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P R O C E E D I N G S
Tom Callaghan DIRECTOR ASPLEN: Tom, would you like to speak from here, or would you feel more comfortable sitting up here? That's fine. For those of you who don't know Tom, he has a Ph.D. in microbiology from Case Western University. He was a DNA examiner from Penn State police where he was the lead implementer of Pennsylvania's CODIS program. He's been a DNA examiner with the FBI now five years. He's presently the program manager of the Federal Convicted Offender DNA Program. You all received in your packets a letter from Don Kerr regarding the bureau's position on sample retention and I asked that a representative from the bureau come and talk a little bit about that for our consideration as we will be discussing that rather extensively tomorrow. CHIEF JUSTICE ABRAHAMSON: And Jan Bashinski has a letter, too. COMMISSIONER BASHINSKI: Yes, which I just delivered to you today. DIRECTOR ASPLEN: And if you don't have Jan's letter, that will also be, that probably is being photocopied right now. CHIEF JUSTICE ABRAHAMSON: Dr. Callaghan?
Number three, destruction of samples would affect the quality assurance of the DNA database. And four, DNA databasing has occurred for ten years and there has been no record of misuse of any sample in a DNA analysis database. I would like to address each of these points individually. One, all 50 states have convicted offender database laws. Only one requires sample destruction. This state, I understand, has not however, destroyed any samples because it is undergoing retyping of the entire DNA database. This brings us to point number two, the difficulty in reanalysis of DNA's databasing samples. Although it's theoretically possible to re-collect samples from all the individuals in a DNA database, logistically this would be very difficult for a number of reasons. The first would be locating the individuals who had been released. The second would be locating the individuals who had been released who no longer reside in that state. This is because of a jurisdictional nightmare as far as getting what would probably be called convicted sample warrants to be issued in another state so that the sample could be collected. Law enforcement already has a large burden. This burden would probably be put on parole and probation systems of the states. The second aspect of this retyping of analysis, if it would be, why should we go ahead and do it and if it's going to be difficult, it would also be very expensive. States have shown that it is more expensive to collect a DNA database sample, to collect a blood sample than it is to analyze a sample after it is collected. One of the problems with DNA analysis or one of the problems DNA analysis experienced is funding. When it's more important or more expensive to collect a sample than analyze it, it would be appear not to make sense to destroy that sample. Why would we want to retype? Retyping is, may be necessary because of the future advances in DNA analysis. In trying to address this point, I read the meeting minutes from the last two meetings. And a number of times it was stated that the 13 core STR are okay for DNA databases. And that's correct but we're talking here about the technology that's used on crime scene evidence. RFLP technology revolutionized serological analysis and showed us the potential for DNA databasing. PCR-based testing allowed DNA analysis to be done on a much broader spectrum of forensic evidence. One of the difficulties in current DNA analysis is resolving mixtures. When mixtures cannot be resolved, the entire mixture profile would be searched against the database, generating a lot of hits that would have to be further investigated. There may be markers in the future that are discovered that are far more discriminating and therefore mixtures would be much easily, much easier to resolve and to profile, not associated or only associated with one individual could be put in the DNA database and searched. The third point as far as the difficulty in retyping would be the consistency. The national DNA database will only work if all 50 states are complying and using the same markers. In the future if states or other jurisdictions are faced with the logistics of localizing the convicted offenders, obtaining their blood samples and all the expenses that go along with that, there may be a point where some states would not want to do this or refuse to do this and we would have a point that we currently have, some states do RFLP and some states do STRs. All states are moving towards STR analysis but there could be a time when neighboring states would have different DNA techniques. This would be detrimental to our national program. I mentioned quality assurance. Sample destruction would affect the quality assurance of a DNA database. Errors in DNA databases are unacceptable but mistakes can happen. Retyping of a confirmation hit, that is, when a DNA database hit occurs, going back to the original sample and retyping that sample and confirming the accuracy of the identity of the individual prior to the name being released to law enforcement would identify mistakes that happened. If mistakes did happen, that individual's name would not be released to law enforcement. That takes care of the convicted offender who had been mistyped or a mistake occurred. But, what about the evidence, what about the piece of evidence from the crime scene? If a mistake had occurred, it would be possible to go back and type, retype all of the samples drawn on that day or all the samples analyzed on a particular day and it may be possible to link a DNA profile from a piece, from a crime scene to someone in the database that had been mistyped. So the evidence would still be able to be used. The fourth point as far as no record of misuse, 50 states have DNA databasing laws. All 50 states restrict the use of the samples that are collected. Forty-nine states do not require sample destruction. Forty-six states restrict the use of the DNA information collected and 32 states have criminal sanctions for improper release. In over ten years of DNA databasing, over 750,000 samples have been collected and to date not a single misuse of these samples has been documented. I would like to thank the Commission for the opportunity to speak today and I would be open for any questions. CHIEF JUSTICE ABRAHAMSON: Mr. Scheck? COMMISSIONER SCHECK: You stated in your testimony that it is more expensive to collect the sample than it is to do the typing. What data do you have to support that? Please tell us in its entirety. DR. CALLAGHAN: I believe that was presented here by Dawn Herkenham for, that it would cost $67 to collect or $69 to collect a blood sample and that it was approximately $50 to have that sample typed. COMMISSIONER SCHECK: Well, that, you're alleging that this is one statistic from New York state as opposed to, that's the only data you have? DR. CALLAGHAN: That's the only data I have, yes. COMMISSIONER SCHECK: Can I have a -- Dr. Forman -- CHIEF JUSTICE ABRAHAMSON: Push the microphone up. COMMISSIONER SCHECK: Dr. Forman mentioned another figure to me of a 28 dollar collection. Could I ask that you clarify? She just told me that on Friday so I was just curious what it is. DR. FORMAN: That $28 is based on information that I got from Dr. Amanda Strozer from genetics and IVF. And that's based on an analysis that they have done for the State of Louisiana collecting buccal swabs at the booking, source of booking for Louisiana arrestees. So they identified that it could cost them $28 in manpower and reagents and equipment to collect those samples from people who are already in custody. COMMISSIONER SCHECK: And that was the presentation that was made to us at one of the earlier meetings, I think; she's the same individual, correct? COMMISSIONER ASPLEN: That's correct. DR. FORMAN: She's the same individual but I don't think she cited a price, at that point. COMMISSIONER SCHECK: Right. And that's a private individual. Okay. And what is your estimate, so that's the only basis for that? DR. CALLAGHAN: That's the only estimate. If you would like, I would, I can state that there would be a significant cost of re-collection of those samples. COMMISSIONER SCHECK: Well, I mean, but you're saying it cost more than typing. What is your estimate at the FBI for typing a sample with an STR? DR. CALLAGHAN: The FBI currently does not do, for a database sample, we don't do that. I don't know what the cost is for a crime scene sample. I don't know what that number, that figure is. CHIEF JUSTICE ABRAHAMSON: Dr. Crow? COMMISSIONER CROW: Aren't you discussing the cost of doing it once you have the person in hand, what are the costs likely to be if you have to hunt around and find the individual from whom you get the sample? Surely my guess is that must be considerably more than anything we're talking about now. COMMISSIONER BASHINSKI: I would like to make a comment based on our experience in California. We surveyed our client agencies because we are in a position of trying to reimburse our local agencies for sample collection costs and the costs ranged from less than $30 all the way up to $75, depending on where the sample was going to be drawn and whether they would have to hire a private phlebotomist or have people on the staff. And that is merely the cost of actually drawing the sample. It doesn't cover the costs of sample collection materials or, more importantly, locating the person, running them down and getting them to where they can be tested, which I think would turn out to be by far the largest cost to law enforcement although probably difficult to quantify, at this point. COMMISSIONER SCHECK: Does the FBI have a position as to how long you think you would, once a sample is collected, right, how long would you recommend that the sample be kept; is it your position that it would be indefinite or would you be open to the idea of something like a fixed term that -- DR. CALLAGHAN: I would say it would be indefinite until the, a fixed term of, uh, I can't give you a date but I would think that a 50-year term, if this individual is incarcerated and then would later get out after serving a 30- or 40-year sentence, we would probably want to have his DNA profile in the database. And in that period of time new technology may have come along. COMMISSIONER SCHECK: Now, what is, you raised the issue of new markers to resolve mixtures and other things like that. DR. CALLAGHAN: Yes. COMMISSIONER SCHECK: All right. And, well I really have two related questions. First of all, how long do you estimate that it would take to implement given the current spending levels, STR is on a state and local level and a national level, typing everybody in the database and using it to type new cases, nonsuspect cases, about how long do you envision this technology, the implementation time? DR. CALLAGHAN: There are a lot of issues there. As far as typing database samples, I would think that in the next three to five years with sufficient funding all convicted offender samples collected in the U.S. could be analyzed. With regard to typing nonsub cases, I would like to see that happen as soon as possible. It is when you start typing nonsub cases that the real power of DNA analysis can be seen. But that would, I can't speak for state and local law enforcement laboratories on how they would go about doing analysis but there would be a significant cost and also a cost and time delay in training the individuals to do the analysis, the extraction of the analysis. COMMISSIONER SCHECK: No, I quite agree with you that the power is in the nonsuspect cases, but I guess what I'm trying to get is, does the bureau have some notion as to what is the time frame for our basic commitment to STR technology; would you not agree it is something on the order of the next five to ten years this system is going to be the one we're using? DR. CALLAGHAN: Yes, I would expect that for at least the next five years, that for the next five to ten years STRs would be the CODIS core loci. COMMISSIONER SCHECK: Bear area right. And so what you're telling is that you anticipate it would be useful to add other markers, I anticipate markers that have fewer base pairs, right, to run in parallel to the STR in future years? DR. CALLAGHAN: Right. It could be or it could be additional STRs as yet unknown. When the human genome project is finished, there may be STRs out there that are far more polymorphic, more discriminating, that would be able to be analyzed. That is something I would like to see -- COMMISSIONER SCHECK: Sure. DR. CALLAGHAN: -- as far as mixture analysis goes. COMMISSIONER SCHECK: But you're saying it's going to be running parallel with the core system between the next five to ten years is a fair statement? DR. CALLAGHAN: Yes, I would say that's fair statement. CHIEF JUSTICE ABRAHAMSON: Yes, Chris? DIRECTOR ASPLEN: Doctor Callaghan, can you give us I guess somewhat of an idea of how many states currently use their database samples in a confirmatory capacity once getting a hit before they then go out and get a warrant for arrest or as you say release that name? DR. CALLAGHAN: I don't know how many. I believe Florida does it. I don't know how many other states that do that. But I believe Florida confirms that hit. I don't know whether that's prior to the release of the name or not. But that is something that the FBI plans to do when there is a federal DNA database program. DIRECTOR ASPLEN: So, it will be part of your protocols, if you will? DR. CALLAGHAN: Yes, it is or will be. CHIEF JUSTICE ABRAHAMSON: I gather that the position is to retain indefinitely the samples? DR. CALLAGHAN: Yes, it would be. CHIEF JUSTICE ABRAHAMSON: Now, do you have a position on any restrictions that you would place, such as they be retained in a governmental office rather than in a private lab. DR. CALLAGHAN: I believe that they should be maintained the way the evidence would be maintained in the crime laboratory. I realize that some laboratories will hire contractors to do the analysis. When that is done, it wouldn't be necessary to give the name along with the sample. A number could be issued with the sample and that way the identity of the individual could be maintained. CHIEF JUSTICE ABRAHAMSON: You'd limit the use of this sample? DR. CALLAGHAN: Yes, I would certainly limit the use of the sample to the CODIS core loci. As far as the identity of the individual is concerned, there was some discussion as to, previous discussion I saw in the minutes as to the need for research to be done as far as identifying different markers and generating frequency databases. And I think that would be a valuable use. CHIEF JUSTICE ABRAHAMSON: In your presentation you said that several of the states had criminal penalties for abuse of these samples. But you don't have any knowledge of it being used? DR. CALLAGHAN: No, I don't know what those penalties are. CHIEF JUSTICE ABRAHAMSON: All right. Professor Smith? COMMISSIONER SMITH: I was just trying to play out your point about the undesirability of having different systems in adjacent states and together with your point that in order to avoid that, sample retention might be necessary because some states would change their methods. But does that mean that if any states destroy samples after typing that we run into that difficulty? DR. CALLAGHAN: I think that it would be difficult because that state in order to change their database would have to go back and collect those samples. COMMISSIONER SMITH: And so presumably that state would have to operate its database on the 13 STRs. So if Wisconsin started to comply with this law, this problem would immediately manifest itself, wouldn't it? DR. CALLAGHAN: As far as the old samples go. COMMISSIONER SMITH: Right. DR. CALLAGHAN: Right. COMMISSIONER SMITH: Thank you. CHIEF JUSTICE ABRAHAMSON: What does Wisconsin do, do you know, Norm? COMMISSIONER GAHN: We don't want to go there. CHIEF JUSTICE ABRAHAMSON: I withdraw the question. DR. BASHINSKI: It's my understanding that Wisconsin does do the post-hit analysis. We certainly do in California. And I think it's common practice among database states although I can't specifically name others, other than Florida, Wisconsin and California. COMMISSIONER SCHECK: Doctor, what would you think if after the institution of a technology that you thought would be in place for quite some period of time, if there were retention of the samples for some fixed period of years to make sure that the technology was, the bugs were out of it, so to speak? I mean, for example, if you wanted to get through to two or three of these STR loci and put another two in after some experience with it after two or three years, you could do that but then after a fixed term, when it would be destroyed; in other words, in Wisconsin I think everybody believes it would be foolhardy to destroy all the samples collected before you put them into an STR database. COMMISSIONER SMITH: Yeah. COMMISSIONER SCHECK: Right? In other words, making the destruction tied to the implementation of a new technology as opposed to keeping them indefinitely. DR. CALLAGHAN: I guess the idea here is how do you ensure that once an individual is released, if they would commit another crime and the technology had changed, their sample would be in the database. The fact that we are databasing samples and those people are incarcerated for the period of time that the technology is current, someone, it would be difficult to commit a sexual assault from a prison but when that person is released, there may be a sexual assault that's committed and if the technology has changed, their sample wouldn't have been analyzed and in the database. So I think our point is -- COMMISSIONER SMITH: It would be there but it would be there with the old technology. DR. CALLAGHAN: The old technology. COMMISSIONER SCHECK: Right, but let's put it this way. Let's say that you have the STR technology out through year eight, okay, and then eight years from now, the jurisdiction, you develop two or three different markers five years from now. It would be within the, it would be legal in every state including Wisconsin that had a destruction statute that as soon as the new technology kicked in that you would be, as somebody came out of jail, you would take a new sample from that individual and then get their profile upon release. That's not so hard, is it? DR. CALLAGHAN: The sample already exists and it would go back and could be retyped. COMMISSIONER SCHECK: But you take my point, yes? DR. CALLAGHAN: I understand your point, yes. COMMISSIONER SCHECK: And that's a practical way of ensuring that right after somebody leaves, you would have them on the latest, most up-to-date technology. If you added five markers, somebody's on release and -- DR. CALLAGHAN: And if that technology changed five or ten years down the road, we wouldn't have them. COMMISSIONER SCHECK: Well -- DR. CALLAGHAN: But if we collected the sample once and maintained it indefinitely, we would always have them. COMMISSIONER SCHECK: Well, you would have them on the STRs and whatever additional ones existed at the time of their release? DR. CALLAGHAN: That's correct. This becomes a problem with once, once a technology is accepted and if that technology has changed or a different loci or added or different technology is used, it would require maintaining the proficiency test of the previous technology so that samples could be -- this can happen now in RFLP. These are things that I deal with every day on the telephone. A case will come in and the state will run STRs and they will run STRs and the person is exonerated. The suspect is excluded. They then have the choice to make, do they go back and try and do RFLP and search their state database on RFLP and if they do that, they can then search the national database on RFLP on that sample. So, there are more crime scene evidence and there is more convicted offenders in the national database with RFLP than there is with STRs. And maintaining proficiency tests for multiple programs and talking about going back and recutting becomes a logistical nightmare. If the case comes in and can be processed and put on the national database, that's the easiest way to do it. COMMISSIONER SCHECK: Well, of course that's true but that is because there was this gigantic error to use RFLPs in the first place in this fashion. We all know that. But, let me ask you this. DR. CALLAGHAN: Well, I think we have a chance here. If that was gigantic error, we have a chance here to avoid that gigantic error, and that is to maintain the samples indefinitely. COMMISSIONER SCHECK: Well, come on. I mean, let's put the issues directly. CHIEF JUSTICE ABRAHAMSON: Barry -- COMMISSIONER SCHECK: You're not seriously maintaining that when RFLP was first used, would you not concede that it was widely understood that that would not be the basis for a national database, it would have to be a PCR-based test? No? DR. CALLAGHAN: I was not involved in those discussions, when those decisions were made. CHIEF JUSTICE ABRAHAMSON: I think we're moving away from the basic topic. COMMISSIONER SCHECK: Can I just ask one final question? CHIEF JUSTICE ABRAHAMSON: Let's just give Chief Hillard a chance and we'll come back to you. COMMISSIONER SCHECK: Oh, I'm sorry. COMMISSIONER HILLARD: Let me get a question or two in real quick. I heard you state that you want to maintain this database indefinitely. DR. CALLAGHAN: Yes. COMMISSIONER HILLARD: And I think I have heard your answer to that but I'm somewhat, I somewhat disagree with you. You know, I think there should be some type of time limit on this. The next thing is, can you give me the categories that the FBI would specifically mandate? Is it going to be violent crime, is it going to be the property crimes or what crimes are we talking about? DR. CALLAGHAN: I think that that's something that far as the FBI is concerned, Congress will decide what those, those offenses would be. COMMISSIONER HILLARD: What recommendations are the FBI going to come up with then? DR. CALLAGHAN: Violent, violent offenses to include kidnapping, assaults, attempted kidnaping, attempted assaults. All violent federal crimes are we are asking for to be included now. COMMISSIONER HILLARD: And I heard you say something about 50 years, am I correct? DR. CALLAGHAN: Well, that was in response to a question. I wouldn't, I would, I don't know how long the average person spends in jail for a variety of crimes but if an individual is released and would die, we would be talking about exhuming a body to get a blood sample for an old case. So, I would think indefinitely but 50 years I think is something that could be discussed. COMMISSIONER HILLARD: I would like to put this on the record, just in case. By being superintendent of the Chicago Police Department, the second largest police department in the country, I am in, I don't quite agree with you when you say maintaining this evidence for an indefinite period of time. I really do think there should be some limitations on it and we need to be very specific. You know, because not only law enforcement but other organizations and other professions have misused and abused things such as this and I think we ought to be very clear on how we're going to go about this in order to make this, this work for everybody. COMMISSIONER SANDERS: Madam Chairman, I don't really have any questions but are we going to debate this now or are we going to get into -- CHIEF JUSTICE ABRAHAMSON No. COMMISSIONER SANDERS: -- a debate later? CHIEF JUSTICE ABRAHAMSON: No, no, it's just to gather information. COMMISSIONER SANDERS: We don't need to make our statements in support -- CHIEF JUSTICE ABRAHAMSON: Right, no. COMMISSIONER SANDERS: -- and say all those things that I said the last three times? I can read the same thing. CHIEF JUSTICE ABRAHAMSON: Right. COMMISSIONER SCHECK: The ACLU is a knee-jerk organization. Do you have that down? CHIEF JUSTICE ABRAHAMSON: Jan, did you want to have some comments? COMMISSIONER BASHINSKI: Well, I don't know because this might qualify as debate but I would say that it was not at all clear when we started the database that RFLP was not going to be the national standard. In fact, it was considered the national standard and although we knew that PCR was in the wings, nobody knew until fairly recently what the loci were going to be that PCR was going to be applied to. So that's just a comment I would like to make. COMMISSIONER SCHECK: I won't respond to that. I could, uh -- CHIEF JUSTICE ABRAHAMSON: Barry, wait, just a minute. Go ahead. COMMISSIONER THOMA: I just have one question, Doctor. Do you have any recommendations regarding storage? We have heard some testimony regarding crime scene storage and it becoming a problem when it is kept literally indefinitely with regard to these database samples that you want to store. DR. CALLAGHAN: Well, the database samples I would be talking about would not be the original. If it was an eight or ten milliliter test-tube of blood, it would be an aliquot from that. There are ways to maintain blood samples on pieces of paper where it's dried out. COMMISSIONER THOMA: On a card? DR. CALLAGHAN: On a card or in a small one or two micromillimeter test-tube with an O-ring and they could be frozen and stored in that way. So, I think storage is a concern but I believe that if states know about this, they can build the facilities to store these samples. I don't think it would be that great a burden to store these samples. CHIEF JUSTICE ABRAHAMSON: Dr. Callaghan, you know that there has been talk about the possibility of getting samples from arrestees. And, what's your feeling about that? DR. CALLAGHAN: The FBI's opinion as far as collecting samples from arrestees for databasing is, at this time that would be, we would be opposed to that. It's too preliminary for that type of testing to be done. There are over 750,000 samples that have been, blood samples that have been collected. Approximately half of those have been analyzed. And we have a huge backlog in just working cases where we have suspects, nonsub rape cases or no suspect rape cases aren't addressed as they should be at this point. So, the FBI's position is that the better use of the resource, at this time, is to work the cases that we currently have rather than blood samples from all arrestees. CHIEF JUSTICE ABRAHAMSON: Professor Smith? COMMISSIONER SMITH: I don't know if you have done this but I would be curious if you thought through what the resource demands would be of retyping the samples in the event of, one of the events you have described. I mean, that, I don't know but I assume that there's to be a certain amount of resources required to do that. Have you thought about how much resources would be required to do that? DR. CALLAGHAN: Well, I would say as the program manager for establishing the FBI system, when it's up and running, I have given that a considerable thought. I have no figures as far as expense goes but I do believe that if those samples were allowed to be maintained the way in which they were maintained could cut those costs considerably. And that's what I was talking about with the patching of the blood as a dried sample or putting them into tubes that, where they could be frozen. Freezing the sample is attractive because that lends itself very easily to robotics. And, so, the handling, human handling of the sample would be minimized. So, I have given it a great deal of concern and if we can plan now to build a system where retyping would be possible, I think that would be the most cost-effective. COMMISSIONER SMITH: But it would be, I think, in the hands of the states, wouldn't it? DR. CALLAGHAN: Yes, it would. COMMISSIONER SMITH: Certainly well, within, right, okay. DR. CALLAGHAN: Certainly within the hands of the state. CHIEF JUSTICE ABRAHAMSON: Cross-examination by Scheck. COMMISSIONER SCHECK: I have only, this is not, these are only informational questions. So the answer to Professor Smith's question is, you don't have a number on how much it costs to store? DR. CALLAGHAN: No, I don't know how much it would cost to store or, or reanalyze since we don't know what would we, loci would be -- COMMISSIONER SCHECK: How much does it cost to store something now? DR. CALLAGHAN: I, I truly don't know. COMMISSIONER SCHECK: Twenty dollars? DR. CALLAGHAN: I don't know. COMMISSIONER SCHECK: And, you would agree, we had a presentation last session about Los Angeles Police Department crime lab and them buying additional trucks and everything else to store samples; you're aware this is a problem in jurisdictions? DR. CALLAGHAN: I'm aware of the sample storage problem, yes. But, but I'm aware of sample storage being a problem for evidence from crime scenes. I'm not aware that it is a large problem for databasing. COMMISSIONER SCHECK: Well -- DR. CALLAGHAN: I think that's a big difference. COMMISSIONER SCHECK: Refrigeration -- I understand, depends on whether -- but refrigeration is refrigeration expense, true? DR. CALLAGHAN: Yes, although I believe some labs may store samples at room temperature. COMMISSIONER SCHECK: Well, I would like to see that myself. Now, the question I have for you is this. You mentioned that you recognize that there may even be different decisions made on states as to what technology to adopt and you indicate that there are some states that don't have any restrictions on use of these samples and some states, and even among those that have restrictions there, the restrictions can be for something like, quote, law enforcement purposes, yes? DR. CALLAHAN: I'm not familiar with the 50 different statutes from the different states but there are -- COMMISSIONER SCHECK: Now, let me give you a hypothetical since you are a learned man in this area, as I can tell. If, for example, some scientist said that they had a gene or genes that associated with pedophilia or a propensity towards sexual assault or violence and that they wanted to conduct a study on these stored samples to see whether or not this unique database of sex offenders fit within it and wanted to identify it and even actually wanted to look at all of the convicted felons or whatever was designated in the state database to see if they had this particular marker, all right? A, would you consider that a proper law enforcement purpose if all the statute said was for law enforcement purposes, it's not otherwise restricted? DR. CALLAGHAN: I don't think that I will comment on the use or that hypothetical. I am here to address the FBI's opposition to sample destruction for the reasons I stated. And for law enforcement use as far as identifying those types of genes and research, I believe that the Commission if it felt it necessary could put some kind of wording into their recommendations, say, for law enforcement by personal identification only or something along those lines rather than sample destruction. I think that, you know, the use of the sample should be restricted and that's something that the Commission may choose to recommend. COMMISSIONER SCHECK: But I guess this a classic kind of utilitarianism debate. On the one hand you come in here and you say, well, we want it because it would be easier for us, which I recognize but on the other hand do you not concede that the issue of concern here, the privacy issue and civil liberties issue of concern here has to do with those states that would not so limit the definitions and those states that might choose to pass a statute to authorize research of the nature that I'm discussing? You recognize that's the concern. I realize you don't want to take a position on it -- DR. CALLAGHAN: I recognize it. COMMISSIONER SCHECK: -- because it would be embarrassing to say that you're for it and, you know, and I'm not imputing that you are, don't get me wrong, but you recognize that's the only reason that some of us here are advocating destroying the samples? DR. CALLAGHAN: I recognize that issue. COMMISSIONER SCHECK: All right. CHIEF JUSTICE ABRAHAMSON: Okay. Are there any other questions or comments? Okay. COMMISSIONER SANDERS: I was going to say just, just for the record that that, that letter that I read that came from the FBI suggested that that was one of the concerns and I think it points out very adequately that we should be much more concerned with blood samples that are other places and necessarily go out. So, just because of what Barry just said, the letter addresses it and in the end it points that I think there should be a lot more concern about those other blood samples than about these DNA samples for purposes of identification. CHIEF JUSTICE ABRAHAMSON: Judge Reinstein? COMMISSIONER REINSTEIN: Well, I was just telling Jan, last week we put on a conference for the judges on our court and other people in the justice system in Maricopa County. And a person who is the head of the Sexually Violent Person Program at the State Hospital in Arizona, who is a nationally respected person in the area of sexual predators, asked me whether or not they could get the DNA samples for all the people in the SVP program and I said no. And I think no matter what position we take, there has to be some restriction and it's got to be clear in the law that nobody can use this, these types of samples. I said that if you want to go in and ask these people voluntarily to give samples, that's something totally different but the DNA samples that are collected have to be inviolate. But, I mean, there are people out there, it's clear, that want these samples for research purposes. COMMISSIONER SCHECK: Yeah, I mean and nothing, if the legislature decided or some governor decided that that fit within law enforcement purposes or the legislature just passed a statute saying that we want to do it, if they're there, you can do it. CHIEF JUSTICE ABRAHAMSON: Well, that's the arguments for and the arguments against. And -- COMMISSIONER SMITH: Can I just say one thing for the record about the letter, that is not to discuss it now but that I don't think actually that the letter accurately reflects the views or what purports to be issues, the legal issues of the Working Group though it purports to. CHIEF JUSTICE ABRAHAMSON: That's the reference that you, the Legal Working Group says don't retain, is that -- COMMISSIONER SMITH: It's obviously more complex than that, indeed the- COMMISSIONER THOMA: I agree. COMMISSIONER SMITH: It's wrong, so. COMMISSIONER SCHECK: It's too bad. I thought you took that -- CHIEF JUSTICE ABRAHAMSON: But your position is the same regardless of what the Legal Working Group -- COMMISSIONER SMITH: Right. I don't think that was critical to the -- no. CHIEF JUSTICE ABRAHAMSON: Thank you. Dr. Crow? COMMISSIONER CROW: I was just going to ask when we're going to hear from the Legal Working Group themselves, what they are recommending. CHIEF JUSTICE ABRAHAMSON: They were scheduled for -- COMMISSIONER THOMA: Late tomorrow. CHIEF JUSTICE ABRAHAMSON: -- late tomorrow. All right. Well, Dr. Callaghan, thank you for coming. Thank you for your report. And you can see this is not going to be a subject upon which everyone here is going to agree. DR. CALLAGHAN: Yes. CHIEF JUSTICE ABRAHAMSON: Apparently. DR. CALLAGHAN: In some ways I wish I was here tomorrow afternoon and in some ways I'm glad I won't be. I will be cross-examined, I'll probably be cross-examined at the same time in Denver tomorrow afternoon. Thank you. CHIEF JUSTICE ABRAHAMSON: Well, this was just a dress rehearsal then. Thank you.
DIRECTOR ASPLEN: Thank you very much.
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