are different from us here, you know, socio and economically, I didn't know what your conclusion was when you said if we polled them about collecting DNA and storing DNA, what would they think. I actually think that is not a bad exercise for us if we have any money left, Chris, that we could try to come up with some kind of carefully worded polling questions and some stratified samples over different, you know, economic groups, just to see what peoples' perceptions of this are, because it's my instinct, and I am really thinking ahead to what do you tell people when you ask for an elimination sample. If you are a detective on the streets of Los Angeles, give me your DNA so we can do an elimination sample, and we will destroy it, or we will -- I mean, you have to win the trust of people. My instinct is that if you did polling right now, on this whole enterprise of data banks, right, I think people are more distrustful of it than not.

TERRY HILLARD: I know I haven't said anything all morning, but I beg you, Barry, to come to the City of Chicago, come to Englewood, go to New City, go to Woodlawn, go to the West Side where these neighborhoods are being inundated with criminal sexual assaults; and like I spoke yesterday of four distinct individuals what we believe are serial killers. Those folks, and I have to say my folks, in those respective neighborhoods are not distrustful of the data banks. They are wondering why aren't they in the data bank, you know, and this is not only the people in the neighborhood, but some of the media. You know, I just think that when we start talking about the demise of the data banks and some of the things such as that, we have to realize that on the one hand, as the young man over here from Boston stated, that if you go to Roxbury, you might find a different opinion of people very critical of this, but I think if you come to some parts of the City of Chicago, you will see that minorities are just like anybody else, and I'm one, you know. They are the most victimized, the most misused and most abused when it comes down to a lot of criminal offenses. And they want the same as everybody else, you know. You can't have it both ways. If you are going to use it to get criminals out of jail, you have got to use it to put the criminals in jail, the people who commit these offenses. It is as simple as that.

This is a tool, you know, and I would -- if you came to the State of Illinois, unless it's a mandate and stated that we are going to get rid of all the samples, the demise of the data banks, which took us what seven to ten years to try and come up with, I think you are going to have a real problem with the Democrats and the Republicans in Springfield.

We depend on the Illinois State Police. That is our lab, because we -- well, when Terry was there, we gave up that right, and they took it over. They have done a damn good job, and I just think that when it comes down to law enforcement in the State of Illinois, and I think I can sort of speak for the IACP, the Illinois Association of Chiefs of Police, because I am a member of that committee, you have a real fight on your hands. You really are, you know, and I just want to get back to one thing. This is a tool. Don't forget law enforcement is using this tool. It was put there not only for law enforcement when it came up, but for the defense, for the prosecutors and to right or wrong. It has been and has rights and wrongs across this country. But let's not forget about the victims. We are always talking about the offenders and their rights. Let's not forget about the victims. The victims have got certain rights, also. And I don't want to get too emotional about this, but you know, I have been in law enforcement for 31 years. That is all Ihave been hearing, and we need to put it in the right perspective, just like the good Doctor Reilly says, We have got to put it in the right respective, but let's not forget about those victims, also.

And when you start talking about minorities -- I can speak from experience -- we want the same as everybody else. It's as simple as that.

JEFFREY THOMA: If I can just, in a year and a half, Terry, there is probably nothing I have disagreed with you on, and I don't disagree with your point, but if I could just add to what Barry said about Alabama. But I appreciate it with regard to sexual offenses and crimes of that nature, but in Alabama, the 31 percent disenfranchised, you have to understand also that the average person that is being convicted of a felony, their criminally appointed defense attorney is receiving $100 or less so those are -- a lot of those cases are cases that are resolving, because of the lack of resources on that person's defense. What we need to do is make a clear division between those cases in which people are being disenfranchised and in those odd occasions in which their rights are being infringed upon without infringing on the victims rights, Terry. And I totally agree with you in that regard, especially with regard to sexual offenses, and I think we have got pretty much a consensus in that regard that we would not want to do anything to limit any of the resources of law enforcement; and with destroying the samples, I don't think Barry or Phil or Michael or myself are making any argument that we should do anything to limit that.

BARRY SCHECK: Yeah, we are not talking about the demise of the data banks. We are talking with strategies to get more funding so that we can do it better. In Illinois, you don't have any samples in the data bank yet, and I think that that is wrong. I mean there should be more funding to get it there.

PARTICIPANT: Yes, they do.

TERRY HILLARD: Yes, we do.

BARRY SCHECK: Okay. How many are there? I was talking there were very few samples in the data bank to run STRs.

DAVID COFFMAN: They are the third or fourth largest state.

BARRY SCHECK: STRs?

DAVID COFFMAN: Oh, no. Well, they are converting now.

BARRY SCHECK: That is what I am saying. There is no STRs in the Illinois state data bank, I have been told, in all these cases where we are getting people out we want to run against the data bank. Don't get us wrong, the strategy here is to come up with something that is going to get more money for the kind of enterprise you are talking about, not less. That is what -- the debate is more along those lines.

TERRY HILLARD: But what we need to do is when we start talking about the samples,retention of the samples, myself, Terry, Darrell, to the sheriff, we need those folks who control those labs to be here so we can hear their side on it, because I don't control the Illinois state lab. I depend on the Illinois state lab, because that is my laboratory, but, you know, I would have to go to them and get their opinion and their criticism on what they would and what they wouldn't do.

DARRELL SANDERS: Still to me, this thing is getting more and more confused in my mind. If all we are talking about is the privacy of convicted felons, I am not nearly as concerned about if Paul tells me that he needs to retain those blood samples for the proper use for law enforcement then I support that a hundred percent. I don't care about what people think about -- I would be much more concerned about the blood that I give, and Dwight and I were talking during the break, he just had his physical, and they took three tubes of blood. I mean if you are going to worry about privacy issues, that is what you ought to be worried about, what the medical profession is going to do with it, what insurance people are going to do with it, and those kinds of things. But for us to spend the amount of time that we are spending concerned about how it's going to be perceived by the American public, if whether or not law enforcement keeps blood samples of convicted felons, I am telling you, to me it just doesn't fall anywhere on the spectrum of priority. If you are concerned about the misuse of blood and those kinds of things, well, yeah, then let's go into the scientific community and make those kinds of statements and do whatever we need to do.

For the commission, as far as the future of DNA evidence and its applications to law enforcement, I just think we are missing the boat here. If you ask me do I care more about what the ACLU says about what we should do with blood, or what I care about what David Coffman and Paul are saying, I am going with David and Paul. It's very simple. And I think that I am mainstream, and I will speak for the majority of people, and I know I speak for the people of my community. Most of them are going to go the same way. There is going to be a few that would side with the ACLU, but I think Terry Hillard said it exactly right. The people that I know, the people that I associate with are much more concerned about victims and victims' rights than they are the rights of those people that are accused. Though I understand Barry and Jeff and those guys do a great job making sure that we take care of those people that need to be taken care of to the best of their ability, and I recognize and respect that. I am just suggesting to you that on a priority that we are least concerned, especially law enforcement, and I think that we represent the majority of the people.

I really hate to see anybody go to jail that shouldn't go to jail, and I think that the blood sample should be used, but Terry also pointed that out, it can't go both ways. You can't use it to get bad guys out, and we need to keep samples for that reason. We can't keep it to put bad guys in, and I still have lost the sight of what this 22 years later, the guy that led this exemplary life. I mean I don't care if it's burglary or what, if a guy has committed a crime, in my mind he ought to be worried about all the technology that we got to find him. If, in fact, he is doing nothing wrong then I don't see this. I would think this privacy argument must have been had on fingerprints the same way. They have got my fingerprints, because I am a policeman and I served in the United States military, but I don't care if they dug out my fingerprints. And if there is a crime that has been done, and they have got some technology that is going to be able to use those fingerprints to prove whether a person did a crime comparably, because I am not worried about it. I didn't commit a crime. If I committed a crime, then I probably would be much more concerned. So I guess I'm -- I'm losing it here. I am trying to be very quiet.

(Laughter.)

DOCTOR REILLY: Well, we are going to rescue you. I am going to throw you a life preserver right now.

DARRELL SANDERS: And I am not upset either.

DOCTOR REILLY: Being a doctor I know your pulse is 107.

DARRELL SANDERS: Actually, my fingertips are cold, but my heart rate is not up.

DOCTOR REILLY: I think the last couple of comments have certainly given an important perspective about the victims, but I -- I think it has introduced the sense that there is a polarity around the table that doesn't exist. Everybody in this room is concerned about victims. I want to assure you I am. I am trying to do sort of what Barry suggested. I'm trying to tell you that despite what you and I might think, there are a lot of people that don't agree with us, and I am not sure that you do represent mainstream American thinking about this, because there is loads of data from public opinion polls repeatedly that say the American people are very worried about who has access to DNA information.

I am anticipating a public debate about this that I'm trying to make us aware of. That is all I'm doing. Okay.

And as for this gentleman, it may be from my hypothetical gentleman, it may be fine. He committed a crime. He was convicted of a felony. We will retain his DNA. In my memo, I said we would retain his STR profile just like fingerprints. I didn't say anything about knocking that out so...

DOCTOR CROW: All right. There are two people. First Michael, and then I will call on you.

MICHAEL SMITH: Well, I -- we have had bits of this debate before, and every time we get to it, there is a part of me that gets very irresponsible in some way, I suppose, but I keep thinking that the best way for the world to be organized about this is for there to be a universal DNA database of 13 STRs, because I can't think myself partly, I suppose, for the same reasons, that is, if I'm identifiable from a crime scene sample, I have a hard time finding a principle or reason why the government shouldn't have on file my 13 STRs. I feel very differently about there being retained a universal tissue sample system now for all the reasons that Phil is talking about.

Now, those are two entirely different feelings existing in this body here, and it seems to me that there is a way in which we approach this question from kind of historical steps that lead us to a very narrow question about whether or not we should be destroying the tissue samples of convicted felons; but the larger question is how could we go about in an environment where there is sensitivity on this subject, and there surely is, how could we go about creating a system 10 or 15 years from now in which the profiles that would be useful for identification purposes only are actually accessible to law enforcement when they have crime scene evidence. Those databases are building as we speak, probably the ones you are talking about, the medical databases, research databases. There is the birth blood spots. As a law enforcement matter, as a matter of deterrence as well as protection, it seems to me ideally it ought to be possible to find out who it is whose blood I have got at the crime scene, and if that is the way to do it best, not convicted offender tissue samples. So it's worth sort of realizing one of the reasons why some of us are asking questions about the need to do things about which a lot of people have objections is because we are anticipating a world in which far better larger access to identity would be possible through the DNA technology.

So I think it's hard for us to find ourselves categorized as somehow resisting the use of the technology to identify criminals to the contrary. The question is how could it be maximized within the political constraint of the country.

GREG MATHESON: Greg Matheson, Los Angeles Police Department.

I think a little piece of information that maybe you are missing for a lot of people that are having a hard time understanding why we shouldn't be keeping the samples is the types of abuses that could occur to it. There was one example made, but I think for clarification for those that maybe don't know it, you know, some additional examples. We had in Paul's report a number of reasons why it's important to keep them, but maybe we all need to be a little clearer as to what this perception of abuse, or the actual potential for abuse and how it can be used against a person needs to be brought out and further examples given.

DOCTOR CROW: That is a challenge for you, Phil.

DOCTOR REILLY: Yeah, as long as you realize that I will be making points now that I don't necessarily agree with. Okay. I could tell you what the arguments are. The arguments are as follows, and the arguments that are commonly made in clinical medicine and in NIH-funded research, in questions about employers use of tissue and genetic information will spill over into law enforcement. They are -- and I am somewhat repeating myself: (1) that I have, as an individual a personal right, a constitutional right to have you not know anything about my DNA, unless there is a compelling reason supported by the state to override that. Okay. That is just -- if you want a dignitary way.

Secondly, there is, and I think these are actually weak arguments. There are arguments that whole DNA stored in databases of this kind will inevitably at some small level leak, and people will use it to ask questions about structural genes, other than, you know, areas other than the identification of loci, such as, you know, you have had a criminal record involving drugs. Do you have a gene or an allele that predisposes to drug abuse, and that is very powerful information about an individual.

I don't think -- I mean, first of all, we don't have the knowledge to even suggest that right now,but people are anticipating this. Will we find such allele some day? Yes, absolutely we will. We will find alleles that correlate with behaviors that are considered to be asocial, and that will be very powerful information.

Do I think that is important now? No, I don't.

GREG MATHESON: Then what is the fear that somebody has, or how can that information be used that can hurt them in their life?

DOCTOR REILLY: The fear is that, and I think they are weak arguments, but they are widely held. The fear is that people might, for example, that insurance companies might get access to this. We guard them, because all insurance companies have to do is ask you for the sample. So I quite agree with you. So I mean I, in other contexts, would be among the first to attack these arguments. I am trying to act as counsel to the committee anticipating the arguments. That is what I'm doing.

GREG MATHESON: So then it sounds like what we either have to do, or you either have to do is come out with legitimate ways to counter that or decide that it's too great and not worth the effort to get rid of the samples.

DOCTOR REILLY: Essentially. Essentially.

MICHAEL SMITH: There is also the irrational arguments. I mean to be sure, the dignitary interests you are talking about can express themselves irrationally as well as rationally.

DOCTOR REILLY: And they are still dignitary. People have the right to behave irrationally.

PAUL FERRARA: Those people won't trust us to destroy it any more than they will trust us.

DOCTOR REILLY: I think that is a fair concern.

JIM WOOLEY: We are talking about two possible schemes, legislative schemes, schemes that say we retain these things for legitimate forensic research reasons to cope with changes in technology. Then we are saying people won't trust us to do that the right way, and we would have to violate that scheme and commit crimes to do the things that people are afraid of.

MICHAEL SMITH: That wasn't the irrational.

JIM WOOLEY: Or the scheme is that we flat out destroy it, but who is the we? It's the same we. If they don't trust us to do the right thing with it, those people, I believe, won't trust us to destroy it.

MICHAEL SMITH: That wasn't the rational argument I was referring to.

JIM WOOLEY: Well, let me just finish my point then, but the discussion this morning the suggestion seemed to be the reasons to keep the DNA samples has been overstated. The importance of needing to do that has been overstated. I am struck also that it has probably been overstated a little bit how much better that many more people will feel if we have a scheme that says, we, the government will destroy it. People don't trust the government. I mean I have been a prosecutor for 14 years. They don't trust me. They are not going to trust me to do the right thing with it, anymore than they are going to trust me to destroy it. I don't know how many more people we are going to marginally, you know, get to, you know, you know what I mean?

DOCTOR REILLY: I find that argument persuasive.

DOCTOR CROW: And I do, too.

Phil, you gave two points now. Is this all of them?

(Laughter.)

DOCTOR REILLY: Are you after me today, Jim?

BARRY SCHECK: Actually, he made a lot more in his memo.

DOCTOR REILLY: I actually -- I think the most and firm aspects of the state statutes, as they currently exist, and I haven't read them all recently, but I read them a lot of them over the last couple of years has to do with the language that permits research on the sample. I think that is an open invitation for attack.

Let me make the points that are in the second part of my memo. You may disagree with point number one where I say little meaningful research should be done on STR profiles. What I mean in there is little meaningful research would be done in STR profiles that couldn't be done in other populations as easily. Okay. But let me just take a moment, and the lady earlier mentioned the study. Let me just take a moment to recall for you that in general in the United States, research involving human subjects, and these individuals are human subjects whether they are convicted felons or not, operates under a rather heavy regulatory burden that is completely ignored in the state statutes having to do with research on CODIS databases; and, in fact, the current statutes would fail miserably any of the current tests employed in either the Code of Federal Regulations, which has a history of being especially concerned about research conducted on prisoners, because of the historic abuse in that setting. So I find since all these statutes were written with absolutely no attention to a huge body of law and regulation on human subjects research, it is as though it wasn't even considered, and I think they are very vulnerable on those grounds. For example, what statute -- I ask you, those of you who have looked at it, what statute says who will decide what constitutes anonymous research? What statute defines it? What statute identifies a regulatory body to make sure that it is done right? As far as I can tell, either none or very few of them. That is a weakness that is really -- it's an underbelly that somebody is going to put right into in court someday. Now, you can say well, it's anonymous. What is it? Well, there is a huge debate in the federal government right now as to what anonymous research means, and it's all tied up as to what constitutes minimal risk. You know, I could give a whole lecture on it, as I frequently do. These are infirmities in the state laws, and I spell them out a little bit more here. I don't like to sit here and read what I wrote. You can read it yourself, but I mean the fact remains that conviction and sentencing do not include automatically joining a population of research subjects. That has never been true in the United States, and that is what we have done with these statutes, and you cannot tell me that the statutes include currently an absolute guarantee of a pure anonymous and anonymity function in the research. I think quite to the contrary, because they will be a very limited sample of people, and a very limited sample of questions, and it will be possible to reconstruct who the people were in a small cohort who were the subjects of the research, i.e., I have got -- and I don't know which example I use here.

Let's imagine that in the State of Massachusetts, I want to do research on 400 convicted pedophiles, and I want to ask whether an allele has a certain frequency that has a relative risk much higher in that group than the general population; and I find out that that is, in fact, true. That information is generated about just 400 people about who we have already heard that it would be possible for other means to find out who was the set of convicted pedophiles during those years. That would be easy to do, as I understand it; therefore, you can begin to reconstruct the odds that such and such an individual is in the database, and, therefore, such and such an individual is much more likely to have this gene that that affects his behavior. Now, maybe as is suggested, maybe we damn well ought to know that, because maybe that will totally affect, for example, parole decisions or postconditions on monitoring and all this stuff. Maybe we want to know that, but I think we better be very clear on what we are doing and why we are doing it, because at the moment it looks like we are -- I can see somebody, and maybe it represents a minority in society. So, yeah, you turn all these people into guinea pigs as well as convicting them. What right do you have? What other statute in the United States says you can do research on tissue taken from convicted felons? I know of none.

This just slipped in, and it slipped in under the promise of the anonymity, but no system, no system at all to ensure that that takes place.

Silence indicates to me that I'm right.

TERRY GAINER: The only caveat may be that those type of laws would have the state jurisdictions or, for instance, the crime lab like in Illinois draft up the rules and procedures so it is unlikely that you would see a statute where the checks and balances would be in the statute. The fact is if we were drafting them, I would suggest you wouldn't put that in there, you would make it part of the regulatory system to implement the statutes.

DOCTOR REILLY: But it is not at all unlikely that the statute wouldn't include a provision to say and such and such a body will be charged with doing this in a certain period of time, because I can cite in many said statutes in other areas where that is exactly what does that.

TERRY GAINER: Well, I know what happened in Illinois, because we helped write the statute; and if we look in the book, you will see in there that the -- in the document which was provided by the FBI that there generally is some caveat in there that the rules to implement it will be borne by the agency which is overseen in most states by a rulemaking body so that it has to be --

DOCTOR REILLY: Then I will put this question on the table. Many of these statutes have existed from anywhere from eight to two years. How many of those states -- and I don't know the answer to this -- how many of those states make provision for anonymous research have created a body of rules under which to conduct it?

TERRY GAINER: You have to ask.

DOCTOR REILLY: My bet is zero. I am just saying it is an infirmity. Someone is going to get the same idea I had and go after it.

DOCTOR CROW: Please.

SARA COMLEY: I am Sara Comley, and I just want to mention the fact that Phil did not mention that the heavy regulatory burden only applies to federally funded human subject research; is that not correct?

DOCTOR REILLY: Actually, there are -- that is not completely correct, and I will elaborate on that.

SARA COMLEY: Okay. Please do.

DOCTOR REILLY: Yup.

SARA COMLEY: And also that I read someplace that the deliberations on an IRB is not subject to legal discovery, and I asked Victor Weedn about this, because I was concerned about it, and he said that that was true, but that you could subpoena members on an IRB. IRBs are often pushed as a solution to this problem in human subjects research, and I for one am integral in IRBs that are responsible or qualified or resourceful or free of conflict of institutional interests, and we have seen that recently with Duke and the Veterans Hospitals in California and others.

DOCTOR REILLY: Well, I certainly agree that -- taking your second comment first, I certainly agree that the institution review board system has been under attack recently. As you must know, there are at least three major federal studies that have called it into question. I won't get into the particulars.

The Duke study, which I think may have been largely politically motivated, but the fact of the IRB system may be a weak system, which I don't grant you, is not an argument, therefore, in favor of conducting research without oversight. That is the first point.

The second point, while it is true that the Code of Federal Regulations that I alluded to applies to federally-funded research, it does so in a very broad manner. Any institution that uses federal funds of any kind whatsoever is potentially subject to the reaches of those regulations; and furthermore, there is unquestionably a trend in the United States to extend the reach of IRB-type oversight to all kinds of human subject research regardless of the funding. There have been two bills introduced in Congress about that. Senator Glenn introduced a bill, as you may know,several years ago. And there is within, for example, biotechnology industrial organization, now BIO, a group of us are deliberating on how to bring that level of oversight to nonfederally funded research. So I think your points go to some weaknesses in the system, but they are not an argument against overseeing research in other settings.

And remember my main point in all of this is to tell you that others will perceive this and will criticize it. That is my main point.

BARRY SCHECK: I mean this argument is not an insubstantial one, while, Jim, I agree that there will always be people that won't believe the government has even destroyed the blood, and we just had this conversation is that still it's visible. It's tangible. People understand that you have destroyed the blood, and you can't do anymore DNA testing on that blood, and it's real different than the computer profile which you are always arguing to people is just a fingerprint. So it goes back to what Chief Hillard was saying, it seems to me that if we -- you know, my objective here, if I persuade you of have nothing else, I hope that, you know, being the person that actually has them typing the old cases to catch criminals, I mean I don't know what else I can do to demonstrate that that is what I want to see happen. I think, frankly, that law enforcement has failed in making its case about the utility of DNA data banks, and yesterday's discussion proves it. We all know it. You have failed to make the case to the people to give you enough money to type right after a crime. Failed. All right. And I'm only suggesting to you that a way to make this argument more successfully, because Chief Hillard is right, you go to people and you say, hey, we have a sex offender in our neighborhood. We want to collect the DNA right away from these people and put it in our data bank so we can connect the crimes. That is a winning argument, but if you want to -- I just think you are going to be much more successful if you can come to them and say, look, we are throwing all these civil liberties concerns that not just the ACLU. It's not just the ACLU. A lot of people in their gut have about this stuff being collected for exactly what Phil is talking about. Somewhere down the line, they are going to find some gene, right, and they are going to use that against me later, or against others later. It is not totally fanciful, and it's just a much more powerful argument. You are going to get far more people behind this enterprise and more money for what we want to do rather than less, and it's not -- and when you say Chief Kennard and Sanders that, well, what Paul and Woody -- if Paul and Dave Coffman say that is what we need, then you will go with them, because they are the people you rely upon, well, you know, that is fair enough; but in fairness, I mean you are making the best case you could for obtaining the samples; and if you really evaluate it, other than this idea that we may have to change the technology in the future, it's not the most powerful case.

So I mean in that respect, I respectfully submit to you we shouldn't be -- we all have the same goals here. I am just strongly suggesting to you if you say, throw away the blood, you eliminate a lot of these arguments, some of which are really not trivial. This is not a trivial argument about finding the genes for -- I mean, look, they are going to -- the first gene they are going to look for is sex offenders, violent behavior, and it's going to come in through sentencing. A defense lawyer is going to be the first person to make the argument. The first DNA to come into court for this is going to be a defense lawyer --

DOCTOR REILLY: That has already been done in the Mobley case in Georgia.

BARRY SCHECK: -- who comes in and says, Don't execute this person, because he has a bad gene, and then it will spiral into let's go look at that other stuff, and that is really beyond the scope of what we are initially doing, because we are only saying this is a fingerprint. So if it's only a fingerprint just save the fingerprints.

TERRY GAINER: Actually, it may at first come in in a civil suit where someone is saying that the government should have figured out that the person had this streak and didn't do something about it.

DOCTOR REILLY: Well, the first has happened.

Now are people here familiar with the Mobley case? Let me just say we are worried about that. It's very interesting. It's a reported case. I don't have the cite with me, but --

CHRISTOPHER ASPLEN: Can you spell that, Phil.

DOCTOR REILLY: M-O-B-L-E-Y. Steven Mobley was a man who committed a murder in a gas station that had a little convenience store. He had a history of violence in his childhood, and a paper had just been published in the American Journal of Human Genetics talking about a mutation in a gene called amonomene oxidase A gene, which codes for protein, which is a neurotransmitter. It affects brain function, and it turns out that research was done on a kindred in the Netherlands, which there were a number of men who had a history of violence in a family that otherwise was a very reputable upper middle class family, and it was a very curious profile, and it turned out that they had an X-linked condition that affected males that had this pattern of sudden violent behavior.

As part of the defense in the Mobley murder trial, the defense attorney petitioned the judge and asked that Sondra Breakfield, a researcher at Massachusetts General Hospital, who had done the work be brought down to draw blood and do a test for amonomene oxidase A deficiency, and if that was present that this individual would qualify for a genetic version of the insanity defense. That is exactly what was done. It's just like what Barry was anticipating, but it has already happened. It's a reprise of the XYY controversy 20 years ago.

DOCTOR CROW: Some of us are old enough to remember the XYY situation.

DOCTOR REILLY: I am. Of course, you are younger than I.

DOCTOR CROW: We must stop soon, but let me give Phil an opportunity to say whatever he wants to say in closing.

DOCTOR REILLY: I don't think I deserve the last word. My only point is when I looked -- when I drafted this memo, I was trying to think of what individuals, who are deeply committed for whatever reason in opposition to this system will look to, and one of the things they will look to is the research issue, and I would for one in an instant trade off the right to do research, even anonymous research, on these databases if it further the goals of creating and maintaining thedatabases. I think it was a mistake to include them.

CHRISTOPHER ASPLEN: Can I just ask. I see a lot of heads nodding around the table. Is that a general consensus? I am not asking for a recommendation or anything. I need to go back to the Department and give them an update on some of these issues.

Is that a general consensus around the table regarding the research issues and that they need to be looked at significantly?

TERRY GAINER: State what the premise is.

CHRISTOPHER ASPLEN: That the research provision issues that Phil talked about are of significant concern and need to be considered further by the group; is that fair?

DOCTOR REILLY: Let me just restate what I would say. I would say that in those statutes that explicitly provide for research on the database samples that there should be evidence that great care was taken to ensure that that research proceed according to principles and practices already widely recognized in the United States and other contexts. And another approach would be to say, it shouldn't be done at all. And, actually, given the kind of yield you get on the research, it would be quite easy to just say don't do it at all for a while.

AARON KENNARD: Why would we just say not done at all?

DOCTOR REILLY: That would be okay with me for now, because, actually, Chief, I think the yield would be incredibly small, and I think the risk we are taking of having a provision in there is not worth the gain that you can anticipate in the next five years around behavioral genetics.

CHRISTOPHER ASPEN: How about that proposition, the not doing it all? And, again, I am very hesitant to even ask this question, because --

DOCTOR REILLY: People might want to think about it a while.

PAUL FERRARA: I mean one of the things we have to consider -- I mean my inclination is to say I can live with that, but we have to clarify what we mean by research, because we use these samples for method validation, for looking at new technologies, so I mean as long as it's --

DOCTOR REILLY: No structural genes.

PAUL FERRARA: Fine. I can live with that. I wouldn't know it if it hit me.

DOCTOR REILLY: And then the statutes provide for other people doing the research.

DOCTOR CROW: Yeah, I think that is fine. I think we have done this subject, and I do want to allow complete time for our dinner speaker. Now, we are having what is euphemistically called a working lunch.

What about the lunch? Where is the lunch?

CHRISTOPHER ASPLEN: Where is the lunch going to be? What are we doing? Is it outside getting set up right now or --

ROBIN STEELE WILSON: It's upstairs.

CHRISTOPHER ASPEN: It's upstairs. And will we bring it back to our --

ROBIN STEELE WILSON: We eat up there.

CHRISTOPHER ASPEN: Is there a place upstairs for our speaker to speak?

ROBIN STEELE WILSON: She would prefer to do it in this room so...

DOCTOR CROW: Why don't we then go up and eat for a limited amount of time.

CHRISTOPHER ASPLEN: Let's go eat somewhat expeditiously and return.

(There was a short break taken.)

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