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P R O C E E D I N G S
Working Lunch CHIEF JUSTICE ABRAHAMSON: We would be scheduled now for Dr. Crow's Research and Development Working Group report but Mike Sheppo needs to leave earlier than originally expected and he was going to speak at lunch, through our working lunch. So we are going to, if that's all right, with you, Jim -- COMMISSIONER CROW: Sure. CHIEF JUSTICE ABRAHAMSON: -- put Mike Sheppo on next if that's okay and we will excuse the Working Group, on the table. Mike Sheppo is president of the American Society of Crime Laboratory Directors and he's going to talk about data sample retention issues. We may very well then break for lunch and continue this discussion. Thank you very much, Mr. Sheppo.
The debates on whether to destroy or retain the samples have already occurred in state legislatures across the country. Only one state, Wisconsin, requires the destruction of DNA samples following analysis and that state has yet to destroy a sample since they are currently transitioning to STR technology and need to reanalyze their convicted offender samples with this new technology. During the last ten years four DNA procedures were introduced for use in the forensic community, RFLP, DQ-alpha/polymarker, mitochondrial DNA and short tandem repeats, STRs. The retention of convicted offenders samples allows the timely transition to newer forensic DNA methodologies as samples or DNA extracts are readily available at the laboratory. This process is occurring now with the conversion of RFLP methods to PCR-based, STR methodology. If the DNA samples were not retained, states would need to re-collect DNA samples from those offenders whose samples were previously analyzed with RFLP and then destroyed. Significant costs are associated with the collection of offender samples from 50 to $100 per sample. Additionally, the time associated in locating released offenders, if they can be located, would add significant costs to the process and the offender would have to submit to another collection procedure. The convicted offender samples play an important role additionally in quality assurance. In the event of a candidate match, a possible hit from the CODIS system involving an offender profile, laboratories typically confirm the match by reanalyzing the offender sample. This procedure verifies that specific offender sample was correctly typed during the analysis. Laboratories could not perform this important quality assurance procedure without retaining offender samples. There is no need, there is no record or indication of misuse of forensic DNA database information. Forensic database samples are controlled by the same physical security measures as any other piece of evidence within the laboratory. In many states the laboratory agency is forbidden to release offender information to anyone other than law enforcement officers. In the event of an unauthorized disclosure or use of a DNA sample record, 32 states provide specific criminal penalties, felony and misdemeanor for such unlawful activity. Offender samples are also a valuable source for testing new procedures and can be used for validation studies. This large group of samples gives laboratories the opportunity to evaluate new technologies with varying amounts of DNA. All personal identifying information is removed before conducting these validations. In summary, the American Society of Crime Laboratory Directors recommends to the Commission that those laboratories authorized under state law to obtain and process DNA offender samples for inclusion in the database be permitted to retain these samples as directed by the individual state legislatures. Retention allows for post-hit verification analysis, for adaption to changing DNA technologies, for enhanced quality assurance and for validation studies after personal identifying information is removed. Respectfully submitted September 27th, 1999, Michael G. Sheppo, ASCLD president. Madam Chair, I would also like to comment just briefly on what I believe to be the more important points that this summary offers. To begin with, I think the most compelling argument to retain the samples basically deals with the fact that DNA technologies will be advancing, they will be changing over the next number of years. I don't think it's too farsighted to say that these changes could occur as soon as five years. Presently the Illinois State Police has one of our senior scientists involved in a research project with the Argonne National Laboratories, a DOE facility in Illinois, looking at microchip technology for DNA analyses in a forensic setting. This research is proving to be very promising. I believe the compelling reason here that changes will occur and that databases will be changed primarily deals with the fact that with the advancements of science, the cost of DNA analysis will go down. Using multiple arrays of chip technology and automation could lead to a significant decrease in cost of DNA analysis. I believe this will happen. Additionally, I know it's been suggested that analyses in two systems could be run tandemly if, in fact, the technology does change. Presently in Illinois we're faced with that situation. We are presently transitioning to STR technology through training and we are also converting our database from RFLP technology to STR technology. Doing this in tandem is very difficult. Presently I have four scientists in the Chicago lab who dedicated to RFLP work on cases. This is casework that comes in. It has to be done because we have situations, both in the City of Chicago and elsewhere in the state, where it is compelling to check the database. As Chief Hillard knows, the Inglewood homicides in Chicago are, is one of the cases that we are working on and we have developed profiles for three different sets of profiles that have actually matched in the database. With reference to that, these four individuals that are doing this casework and RFLP absolutely are doing nothing with reference to our backlog and essentially are not producing casework. They're simply duplicating what we have already done in STRs. So to say that we can do this in tandem, essentially what you would be asking me to do is to cut our forensic biology staff in half, if, in fact, at some day in the future we would have to run two systems of DNA. Additionally, the collection of samples, finding the offenders I believe will be very difficult if not impossible. Offenders will be deceased. Offenders will not want to submit to another collection process. And it will be incumbent upon law enforcement to find these individuals. As far as the public safety goes, what happens if in fact one cannot retrieve these samples and collect them? I think that is a compelling reason also to retain the samples. Certainly the issues of quality assurance are important but not as compelling. And, certainly, the fact that the process in the past for the use of a database has not shown any misuse also is a reason to consider the retention of samples; however, not as compelling as the initial statement that I've made. I therefore do ask the Commission to carefully look at this issue. If in fact it is determined that the databases need more control, then possibly the Commission should consider some federal guidelines, federal law which would in fact make it mandatory that the databases be controlled in certain ways and also penalties be prescribed for individuals that violate these particular guidelines. I thank the Commission for the opportunity to make this presentation today and will be willing to answer any questions. CHIEF JUSTICE ABRAHAMSON: Well, are there any questions for Mr. Sheppo? Barry? COMMISSIONER SCHECK: Mr. Sheppo, one of your colleagues from the FBI was here yesterday and I asked him these questions so I'll ask them to you, see if your answers are the same. MR. SHEPPO: Okay. COMMISSIONER SCHECK: Let us assume that under one of the statutes that, as you say at the beginning of your statement, says that DNA, these samples can be used for law enforcement purposes. Let's say that a researcher came to you and said let's strip the identifiers, I want to do research to find a gene for pedophilia or a gene for sexual assault or a gene for violence, and this is a law enforcement purpose and some, whoever is the relevant state actor said, well, that would qualify as law enforcement purpose. Do you see any reason why that, these samples wouldn't be turned over for that research or for that purpose. MR. SHEPPO: In Illinois we presently handle the samples as evidence and I do not believe that we would relinquish that control to any individual outside of the laboratory system. Now, if something, if a particular project, a validation study of new technology, et cetera, were being done by our department, certainly these samples could be utilized for that but again that's something that isn't as important as far as I'm concerned as the fact that the technology may change and we will probably have to reanalyze the samples. COMMISSIONER SCHECK: I'm just trying to, my question was, is that it comes from somebody who is part of the Illinois system. He's got a grant or she's got a grant from some appropriate law enforcement agency to investigate this problem. I think Judge Reinstein was telling us about somebody like that in Arizona or some researcher like this. Somebody has a research grant. Is there any, any, I mean, do you not agree that that would be in theory possible under the statutes and a use for these samples. MR. SHEPPO: I think the potential is certainly there. I would agree with you that a scenario like that could occur. COMMISSIONER SCHECK: All right. And, the only, if one found that to be a particular danger, that, so to speak, or the only way that you can really prevent that would be the destruction of the samples, true; that's something you want to avoid, one outcome. MR. SHEPPO: Absolutely. But I do believe that controls can be placed on these samples internally and ethically that would disallow such research so the samples could still be retained. COMMISSIONER SCHECK: Well -- CHIEF JUSTICE ABRAHAMSON: Barry, it seemed to me that one of the purposes of your questioning last time was what kinds of uses of these samples is permissible, right? COMMISSIONER SCHECK: Right. CHIEF JUSTICE ABRAHAMSON: And you're just giving examples of various kinds and controls, so, specifically, I don't know that Mr. Sheppo -- COMMISSIONER SCHECK: Well, I think that -- CHIEF JUSTICE ABRAHAMSON: -- would, is in a position maybe to speak for the group as to particular examples. COMMISSIONER SCHECK: Right. I'm not asking him to come down in favor. I think what I was trying to establish and I think he's agreeing that in, that certainly under these statutes for that purpose somebody came to them with an authorized request to do that kind of research stripping the identifiers it could happen. CHIEF JUSTICE ABRAHAMSON: Well, as we say in our court, everything is possible -- MR. SHEPPO: Absolutely. CHIEF JUSTICE ABRAHAMSON: -- in life, so the issue then it seems to me for the Commission is to consider what kinds of research the Commission thinks is valid or acceptable for retained samples, if any, and also a discussion over knockbrats and calamary, but, other food was, a question of whether that's, that's good research. COMMISSIONER SANDERS: Well, the other thing, yesterday the FBI refused to answer that question that he just asked. When he said he wants to get the same answer, the FBI refused to answer that question yesterday. It seems to me that Mr. Scheck is making an argument for later for closing argument as to establishing the thing. I think everybody's recognized the fact that there's a potential for it. We talked about it at every Commission meeting we've had we've talked about it and the idea is can we stop that from occurring short of destroying the sample and I think that we have repeatedly said we think that that could be covered. COMMISSIONER SCHECK: Well, I'll move on if you all are conceding that this could happen and happen, you think can you deal with it another way but -- CHIEF JUSTICE ABRAHAMSON: That the request can be made clearly can happen. What should be done with the request and where lines should be drawn -- COMMISSIONER SCHECK: Right. CHIEF JUSTICE ABRAHAMSON: -- is an issue that you are posing to the group and I think the group recognizes it. COMMISSIONER SCHECK: Right, okay. As long as we're clear it's permissible under the statutes and he would be in a position to resist it even. COMMISSIONER BASHINSKI: I don't think it's permissible under every statute. COMMISSIONER SCHECK: Not under every but under no small number of them. COMMISSIONER BASHINSKI: I don't think is under California's, for example. COMMISSIONER SCHECK: Well, under no small number. Let me ask you the next question. Because we all appreciate, just to flesh this out a little bit. Do you have any STRs in your database now in Illinois? MR. SHEPPO: Yes, we do. COMMISSIONER SCHECK: How many? MR. SHEPPO: At present I believe close to 2,000 as of this week. COMMISSIONER SCHECK: Out of how many are you anticipating putting in? MR. SHEPPO: We are anticipating putting in about 17,000 between now and the spring and this would be offenders that are being released from the prisons as a priority first. COMMISSIONER SCHECK: Sure. MR. SHEPPO: And then we transition into a more aggressive way of getting the other RFLP data translated into the STR. COMMISSIONER SCHECK: About how many RFLP do you have? MR. SHEPPO: Offhand I can't tell you. I just don't have that information. COMMISSIONER SCHECK: But around 2 or 3,000, no more than that, I'm sure. MR. SHEPPO: Oh, no. There are considerably more than that, yes. COMMISSIONER SCHECK: More than that? MR. SHEPPO: Yes. COMMISSIONER SCHECK: So, I mean more than 10,000. MR. SHEPPO: I would say somewhere around maybe 3 to 3500. COMMISSIONER SCHECK: Okay. So -- MR. SHEPPO: Somewhere in that neighborhood. COMMISSIONER SCHECK: So you're talking about doing 35 STR tests on convicted offender samples, that's what you're talking about here? COMMISSIONER SMITH: 3500. COMMISSIONER SCHECK: What? COMMISSIONER SMITH: 3500. COMMISSIONER SCHECK: 3500. I'm sorry. Did I say 35? MR. SHEPPO: After the initial, after the initial samples of the ones that we have in line to do now, yes, I would say about that many. COMMISSIONER SCHECK: I mean, I guess what I'm really trying to lead you to is that you're woefully underfunded, are you not, in terms of trying to get this done and implement your database. I mean, I appreciate what you're saying about how working in tandem to transition the technology is hard but it's hard because you don't have a lot of resources period to undertake this job, not your fault, you know. MR. SHEPPO: Well, I wouldn't exactly say that, Mr. Scheck. I, I believe in Illinois we, we have a pretty good basis for completing our project, maybe a little bit behind time. We do have some funding. There are, though, additional resources that we definitely do need that we are working on, both with the City of Chicago and with our state legislature to, in fact, enhance our abilities to transition our database and particularly we are interested in doing the casework from cases that may not have been analyzed in the past in DNA at all. COMMISSIONER SCHECK: I know. MR. SHEPPO: So, we, we see that as something that's very, very important. CHIEF JUSTICE ABRAHAMSON: Barry, I'm just going to interrupt you because of the time. COMMISSIONER SCHECK: Yeah. CHIEF JUSTICE ABRAHAMSON: And let Mr. Hillard and then we'll come back to you. COMMISSIONER SCHECK: I have no problem. COMMISSIONER HILLARD: Barry, I can tell you, they're doing a very credible, very excellent job there. We're going to catch up with the rest of the states in a matter of months, hopefully. One of the things that concerns me though, Mike, is the specific retention timeline. Yesterday Dr. Callaghan, he mentioned I think in 50 years and then it went on from there. What timeline have we got for the retention of this, of these samples? MR. SHEPPO: As far as the American Society of Crime Laboratory Directors, I have no consensus on that at all as to what time line we would want to hold the samples. If you're asking me a personal opinion, I think it has to be a reasonable amount of time. This Commission certainly could make recommendations as to a timeline, whether that be 20 years, that might be appropriate, or longer. COMMISSIONER HILLARD: But indefinitely is out of the question, am I correct? MR. SHEPPO: It depends on how you want to look at this, Chief. The, certainly evidence does have potential and if, in fact, we are holding these samples as evidence, there is good reason to think that you could hold them for longer than 20 years even. But I do see even with reference to storage that this could, you know, eventually turn into a problem as the databases get larger and larger. COMMISSIONER HILLARD: I know being from law enforcement I should agree with Dr. Callaghan when he stated indefinitely but I don't, I really don't, you know, because I look at some of the problems that we have had in law enforcement and we have had in other professions, you know, and I really just don't, being a law enforcement officer for 31 years, don't trust the system that much. CHIEF JUSTICE ABRAHAMSON: Norm? COMMISSIONER GAHN: Mr. Sheppo, I have one question for you. This is the first time that I've seen, unless I'm mistaken that retention, one of the reasons for retention of samples would be validation studies. The other reasons the FBI agreed with. I'm assuming that if some company comes out with three new STRs, you're talking that type to validate those new STRs, is that what you're talking about? MR. SHEPPO: Absolutely. Right. COMMISSIONER GAHN: And when you would do that, when you would do that, you say all personal identifying information is removed, does that include this, the state ID number? I mean, I understand where name, date of birth, all that, but as we do in Wisconsin, then we assign a state ID number. Is that also going to be removed when you would do a validation study. MR. SHEPPO: I would say yes, absolutely. COMMISSIONER GAHN: Okay. All right. Thank you, sir. CHIEF JUSTICE ABRAHAMSON: Mr. Reilly, Dr. Reilly? COMMISSIONER REILLY: Thank you. My name is Philip Reilly. I just had a couple of questions for you. My sense is from reading documents put before me and from your comments, sir, that the, one of the major if not the major concerns is to not have to rework a large dataset with new technology. You have indicated mentioning one of your own colleagues is at work with the Argonne labs that clearly this is a technology in evolution. Now, we agree so far, right? MR. SHEPPO: Yes, sir. COMMISSIONER REILLY: Now, it seems to me that we're both between a rock and a hard place. On the one hand I would think that the last thing law enforcement would want to do would be to set up to accommodate, say, every two years a new development in technology. At some point it seems as a matter of policy, you want to agree, we have a robust system, we see better systems on the horizon but for some time frame in the future -- and I'll just make up the number and not hold either of us to it -- for five years we want to make do with the system we have because we think it's a darn good system. That would be something we, everybody could want to work to together, right, because it would make a more efficient system. So, what I'm trying to do is use that fact and if I say something you disagree with, please tell me, to try and work to the other side of the question about length of retention. Could one not at least build an argument that however flawed the current 13 STR standard, if you will, might be one that could stay in place with minor modifications for a length of time and that one could couple something around that length of time to a period of retention. So that, for example, I can conceive of a system where ten years, ten years from the date of typing an individual, let's say, at parole, one could destroy the sample with very little danger to forcing a state to be bereft of that sample later on because they didn't have it to reintroduce a new technology. I can see how you would be very opposed to two years. I could see how you would favor 20 but I don't see anything magic in the 20. And if the driving force has changed in technology, I can drift it down pretty comfortably to ten without saying anything about whether it's good or bad, now, I'm not speaking in favor or opposed. MR. SHEPPO: Okay. Let me address the ten years since that's a mark that you put forth. I believe ten years is probably too short, my own opinion, the reason being you have to look at the age of the perpetrators. Getting those samples I think will be difficult. If you have an old offender, ten years may be appropriate. With reference to the technology, the premise that in fact we could hold technology in place using this particular STR system for a period of five or ten years may or may not be valid. Presently, I am not convinced that we will have the through-put using STRs that we had with RFLP. We're finding at least in the early stages over the last four or five months of doing STR casework that in fact the productivity of our scientists is diminished from what they were doing when they were doing RFLP casework. That bothers me. COMMISSIONER REILLY: I just have one follow-up. Thank you. Just as a follow-up, again I'm searching, since I know there's some disagreement on this issue I'm searching for some common ground here. What if the system works something like this? What if the system said that ten years from the date of parole the typing was, blood was taken for typing, if an individual, if there is no evidence in the individual's record that he has been convicted of another crime, that the sample be expunged? You know, he's been clean for ten years, you had plenty of time to use the sample to retype, and, there's very, we know most people who are, I think we know, I'm not a criminologist but my understanding is that most people who are going to commit crimes again, profile being mostly young men don't wait ten years to do it. So the concern about recidivism drops off rapidly after about three to five years. So, I think the criminological argument actually is robust to support a ten year time limitation and it also gives an ample window for new technology. MR. SHEPPO: Certainly that's a better alternative than destroying the samples after they are entered into the database. So I, I do think that's a possibility and something that the Commission should look at. COMMISSIONER REILLY: Philadelphia thank you. CHIEF JUSTICE ABRAHAMSON: Sure. COMMISSIONER Sanders? COMMISSIONER SANDERS: Sure, Madam Chair, I guess a couple of things. One, I'm thinking about expungement and then you got the costs of associated of going through the costs associated with going through the expungement process. Secondly, we continue to talk about destroying samples that are collected by law enforcement. I have yet to hear the Commission say anything about the civilian entities such as the hospitals and the insurance companies and all the other people that collect the stuff. The third thing is that we've repeatedly talked about, we talked about convicted felons, that's the only thing that's going into the database right now, though I, I think there should be more than that. It's one of those things that, to me that the argument is especially with the destruction is that they have articulated so very consistently, everybody that we've heard from, the fact that they need it for the scientific purposes and those kind of things. And the greatest argument we have against retaining them was as a perceived misuse and a violation of civil rights in people that have already been adjudicated as felons. And I still fail to see the significance. There's nothing to support the misuse. I still say that the flag, if you were going to run up a red flag it should be with what happens with that stuff and the medical use with the insurance business and those kinds of things. So I just felt like saying that, ma'am. CHIEF JUSTICE ABRAHAMSON: Well, just let it hang out then, Chief, just let it hang out. Good. COMMISSIONER SANDERS: Yeah. CHIEF JUSTICE ABRAHAMSON: Thank you. Yes. Woody? COMMISSIONER CLARKE: Actually, Mr. Sheppo, I was sitting here thinking, I have a shoe box full of eight-track tapes at home that I don't think I have a way of playing them right now. And with that as an introduction, what I would like to pose to you from a public safety standpoint is next week I convict somebody of forcible rape and they're giving a sample according to law that we have similar to most states across the country, actually, let's say it occurred in Illinois and you profile that sample, using, you know, suing the 13 genetic markers and then enter that sample into your database. And let's also assume that 20 years from next week my defendant gets out of prison at a young age relatively, young age where he can still re-offend. So I guess what I'm really asking you to do is to the extent you can at all project into the future where some new technology is being used and ask or if you can answer rather the question what confidence do you have that that profile that you have sitting in your database, you will be able to use at all in comparing that offender sample in a database to new evidence in a case 20 years from now? MR. SHEPPO: My confidence level would be pretty low, quite frankly, with the 20 year time frame. Ten years certainly I think is possibly reasonable but in 20 years I truly believe science will advance and DNA technology will advance to the place where what we're doing today will be pretty much obsolete. COMMISSIONER CLARKE: So, in other words, the eight-track tape analogy has some legitimacy in your view as opposed to, trying to think, I guess DVD players can play CDs. MR. SHEPPO: Right. COMMISSIONER CLARKE: But eight-tracts that cannot play. So is it a communication problem that you foresee. MR. SHEPPO: I do. I really do. I think the technology will advance and I think what we're doing today will probably be obsolete just as, you know, looking back, say, 20 years in the past, certainly we could perform some of the techniques that we utilized back then but the information that we got from them really didn't say much. You know, projecting into the future, I can't say where the DNA technology will go. I think that's difficult to say. What benefit it will be able to provide to law enforcement 20 years from now is very difficult to predict but I would think it's going to be a lot more than simply coming up with a certain probability of some, someone having deposited a particular physiological fluid somewhere at a crime scene. COMMISSIONER CLARKE: So that you might be in the position of having at least under a sample destruction scenario be in the position of having to maintain double, triple, quadruple and in any event multiple databases, that is different technologies. MR. SHEPPO: Very possibly. If the sample were still around, though, it could be reanalyzed in the new technology, of course, and entered into a database with that new technology. That's the whole purpose of retaining the sample. Whether or not one would go back and compare to the old technology is questionable. You know, as I said, with reference to RFLP in Illinois at least we plan on totally phasing out that technique, in the near future as other labs have already done. It simply is not productive for us to continue dual analyses in two systems. COMMISSIONER CLARKE: Very good. Thank you. CHIEF JUSTICE ABRAHAMSON: Jeffrey? COMMISSIONER THOMA: Very briefly, Mr. Sheppo. I think I understand your concern with regard to emerging technology and I don't know whether you have had an opportunity to review Ms. Bashinski's letter to the Chief Justice with regard to California's position? MR. SHEPPO: I did read it this morning. COMMISSIONER THOMA: Would you, would your position be interested in merging, that is, to, as a trade-off for a period of time that you would get in addition to ten years, some competence that might allay some other people's fears with regard to what Ms. Bashinski talks about as identification purposes only so that nationwide such a standard as California's, that they can't be used for any other purpose so that you might get an additional amount of time with regard to retaining the samples but the possibility of them being used for any other purpose is absolutely excluded, which is really the one fear that some of us have. MR. SHEPPO: Yes. I do think that is a possibility, a real good alternative, actually. The fact that the samples can be used for validation studies is really very low on the list, as far as I'm concerned, for retaining the samples. I can see that as being a minor component of what I'm trying to present today. The main reason is the changing technology. COMMISSIONER BASHINSKI: I would like to clarify, in my letter we would use a sample for validation of technologies that are for identification purposes only. So we could, under our statute we can and do use the samples for that purpose but tests to which, which can be applied to the samples are restricted whether they're for validation purposes or for any other purpose to things that are for identification purposes only. COMMISSIONER REILLY: May I ask one question? This is purely for my factual edification. You state in your first paragraph that debates on whether to destroy or retain the samples have already occurred in state legislatures across the country. I'm just wondering whether you have any hard factual evidence for that because my own experience has been that there was remarkably little debate about that, and that one of the phenomenological facts about the whole proliferation of state laws has been with some of exceptions how little discourse there was on the subject. So I'm wondering, you must know something I don't know. MR. SHEPPO: Basically the information that I presented here is from my personal knowledge in certain states there have been debates, including Illinois, California, New York, I believe Virginia, some of the larger states definitely. I have not gone through all 50 states to see whether or not in fact the records would reflect that in fact there were debates on this subject. COMMISSIONER REILLY: So to the extent that this represents ASCLD's position, you would say that this sentence is an opinion statement, not a factual statement. MR. SHEPPO: It would have to be somewhat opinion, absolutely. CHIEF JUSTICE ABRAHAMSON: Jim, did you have a comment on this? COMMISSIONER CROW: No, I don't believe so. I might. COMMISSIONER SCHECK: I have a factual question about storage. MR. SHEPPO: Yes, sir. COMMISSIONER SCHECK: Has your group come to any conclusions as to how you would be storing these samples or how much that would cost? MR. SHEPPO: Storage is relatively minor since the samples are either extracts, as I understand it, or samples of the material put on FTA paper. They are individually sealed. They are controlled with a number and handled as evidence in sealed vault type of refrigeration. COMMISSIONER SCHECK: But, just so we're all clear, you're saying it's a bloodstain on a car. MR. SHEPPO: It may be. Again I cannot speak authoritatively for every laboratory in the country as to what laws they have on the books, whether or not someone will be storing whole blood samples. I guess that's a possibility. We are not doing that in Illinois. Jan, what process are you using? COMMISSIONER BASHINSKI: We actually have whole blood samples and stains and DNA and we have samples going back to 1984. The storage for those types of samples is not, the space is not an issue. Where the space issue comes in is when you're storing evidence. COMMISSIONER SCHECK: Right, but you're still talking be about freezer space and all that. COMMISSIONER BASHINSKI: But you can store a lot of cards with bloodstains on them, I mean millions in the amount of freezer space. COMMISSIONER SCHECK: So you don't have any cost efforts estimates for us? COMMISSIONER BASHINSKI: I don't think that's a cost problem, do you? MR. SHEPPO: I don't believe it is a cost problem either. COMMISSIONER BASHINSKI: It is for the evidence though. MR. SHEPPO: Absolutely. The evidence can be very, very large and to keep that for a long period of time is, you know, is relatively difficult. CHIEF JUSTICE ABRAHAMSON: Jim Crow? COMMISSIONER CROW: Is it feasible to have a law that says that this can be used only for the one purpose? CHIEF JUSTICE ABRAHAMSON: Is it feasible to have a law for one purpose like validation for identification? COMMISSIONER CROW: For identification only, yes. COMMISSIONER BASHINSKI: That's what we do. COMMISSIONER CROW: Then there seems to be a considerable amount of the objection to saving the material that disappears. COMMISSIONER REILLY: I think there's a, if I may, I think that there, while I agree with that technically, to me and forgive me if there was some discussion yesterday about this that I missed but to me what's lurking in my mind is the concern that at some time in the relatively near future an issue emerged in the American public about trust. Even if we pass a law that says you can only use these samples anonymously for validation studies, at bottom what it is, is a statement that the society agrees to have law enforcement hold whole DNA on individuals for an indefinite period of time. And as the Chief here pointed out, there may be very powerful reasons for so arguing and they may hold the day but there will be sectors of our society who do not see it the same way. And I think it is this Commission's job to find a common ground. That is why I asked my question about whether there had been adequate public debate in the nation's state legislatures about this issue because I actually fervently believe that is not the case. And I think as a Commission we run the risk of tripping up on ourselves and failing our charge if we don't adequately, adequately address the issue of trust. And it may be that we will all come out where you think we should be but I think we are have to confront it and say we in effect believe in law enforcement's ability to be the custodian for these samples for a long period of time and to treat them with the finest integrity and if we so believe, that's fine with me. But we have to confront the issue and make a statement about it. MR. SHEPPO: One thing I should say on that comment, we do already hold in custody as evidence samples of blood with reference to DUI, toxicological studies, et cetera, so that presently is going on. These are samples that also could have the potential, as we are discussing here, to be abused in some way. Certainly there's no track record, to my knowledge, that this has occurred and the nation's laboratories hold this as evidence and take proper custody of it and track it very closely. COMMISSIONER SANDERS: I think the point, Michael, or the difference is, is like when you hear the genetic profile and the potential for what you can find out about people is what scares the hell out of everybody. MR. SHEPPO: Yes. COMMISSIONER SANDERS: And the most remarkable thing that Barry said yesterday that resonated with me is the fact that unless we stand to gain an awful lot by keeping these things, is it worth what it is going to cost us for the issue. I mean, for the issue to be debated at all, to me that's a very tough, very tough question to settle on. But, that's what we're talking about. It's not like our DUI stuff because with DUI blood you're not, I mean it's, you understand what I'm saying, it's the potential for what could happen with this thing. And the reason Barry keeps asking everybody that same question is he wants to suggest is this, could this be conceived as a legitimate law enforcement issue with this research stuff and if you do, do you open the door for it. I mean, that's really what everybody is concerned about, I think. COMMISSIONER SCHECK: Yeah. MR. SHEPPO: I see what you're saying but the one thing about the toxicology bloods, they do contain DNA also and you can analyze them just like you can analyze bloods that are used primarily for the DNA data bag. There's no difference between the two. COMMISSIONER SCHECK: Just so you understand, I mean, you may not, you know, ultimately agree, it's a cost/benefit analysis but one of the things, Dr. Crow, we were discussing in the technology group, right, is that you want to take a bloodstain and analyze it to develop predictions about phenotype, does this person have red hair, does this person, we already know we can do a lot of racial profiling with this. Nobody likes to talk about it because it scares the hell out of the public but you can take a bloodstain, you can look at certain polymarker things and you can say ah, this is probably from a Caucasian, this is probably from a Hispanic. Now, it is not going to be too long from now, in fact, as Judge Reinstein was reminding us yesterday, it's already here, that people are going to say the next law enforcement purpose is that we can make a prediction about susceptibility to violent, certain kinds of violent behaviors. Now, when we say what's so special about these sets of samples as opposed to any other set of sample that an insurance company might get you, and, you know, I'm very concerned about the insurance companies, and, you know, I wish we could address it but that's not our Commission. This is a very unique set of samples. These are people, as a researcher you're saying where else can I get blood samples from violent criminals if I want to study the proposition what is it, is there anything genetically that leads people to predisposition towards violence. These are a bonanza. And if you keep them around, the argument goes, somebody's going to want to get them. And even though, Dr. Crow, in the original DNA identification act statute on a federal level, I know because I sat in the room when the draft was hammered out, we thought we dealt with this issue by saying you can only use the samples for forensic identification purposes. And we then specifically defined that to mean for a linkage in a criminal case and for identification of lost bodies. But the states have not necessarily seen fit to follow this in their statutes and leave open, quote, law enforcement purposes or in Massachusetts they say charitable purposes or research purposes. And, you know, that can be the door through which well-meaning people in the future want to use these for certain purposes. And my fear is that, because I debate this with my ACLU friends, all right, you will never win the argument that when it comes to saying what are they going to do with these samples, all we have is the statute that says you can only use it for law enforcement purposes and otherwise we're going to arrest you, right? Well, let's say, somebody's going to just say the new law enforcement purpose is to look at these behavioral characteristics. CHIEF JUSTICE ABRAHAMSON: I think the Chief set forth that balance -- COMMISSIONER SCHECK: Yes, he did. CHIEF JUSTICE ABRAHAMSON: -- very well. There was one other hand up and it's Michael Smith so he can have the last word. But we're going to I think come back to this when you're up later in the afternoon. Is that right? COMMISSIONER SMITH: It's true. My point was only, although I think it's with such resignation. You know, the confidence I have, the trust I have that we will get to this afternoon, you know, I don't know. CHIEF JUSTICE ABRAHAMSON: We're running really quite on time. Go ahead. COMMISSIONER SMITH: I know. It was only that the law enforcement is only one of the players. That is, these are the creatures of state legislators. And my confidence in law enforcement is very high and my confidence in state legislatures varies. CHIEF JUSTICE ABRAHAMSON: Okay. Well, with that we will come back to this when we deal with the legal issues. Now, the plan is we're going to have lunch and we're going to get back here at about 1 o'clock. And, Chris is going to give you instructions. That will put us on schedule, with approximately a half hour for Dr. Crow's report on Research and Development Working Group and then we will go into the legal issues, which we have here, for about two hours. Okay? Chris, where do we eat? DIRECTOR ASPLEN: Lunch is being served in Hemisphere B room. COMMISSIONER REILLY: We have to take an airfare? DIRECTOR ASPLEN: Go out the door, take a left down the hallway it's past the amphitheater on the right-hand side? I'm sorry, yeah, take a right, go down and, it's past the amphitheater on the right-hand side, right? CHIEF JUSTICE ABRAHAMSON: And the magic words are beam me there, right? DIRECTOR ASPLEN: Yeah, you can leave your stuff in this room. (There was a break in the proceedings.) CHIEF JUSTICE ABRAHAMSON: If the Commissioners would come to the table, we will continue on. All right. We'll start again. Just one comment. Requests for the proposed draft of the uniform law have already been made by a number of publications and groups, so, that will be done by Margaret Berger and so we can expect, at least hope that we get constructive comments on that and I think that's good. And we want to welcome Chief Gainer, who will be with us as soon as he gets off the phone. Oh, there you are. All right. COMMISSIONER CROW: He's ahead of that. CHIEF JUSTICE ABRAHAMSON: Good. Thank you for coming. No problem. Okay. We're up, wait, instructions for getting out of town, quickly. DIRECTOR ASPLEN: Yeah. We'll do this now in case anybody has to leave a little bit early. For those of you who need to get to the airport and you want to take the Metro to the airport, which is certainly an efficient way to do it, go down the main hallway past the lunchroom, take a left outside to the courtyard and follow the signs. It's a dollar-thirty during rush hour, a buck-ten regular. You take the blue line to the yellow line. It's as easy as can be. If you want to take a -- CHIEF JUSTICE ABRAHAMSON: You can take either the blue or yellow, is that accurate? Either blue or yellow. DIRECTOR ASPLEN: Thank you. Thank you. Leave it to me, right. COMMISSIONER BASHINSKI: You lost me at the lunchroom, Chris. DIRECTOR ASPLEN: Huh? COMMISSIONER BASHINSKI: You lost me at the lunchroom. What was the next thing?
DIRECTOR ASPLEN: Oh. Take a left outside to the courtyard and there will be plenty of signs out there for the Metro. Given the confusion if you would like to take a cab, cabs run regularly off of Pennsylvania Avenue out front. If anyone prefers to call for a cab, we can arrange this. There's an extra fee of 75 cents a minute if they're sitting out there waiting for you but they do run regularly. Pennsylvania's big drag. Okay.
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