|
P R O C E E D I N G S
Associate Attorney General Raymond Fisher CHIEF JUSTICE ABRAHAMSON: The Commission is back in session and wants to welcome Mr. Fisher, Associate Attorney General. He is the third ranking official in the department in charge of civil litigation in the Office of Justice Programs. Mr. Fisher, it is a great pleasure that we take this opportunity to present to you the first two publications of the National Commission on the Future of DNA Evidence. It is the Commission's belief that these two documents will have a significant impact on the use of DNA evidence in the criminal justice system in several ways. The first publication, excuse me, is postconviction DNA testing, recommendations for handling requests. This booklet offers a method of analysis for those cases in which DNA technology may be applied to determine innocence of individuals who have been imprisoned for years. It may also serve to confirm the reliability of the original conviction and resolve lingering doubts and questions of doubts. The pamphlet, What Every Law Enforcement Officer Should Know About DNA Evidence -- and this will be made available to every law enforcement officer in the country -- this pamphlet will help educate police officers about how to identify, preserve and collect DNA evidence so that technology can be used to identify the appropriate suspect earlier and with greater reliability. Together the two documents fulfill a request made by the Attorney General at the Commission's first meeting. At that meeting Attorney General Reno requested that the Commission not wait until the conclusion of its tenure to offer its recommendations. Rather, recognizing the urgency of several issues relating to the use of DNA evidence, the Attorney General asked that we present our recommendations as they were developed so they could be implemented in an effective and expeditious way. The Commission believes that the education of law enforcement to use DNA as an investigative tool more effectively in the use of DNA evidence to exonerate wrongfully conflicted persons are two of these urgent issues. I would like to take a moment to recognize and offer my thanks and the thanks of the Commission to the members of the Postconviction Working Group. Their commitment to this project has been evident from its inception. Indeed they were working before this Commission first met. Since that time they have traveled to and from various parts of the country, attended not only their Working Group meetings but also numerous Commission meetings. They have spent untold hours of their own personal time developing these recommendations and they have sought the counsel of and review of hundreds of prosecutors, defense attorneys, judges, scientists, academicians and victim advocates. The work of the Postconviction Working Group produced not only an excellent publication but also a process of which practitioners can be confident. While the members of the Working Group and Commission are listed in the publication, I would like to publicly recognize those members of the Working Group that are present today, Dennis Bauer, who is at the head of the table, prosecutor from Orange County, in California, Kevin Curran, who is also at the head of the table, federal public defender of St. Louis, Missouri, and, now, I'm sorry, I left there, they'll get it, Charlotte Word -- DIRECTOR ASPLEN: Charlotte Word, yeah. CHIEF JUSTICE ABRAHAMSON: -- of Cellmark Diagnostics. Have I forgotten somebody else? Ah, there, it is. And particular thanks to the Commissioners who worked with this Working Group, Barry Scheck; Judge Reinstein, the Chair; Kathryn Turman and Charlotte Word, who is also on the, a commissioner member. Judge Reinstein led this group admirably. It's a group whose work is not quite finished but perhaps it will continue on in its successful manner. What else have I forgotten? I'm not finished yet. I'm just through the Commissioners and the Working Group. And, great thanks, of course, go to Professor Margaret Berger, who has been the reporter and writer for that group and Professor Berger is, as we all know, professor of law at Brooklyn Law School. Now what have I forgotten, anything? Good. But, Chris has been shy when he wrote a part of this for me, and he did not say that we should thank Christopher Asplen, Executive Director of the Commission and Dr. Lisa Forman, the Deputy Director. Both have worked very hard and have brought these projects to fruition. And, the full membership of the Working Group and the Commission are listed in the publication. So, with those introductory remarks, we do present these publications to you. And there are many more copies. They're outside. You can bring your own truck to take them back. Mr. Fisher?
So, I'm happy to see that there is, in fact, effort to educate local law enforcement on the proper front-end uses of DNA evidence. The other, of course, applies and deals with the issues of applying DNA science to the appellate process, the back-end or postconviction part of the judicial system. Both advance, however, the same goal, the determination of truth in our criminal justice system. These publications represent a proactive approach to integrating technology into the crime-solving aspect of law enforcement and a commitment to improving our judicial process. And for all of your dedication, your hard work to date and your ongoing commitment, I want to offer the profound thanks of the Justice Department, the personal thanks of the Attorney General and my own personal thanks. A few years ago the Attorney General read about a case in which DNA evidence was used to prove the innocence of a man who had been wrongly in prison. The Attorney General asked the National Institute of Justice to research how many similar cases might exist. The result, as you know, of NIJ's research was the publication of Convicted by Juries, Exonerated by Science, Case Studies in the Use of DNA Evidence to Establish Innocence After Trial. This publication tells the stories of 28 men proven innocent by DNA technology long after they were sent to prison. We now know of more than 65 wrongly convicted individuals who have been released as a result of DNA technology. And there are stories at least once or twice a month about similar circumstances where people serving on, some on death row who are being exonerated by the use of current DNA technology. Your publication, Postconviction DNA Testing, the Recommendations for Handling Requests, strikes a critical balance. While the recommendations encourage the use of DNA testing when that testing may be determinative of truth, they also recognize the value of finality in the criminal justice system. The five-category framework of analysis encourages prosecutors to agree to DNA testing when exclusionary results would exonerate an individual. However, the recommendations discourage the filing of a DNA-based appeal in those cases in which DNA testing would be frivolous. Most importantly, the recommendations provide information necessary for all participants in the system, prosecutors, defense attorneys, the judiciary, laboratory personnel and victim advocates to make decisions based on an accurate understanding of the technology's abilities and limitations. Let me take a moment to commend the process you used to develop these recommendations, something that Shirley already adverted to. By bringing together on both the Commission and the Postconviction Working Group representatives from the National District Attorneys Association, the National Association of Criminal Defense Lawyers, Victim Advocacy Groups, the scientific community, academia, and the judiciary, you have created an approach to these cases that all aspects of the system can embrace. It is significant that while one of the publications being issued today addresses the need to quickly identify those cases in which mistakes have been made, your other publication strives to improve law enforcement's ability to identify the right perpetrator quickly and accurately through DNA technology, in other words, to avoid the mistakes. Recognizing the crucial role of the first responder, your pamphlet, What Every Law Enforcement Officer Should Know About DNA Evidence, provides information necessary for the proper identification, preservation and collection of biological substances that may yield valuable DNA evidence. Recognizing that evidence not identified at the crime scene may not be collectable at a later date, the publication provides numerous examples of evidence that may contain valuable DNA. Similarly, recognizing that evidence not properly collected may lead to confusing or inaccurate results, the guide explains the danger of contamination and offers suggestions to prevent it. I am extremely pleased that the National Institute of Justice has committed to distributing this document to every law enforcement officer in the country. The Attorney General and I look forward to your further recommendations regarding how we can teach and how we can empower law enforcement to use DNA evidence to solve crimes even more efficiently. Let me close by saying and address the relationship between these two documents. It is my hope the widespread dissemination of the one, the one I've referred to as the front-end or the investigative stage of the process, starts us down a path toward eliminating the need for the other, or as I have called it the back-end or the postconviction part of the process. By committing ourselves to more accurate and effective investigative processes through the use of DNA technology, we work toward the elimination of the tragedy, the real tragedy to the individuals involved and the tragedy really to our whole justice system, the tragedy of wrongful convictions. On behalf of the Attorney General, myself and the rest of the department, I again thank you for your efforts and we very much look forward to continuing to work with you and for your further recommendations. And let me just say that I had the experience actually about four years ago, five years ago now of sitting on a Superior Court jury in California where DNA evidence was presented as part of the proof. And it was a fascinating experience. It was before the Simpson trial and so we were sort of guinea pigs I think for presentation. It was not the high-tech presentation that saw at the Simpson case. But, it was a fascinating if somewhat daunting experience to sit as a juror and listening to this novel kind of evidence, growing up with Perry Mason and fingerprint kind of concepts, to have the prosecutor and the defense attorney go through the charts, the elaborate charts and try to make sense of what this all meant. But obviously the science has and the articulation of it in presentation has grown since that time but there is so much more to do. And at the Justice Department one of the things personally I am working with the Office of Justice Programs, NIJ on, is to from our end make sure that we pursue as rapidly as possible the effective use of DNA because, as I said just now, and I believe so strongly, it is so important to our justice system to make sure that we do not have people wrongly convicted where there is a technique that's available to prevent that from happening. It really shakes, I think, the confidence of people when we see stories about people who have been condemned to death row and to find out that they can be exonerated, in some cases very conclusively by DNA evidence. So, I commend what you are doing. You are really, as you all know but I would like to acknowledge it, engaged in something that is critically important to all of us. I would also like, and then close, to take the opportunity to introduce three members of the Justice Department who are here and acknowledge Chris Asplen, who is detailed from the Justice Department to your Commission. Chris has done a marvelous job and I appreciate the applause you gave him before. It's well deserved. Chris, we do thank you. In addition I would like to introduce my deputy, Ivan Fong, who is very much involved in the scientific side of what we did at the Justice Department from the Associates Office, Alexa Revere, who is standing, guarding the door back there and who is another one of my deputies and works with the Office of Justice Programs. And then it's a real pleasure for me to introduce in addition on his first day at work, Dr. Don Prosnitz. Don, why don't you stand up. Don is our, the Department of Justice's first and new chief science and technical advisor. We have finally at the Justice Department decided we better catch up with where things are going. And Don comes to us from the Lawrence Livermore Laboratories, where he has been chief scientist. And we're delighted to have Don on board. He will be advising the Attorney General, the Deputy Attorney General and myself on science and technology matters. He is not a lawyer, he is a scientist, and it's time we got some scientists involved in what's going on at the Justice Department. So Don, we're glad to have you on board. Thank you all for letting me be here. CHIEF JUSTICE ABRAHAMSON: We'll take a break now. (There was a break in the proceedings.) CHIEF JUSTICE ABRAHAMSON: We are back convening. Now, I thought that after talking to several of the Commissioners and the Working Group that we would have additional comments, if any, on the proposed uniform statute, that Professor Berger would then put in the commentary that seemed to reach a consensus here, that it would then be circulated to the Commissioners for further comment and put on the Web site for further comment and be brought back at our next meeting for resolution. Does anybody object to that process? Judge Reinstein? COMMISSIONER REINSTEIN: No, that's fine. CHIEF JUSTICE ABRAHAMSON: All right. Then that will be the process. Do you need any further instructions, Ron, or Margaret Berger or anyone else? COMMISSIONER REINSTEIN: No. CHIEF JUSTICE ABRAHAMSON: Okay. Yes. COMMISSIONER SCHECK: I just want to raise one point that Chris had mentioned and Dr. Forman, and that has to do with funding, that I think that there has been, it might be useful to get a consensus of the Commission that there's a lot of funding that goes into the DNA Identification Act that federal monies that go to crime labs on the state level and that there has been some view that monies that go to laboratories for, at the federal level could not be used for postconviction testing. CHIEF JUSTICE ABRAHAMSON: I don't know anything about this, Barry. COMMISSIONER SCHECK: Yeah, but I just, I just wanted to -- CHIEF JUSTICE ABRAHAMSON: Well, why don't we raise that with Chris -- COMMISSIONER SCHECK: Why don't we raise that when he comes back. CHIEF JUSTICE ABRAHAMSON: -- and then talk to the Justice Department about that and bring back any information we have on that. Norm? COMMISSIONER GAHN: Yeah, just over the break I was still thinking about this and I just wish when you revisit that area for going into the comments about that A3 and B3 when you talk about or was not subjected to the testing that is now required. I know the example that you gave was, well, there was something not as discriminatory in DQ-alpha, now you want this but I've always been operating under the impression that PCR is PCR and that is the testing. And now if you're going to break it down into different genetic, we're going to look at let's say someone had DQ-alpha/polymarker -- says, well, no, I want G1SAD level or I want STRs. To me I thought PCR is PCR and that testing was done PCR, maybe not the genetic markers someone wanted done. And I think that has to be just addressed add clarified a bit. More do you understand what I'm saying. COMMISSIONER THOMA: Norm, if you look at page 37 of the book, there's a specific example of a case, an unpublished decision. And, it's not exactly on point, within the gray, shaded area, it's not exactly on point with regard to your remark but I think it was something that Margaret spoke of earlier and I think it's covered in a way. And, as Barry pointed out, within the book itself I think it's about explained pretty significantly in my review of it. I only got a couple of days worth of book but I think it is but, if you're not satisfied with it, perhaps we should dwell on it for a while. COMMISSIONER REINSTEIN: It probably should be referenced anyway in the comments. CHIEF JUSTICE ABRAHAMSON: I'm sorry. Who's talking now? Go ahead, sorry. Closer to the microphone. COMMISSIONER REINSTEIN: Yeah, it probably should be referenced anyway. I agree as far as the comments. PROFESSOR BERGER: Charlotte next to me just mumbled something about the power of the test and I think maybe it really should be put in terms of that, the power of the testing has increased to a point where something that was previously inconclusive can now be resolved in a more conclusive manner and we'll try and put something in there. DR. WORD: Or something that, something that's conclusive but has a limited power and more testing could in fact produce exclusionary results. COMMISSIONER SCHECK: There have been many cases, we all know this, where the DQ-alpha is not much better than conventional serology, frankly, and is so much weaker and it's -- DR. WORD: Well, if you have an exclusion, it's meaningful but an inclusion, that's right -- COMMISSIONER SCHECK: No, no, I mean, right, an inclusion, is a PCR inclusion based on DQ-alpha system which has limited discriminatory power particularly when there was more than one sample involved as a potential mixture and then subsequent STR tests or even polymarker tests exonerated the inmates. There's quite a number of those. But, we all agree that when you have an STR result or an RFLP result at three or four markers, that that's the kind of case that would not be appropriate to retest and in fact, you know, our innocence project, we don't even take them. CHIEF JUSTICE ABRAHAMSON: All right. Norman, are you satisfied? COMMISSIONER GAHN: Yes, Your Honor.
CHIEF JUSTICE ABRAHAMSON: Good. All right. Any other comments on the uniform, proposed uniform statute for obtaining postconviction DNA testing. Anything else? All right. Then we'll proceed as we've set forth and Professor Berger will communicate that to Chris for the Web and ask him for comments, fine.
| ||||||||||
