CHIEF JUSTICE ABRAHAMSON: The first item on our agenda today, and we will again be making some changes in the way we deal with the agenda, is the Postconviction Issues Working Group report and discussion, Judge Reinstein, Working Group Chair.

COMMISSIONER REINSTEIN: Well, first of all, we have three members of the Working Group here, Dennis Bauer -- well, you guys want to just introduce yourselves?

MR. BAUER: I'm Dennis Bauer, Deputy District Attorney in Orange County, California.

PROFESSOR BERGER: I'm Margaret Berger, professor of law, Brooklyn Law School.

MR. CURRAN: Kevin Curran, Federal Public Defender in the Eastern District of Missouri, St. Louis.

COMMISSIONER REINSTEIN: And there may be others that come shortly. At the last Commission meeting in Boston, we presented what you have in front of you, Uniform Statute for Obtaining Postconviction DNA Testing. And we had some discussion about it. There were some requests to go back to the drawing board and make some revisions. And we have talked over the e-mail and yesterday we met after the meeting. And Barry is on the committee as well. And, Margaret, do we have that handout yet?

PROFESSOR BERGER: I don't recall it coming.

CHIEF JUSTICE ABRAHAMSON: Okay. The revisions that we worked on worked on yesterday evening are coming but as far as to remind you, this was to try to develop the uniform statute and the recommendation in effect, that, for states as well, we've divided into mandatory testing, discretionary testing.

If you recall, in the recommendations that we have, we have categories one through five and mandatory testing would be a category one type situation and section B, court discretion would pretty much be category two. But we worked on some things that, requests that Barry had made at the last meeting and we went through that yesterday evening.

We've also got revisions regarding payment, if the court's got word of the test or whether it's going to be discretionary, appointment of counsel, mutual discovery and any additional orders and to that I'll let Margaret address that in a second, as far as preservation and preservation orders and the like. And then we've got an extensive comment to the uniform statute, that, the Commission's notes to that.

There were issues that were raised regarding, Dr. Ferrara I think asked us to put in something that the laboratory must meet the standards of the DNA advisory board. We thought that we would have some discussion on that as to whether you would want to have it that way or the other one would be what, ASCLD standards?

PROFESSOR BERGER: Perhaps, I don't know. I think the technical people should advise us.

CHIEF JUSTICE ABRAHAMSON: Right.

COMMISSIONER SCHECK: I don't think there was any objection to just making it advisory.

CHIEF JUSTICE ABRAHAMSON: I'm sorry. I couldn't hear you.

COMMISSIONER SCHECK: I thought that we were sort of in agreement that meeting the standards of the DNA advisory board was sufficient as opposed to ASCLD.

COMMISSIONER REINSTEIN: That's fine. And then I think Woody in Boston mentioned that the discovery should apply to both sides. Now, our original draft does provide in C3 that the court may order, the prosecution order the defense to provide all parties and the court with access to the lab reports and such.

And if there was something in addition that we're missing, you know, we're happy to address that. But, I'll let Margaret explain to you, when we have the revisions in front of you, what we went through last night. Anything you want to add at this point before we get there?

PROFESSOR BERGER: No. Maybe I would just add that the standard that we discussed last night and had the most difficulty with and which we are going to offer you an alternative language for is the testing in the court's discretion, B, where at the moment it provides a reasonable probability exists that the petitioner's verdict or sentence would have been more favorable if the DNA testing results had been available.

We were looking for language that would allow a court discretion to provide access and also to perhaps provide for payment in cases where the evidence even if favorable would not really exonerate the defendant.

For example, we were talking about two hypotheticals in particular. One was a situation where at trial one of the pieces of evidence introduced against the defendant was a bloody shirt found at the defendant's home with suggestions by the prosecutor that this was the victim's blood. If you now had DNA testing and that showed that it was not the victim's blood, obviously that does not exonerate the defendant, does not prove that he could not have committed this murder.

On the other hand, pending on how that evidence had been introduced at trial and the use of the prosecutor had made of it in closing arguments and whatnot, it certainly might have played an important role in the jury reaching the verdict it did.

That was the kind of case where we thought a court should have discretion to say that testing should be done and discretion to decide who would pay for such testing.

Another hypothetical that we were talking about yesterday was a gang rape where at trial evidence was introduced in the days of ABO testing that in terms of the evidence available the defendant could have been one of the people who participated in the rape.

Now, if testing were done it might turn out that all one is able to determine is that there's a mixture and that only true profiles come out clearly, even though there's clear evidence that four people participated in this rape. The profile of the defendant might not be one of the people.

Again, the court would really have to decide on the basis of this and this possibility, this is before testing has been done, whether this is a case in which testing should be done, who should pay or whether this is a case where the likelihood of getting any conclusive evidence is so low the court would still not want it done.

Finding a formula that covers the, you know, thousands of different possible variations of what is there in the non-A category where one is really talking about evidence that would probably nowadays simply have not even led to an indictment is, is very difficult and. So we are, I don't know where it is but we are going to give you yet another version of B to consider.

COMMISSIONER REINSTEIN: Dennis, Kevin you have anything you want to add?

MR. BAUER: I think some of the concerns that we had kind of paralleled what may have been a misstatement on today's front page, and that was that what I was personally concerned about was that it didn't look like what we were trying to do is create a new category which would use DNA that really or DNA evidence which really was not going to result in an exoneration or even, probably not even result in a judge granting a new trial just to open up the issues to review other evidence, other non-DNA evidence.

And then what that would look like or would be, perhaps, in effect, would be to eliminate all statute of limitations on all postconviction appeals or habeases, using DNA as the vehicle although I think it's up for discussion whether or not by creating a special statute for DNA that we are in effect going down that road anyway and have to be prepared for the fact that that's probably what would be the movement in the future at any rate. So that was my concern in this discussion over what we do with the second category or whether we in fact create even a third category.

COMMISSIONER REINSTEIN: Kevin, anything?

MR. CURRAN: I viewed it as an access issue when we got to these or access to the evidence issue. I think when we sit in the committees and talk about it, we forget about some of the practicality of this kind of litigation. I think first of all it's limited because we're talking about if there's biological evidence that's there, so I think when we talk about floodgate arguments, I still think we have to temper it, with, yeah, this has to be existing.

What we talked about last night was even in a situation where there may be some existing biological evidence but it's not a class, you know, it's not an A category, it's not I'm just plain done, well, if it excludes, then, you know, we have to reset the whole case.

That's one link in the chain. The discussion for me centered around, well, do we let, you know, the defendant to either come up with resources to pay, you know, let him go and have a test because that could change the view of the conviction. You know, where you have biological evidence, a bloody shirt, maybe there was some other nonbiological corroborating evidence that may change the judge's and the prosecutor's mind about the integrity of the conviction.

That probably is something we should have talked about quite awhile ago. We tend to look at these cases, as I call them slam-dunks, where there's biological evidence to be tested, then the person reveals should be released or he should get a new trial. There's a small sort of gray area where that might have some impact on the integrity of the Commission.

So I think we looked at and talked about this sort of, you know, when does the defendant or when should the court be allowed to have discretion within access to testing.

CHIEF JUSTICE ABRAHAMSON: Yes?

COMMISSIONER REINSTEIN: Reason reason and Barry, you want to define the access issue that you faced as far as the problems?

COMMISSIONER SCHECK: Yeah. I mean, I think that you have to recognize now that we're at a point where our technology has made evidence which sits in the prosecutor's office or in the courthouse or in the police department that originally was used to convict somebody, with a scientific test can be made exculpatory.

Now, not every -- the best example I can give you is hair. What we found in the 65 postconviction DNA exoneration cases is that 31 of them involve microscopic hair comparisons where the testimony at trial was there was hair found, pubic hair, head hair at a rape homicide or at a rape case that was attributed to the defendant, that is to say they said it had similar or matching or however they wanted to define it, microscoping characteristics and also saying it excluded other people.

And, what we now have is this capacity to do mitochondrial DNA testing on the shaft of the hair and we're finding that the microscopic hair comparison evidence is highly unreliable in many of these cases. In fact, take a look at 31 out of the 65 cases, it was wrong, and it wasn't just wrong, I should urge you, on the issue of saying this hair is consistent with the defendant who turns out not to be guilty, they have been wrong in excluding in some instances the real perpetrator. We're excluding the victim as being the source of the pubic hair that was attributed to a defendant.

So, there are many cases now that come through our docket. I have one right now pending in Louisville, Kentucky that the prosecutor and I are trying to get together on but it's a mask case where there are two rapes involving a man with a mask and in the second rape there's no eyewitness identification but there's other circumstantial evidence. But the victim pulled the mask from the face of the perpetrator and all that's found in the mask are hairs that were microscopically matched to the defendant.

Now, the mitochondrial testing for at least two of five hairs have shown it's not his. You know, whether or not a judge in the first instance would have granted an application to test the hairs in the first instance, I don't know because human nature is such that when you look at some evidence in a case and you say, well, let's just assume the DNA when it comes out in favor of the defendant, I don't know if I'm going to vacate this conviction.

And, that's human nature because, you know, until you see the test results when you have a heavy docket and you've got a zillion other things to deal with, you're not necessarily going to say, well, let's do a full scale reexamination of this case, which I think is appropriate.

And, unfortunately, it's not unfortunate, it's necessary, the way we originally wrote this, and I think it's correct, is that first we want to get at the cases where there must be a test because it would be dispositive and you know that if the test comes out in favor of the defendant, the conviction must be vacated.

But, what about those other cases where it's going to be exculpatory but not necessarily dispositive unless you do further investigation because the truth is once you get one of these pieces of evidence that, you know, was not as originally believed, and then all of a sudden you begin to look at the rest of it? And frankly sometimes these cases just fall apart, other times it could just be that it's, there may be other explanations for why a hair or why a, you know, the blood got there but it's not going to be sufficient.

Now, it's not, the idea here is to give somebody a right of access without necessarily having, you know, without repealing the statute of limitations, as Dennis is expressing the concern, because you're still going to have to in the final analysis with a DNA test result that's exculpatory and any other evidence you can produce meet the very high standard that's required for vacating a conviction based on a proof of innocence, which is a high, high standard and understandably and justifiably so.

So, that's what we were searching for, language that would permit somebody to get exculpatory evidence without necessarily in the first instance meeting the very, very high standard that's required to vacate.

COMMISSIONER REINSTEIN: What you have in front of you now are the changes that Margaret has typed up this morning and that was to B1, the testing in the court's discretion to substitute a reasonable probability exists that testing will produce exculpatory evidence from a reasonable probability exists the petitioner's verdict or sentence would have been more favorable if the results of DNA testing had been available at the trial leading to the judgment of conviction.

And then C4, specific preservation order, that when a petition is filed when a proceeding is instituted that the court shall order, that the evidence be preserved during the pendency of the proceeding, not forever but just during the pendency of the proceeding and that if there is intentional destruction of evidence after such an order that it may result in sanctions, including criminal contempt for a knowing violation.

So, those are the changes that we came up with. If any other members of the Commission have additional things that we didn't cover, let us know. Yeah.

PROFESSOR BERGER: And we would also add a C5 -- I'm sorry, I didn't get to type it up -- which is that if the court orders testing, it must select a laboratory that satisfies the standards of the DNA advisory board.

COMMISSIONER REINSTEIN: Okay. And then keeps what now is C4 and C6 that there can be additional orders in the court's discretion.

PROFESSOR BERGER: Right.

COMMISSIONER REINSTEIN: Jeff?

COMMISSIONER THOMA: Ron, with regard to the amendment B1, I think it's a little too limiting perhaps because, in fact, from your own state the Tyson case in a capital setting, for example, you might have mitigating evidence, for example, evidence that shows that the person isn't substantially involved in the underlying felony and would mitigate the sentence as opposed to a death, not making a person eligible for death or making the sentence otherwise more appropriate, to be life without possibility of parole.

So the original wording actually is probably more appropriate for that circumstance where it, even though it's not completely exculpatory, it would crucially just change or modify the sentence from death to life without parole. And I think that's key.

COMMISSIONER REINSTEIN: Professor Scheck?

COMMISSIONER SCHECK: I think, though, that maybe we could take care of that in the comments because by definition exculpatory evidence does include evidence which introduced at the penalty phase would mitigate the sentence.

In fact, the case Brady versus Maryland, most people don't realize, is a case where evidence was withheld at the penalty phase in a death penalty case. That's how Brady came into existence. It wasn't a case that dealt with evidence that exculpated the defendant from the guilt or innocence judgment. So I think that's covered.

COMMISSIONER THOMA: Right.

COMMISSIONER SCHECK: But you're right, that it's probably worth picking up in the commentary.

COMMISSIONER REINSTEIN: If the original provision came directly from the Illinois statute?

COMMISSIONER SCHECK: No, the New York statute.

PROFESSOR BERGER: It's more New York, yeah.

COMMISSIONER THOMA: I prefer that wording, if that matters.

COMMISSIONER REINSTEIN: Oh, so you prefer the original to this?

COMMISSIONER THOMAS: Yes.

CHIEF JUSTICE ABRAHAMSON: We -- yeah.

MR. BAUER: To not substitute at all?

CHIEF JUSTICE ABRAHAMSON: To not substitute.

COMMISSIONER REINSTEIN: You have to talk to your colleague over here.

COMMISSIONER SCHECK: Jeff, this one is a lower standard than the other one, believe me.

PROFESSOR BERGER: What about putting in a "or" you know, in B?

COMMISSIONER SCHECK: You're just worried about the penalty phase aspects?

MR. BAUER: Yes, yes.

COMMISSIONER SCHECK: I think we can cover that in the commentary.

MR. BAUER: Okay.

MR. CURRAN: Why don't you all put an alternate clause in?

COMMISSIONER REINSTEIN: Well, how would you phrase it?

PROFESSOR BERGER: Leave B1 and then add or if a reasonable probability exists --

CHIEF JUSTICE ABRAHAMSON: Either.

COMMISSIONER REINSTEIN: Yeah, either, either is fine.

PROFESSOR BERGER: Could I add one thing?

COMMISSIONER REINSTEIN: Yes; yes.

PROFESSOR BERGER: I mean, Barry said this but I think I would like to stress some more that I think what's really important to realize about this statute is that it only deals with the access to the evidence situation.

And I think that's really what it does, that's the problem with existing law, that it uncouples the vacating of the sentence, either deciding to grant a new trial or to grant whatever it is that the court would do, completely from the question of access.

That would be a totally second phase that this statute does not deal with, that all this says is there must be testing and if the results are favorable to the defendant that the court will hold a hearing. And everything that follows after that really is dependent on the state standard for setting aside a conviction granting a new trial and you know, is, is not the concern of this committee.

So, that this is only giving the defendant an opportunity for testing, which in the B situation, in addition, the court has obviously discretion about and also has discretion about payment for the testing.

CHIEF JUSTICE ABRAHAMSON: Well, the second part under procedure after testing results are obtained doesn't read that way when you read it. You don't think that --

PROFESSOR BERGER: You don't think that the sentence --

CHIEF JUSTICE ABRAHAMSON: Why hold a hearing unless it's possible that you have upset the conviction?

PROFESSOR BERGER: Well, possible but I think whether or not it has to be done, no, it says shall make such orders as is required by the jurisdiction's rule or statute regarding postconviction proceedings.

So, you know, it was our assumption that that imports back into the process the standards of the state for doing that.

CHIEF JUSTICE ABRAHAMSON: And what about notwithstanding any provisions of law that would bar such a hearing as untimely?

PROFESSOR BERGER: Well, that was solely to remove the time limit in states that for newly discovered evidence would then bar any such hearing regardless of, if somehow or other the defendant managed to get something tested, it simply would be untimely to consider. That was the only point of that.

So that really I'm, I'm not being quite right when I say that this statute deals only with access. It does in addition remove the time bar on applications based on a new trial on the basis of newly acquired evidence.

COMMISSIONER REINSTEIN: This is to provide an exception to the states that have the time bar that where your only avenue is executive clemency.

COMMISSIONER GAHN: Ron?

COMMISSIONER REINSTEIN: Yeah.

COMMISSIONER GAHN: Under A3, what would, the evidence was never previously subjected to DNA testing or was not subjected to the testing that is now requested. What would that be?

COMMISSIONER REINSTEIN: Well, I think that's a good point because originally I had a question as to whether that creates a loophole for just even the slightest difference in testing.

COMMISSIONER GAHN: Testing, right.

COMMISSIONER REINSTEIN: The intent was and I can't remember if it's in the comment, was that, you know, it never was objective testing. Of course that's a given but if they have something that just everybody recognized it wouldn't make a difference at all, does that, you know, open up the door to it, I think we need to close that off. Here we have another member of the committee, Charlotte Word, Cellmark. Dr. Word, welcome. And that's, Norm, that's also the same in, it's A3 and B3, I believe.

COMMISSIONER REILLY: Why not phrase it in the positive rather than the negative saying or is proposed to be subjected in a manner that is substantially likely to yield new evidence or new information?

COMMISSIONER GAHN: What I'm concerned is this is for DNA testing and it says or was not subjected to the testing that is now. Well, if DNA was never done, this is a hearing to use DNA, what is the testing that is now requested, it would be different?

COMMISSIONER REINSTEIN: Oh, we were talking about variation from PCR, different type of PRC testing as opposed to any DNA testing at all.

PROFESSOR BERGER: Yeah, I think we were really talking about a case where the technology at the time the original DNA testing was done was not sensitive enough to produce a conclusive result of any kind and you now had the possibility that with something else out there such as, I don't know, mitochondrial hair analysis you could now get something that you had not been previously been able to get.

COMMISSIONER CLARKE: Presumably, something like a DQ-alpha case, later how STRs could resolve.

PROFESSOR BERGER: Exactly.

COMMISSIONER REINSTEIN: But if somebody came up with a, you know, a couple more loci of STR does that really open the door to allow to you have? I mean that was a loophole that I was concerned about.

COMMISSIONER GAHN: It shouldn't. I mean, do we need it? But, but if you say there was a prior DQ-alpha and now STRs but number three says the evidence was never previously subjected to DNA so it was subjected to DNA.

CHIEF JUSTICE ABRAHAMSON: Or, or.

PROFESSOR BERGER: Or, or.

COMMISSIONER REINSTEIN: Or, or, or.

PROFESSOR BERGER: Two different categories.

COMMISSIONER GAHN: Or was not subjected to the testing. Okay. All right. So that's the, it maybe PCR as opposed to R.

COMMISSIONER REINSTEIN: Yeah.

COMMISSIONER REILLY: But it does still seem, the second half of that does still seem so broad as to invite potential abuse or frivolity.

PROFESSOR BERGER: Yeah, okay.

COMMISSIONER GAHN: Well, what if you had like a six probe RFLP match an now someone says, well, I want the 13 core loci done?

COMMISSIONER SCHECK: Our guidelines, the substance of our guidelines say that test, that case should not be done. We're very clear on that. In other words, there's that big thick book, I mean, says don't do it.

COMMISSIONER CLARKE: Actually maybe that would be resolved in a comment.

COMMISSIONER REINSTEIN: Yeah, uh-huh.

PROFESSOR BERGER: Yeah.

COMMISSIONER THOMA : And I think the way Margaret explained it is as simple as we need, that it wasn't discrete enough to make a determination at that time and the technology could do so now.

COMMISSIONER REINSTEIN: Well, yeah, we could easily make that.

PROFESSOR BERGER: Okay.

COMMISSIONER SCHECK: Maybe we should mention DQ-alpha.

PROFESSOR BERGER: Yes. It would make it somehow --

COMMISSIONER SCHECK: And we should specifically refer to our comments.

COMMISSIONER REINSTEIN: Michael, at the last meeting you raised something that your worry was that the inference in the comment was that going to trial would make it more likely that the results would be exculpatory; you had a concern about that, do you remember that?

COMMISSIONER SMITH: I'm glad you remember that. Was it a good comment, do you think?

COMMISSIONER SCHECK: We were trying to figure out what it meant.

COMMISSIONER REINSTEIN: Your note to me said Ron, I put my point badly. I'll try again.

COMMISSIONER SMITH: Okay.

COMMISSIONER SCHECK: Were you concerned about pleas? I thought you were concerned about pleas.

COMMISSIONER SMITH: I was concerned about pleas but I don't think that's what that comment was about. And I can't resolve this now with the new technology available to me. I'll think about it some more.

CHIEF JUSTICE ABRAHAMSON: I think that there's difficulty hearing when several people are talking so we'll just slow down for a moment. And, so, Michael, do you have any other comment about more exculpatory?

COMMISSIONER SMITH: Not at this moment.

CHIEF JUSTICE ABRAHAMSON: Okay. Good, Judge Reinstein, move on.

COMMISSIONER REINSTEIN: I don't have anything else. As far as the comments that were made at the last meeting, I think we've addressed them. I think Barry and Woody raised an issue regarding Youngblood, regarding if evidence has been destroyed, that Youngblood still applies. I think Woody, you raised that?

COMMISSIONER CLARKE: Well, I think that was in the context of a statute's not going to take the place of existing, particularly United States Supreme Court law in that area and I think it simply shouldn't create any right not already recognized.

COMMISSIONER SCHECK: In fact I think actually Woody what we agreed on, the reason we put in this business about preservation orders, if I recall at the last meeting you and I agreed that Youngblood was still going to be the law and our colleagues from law enforcement, particularly I think Chief Gainer and yourself were upset about the instances where somebody would destroy the evidence after the court had been told that it was going to be subjected to testing.

So, that's why we threw in this provision that if you knowingly destroy evidence after it's been ordered, that the court has the remedy of criminal contempt, which may be self-evident but that's about the only remedy you're going to get in those situations.

In other words, if they intentionally destroy the evidence before the test is done, Youngblood is still the law and you ain't going to get your conviction vacated because you can't prove that the test would have come out in your favor. And so the only remedy is to punish the person who purposely destroyed the evidence.

COMMISSIONER CLARKE: Although Youngblood may actually call for a further sanction.

PROFESSOR BERGER: Yeah.

COMMISSIONER CLARKE: But not the statute.

PROFESSOR BERGER: Right. Well, I did put including criminal contempt because I can think of a case maybe where they destroyed something but forgot to destroy something else and so there is a hearing. And in such a hearing I would assume that maybe one could draw an inference from the intentional destruction of the other evidence. I mean, I think it's a possibility.

CHIEF JUSTICE ABRAHAMSON: Any other comments on this?

COMMISSIONER CLARKE: I've got a couple. On, it would be at the bottom of page one on procedure and it's just a word comment. Instead of using the term unfavorable, I think it might be better to state something like not favorable. And the reason is I think using the term unfavorable implies that there was something inculpatory about the further testing results.

CHIEF JUSTICE ABRAHAMSON: Okay.

COMMISSIONER CLARKE: As opposed to not helpful. But not favorable I think probably does describe what we're after.

COMMISSIONER REINSTEIN: I agree. What was the second one?

COMMISSIONER CLARKE: The second one is on the comment on page two and we've spoken about evidence under the prosecution's control but I think it should be clear or court's control because a lot of these cases, the evidence is not in the prosecutor's control anymore. I think it's a fairly neutral comment but it clarifies that it extends to all evidence, frankly.

COMMISSIONER REINSTEIN: That's good.

CHIEF JUSTICE ABRAHAMSON: Tell me what line that's on.

COMMISSIONER CLARKE: That's on page two and I think about six staff lines down, maybe seven lines.

CHIEF JUSTICE ABRAHAMSON Okay.

COMMISSIONER CLARKE: In the prosecution's control and just adding or courts.

COMMISSIONER REINSTEIN : Page one of the Commission's notes.

COMMISSIONER CLARKE: And then the only other comment I have is the reference to the more than, this would be the same page as, that is the first page of the comments about ten lines down, reference to the more than 60 inmates. The only reason I think that might be subject to deletion is it's going to be out of date.

COMMISSIONER REINSTEIN: Yeah, hopefully.

COMMISSIONER CLARKE: And just leave the comment with reference to the inmates whose convictions have -- just without putting a number on it.

CHIEF JUSTICE ABRAHAMSON: Since there was reference to the headline, tell me what would be a correct headline relating to the statute of limitations.

COMMISSIONER SMITH: Do we have a journalist on the Commission?

CHIEF JUSTICE ABRAHAMSON: Pardon me?

COMMISSIONER SMITH: Do we have a journalist on the Commission?

CHIEF JUSTICE ABRAHAMSON: A lawyer didn't write the headline or a judge, so, of course, scientists, so.

COMMISSIONER REINSTEIN: Well, the intention is not to open the floodgates, put it that way.

COMMISSIONER SCHECK: You know, the journalist is going to tell you that he didn't write the headline, so.

CHIEF JUSTICE ABRAHAMSON: I thought that too, right. There's something about striking a balance between the need for finality and doing justice.

COMMISSIONER SANDERS: That won't sell.

CHIEF JUSTICE ABRAHAMSON: Appropriate cases, too long. Because I'm still disturbed or questioning about that, so you get the right regardless of the statute of limitations, that a jurisdiction might have on limiting review of a conviction, and by review I mean postconviction remedy and everything else, regardless of that you still can get testing, right?

Just drop the statute of limitation on testing but after it's tested and after you have a conclusive DNA result, that it wasn't this guy, right, fine, or at least feeling good, and there's a statute of limitations in the jurisdiction that you can't open up this conviction with newly found evidence, does that still apply under this rule.

COMMISSIONER SCHECK: Well, no, we're not saying what should or shouldn't apply. Obviously we would hope that the jurisdiction would do it. I mean, we're trying to be very careful here in the sense that I think if you look at Herrera versus Collins, interestingly, the primary reason that Justice Renquist said that we have to be worried about finality and justify the 33 states that have statute of limitations of six months or less, is he made the telling point, in my judgment, that if you come in with the usual evidence of newly discovered evidence of innocence, a witness recantation or a new witness and you vacate the conviction, and then you're going to have a new trial 20 years later, and who is to say that that new trial is going to be any more of an accurate fact-finding than the first trial, which is you know, really I think the core idea, wouldn't you agree, Margaret, behind finality?

And, at the very beginning of this Commission, somebody asked the question, it might have been, I remember Judge Webster was there for that discussion, as a matter of fact, somebody said, well, is DNA unique -- it was you, Norm -- you know, are we going to rewrite everything? Well, what's unique about DNA and unique about the testing is that when you got a test result on these kinds of pieces of evidence it is accurate and it will potentially permit a more reliable fact-finding than the trial 20 years earlier. That's what's unique about it and that's its unique power.

And so in this limited way we try to recognize it and give the evidence, the exculpatory power that is its due but at the same time I suppose states are going to have to decide for themselves whether they're going to hear these cases obviously.

And it's in the legal discussion in our book, I think that the Constitution of the United States compels hearing such case, that if you can put on proof of actual innocence of this kind, then I think that the statute of limitations doesn't apply. And just so you don't think that this isn't a relevant exercise, we have right now under the Death Penalty Reform Act a one year statute of limitations on writs of habeas corpus in federal courts.

So that starting on April 26, 1996, if you didn't make an application for writ of habeas corpus on the grounds, for example, of actual innocence, all right, and that, and one year has passed since April 26, 1996, and it's now April 26, 1997, came around, and you didn't get your DNA testing, now you have your DNA testing, and it, you say proves that you're innocent, okay, then the question has come up in the federal courts now in quite a number of cases if you have a colorable claim of actual innocence will that statute of limitations bar the writ from being heard.

Every federal court that's addressed this issue has either said yes, we'll hear it and it would be unconstitutional not to or they've said it's a real good issue and I don't want to deal with it so I'm just going to look at the evidence and see whether you are innocent or not, then they say you're not innocent so don't bother. But everybody knows that this issue is coming and it's going to come from these kinds of cases.

So I have a certain amount of confidence that if we get to the evidence and we get the test as this statute permits then some state court is going to hear it. I agree that it would be nice to put in this statute that the states should repeal their statute of limitations if there's evidence of innocence but that may be beyond our scope. That was our reasoning.

CHIEF JUSTICE ABRAHAMSON: Dr. Reilly?

COMMISSIONER REILLY: If I could ask a general question of the committee. I'm just curious whether there was any discussion of the possibility that as we move forward in time there will be many other advances in science outside of DNA analysis raising postconviction issues with equally powerful evidence and whether or not the focus on a particular form of scientific evidence is to invite a different set of problems in the future.

COMMISSIONER REINSTEIN: We talked about that over beer last night. I think Dennis raised that, didn't you?

COMMISSIONER SCHECK: We have, in fact if you look at the Illinois statute, the Illinois statute talks about new scientific tests that could provide a proof of, material proof of innocence.

COMMISSIONER REILLY: Although it's not immediately relevant in another forum in which I work, that is the impact of genetic information, impact of genetic information in health care and insurance, one of the things I have been most troubled by is the evolution of very focused statutes at the state level that seem to, on the one hand, greatly elevate the power of genetic information as compared to all other medical information, that's one point, and secondly exclude from consideration many other facts that could be as relevant to the issue of insurance underwriting or whatever it might be.

So, I do have a lingering concern about which direction a statute like this might take us in the future, one to in a sense focus DNA, focus on DNA and exclude other important science or invite a proliferation of statutes that would not be helpful.

COMMISSIONER THOMA: Well, I think this is, if I may, this is our province, is with regard to DNA. And I think if a newer science is developed, I think there's literally an equal protection argument that can be made by those people that are subject to whatever new testing comes through.

And, such a statute as this would help them anyway. And really we can't go much further than where we are with this. I'm satisfied with this working group's proposal, actually, so.

COMMISSIONER REILLY: Well, I wasn't speaking in criticism of it particularly but wondering whether perhaps in a comment there might be some general, one or two sentences indicating an awareness of this issue. Perhaps it doesn't exist.

MR. CURRAN: The answer is you don't know what's coming. The initial, I think one of the first meetings we talked about putting language in there will be more advances in DNA, I think one of the scientists in the group said wait a minute, you know, we don't know what's coming. I think you're talking about other types of scientific tests that might not go to DNA.

COMMISSIONER REILLY: Exactly.

MR. CURRAN: Type of lab analysis or something that comes up. I guess it was very easy for us to say DNA is in the title of our committee but I don't know, maybe, makes sense to put a comment in. That was scientific advances, the statute, you might want to amend it but it's tough to say what's coming.

PROFESSOR BERGER: Yeah, I must say I guess I feel rooted enough in the adversary system in the notion that you do better when you're focusing on a very concrete problem and know its implications.

I think I would feel uncomfortable putting in a comment sort of not knowing. And in addition really we have had sort of ten years of DNA to get to the point of understanding the implications of some of what's happened.

Now we're talking about something that we don't even know what the technique is. It hasn't had a chance to develop. We don't know the future, either, in terms of the law or the science. I think we would need to wait.

MR. CURRAN: There are people that are exonerated without DNA evidence and, you know, there's another group of inmates that are on death row, whatever, so we've got to limit it on both ends, because DNA is in the title of our committee, I guess that's why.

MR. BAUER: The answer to the question is we have considered it, talked about it from the meeting up until last night over bratwurst and calamary. And I think that what we have concluded is as has been alluded to that we've been left with the fact that we are without a crystal ball and that we've been stuck with the topic that we are dealing with and so we haven't put any extra disclaimers on there for whatever the future will bring us.

COMMISSIONER SCHECK: I mean, I'll give you the one example if you want it. The photographic enhancement of fingerprints, we've cracked some cases, you can take a bloody fingerprint that previously could not be read and now with digital enhancement of the fingerprint you can compare it, put it in the AFIS system and find the real perpetrator or exonerate somebody because there weren't enough ridges.

So that, that's an example, all right, if you want one. But, I mean, I agree with my colleagues, we've discussed this a lot, I mean we're the DNA committee and DNA is by far the most powerful tool to both, you know, convict people, find guilty parties and exonerate them that we have. And it's, you know, this is a unique development.

I mean, you know, one thing to keep in mind is there are only two states that have these statutes, New York and Illinois, right? The two, there are 65 people exonerated now with postconviction DNA testing, 62 in the U.S., three in Canada. Which two states have the most exonerations? New York and Illinois, 12 in Illinois, 7 in New York. And the fact that there are court avenues of, to get it, I don't think is a coincidence.

COMMISSIONER CLARKE: Well, at the same time, though, there's also states that don't have limitations such as our own and frankly a statute like this while more directed, I don't think is going to impact California much, for instance.

COMMISSIONER SCHECK: Well, there's a lot of courts where we can't get access to the evidence in California, so, I think.

COMMISSIONER CLARKE: Because we don't have any bars.

COMMISSIONER SCHECK: Well, you do.

CHIEF JUSTICE ABRAHAMSON: Well, you're about two different things, statute of limitations and access to the evidence. So, any other comments on this? Now what is the committee's proposal then; does the committee want this court -- this court --

PROFESSOR BERGER: Yes.

CHIEF JUSTICE ABRAHAMSON: My head's on tomorrow already -- this Commission to recommend this to the Attorney General for recommendation to the states? What is the proposal?

COMMISSIONER REINSTEIN: Well, I didn't know whether you wanted us to go back and take the comments that were given today, you know, come up with a cleaner copy but --

CHIEF JUSTICE ABRAHAMSON: Ultimately, what's the proposal?

COMMISSIONER REINSTEIN: I thought that was our charge, to come up with a uniform statute that states could utilize in amending their statutory provisions.

COMMISSIONER SCHECK: We were going to refer this also to the, what's the name of the organization, the National Committee on State and Local Government?

CHIEF JUSTICE ABRAHAMSON: Oh, Uniform Laws Commission?

COMMISSIONER SCHECK: Yeah.

DIRECTOR ASPLEN: I think that the form that this could take is a matter of recommendation to the Attorney General that the Attorney General and the Department of Justice acknowledge and distribute this to the individual states, to the appropriate agencies and the appropriate legislative bodies, Supreme Court, et cetera, in the individual states, the Bar Association, et cetera, but essentially publish this as model legislation and have it distributed through the Department of Justice to the appropriate entities.

CHIEF JUSTICE ABRAHAMSON: Jeff?

COMMISSIONER THOMA: And if you're looking for a different headline, I think the point of it is, is that we're relaxing the statute of limitations in those unique circumstances in which DNA might have a more favorable result for a convicted inmate. It's too long of a headline but relaxing in unique cases is what we're talking about. We're not talking about every single person or a great majority of appellate or habeas cases.

MR. BAUER: And I think they've kind of just focused on one issue when we've done a lot bigger, taken on a lot bigger task. And I'm not a newspaper writer or an editor but I would have entitled this article DNA Commission Suggests Procedures for Claims of Innocence. And that covers our entire task, rather than one narrow limited area which could be misinterpreted, as I think it was in the newspaper article.

DIRECTOR ASPLEN: And I must say that I can probably count on one hand the number of times I've used the words holler at all, for those of you who read the quotes.

COMMISSIONER CLARKE: Holler?

COMMISSIONER REINSTEIN: Holler.

DIRECTOR ASPLEN: Holler, yes, holler.

CHIEF JUSTICE ABRAHAMSON: Well, first the, substitute in B1, now the only difference if my reading is right between A and B, the only difference is in one, in A and B, is that correct.

COMMISSIONER REINSTEIN: Yes, that's correct.

CHIEF JUSTICE ABRAHAMSON: So two and three are the same between mandatory and discretionary testing. So the difference is between a reasonable probability existing about a different result and reasonable probability existing that tests will produce exculpatory evidence. Right?

COMMISSIONER SCHECK: Right.

CHIEF JUSTICE ABRAHAMSON: Okay. And, what is the working group's recommendation between B1 and the substitute B1? Go ahead.

PROFESSOR BERGER: Yeah, well, one proposal was to put both in --

COMMISSIONER SCHECK: Right.

PROFESSOR BERGER: -- with an "or" between them so that courts would have a choice of standards because I think there's disagreement as to which one is the more lenient standard in different kinds of cases.

CHIEF JUSTICE ABRAHAMSON: We could have an "and" connecting that.

PROFESSOR BERGER: No, or.

COMMISSIONER SCHECK: Or, no, an or, or.

CHIEF JUSTICE ABRAHAMSON: It would have to be --

PROFESSOR BERGER: It's or.

CHIEF JUSTICE ABRAHAMSON: -- 1A or 1B in there as a choice. I'm just trying to --

COMMISSIONER SCHECK: Oh, okay.

PROFESSOR BERGER: A would remain the same.

CHIEF JUSTICE ABRAHAMSON: No, B.

COMMISSIONER SCHECK: No, it would be one little A and one little B.

PROFESSOR BERGER: One, you would have or A or B.

COMMISSIONER SCHECK: We take that as a friendly amendment to do that. I think that's fine.

COMMISSIONER REINSTEIN: Yeah, I think that's good.

CHIEF JUSTICE ABRAHAMSON: So you wanted an either/or there depending on what the state wants to do.

PROFESSOR BERGER: Right, right.

CHIEF JUSTICE ABRAHAMSON: All right. And then my understanding is that under C one, two and three remain the same, that you will add C4, preservation order, will add as C5 that if testing is ordered that it be done by a DNA approved lab.

COMMISSIONER SCHECK: Or a lab that meets the standards.

CHIEF JUSTICE ABRAHAMSON: Right. And, then the additional orders become six --

COMMISSIONER REINSTEIN: Six.

CHIEF JUSTICE ABRAHAMSON: -- to the proposal, okay. And then my note, if my notes are correct, in the second line of procedure after testing results are obtained, if the results of the postconviction DNA testing are not favorable rather than unfavorable. And, then there were some changes in the comments about the evidence being under the court's control.

COMMISSIONER THOMA: So just adding after prosecution's or court's control, is that what you said?

CHIEF JUSTICE ABRAHAMSON: I had one other but I can't read my notes.

PROFESSOR BERGER: We were going to put in a comment about, explaining what was meant about the situation where testing had been conducted but not of the kind that is now being sought to indicate, that that's the cases where something, where the testing would now be able to be more discreet in the situation where previously it had not been --

CHIEF JUSTICE ABRAHAMSON: All right. Any other changes? Pardon me?

COMMISSIONER BASHINSKI: To take the number of inmates out and just say --

COMMISSIONER THOMA: Just strike more than 60, I guess.

CHIEF JUSTICE ABRAHAMSON: Judge Webster?

COMMISSIONER WEBSTER: I'm sorry to be asking this question so late into the discussion but I have been mulling in my mind something that started with something that Barry said about exoneration as distinguished from some more helpful evidence and we use the substitute language that will produce exculpatory evidence.

I wonder if we wouldn't be better advised to require a higher standard than just exculpatory, maybe substantial exculpatory evidence, something that points clearly to innocence rather than inject an ambiguity in the trial because some piece of evidence that was used by the prosecutor turns out to be not as reliable because of some DNA activity. That to me is not as strong a reason for ignoring the statute of limitations or going beyond it.

We've always required some colorable proof of evidence in Stone v. Powell, and the other cases, what do we want to say there, is my question, any form of exculpatory evidence or exculpatory evidence that significantly points to innocence.

COMMISSIONER SCHECK: Well, I think that to be clear about it, we're saying a reasonable probability exists that testing will produce exculpatory evidence .

COMMISSIONER WEBSTER: That's the original language.

COMMISSIONER SCHECK: Right. That's the language we have, that this is not, we don't believe that this part is repealing the statute of limitations. This is really more of an access issue because at the end we're saying that when you, you know, then, then the state, I think that was actually Judge Abrahamson's concern, she was concerned about let's say you get evidence that shows he's definitely not guilty, are we saying the court can still choose not to hear it on statute of limitations grounds and we're actually leaving that open to the states.

So, this is really not designed as a statutory, I would agree with you if we were just talking about repealing the statute of limitations, this is really --

COMMISSIONER WEBSTER: That was a bad choice of words. I was thinking about postconviction remedies and the standards.

COMMISSIONER SCHECK: Right. I think we need this and at this level. And I agree with you about exactly what it requires because of getting access. And getting access has really been the terrible problem here. And, and, you know, if a court has the discretion under this proposal not to pay for it, to make the defendant pay for it, if it thinks it's not a particularly compelling case, and then somebody literally has to pay for it.

So, which I think would happen. And we're trying to get into those cases where, you know, it's pretty good evidence of innocence but people are resisting it. Because the truth of the matter is in these cases that you either get prosecutors consenting right away because they go oh, why not, or they're never going to consent because something else is going on. All right? And, so this gives us the opportunity for a judge to say, well, I'm not saying I'm going to dismiss this case yet but maybe it's going to be helpful.

We'll at least give you access to do the test; it doesn't mean we're going to do anything else afterwards. So that was the thinking.

COMMISSIONER REINSTEIN: And the court may never even see a petition because once they do the testing, you may not have any results.

COMMISSIONER WEBSTER: Right.

COMMISSIONER REINSTEIN: And even if they do the testing and it's favorable, it may not be favorable enough depending on whether a judge then looks at the whole scope of what the relief is that's requested, that they may just deny the relief to begin with.

PROFESSOR BERGER: Well, and I do think we wanted to leave open the possibility that there truly might be some cases where this would not be exonerative evidence but it truly would have led to reasonable doubt and acquittal. And I think that's a group of cases that one can't simply ignore. It's still going to be in the judge's discretion to take a look at that transcript, which I think our comments make quite clear, and look at the, what role that evidence played in the case, what other evidence there was, what the defendant said, what the defense was, all of those factors and the court is simply going to have to use its discretion then and decide whether to go further.

CHIEF JUSTICE ABRAHAMSON: I'm going to, if we can, just bring a halt to this discussion. We'll come back to it and look at it again because we're expecting Associate Attorney General Raymond Fisher in a few moments, in accordance with our schedule, at which point we're going to talk with him and present to him our booklet on postconviction DNA testing and the pamphlet and that these are in response to Attorney General Reno's requests. But I would like to, before he comes, if we can, look again at the recommendation of the National Commission on the Future of DNA Evidence, relating to law enforcement and DNA technology, remember we did that yesterday and we had some suggestions?

And, if you look at the first page, the second paragraph has been changed somewhat in focus but not in substance. Commission has identified the educational resources made available to law enforcement agencies that have not kept pace with changing technologies.

The local state and federal funding is inadequate to enable law enforcement to use DNA technology in an investigative capacity that maximizes its potential. Law enforcement needs more training and resources in how to properly identify, preserve and collect DNA evidence. Greater awareness of the existence and effectiveness of convicted offender DNA databases must be achieved.

Currently the knowledge that exists is usually contingent on the nature of particular departments, limited training budget. There is, however, clear evidence that when law enforcement officers are made aware of the utility of DNA databases, they rapidly employ it in their investigations. Does that meet with approval? I think it captures what was said. Where are the other changes, is it in --

DIRECTOR ASPLEN: On the actual recommendation itself, we added to letter A, local state and federal level, and we added letter D, educating victims about DNA technology issues. I would also suggest, you notice at the bottom there's a kind of that, it's really just a tag paragraph.

The thought was that we should set something up indicating that there were other considerations in that the Commission's working on other matters. I would suggest that we just eliminate that paragraph if you will, because we can communicate that, NIJ can communicate that to the Attorney General in a way that really doesn't take away from the impact of this recommendation. We can do that in any other number of get-backs or updates but I don't think it needs to be done here. That's all right.

COMMISSIONER BASHINSKI: I have one other comment that I should have made yesterday. In C where it says using DNA to investigate old unsolved cases, you may want to rethink old. I mean, I think just unsolved cases in general because the focus on old cases, that then raises a spectre, well, you know, we're not paying attention to the new ones.

DIRECTOR ASPLEN: Would it be appropriate to say using DNA to investigate and solve unsolved cases including those, something including those old cases previously thought unsolvable, it's using solved too many times but something like that?

COMMISSIONER BASHINSKI: Yeah, I understand what you're saying. I do want to point out that the older cases need to be worked on but I wouldn't want to make that an exclusive statement.

COMMISSIONER REILLY: And unsolved cases regardless of their age.

COMMISSIONER SCHECK: But I guess, Jan, I think the reasoning is that in A when you say developing resources necessary to use DNA technology in nonsuspect cases, I thought those are unsolved.

COMMISSIONER BASHINSKI: They are but --

COMMISSIONER SCHECK: I mean those were sort of like the new unsolves and this one was designed to catch up with the old unsolves.

DIRECTOR ASPLEN: I think Dr. Reilly's suggestion cures that problem.

COMMISSIONER SCHECK: Uh-huh.

DIRECTOR ASPLEN: I think including regardless of their age really takes care of that rather nicely.

CHIEF JUSTICE ABRAHAMSON: I wonder if in one we could say that the Attorney General hold a law enforcement summit to focus on DNA issues relating to law enforcement personnel, because, just to discuss again is we want to focus on these issues.

COMMISSIONER REILLY: And certainly to my mind seeing it for the first time the phrase relevant DNA related has a rather limpish ring, no offense to my colleagues.

CHIEF JUSTICE ABRAHAMSON: No one ever called me a wimp. All right.

COMMISSIONER REILLY: Forgive me.

CHIEF JUSTICE ABRAHAMSON: Okay. Can we do that? Is that all right?

COMMISSIONER REILLY: I'll get in trouble.

CHIEF JUSTICE ABRAHAMSON: We'll strike the last paragraph. Fine, okay. Do you want to talk about this with him or just mention it?

DIRECTOR ASPLEN: He already has a copy of the original draft. This is not substantially different. He won't address this. We should probably take an official vote on it.

CHIEF JUSTICE ABRAHAMSON: Okay. Those in favor of, as revised the last few moments of this recommendation, say aye.

PARTICIPANTS: Aye.

CHIEF JUSTICE ABRAHAMSON: Any opposed? Then it is unanimous by the Commissioners present. All right? Okay. We should -- why don't we --

DIRECTOR ASPLEN: But not go anywhere.

CHIEF JUSTICE ABRAHAMSON: Yeah, don't go anywhere is the instruction. But, you may stand up and you may get coffee but not beyond those confines so that when our guest arrives, we are here.

(There was a break in the proceedings.)

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