CHIEF JUSTICE ABRAHAMSON: Which, if there are no other questions will move us into -- was that a good segue -- into Michael Smith and the Legal Issues Working Group report.

COMMISSIONER SMITH: Well, I was a little worried when I saw the amount of time set aside for this report because we are at a stage in our work which is heavy on drafting and a little bit light on the final product for presentation to you.

So I thought what I would, I'm reassured by management, though, there's no really escaping revisiting the retention issue.

CHIEF JUSTICE ABRAHAMSON: Right.

COMMISSIONER SMITH: And I think, so, I'm not worried about filling the time. Let me sketch two things, right? One is you have seen products which are maturing. There's really no point, I think, in my circulating the most recent draft of the work that we've done on arrest because it hasn't changed much since the last time you saw it.

But we have pushed forward a report that speaks more broadly across a host of issues, some of them having to do with the prosecution phase, others having to do with various aspects that have come up with the sampling. And I want you to see that so that will be circulated again pretty soon.

But, finally we're doing a report which we variously characterized as a cover report or a binding report for these two, and that's one which is opening up territory that we haven't really fully worked through ourselves but I want to sketch a little bit for you now.

Could we visit just for a second, though the topics covered in the second of the reports that we've talked about in the past. That's the reporting which just as a matter of a legal analysis we've explored law relating to the compelling of suspects to submit to DNA extraction, the acquiring of samples or records from medical providers and laboratories and other persons other than the suspect or the individual himself. It's important territory, as we saw a little bit from today's discussion.

Mass screening, we've done some work, really not a lot, I think, but some important work on the admissibility questions and the novel scientific questions that Jim just touched upon. We have also now put in a section discussing the use of efficiency test records from labs.

We have a brief section dealing with statute of limitations on the prosecution side. And then there are these, the issues about databanking and databasing of DNA and DNA records from typing.

Now, a lot of this is being discussed in the context of other working groups. It seems to me we can't, till I get you our report, we have some difficulty, I think, putting our full voice into that discussion.

But then finally, I'll circle back to that. The arrestee databanking issues we have in a separate report but also deal with again the omnibus (phonetic) report, partly because the question of retaining samples and retaining records of the typing of arrestee DNA samples is possibly a different, though clearly a related topic to the topic of retaining the DNA, the whole DNA samples of convicted offenders.

So, the trouble is with this topic, right, it tends to keep opening a bit. So, we decided in our last meeting, and I think usefully that we ought, that a part of our obligation to the Commission and possibly of the Commission to the larger society is to open up these topics in ways that permit a, as informed and who-headed a debate about that, discussion about them in the body politic as we can manage because they're likely not to go away, they're likely to get sharper under certain conditions that are plausible and the contribution of this group might turn out to be more on the side of illumination and explication of issues that need resolution than in offering resolutions to satisfy us in this particular 1999 period. We may be wrong about that but that's the rationale that's led us to open up our deliberations quite a bit.

Let me try just to sketch the opening if I may. The way we start I think is to ask what's at stake here because as the discussion today I think dealt more usefully than in the past, the interest in public safety is heavily implicated in these questions.

Let's take the fundamental one. The arrestee databasing issue is a tiny point on a spectrum of questions. That is, the more inclusive a searchable identification database is, the more useful it is for the excluding or including of individuals in an investigation based on evidence found at a crime scene. And it's hard to imagine any other statement that that be true about. The more inclusive, the more useful.

So, having said that, I mean, our debates and discussions about this tend to focus on the breakpoints in inclusiveness. But if you look at it, you know, we start with some specified, very serious sexual offenses, we go to violence, felony offenses, we in some jurisdictions go to all felonies, in some jurisdictions to misdemeanors, and in the last six months or so the pace of proposals and commitments to action on the selection, the sampling of DNA from persons arrested for crime and ambiguity on the retention of those samples or the retention of the 13 STR profiles from those samples in state databases left open.

Now, it seems to me hard again to ignore the possibility that what that really is, is the force of the public safety interest expressing itself in an increasingly inclusive idea about useful typing and sampling of DNA.

And it seems to me, therefore, one has to ask the question, why exactly is it that we think we're going to stop at arrest? Because arrest gives us as a legal threshold probable cause. As a legal threshold, probable cause is an awfully low one and probable cause is very widely distributed in the population.

So, although it's widely distributed in the population, there are powerful arguments being made and with evidence of some probative value being offered that there are subpopulations for whom the probable cause to arrest is much more often the trigger for an arrest action than for other subpopulations.

Now, by itself, we've touched on this, that is, in the same subpopulations, let's take inner-city African-American populations, there's a powerful interest in the public safety dimension of all this thing, true, but at the end of the day it's going to be somewhat difficult. We imagine, we're trying to work this through a bit, to explain why the existence of probable cause is sufficient justification for taking my DNA.

Now, stated that way, it's just a little bit harder, though the public safety utility of doing so is unquestioned. So there are some cultural and political dimensions to this that at least we think ought to be as clearly and nonemotionally stated as we can so that they can be part of the discussion about this. Why? Well, one view would be that identification DNA bases in general are not a problem so long as the identification STRs don't turn out to be of some penetrating importance in privacy issues but the whole DNA is.

Now, the point that the whole DNA is both on, both retained by and accessible in lots of other institutions, in far greater volume than in the CODIS or the CODIS related databases is true. There's two points we seem, we sort of want to follow about that. One is, well, what's the position with respect to the privacy of those samples and those records? As a legal matter, which we're going to discuss at some point, at some length in our report, not well protected.

Looking at the history of attempts to protect them, not promising for legal protection of the kind of people I think often assume those records and samples have.

One way to look at that would be to say well, then, what the hell, why don't we go full bore on the law enforcement side, perhaps, but the other way to sort of look at that is to say why do we think we that in the future the technology won't be at a point and the public safety interest at a point whereas a much more routine matter law enforcement will look to those databases for DNA identifying people not in the arrestee or the convicted offender database.

And from our point of view at least asked that way it seems hard to see that they will not become important at least in the idea in the mind of a responsible law enforcement official as a resource for criminal investigations.

As a legal matter, we don't see a whole lot to bar that. There are statutes that could bar it but the durability of those statutes is open to question, I think, if we have cases like the one that Commissioner Schaefer (phonetic) put before us in Dallas.

I mean, if the serial rapist who since jumping a turnstile committed two savage rapes in New York, would have been identified after the first one had we typed his DNA upon jumping the turnstile, you don't need very many stories like that, it seems to me, to make a powerful point that convicted offender databases are sufficient unless you can prove it. What's the rationale?

So we want to open that up, not because we know at this stage even in our group what the answer to that question is or all those questions but it seems to us that simply addressing the Fourth Amendment issues, particularly when the Fourth Amendment offers so little by way of protection for the privacy interest that people articulate when scratched outside isn't sufficient. And so, we intend to give you a report which opens these questions up a little more widely. Phil, you want to say something about that?

COMMISSIONER REILLY: I think I, obviously I agree with the notion of opening it up. I was contributing to that discussion. I agree that there's a proliferation of banks of tissue with DNA in all sorts of quarters in our society, which theoretically could be linked one way or another or probed one way or another as part of law enforcement.

I doubt very much that they could be insulated from such a probe although there's at least one federal statute that offers things called certificates of confidentiality, or at least allegedly protects research databases.

And, although it may be inappropriate to say it for our report, if I was asked to prognosticate 50 years hence, and I'm not as wise a man as you, so, well, I think it is inevitable that we will move to universal DNA databanking, inevitable, because there will be such powerful, positive reasons to do so from the point of view of protecting the public health, avoiding disease and moving to a more preventive approach to medicine, that we'll get those for non-law enforcement reasons and then it will be irresistible to use that database.

So, I think we reach universal DNA databanking for criminal purposes through the back door of public health and that's exactly where we're going to be. And it won't be 50 years. That would be, if I had to make a prediction, I would say 20 to 25.

COMMISSIONER CROW: Yeah.

CHIEF JUSTICE ABRAHAMSON: Through the hospitals maybe on birth?

COMMISSIONER SMITH: HMOs, we authorize databases already.

COMMISSIONER REILLY: We already collect, in 1999 in America we will collect whole blood on 99.8 percent of the babies born in the United States and we will save it. We also subject it to DNA analysis in some cases rarely but we'll subject it to genetic analysis in all cases. And the thing's changing is we are saving those blood spots and so-called Guthrie cards. We have actually arrived at universal DNA databanking. It's just no one's talking about it.

COMMISSIONER SMITH: We thought we should talk about it.

COMMISSIONER SCHECK: Right. But the distinction, just so we're clear about it, is that when you talk about databanking if you only define it as we have the sample from everybody somewhere that we can test for some purpose, all right, that's one thing, and then we, and your suggestion that's it's inevitable, we're going to be wanting to do it for the benefit of the individual and get consents from people to do that if we even bother to ask for consents.

COMMISSIONER REILLY: Well, let me just elaborate. The interesting, I mean, if you'll permit me, I'm being a little bit provocative here but only a little. In fact, one of the most interesting things about the evolution of DNA databanks and the law is that we are collecting tens of millions of bits of genetic information on children in America and storing them without their consent because the laws are mandatory. So the system is in place to piggyback onto it.

Now, it is true that we're not doing DNA profiling for identification purposes but the samples there, the same lab doing the PKU testing could easily run the STR loci if we wanted it to and the cards are being saved. So it's actually an inefficient --

COMMISSIONER SMITH: We can't disguise those facts, right?

COMMISSIONER REILLY: Pardon? Yeah, we shouldn't.

COMMISSIONER SMITH: Right.

COMMISSIONER REILLY: And in fact it seems to me it would be disingenuous to talk about the evolution of forensic DNA databanking in the United States without nodding to our colleagues at CDC in Atlanta and the public health sector that says we've been doing this since 1962 already. And indeed I know the DNA -- I shouldn't call them DNA -- tissue databanks in which law enforcement has gone in for good reason to rule out, for example, a woman who has being falsely accused of murdering her child when it turns out the child died of a very rare genetic disease, things like that.

COMMISSIONER SCHECK: Yeah, and I always bring this up but this arose last Friday. In the case in Boston that I tried, involving the nanny, Louise Woodward, we were looking to do a genetic test to rule out that the baby was suffering from a genetic disease, two of them, osteogenesis imperfecta and glutaric acidemia, that could mask child abuse, in other words, one gives you a predisposition of brain hemorrhaging and the other one --

COMMISSIONER REILLY: Mimic it, really.

COMMISSIONER SCHECK: Mimic it, and brittle bone disease. And we could not get a postmortem sample so we got the Guthrie card and used that for the test. So, I mean, but in that regard, Michael -- and I apologize to you for not being able to attend your meeting or participate.

COMMISSIONER SMITH: This is part of, you know, an attempt to get you to respond to the e-mail, to the report.

COMMISSIONER SCHECK: Yeah, right, but, what's related to this issue, I think, and really much more within our direct ambit and responsibility is the issue of mass screening. When you meant mass screening, you were talking here about --

COMMISSIONER SMITH: Voluntary.

COMMISSIONER SCHECK: -- the voluntary collection of samples.

COMMISSIONER SMITH: Right.

COMMISSIONER SCHECK: Because this issue right now is very much part of what Chief Sanders and the others are going to have to be dealing with, Chief Hillard, everyday, right? I mean, when you go out and you ask people to voluntarily give DNA samples for elimination purposes, do you need, should be informed consent, should that be a principle of it and then what do you tell them as part of that informed consent and distinguishing between that purpose and the purpose of taking it if you are a suspect.

My own feeling is, is that it would be of great service to people if we actually could write out model forms for this that could be of practical use to law enforcement anticipating that this is very soon going to be an issue they have to deal with on an everyday basis. A related question that we have danced in and around is okay, what are you going to do with those elimination samples?

COMMISSIONER SMITH: That's right.

COMMISSIONER SCHECK: And again the law is, you know, the courts have not thought very carefully about these issues and we could give them some guidance.

I mean, there are some precedents that say once you get somebody's DNA, even if they voluntarily give it to you for one purpose, elimination purpose, you can use if for all purposes.

We have such a case in the intermediate appellate courts in New York and believe me, that's dicta that nobody thought about very carefully when the Court of Appeals just said affirmed, no opinion, or didn't take it for review technically as precedence.

COMMISSIONER WEBSTER: Can we talk about that for just a minute? Because I, this is a role I don't normally assign to myself but the fingerprints, I remember the history of getting fingerprints. The Boy Scouts were very good on it. There was some litigation. It was always volunteer and, but people were concerned about what they might be giving up by giving the fingerprints.

Then when we get into the other areas of identification, that's purely identification, I don't know anything else that a fingerprint can be used for except to say I'm the person who has those fingerprints.

COMMISSIONER SCHECK: But you were at the last meeting. You're now taking the oil from the fingerprints and doing the DNA testing.

COMMISSIONER WEBSTER: Well, I don't know how you get to the DNA test but that is the purpose of the card in a legal sense. Now, when you get to DNA, I think most of the public, and I think I'm still basically uninformed about the other uses of DNA, they could be, they could have much more relevance in the extreme to social engineering, on kinds of things that the public tends to steer away from. If we don't like to use our Social Security number, although we use it in the District --

COMMISSIONER CROW: We do.

COMMISSIONER WEBSTER: -- for driver's licenses but there's still that feeling, how do we build public support for this very important investigative tool if we can't answer the question about what else can it be used for, what else, can it keep you from getting a job, for instance, down the road, because of some genetic defect in your family? I think most people would shy from that. That's not the role of government to make that kind of information available for that type of discrimination. What can we say about that, that will provide some reassurance; how can we limit the uses?

COMMISSIONER REILLY: This is why we opened it up.

COMMISSIONER WEBSTER: Yeah.

COMMISSIONER SMITH: The issue of sample retention, yeah.

COMMISSIONER REILLY: What we can say -- if you'll forgive me -- what we can say is in the decade preceding this debate, there has been a massive debate about so-called genetic discrimination in health care, health insurance underwriting. And it has been resolved in favor, largely in favor of not using genetic information from otherwise healthy individuals as a tool in underwriting in group health insurance. Thirty states have laws on the subject and there's one federal statute on the subject.

What has not been answered is the debate about is the information on life insurance or an occupational screening although Wisconsin does have a law on the use of genetic testing in the workplace. There is a very interesting forum in which to rehearse this problem.

COMMISSIONER SMITH: Yeah.

COMMISSIONER REILLY: If you're a potential employee who may have a genetic condition that predisposes you to a severe occupational disease in the workplace, is it the better public policy make sure that you are informed of that so you don't run the risk of disease or that you be able to maintain your privacy?

And this was also, the Johnson Controls case before the Supreme Court about the Americans with Disabilities, no, the Civil Rights Act of 1964 as it applied to pregnancy, things like that. Should a women have to disclose that she's fertile to work in a workplace; these kinds of questions have been rehearsed. But we do have a lot of data on genetic testing and health insurance that we could bring into play as an example of this issue.

COMMISSIONER WEBSTER: Well, we want to be sure that we pay attention to who is entitled to have that information.

COMMISSIONER REILLY: That's exactly right.

COMMISSIONER WEBSTER: And I think I have to, if you'll permit me, I tell, totally unrelated but maybe related experience I had that seared my sense about this. I was a, served three and a half years, World War II, practicing, halfway practicing law for a year and was called back in the Korean War.

Somewhere out in Japan or Korea I opened my Kipplinger letter and it says train only, plan your key positions carefully, train only those for key positions who are least likely to be recalled to military duty.

And I thought to myself, that this is, and I wrote a long, searing letter and got a three-page letter back saying what, that isn't what we meant, what we meant was, and three pages later it was still the same thing. And by the way you shouldn't be paying for your subscription. But I have a sensitivity to people who make bad use of good information. And I don't think we should be responsible for that.

COMMISSIONER REILLY: Well, I'm glad you said this and I think the point of our committee would be that it would be a disservice to isolate, although we clearly have a charge, it is impossible to isolate the wave of genetic information from other sectors of society.

COMMISSIONER WEBSTER: I understand but they shouldn't blame the law enforcement community for that, or be given a reason for blaming them.

COMMISSIONER REILLY: Agreed. Agreed.

COMMISSIONER HILLARD: Madam Chairman, right before I left, Barry mentioned about the informed consent form. Most law enforcement, I know Chicago has it, I wanted to be sure, that's the reason I went back to talk with Commander Cronin. We have, it seems like we have informed consent forms for anything and everything that we do in the City of Chicago, that we pursued for the last ten, fifteen years but we do have a form.

COMMISSIONER SMITH: Could we have a copy for our group?

COMMISSIONER HILLARD: Yeah, videotaping, or whatever, we have it.

COMMISSIONER SCHECK: Yeah, and you stimulated this thought, that one of the things, for example, even for elimination purposes is that law enforcement officers, certainly lab people, it's now required that soon law enforcement officers are going to have to give those samples for elimination purposes at crime scenes.

And then, you know, the restrictions, we have had a bad experience frankly with the military here with the retention of DNA samples for the Armed Forces databank, a lot of controversy, getting them to establish standards. I think they now retain them to what, 50 years?

COMMISSIONER REILLY: Fifty years.

COMMISSIONER SMITH: But you may request return of them --

COMMISSIONER REILLY: Right.

COMMISSIONER SMITH: -- and we've asked staff to try and find to out what the military's experience of that has been.

COMMISSIONER SCHECK: And the thing that has occurred to me many times, I think I might have mentioned it when we had the planning committee for this meeting is that given what we now know about Alzheimer's and the genetic basis for Alzheimer's, if President Reagan had to give a sample and I don't mean this as any knock on President Reagan but in light of his biography in particular I've been reading about it, I couldn't help but think about it, is that, you know, when was we elected at the age of 69, that with a, if they had, we don't know what his Applebee (phonetic) 4 type but we know that there's a test that shows a susceptibility to this disorder and given his age and the possibility of its onset with the genetic test, I think there would have been real peril that he couldn't have been elected president if that became public and then there would be a lot of people that say well, we really have to know this about employees.

And, so, see, this is why I'm so fixated on the sample retention issue and this is why I've been making this argument that it's really in the long-term interests of law enforcement to go this step.

You will never win the civil liberties argument because, you know, people are going to say look at all these reasons that we could go and get these samples. Certainly the, theoretically speaking the way the first statute was written, we should treat this as a fingerprint. That's the way we should treat it as a fingerprint because we know that all these other uses that can be made of this that will be, quote, law enforcement oriented.

COMMISSIONER SMITH: We don't keep the finger.

COMMISSIONER SCHECK: Right, we don't keep the finger.

COMMISSIONER BASHINSKI: But you do have the primary data, you absolutely do.

COMMISSIONER SCHECK: We do have the primary data. And the problem is, is that, I mean, what's going to happen, we're going to know a lot more about, talk about susceptibility to violence, I mean we could research the database of the collected samples of the offenders but one of the first applications is that we're going to say, okay, let's take every law enforcement officer that we're going to be hiring and it's going to be required screening to see whether they have that marker.

I mean, we always start with the despised populations to some extent but the data that comes from that is the first thing that's going to be used to look at everybody else.

COMMISSIONER SMITH: Managing school population, right?

COMMISSIONER SCHECK: That's my great fear about there. So I would suggest in the end, Michael, just to be specific for you, that I think it would be very useful if we could in, we might even be able to come up with some recommendations on what to do with elimination samples informed consent, establishing that principal, as a --

COMMISSIONER SMITH: We have it but for the reasons I said we're at a phase or a moment where we're not trying to close in on recommendations so much as open up. But we expect to meet again November, by the beginning of the year, we'll be looking to see out of these discussions of ours what recommendations we might put before you, which is, of course no bar to other recommendations emerging from this Commission anyway.

But, I think that's right, there's a logical progression to this and we're not ready to make recommendations because we haven't finished doing our analysis.

CHIEF JUSTICE ABRAHAMSON: This relates to retention of samples, elimination of samples, informed consent.

COMMISSIONER SMITH: All of it, right, retention and these other issues that Barry brings up.

CHIEF JUSTICE ABRAHAMSON: Including timing, if you do decide to retain, the purpose that any retained samples can be used and where they should be kept. I mean, those are elements of that. Jim?

COMMISSIONER CROW: It's a different question --

CHIEF JUSTICE ABRAHAMSON: Would you use the microphone?

COMMISSIONER CROW: Yes, thank you. It's a different question and you alluded to it but I'm not quite sure what you said. I think it's searching databases in the future, the 13 STR loci as opposed to the previous BITRs. It's considerably more often that what's going to turn up brothers and be pretty sure that they are brothers. You said something about that but I don't remember what you said.

COMMISSIONER SMITH: Well, we said something about that in past reports, that is, that we don't see constitutional problems with doing that but we know that your committee is unhappy with that, and, you know, we would like to give you a new Constitution if we can.

COMMISSIONER CROW: There's at least one state, if I'm correct about this, is it Virginia, that prohibits the use of this?

CHIEF JUSTICE ABRAHAMSON: You mean giving out the information that it might be somebody --

COMMISSIONER SCHECK: No, no, no, no, no, no, no, no, no, no.

COMMISSIONER CROW: No, identifying a relative --

COMMISSIONER SCHECK: In the 19, what is it, the 1992 report --

COMMISSIONER SMITH: Right.

COMMISSIONER SCHECK: -- of the NRC, you know, this question was addressed. And, the history of it is, is that the committee concluded that you should not be using the search of the database as a subtextual search for relatives.

So in the CODIS rules the actual rules for putting these profiles from the crime scene or the offenders into the databank when you conduct the search there were rules about what are called low stringency or high stringency searches.

And the purpose of these rules is to, there's technical purposes but the policy purpose was to make sure that when you did the search you were only searching based, you know, here's a crime scene sample, it's got a pattern, we're looking for this person, we're not purposely saying let's look for ten markers instead of 13 so we can go figure out which one of the relatives of these inmates, what would be the next suspect, which is a different matter than saying if we have, as Chief Hillard had a case, a very famous case where you through independent evidence have good reason to look for the brother, you know, you would go get that person's DNA and run it. It's a --

COMMISSIONER BASHINSKI: A more subtle variant --

COMMISSIONER SCHECK: It's a lawyer's distinction.

COMMISSIONER BASHINSKI: A more subtle variant is you do the search, a stringent search, and you find 7 out of 8 alleles matching. Now you have certainly investigative information that can be very useful to the police in knowing that yes, I have eliminated this person but maybe you should be looking at his brother. What do you do with that information?

COMMISSIONER SCHECK: If it comes out that way. Depends on how you get that way.

COMMISSIONER BASHINSKI : Exactly. We actually have a case like that.

COMMISSIONER SCHECK: Yeah.

COMMISSIONER BASHINSKI: So my question is, should we not tell the police this?

COMMISSIONER SCHECK: Data is data, right? I mean, the point what was, I guess for legal purposes --

COMMISSIONER BASHINSKI: The purpose of the search.

COMMISSIONER SCHECK: And maybe we can discuss this, what was the purpose of your search. We have a lot of the law in this area that was hard to understand but, you know, if you inadvertently see something, that's okay, as long as you had a right to be there looking. If you didn't have a right to be there looking in the first place, that's a different story. If you purposely went to look for wrong reasons, that violates our Fourth Amendment.

COMMISSIONER SMITH: This reminds of something that I meant to say but here and in this earlier question, the, one of the reasons that I think we're paying so much attention in our group to the non-law enforcement database questions is that the information revealed in the context of those databases is much, much more intimate.

And the intimacy of that information, if you have a search that produces whether it's because of the eight alleles or because of the mixture of DNA found at a crime scene, eight suspects, but then there's seven files full of intimate detail that will become part of the investigation although one, or one will turn out to be the suspect.

That, that doesn't feel very good and therefore the idea that there ought to be, that we ought to pay attention to the advantages of having more inclusive law enforcement databases is there because that does help protect against the contextual revelations if it ends up in ten years or so that these non-law enforcement databases are being used.

CHIEF JUSTICE ABRAHAMSON: Woody?

COMMISSIONER CLARKE: Actually, I was just going to say in listening to the discussion about the one allele difference and the possibility of a brother, I'm not sure there's a distinction between that and the victim who says I was raped in that house down the street, it was by a six foot two, blond-haired man, turns out he's got a brother that looks just like him so police naturally investigate the brother. So I'm not sure that there's a distinction between those two.

COMMISSIONER SMITH: We agree.

COMMISSIONER BASHINSKI: And you could argue that if law enforcement has destroyed samples and there's a need to look at additional loci, that would be even more impetus to go after a medical sample, which is what you're trying to avoid.

COMMISSIONER SMITH: That's why we think we have to have it all on the table at the same time because, you know, it's, well --

CHIEF JUSTICE ABRAHAMSON: Of course, one of the differences maybe between the health data now and a single law enforcement data, is just that.

COMMISSIONER SMITH: Right .

CHIEF JUSTICE ABRAHAMSON: Go to one place that's just a lot easier and faster than going around the city or state or country and then does it matter in terms of privacy.

COMMISSIONER SMITH: And public safety.

CHIEF JUSTICE ABRAHAMSON: Public safety.

COMMISSIONER SCHECK: And I mean frankly, remember -- and this goes to your social concerns -- Brian Stephenson has presented some unbelievable data about the number of African-American males that were convicted in the state of Alabama and have lost the franchise, convicted felonies and lost a franchise. I can't remember the exact statistic so don't hold me to it but it's mind-boggling, it's up to like, what is it, Michael, 65 percent?

COMMISSIONER SMITH: I don't know.

COMMISSIONER SCHECK: Some ridiculous crazy number. You know, when you start collecting all this data, you know, disproportionately, it's scary.

COMMISSIONER SMITH: The lifetime chances of arrest, for example --

COMMISSIONER SCHECK: We're going to have huge databases, I guess is what I'm really trying to say.

COMMISSIONER SMITH: Approaching all-inclusive for some parts of the city. All right.

CHIEF JUSTICE ABRAHAMSON: Okay. Next topic. Mike, you want to talk about something else?

COMMISSIONER SMITH: No, no. I mean, I think I'm going to spend the better part, the rest of my life talking about it, if these meetings are any indication, you know, I don't have any --

COMMISSIONER REILLY: I'm feeling inadequate now.

CHIEF JUSTICE ABRAHAMSON: No, no. I just wanted to know if there were any other topics you were to point to.

COMMISSIONER SMITH: No. I feel full on topics.

CHIEF JUSTICE ABRAHAMSON: Well --

COMMISSIONER SMITH: Well, I'll circulate that first report I mentioned and then at the next meeting of this Commission, in preparation for it, we hope to circulate this document that I just described.

COMMISSIONER THOMA: And we will have had another Working Group --

COMMISSIONER SMITH: I hope to have one in early November and perhaps another one before the next Commission meeting.

CHIEF JUSTICE ABRAHAMSON: Now, you indicated in your comments that you'll have more on sample retention but is there more discussion on that issue there in light of this morning's discussion, in light of Mike Smith's discussion, or am I wrong?

COMMISSIONER SMITH: I think that my point to you I think is, really had to do with I think this issue comes back in sharper focus, after we were able to give you our report that I just described because I do think it bears on sample retention for the reasons we just discussed. It cuts both ways.

COMMISSIONER THOMA: And we've noted, if I may --

CHIEF JUSTICE ABRAHAMSON: Yeah, go ahead.

COMMISSIONER THOMA: -- within the Working Group how often our particular issues are as a result of other working groups. And in fact, Jim, your report actually just brought up something to my mind with the use of what we have is junk DNA.

And I guess the difference between junk and garbage is junk we just haven't figured out a use for it yet and garbage is something that will never be used.

But, I think it cuts to a reason for non-sample retention at some point and I think we're talking about ten or 20 years or whatever because we really just want it for identification purposes.

I know we'll go back to the table with this but, and if you keep it, even though it's junk DNA now, there may be a time when it no longer is, so.

COMMISSIONER SCHECK: I mean, actually, the one thing I forgot to mention also Mike, well, I don't know if you've been -- the first place that this will come in I think is at the sentencing phase in criminal cases where, or one of the first, where arguments are going to be made that there's genetic predispositions to different, to alcoholism, drug addiction, violence.

COMMISSIONER SMITH: That depends on whether the prosecution or the defense will advance the argument but --

COMMISSIONER SCHECK: Well, I think the defense, if I had a bet, I'd say the defense is going to be the first. I've already seen that.

COMMISSIONER SMITH: We've got some intentions here, I think.

COMMISSIONER SCHECK: Right, but either way, I mean, it's a, but I guess the whole point of this concern about sample retention is, is that it's going to be first put forward as a benign purpose. That's how it's going to first come in. And it's, it's here a lot faster than you think.

COMMISSIONER SMITH: Well, this morning's discussion helped, I think, because it sort of put into I think a sharper and better perspective the element of this, which involves trust, not for its own sake but instrumentally, that is, without the trust there's things that are going to be hard to do.

And so we need to sort of look at that in one piece; otherwise, we can't decide whether or not it's worth the cost of a more complicated, technological future, because of the trust that might engender and the law enforcement advantages that would follow. I don't know. We got to talk about it in those terms, I think.

COMMISSIONER GAHN: You know, and I want to go back to another issue. I seem to harp on this. Maybe it's just having been with the sexual assault unit too long. But, you know, every time there's a sexual assault and at a time when it's probably the most traumatic time for that victim, a blood sample is taken from her, shall we say, and that's retained at your crime lab.

And that's always there, the victim's blood sample, and if we're going to talk about retention, when I hear talk maybe in the future turning to medical, diagnostic type situations, I still think we've got to call in more the victim advocates in this. Can this have a chilling effect on reporting sexual assault? If my blood sample's going to be taken, what's it going to be used for in the future, where is it going? And these are, that's another dimension, another issue that we have to address.

COMMISSIONER SMITH: You know, the crime scene evidence retention also has some of these problems in it.

COMMISSIONER SCHECK: And that's why frankly I don't think anybody that is saying let's destroy the samples is saying it in a way that, obviously we want to be able to convert everybody to this STR technology and not get in the way of it in a state like Wisconsin or anywhere, I mean, you know, but there are trade-offs here.

And, you know, the hardest thing, if I were sitting in the position of somebody that's, you know, trying to get somebody to test the 450,000 backlog samples and the one million owed samples, I don't want anybody screwing around with me right now.

But, in the long-term I don't think you're going to get the money unless we can really give it a clean answer to people. We can tell you exactly why. You don't have to worry about anybody doing any strange things with your blood because you ain't here anymore.

COMMISSIONER BASHINSKI: Or because you have a statute against --

COMMISSIONER SCHECK: Yeah. We have a felony statute.

COMMISSIONER BASHINSKI: We have to remove any evidence samples or any other samples we test in the case. Once a case has been solved and it's been determined that that sample didn't have anything to do with the case, we cannot have it in your databank. So if we have a piece of evidence that turns out to be, you know, we've already identified the suspect, this is irrelevant, that profile cannot go into the databank.

You can solve it in ways other -- what I'm trying to say -- than destroying the sample but you have to identify all the risks and if the victim sample is one of them, that needs to be part of the list of things that needs to be looked at as to what do you do with that information.

CHIEF JUSTICE ABRAHAMSON: And I think that again, Barry and Chief Sanders and others here have set forth this balance. I have a sense that you will differ as to how that balance will be made but we'll continue discussing that and see these differences.

COMMISSIONER SMITH: They came slightly closer together today.

CHIEF JUSTICE ABRAHAMSON: Did you think that?

COMMISSIONER SMITH: Yeah. They're still on the opposite sides of the room but it's the same --

COMMISSIONER SANDERS: Well, I mean, some vote on it because they may sit side by side, too.

COMMISSIONER SMITH: You're a mixed sample over there.

COMMISSIONER BASHINSKI: That's an interesting lineup over there.

COMMISSIONER SCHECK: I don't think that there's, there's, the differences shouldn't be that great but I will say you will not solve this problem politically or even ethically as far as I'm concerned by saying we have a statute on the books that says unauthorized access is a felony because tomorrow somebody is going to redefine what authorization is and use it for -- that's going to be the spectre. You'll never answer that question unless you eliminate the ability to test the whole genome. It is different than a fingerprint. You can't overlook that.

Now, as to exactly how long they should be kept, I mean, you know, we don't want to stand in the way of the technology for practical purposes being advanced but there is ultimately going to be some kind of trade-off.

CHIEF JUSTICE ABRAHAMSON: And my sense is that there will be a discussion of those trade-offs --

COMMISSIONER SCHECK: Right.

CHIEF JUSTICE ABRAHAMSON: -- and see how close we can get to a consensus and if not, that's okay, too, as long as the issues are set forth. As I see it, I don't think it's going to be solved today but I think the discussion is good.

COMMISSIONER SCHECK: Well, I think that, I mean, I may be crazy about this but just as there was a kind of consensus eventually on whether or not we ought to take samples from people at arrest, right, I think rational self interest can reach some kind of a compromise here. Because the one thing that this Commission is focused on in a very useful way and it is Dr. Crow, I guess you were saying, that, you know, the STRs in here in your judgment by the time we get in there for ten years.

Now, that doesn't mean we aren't going to use additional other things for other purposes but, but, you know, it's going to cost a fortune. And, you know, we need every, if you want to use this in a way that reassures the public, you're going to need every basis for reassuring them and every kind of political --

COMMISSIONER SMITH: But not every. The point is, the exact point is it's almost time for it and your answer seems to be the opposite, that is, nobody, in this particular tension you can't go all the way in one direction or the other and get either side to its maximum position.

I mean, the maximum position for both sides is resolution that maximizes within that conflict and tension both. I mean, it just seems to me obvious that every precaution is at least one precaution too many for getting the public safety benefit where we could have it with reasonable protections of privacy. And so we just have to work that balance more carefully.

COMMISSIONER SCHECK: Well, I guess what concerns me is this. When you go back and you, it depends on how long you -- where did Phil go, unfortunately -- it depends on how long you've been looking at this.

What really annoyed me, and somebody who is in favor of use of these databanks for investigative purposes and for exonerating people is that when we had all these statutes passed over the last six or seven years, what would go on in state legislatures is they go, oh, oh, here's a DNA databank, oh, that's a magic bullet, let's pass that statute.

And, they never put any money into the labs to do DNA typing on the casework so they would have sufficient capacity to deal with it and created all these backlogs.

Very little thought or rational planning went into this and created a very unfortunate situation from both the laboratories and law enforcement in effectively promoting this technology.

Now, what I find, for example, when this issue was discussed in public, is that you get into any, you know, my police commissioner, who again I have to cop to, you know, setting him off on the whole potential for this but he gets on television, he says, well, you know, the problem is with these federal people, they just don't have, they won't cut through the bureaucracy and get to the bottom of it. We can do all of this.

Let's take it from arrest. And that becomes the issue. The next big issue will be shall we take DNA from people at arrest, is that constitutional, unconstitutional, ethical, unethical and lost in the shuffle will be the real important applications of it.

So, it seems to me you just have to find a way of taking some steps that are farsighted that will eliminate attacks upon the technology before they're made. You can eliminate a lot of these problems at some cost.

CHIEF JUSTICE ABRAHAMSON: Well, we shall see. We shall see what the cost will be and where we'll reach a consensus. Anything else?

DIRECTOR ASPLEN: May I ask a couple questions?

CHIEF JUSTICE ABRAHAMSON: Sure.

DIRECTOR ASPLEN: I find myself in the need for some direction as to how to get to us that point. How, what is the plan from here to get us to some kind of consensus; what, who do we need to hear from if anyone else, how do we need to proceed. Let me ask this question first.

Is there a general consensus that we seem to be working towards an idea of restricting research provisions providing kind of a criminal sanctions on a more universal basis for misuse and some finite period of retention? Not holding anyone to that.

COMMISSIONER SMITH: There seems to be a desire to do that but we haven't established that we can do it.

DIRECTOR ASPLEN: Okay. But, for in terms of a general framework, recognizing that we can throw that framework out if we so choose. Does that work?

CHIEF JUSTICE ABRAHAMSON: And I think the other thing that was on the table was where should this be left, in the private lab, in the public lab, in the police department, law enforcement courts, wherever.

COMMISSIONER SMITH: Well we put, I don't know, Chris, what else may happen with that but did we not put a recommendation forward that wherever retention is, it oughtn't to be outside of government's hands.

DIRECTOR ASPLEN: Yes, yes, that was --

COMMISSIONER SMITH: We already did that one.

DIRECTOR ASPLEN: That was the first issue which the Legal Issues --

COMMISSIONER SANDERS: Also the thing about the provision about prohibitive research.

DIRECTOR ASPLEN: Yeah.

COMMISSIONER SMITH: So we'll come back with more on that --

COMMISSIONER SCHECK: Yeah, I don't think that there's much disagreement that, you know, we want to define it pretty much the way it was defined originally in the 1992, it's 1992 act, right, you know, that forensic identification purposes for linkage to a crime scene or identification of dead bodies.

I mean, that language is there. It's in a number of statutes. We can make recommendations about how to keep it. We've thought that problem through in many states. We do bar codes and we put the blood one place and the pattern another and we can make suggested ways of doing it but the ultimate, the nut-crunching question, you know, and we can limit, so, you know, the research purposes, or eliminate them other than validation for, you know, databanks that Dr. Crow is going to eliminate because we'll just add more loci and it's a good idea.

But, the bottom line is going to be, you know, can we reach a consensus on defining a way, I mean, I think that what the group would say is, well, if you could, we could get a consensus.

If you could say we'll retain it until such time as you have switched to your technology that you can use for some substantial period and then you can't hold it indefinitely, you got to put a reasonable period of years on that. I think that may be a --

DIRECTOR ASPLEN: Not trying to address the issue of how long, let me ask this. Professor Smith, do you feel, have we addressed the public trust question enough? And if not --

COMMISSIONER SMITH: Today, I'm finished for today on that question but I don't think --

DIRECTOR ASPLEN: I don't mean today. I mean, where do we go from here?

COMMISSIONER SMITH: We want to come back, our Working Group with your permission will come back with a more carefully thought through and presented set of observations and arguments about that.

I mean, one of the things we didn't talk about much today although it was referenced today in a more useful way is that the cultural and historical roots of distrust, sort of have to notice what they are in order to try and figure out how plausible any particular strategy we're dealing with.

And, you know, Dorothy Nell has sort of been helping us put together a presentation that the Commission itself might find useful because it's not all irrational stuff. So, we think that the Commission needs more material. That's why we're working to provide some --

COMMISSIONER SCHECK: If I could make a request around that. I did an Internet search. I mean, one thing that we, I know Dorothy's work and I know the cultural entities but I would sure like to try to find more of these people that are doing the behavioral, and I don't mean to denigrate them, I mean, I have noticed in the literature that there were a lot of work in this area.

The Journal of Human Behavior is one that I was looking through just on Internet search and I saw them, you know, linking certain loci and get some of those people so they're before us and we see these people are not, you know, it's not doctor --

COMMISSIONER CROW: Not ogres.

COMMISSIONER SCHECK: You know, somebody that's doing some serious work, you know, or outsiders or some kind of person that's in this field --

CHIEF JUSTICE ABRAHAMSON: Into the microphone.

COMMISSIONER SCHECK: -- to see what the uses are.

COMMISSIONER SMITH: Well, Dr. Crow and I have been talking a little bit about some other, some form of a joint endeavor between our committees to take a look at this particular question, I think.

DIRECTOR ASPLEN: Also in response to your concern I have asked and have been told that we will receive before the next Commission meeting a report from the ACLU, which we have asked them to produce, which would outline either actual examples of inappropriate database misuse and that kind of thing or what they would list as the potential misuses.

They have had a busy summer and as such couldn't get it ready for this meeting but we certainly thought that they would be one of the more vigilant pursuers of that issue. So, we anticipate that we will have something to kind of really hit, you know, hit that trust issue head on.

COMMISSIONER GAHN: And one last, something which we also haven't addressed, and I think it's sort of a practical question, and it's this. I don't know what other states, we take buckle-buchal swabs, we call them that in Wisconsin. We don't know whether you say, buckle or buchal, so we call them buckle-buchal.

And what you do is, but, you know, we have done our RFLP for our databank. Sometimes many of the samples have to be sent back, they've been outsourced, they've been frozen and unfrozen on many times. Now we're going to do PCR. There may be some technology in the future. Well, how much, how often can you go back to this buckle-buchal swab?

COMMISSIONER SMITH: At least twice apparently.

COMMISSIONER GAHN: But 50 years from now after it's been frozen, unfrozen, I mean, is there estimates, ideas and how good is this sample even going to be when we talk retention and it will be used up maybe at some point, should we be taking more swabs now in the event we want them 50 years down the road, maybe take eight swabs from -- I mean, this is another question I think we should look at.

COMMISSIONER BASHINSKI: We don't have 50-year-old samples but we have 15-year-old samples, and they're quite typeable, assuming that they're collected properly in the first place. I don't think that's going to be the limiting factor.

CHIEF JUSTICE ABRAHAMSON: Now, you asked, what direction are we thinking in terms of this Working Group coming back with a definite proposal on retention?

DIRECTOR ASPLEN: My question really goes towards what resources do we need to get either the Working Group or the Commission before them by way of research, by way of particular individuals, groups represented.

COMMISSIONER SMITH: Then I didn't, I mean, we have to look at the past and I didn't but yes, I think it would be good, given our working group's discussions if we could encourage representation from communities that have historical interests that, in trust, in a mistrust, right, has historical mistrust of government with respect to genetic and medical matters.

And I'm thinking particularly, though I may be ignorant of others, of African-American communities where a basis for distrust is historically rooted. And I just think that would be useful to discuss not the ACLU but NAACP or some other set of organizations that can talk with some authority on this question.

CHIEF JUSTICE ABRAHAMSON: Jeff?

COMMISSIONER THOMA: Well, I can say that I think Brian Stevenson can make himself available, among others, on this issue. I think I can speak for Brian as a friend of his because it's a crucial enough issue to him that he make himself available either to a Working Group or to the full Commission and I'm sure if, if he needs additional help, he would be able to give us some recommendations.

COMMISSIONER SMITH: And secondly, as you already, you are doing this now, we, because of this sort of opening up, we're having a series of empirical questions arise on which we could greatly benefit from staff help but then staff help is being provided so maybe that's just a way of acknowledging that you're doing that for us and we appreciate it.

DIRECTOR ASPLEN: You're welcome.

CHIEF JUSTICE ABRAHAMSON: Woody?

COMMISSIONER CLARKE: Actually, I think it would be helpful, and I think I mentioned this at the meeting in Boston, that human genetic societies -- and I know Dr. Doctor Crow can help with that -- are examining this question from their perspective as well. So it might be helpful to hear from someone from one of those organizations and someone from the medical profession as well because these are storages of a lot of samples in a different context but I think it would be helpful for us to know what steps, if any, they're taking to deal with what's certainly a related issue.

COMMISSIONER SCHECK: Actually, what Mr. Callaghan suggested, Dr. Callaghan suggested about the robotics, that, in other words, if you are going to save them and you figure that in five years or whatever, you know, we're going to switch to a new technology, he was saying you really should save them in a particular way that's different than the way we're saving them now so that robotics could cut the costs.

DR. BASHINSKI : Well, a lot of labs are because what they're doing is extracting the DNA and keeping it in format that it can just be applied to the next technology. I don't think that's unusual.

CHIEF JUSTICE ABRAHAMSON: We need the information on that so that it's part of our basis and underlying assumptions.

COMMISSIONER SMITH: That's right. These are the more practical aspects of retention. We haven't spent as much time on this, these other things.

CHIEF JUSTICE ABRAHAMSON: That's good. Jim Crow.

COMMISSIONER CROW: Two things. There is a society of --

CHIEF JUSTICE ABRAHAMSON: Would you use the microphone, please.

COMMISSIONER CROW: There is a society of clinical geneticists and they have an ethical subcommittee. I think Bill Bradley's on it and knows a lot about it. That would be, it would be a group that could provide some of the kind of input that's been asked for here.

COMMISSIONER THOMA: And he's in our Working Group.

CHIEF JUSTICE ABRAHAMSON: Right. Judge Reinstein?

COMMISSIONER REINSTEIN: I don't know whether it was when I was out but the human genome project has the ethical, legal and social implications on division of the genome project. I think it's headed by Dr. Dandrel (phonetic) but I'm not exactly sure if he's the actual head of it. And they might be somebody to look to because I know that they have gone into these issues as well.

CHIEF JUSTICE ABRAHAMSON: Chief Sanders?

COMMISSIONER SANDERS: I guess I was just thinking that, it seems to me like the two head-butters are the practitioners and those that are concerned about privacy rates or the perceived fear of what, the misuse of this, this stuff.

So, I mean I don't know who could bring additional information that would help me make up my mind as to how I would vote on it when it finally comes to a vote.

I mean, I don't know how we can get evaluated information, to do what Barry was saying yesterday. If I could get my mind around whether the benefit to be gained by retaining them outweighs the benefit of even having to deal with this issue, that's the difficult part for me.

But, it seems to me that I have not even heard articulated other reasons other than they need to keep it to practitioners. I certainly don't know anything about it and if the practitioners tell me that's what they need, then I would think that's what they need but I don't know what to suggest.

COMMISSIONER SMITH: Don't you trust me?

COMMISSIONER SANDERS: Huh? Oh, I think there's a lot more trust in our society than you guys seem to, I don't know what you guys are studying but --

COMMISSIONER SMITH: No, I think there is a lot.

COMMISSIONER SANDERS: You need to be in Frankfort, Illinois.

COMMISSIONER SMITH: I think we have to trust. That's the point.

COMMISSIONER SANDERS: I think that's what it is. I'm just shielded. I live in Frankfort, Illinois. It's a great place to live and people trust us and we all get along and work out different problems. We have community-oriented policing in that we work together to solve problems. So, therefore, there would be this open debate but I don't think they would be as scared as some of us perceive.

So it's difficult for me, I mean, and I admit that freely. I have not been scarred as much, I guess, so that I don't see it. But I've not lived in an African community in the inner city either, so, I mean, and I certainly recognize that that perspective might be different. It's just that it's difficult for me to try to weigh what's in the best interest of everybody when you get into that.

COMMISSIONER SCHECK: I'm just curious, what would your officers say if you collected a blood sample from each of them and kept it there and the justification for it was we're doing this because like we need elimination fingerprints, we fingerprint you, we're now taking your blood?

COMMISSIONER SANDERS: Well, I think the majority of officers would be just like there are, we have a mandatory random drug testing but our union voluntarily agreed to put it in the contract as well. So, we're probably not a good example. They, they would be pretty open and free if it helps us do our job and showed that we got nothing to hide and we're not going to misuse it, they would be supportive of it. That's how they are with the drug testing but I don't know, I couldn't speak for them.

COMMISSIONER CROW: Would the public be more accepting of the use of DNA if it were known that law enforcement officers had volunteered their own DNA to a pool?

COMMISSIONER SANDERS: I'll certainly be the first to volunteer to give mine. You can take it right now if you like in a buchal-buckle or whatever. Do it twice.

COMMISSIONER SCHECK: Actually, I mean, there have been instances where police officers have gotten very upset because, I mean, they didn't want their blood taken for these purposes, even for elimination. So, because, I mean, and I frankly think that law enforcement officials would be among the first that they would do screening for susceptibility to certain personality disorders.

COMMISSIONER SANDERS: You know, when you get into those kind of discussions, though, some of that stuff is going to come no matter what. How do we get to the DNA that we got now? Somebody's doing research, this, that and the other.

COMMISSIONER SCHECK: I think it came out wrong.

COMMISSIONER SANDERS: I guess what I'm thinking is, is we're talking about for identification purposes and the things that we're talking about, that's why I don't have a big problem of, if they say they have to keep it in, fine; if they say that in 15 years they don't need it, that's fine.

It's a whole different thing as to what I can envision a lot of things that down the road we would be able to use it for that would make our particular jobs easier. I don't imagine that happening, I mean, but that's a societal question that I don't think is relevant just to DNA.

I mean, I think that's just how society perceives it. And the scare that went up when they did all that stuff about cloning, I mean, I think that all comes into play in what people believe and how the media plays it as well.

CHIEF JUSTICE ABRAHAMSON: And that's going to be the balance as to, one of the balances --

COMMISSIONER SANDERS: I think so.

CHIEF JUSTICE ABRAHAMSON: -- on retention as to saleability with the public, then with the legislature.

COMMISSIONER SANDERS: You should visit me in Frankfort, Ma'am.

CHIEF JUSTICE ABRAHAMSON: I'm going to come on down.

COMMISSIONER SANDERS: Yeah.

CHIEF JUSTICE ABRAHAMSON: Sounds like a wonderful part of the world.

COMMISSIONER SANDERS: It is. It really is.

CHIEF JUSTICE ABRAHAMSON: It's like that in Madison, too.

COMMISSIONER SANDERS: Yeah.

COMMISSIONER SMITH: We sample right at the border of town.

CHIEF JUSTICE ABRAHAMSON: Okay. Chris, anything else?

COMMISSIONER CROW: What have we done wrong to get through early?

COMMISSIONER SANDERS: Actually, they put Smith on the agenda. Mike wasn't ready to talk, that's all.

DIRECTOR ASPLEN: I would have just a few miscellaneous.

CHIEF JUSTICE ABRAHAMSON: Go ahead.

DIRECTOR ASPLEN: First of all, check out our Web site. The Web site for the Commission is really neat because what we have done, thanks to the efforts of Ms. Wilson, who is walking towards me for some reason, and, our, and Dan Tompkins, who you have met before, we now are beginning to put collages of photographs of the Commissioners on the transcript pages. So now when you click on the transcripts, there's a collage of pictures. And then we have actually embedded a few in the transcript itself so when you pull up a transcript as someone's speaking oftentimes you'll see a photograph of the person there.

So it's really neat. It's very interesting and we think it's, the more interesting we make it, the more I think readily people will use it and be inclined to come back to it. And as, you know, the gentleman asked yesterday who is still here today, you know, what are we doing to inform the public, we're trying to make it an attractive proposition for them to get involved with also. So, I would encourage you to do that.

CHIEF JUSTICE ABRAHAMSON: It's, let's see, is it OJP, is that it?

DIRECTOR ASPLEN: Yeah, if you go to WWW.OJP.USDOJ.GOV/NIJ and then DNA, you'll go directly to it. If you look up the DNA Commission under any search engine, it will come up under that also.

In terms of the lab funding, which we didn't talk about today or yesterday, we don't, I don't think we need to have a full-blown discussion about it and originally had intended not to. But one, just to kind of give you an update on that, what we're considering doing is taking a report that you have already received, which provides some details on different pilot programs, different options on how to coordinate court systems and sheriffs and police departments and such on sample collection and combining that with a recommendation that Woody Clarke wrote up, which is similar to the recommendations that we've already furnished to the Attorney General in style.

However, upon kind of rethinking our approach to that, one of the things that we thought of was that this is the kind of document that would be of benefit going not just to the Attorney General for quote-unquote federal funding, asking money for pilot programs, but rather is something that should be crafted and more importantly should be distributed to the individual states also to make them aware of the problem, to send it to the various components in the states and in the counties and such to make them aware of not just the problem but some potential solutions also and also maybe create a tool that would be of benefit when those systems or those communities are going to their funding agencies, be it their county commissioners, be it their state legislators, et cetera.

So, we're kind of rethinking that a little bit and starting to think about it in the context of something, not a complex document like the postconvictions and not something as simple as the brochure but something in between again that would benefit kind of a wider, a wider audience.

The only other thing I have, I think, unless someone else has anything, yeah, that's it, it looks like this. You've all received it. It's a, looks like this, and at the bottom the three points are in italics and it's under Commissioner Paul Ferrara's name.

The only other thing I have is there have been a lot of things kind of running around the table today in various and sundry ways and I haven't specifically thanked Robin for the work that she's done in getting this stuff out the door.

We work well because she works well and because she is so dedicated and so efficient, as you all know every bit as well as I do in terms of her getting back to you and things. So as always, thank you to Robin Wilson and thank you for your time. Do we have any scheduling --

CHIEF JUSTICE ABRAHAMSON: When is our next meeting, approximately?

DIRECTOR ASPLEN : We have not scheduled our next meeting. We're anticipating one before Christmas so probably the very beginning of December.

COMMISSIONER GAHN: Could you let the Commission generally know when Professor Smith's Legal Issues Working Group is meeting?

DIRECTOR ASPLEN: Yeah, we have to.

COMMISSIONER SMITH: I'm going to try, next week I'm personally, with Robin's help I'm going to try and organize one for sometime in the first two weeks of November. So, a good start to that is anybody who is interested in coming to our next meeting, let me know what your schedules look like in the first two weeks of November.

COMMISSIONER GAHN: Where might it be? Where might it be?

COMMISSIONER SMITH: Here and where you might be.

DIRECTOR ASPLEN: My guess is it will probably be in Chicago.

CHIEF JUSTICE ABRAHAMSON: I want to go to Chicago.

COMMISSIONER SMITH: The earlier in November, the better.

DIRECTOR ASPLEN: Yeah, right, we understand.

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