CHIEF JUSTICE ABRAHAMSON: Anything else to come to the group? If not, thank you all. I think we've made very good progress today. And, pardon me, well, there will be public comment and it's scheduled for 3:30 to 4.

Anyone here now who wants to, yes, thank you, do public comment, fine, but somebody will stay to hear public comment and then it will be available on the Web site, in transcript, et cetera. But, but everyone need not stay if they don't want to but I think we're required to do that. Yes, sir.

MR. DERIENZO: Sure, thank you very much. My name is Paul Derienzo, D-E-R-I-E-N-Z-O, a graduate of the University of Wisconsin, Madison, by the way.

CHIEF JUSTICE ABRAHAMSON: Good.

COMMISSIONER SMITH: Great place to live.

MR. DERIENZO: Yeah, great place to live. I loved it out there. My first question was half facetiously but I think it's important anyway to the California representative. Was O.J. Simpson's DNA sample destroyed when he was acquitted; is it still in the database or was it destroyed?

COMMISSIONER BASHINSKI: Mr. Simpson's sample was never in our database.

MR. DERIENZO: Never so but --

COMMISSIONER BASHINSKI: Samples will only get into databases where there are cases that are unsolved. And that was considered a solved case.

MR. DERIENZO: So it wouldn't be in, it wouldn't be held by the State of California at this point at all according to your laws?

COMMISSIONER BASHINSKI: It's not in the database and never was.

MR. DERIENZO: But would it still be in the possession of law enforcement or some, in the possession of a state in some, some way or another?

COMMISSIONER BASHINSKI: Probably because most evidence samples are retained, for all the reasons that you've heard in our discussions but our laboratory would not retain it because we return the samples to the agency that sent it to us.

MR. DERIENZO: Thank you. And my other question was, just to all of you, it just seems to be something that struck me and some of the technical people who I have talked to who do testing mentioned this as a problem, that what happens in a situation where a criminal sprinkles blood or fluid or replaces the saliva in their own mouth at a crime scene or when it's taken from them and what effect would that have, would DNA have in actually complicating an investigation if that happens in a way that, for example, fingerprinting couldn't? Because you can't really fake your fingerprints.

CHIEF JUSTICE ABRAHAMSON: Norm?

COMMISSIONER GAHN: I recently had a case in Milwaukee just a few weeks ago where a convicted rapist sent his semen sample from the jail to a friend and for $50 she rubbed it on herself and reported a sexual assault. And, of course, he would have been incarcerated during the time and then that sample, he engineered having that sample sent to the crime lab and, of course, it came up a perfect match with him. So it happens but --

COMMISSIONER SMITH: He was trying to establish there must be somebody else with the same profile.

COMMISSIONER GAHN: Right, yeah, he wanted to establish there was someone else with the same profile but we found the victim and she told us, you know, what was up. But, we have ways of dealing with that and I think we can recognize when situations like that occur.

MR. DERIENZO: Because I know that there's magazines, for example, that you can buy at a newsstand right down the street that have advertisements for buying freeze-dried, drug-free urine and people use that all the time in order to beat a drug test, for example. And, so, would there not be a market now in blood fluids in capsules that you could buy over the Internet or from a magazine?

CHIEF JUSTICE ABRAHAMSON: Dr. Crow will talk.

COMMISSIONER CROW: There might be a market for a cocktail of a mixture of all sorts of DNA that could be scattered at a crime scene and confuse the investigation.

MR. DERIENZO: And I guess going back to my ultimate question, isn't that, doesn't DNA evidence under that, in that use actually complicate an investigation rather than make it easier to solve it?

COMMISSIONER CROW: It would be possible to complicate it but I think it would also be possible to solve it.

DIRECTOR ASPLEN: We did talk about that at a prior meeting of Dr. Crow's group. And the bottom line is you kind of get back to the fact that DNA is one tool among many tools. And we were solving cases long before DNA came along and in a situation that Dr. Crow explains where you would have a whole bunch of DNA in one area, you look at it and you go, well, this isn't an option, this is clearly, you know, something to throw us off track so let's move on to what we already know how to do.

CHIEF JUSTICE ABRAHAMSON: Terry, do you want to add to that?

COMMISSIONER GAINER: No, I think actually I would just affirm both those things. It is, you have to remember it is but a tool and it doesn't speak for itself and it would be, you just have to take it into consideration in your investigative process.

MR. DERIENZO: And my last question since I slay the criminals, let me throw this one at law enforcement. When officers -- and the O.J. case I guess is a good example -- go into a crime scene and because of a lot of reasons, their own social background as well as how the crime scene looks, become convinced immediately who they think they know who did the crime and that influences the way they collect the sample so that, and this could be whether DNA, fingerprints or any other forensic evidence, it tends to fulfill their belief that this person is guilty.

COMMISSIONER GAINER: If they did that, that would be poor investigative practices. And that's, again, you're hitting, that could be done, that closed mind could work in any area of evidence we're picking up or interviews or interrogations or anything else and it's just something you train against and have audits to ensure that it doesn't happen.

COMMISSIONER CLARKE: And it didn't happen, either, having gotten involved in that fairly closely. That was a very thoroughly investigated crime scene.

MR. DERIENZO: And that just brings me to one more question. I'm sorry to hold you because I know it's been a very long day. Something that was brought up earlier just came back to me about how technically because of the high arrest rates -- I think Barry Scheck brought it up, I wish he was here -- because of the high arrest rates in inner city areas you can get a huge propensity of African-American young males in your database.

And I know you have discussed that but it's a concern of mine and I think a lot of people out there that considering that, you know, some of the problems we have had in this country, with, you know, integration and segregation and racism that, that something like that could be dangerous. And not to say that any of you folks, of course, would have, would use it in any bad way but it concerns me because a lot of people really are very, still very racist in this society and that these kind of databases could be used in a very scary sort of way. And I think there might be some concern about that.

And you have even admitted that the propensity, the tendency would be for certain racial and ethnic groups who are perceived as more akin to be committing crime but basically because they're just in a certain area where there's more police activity.

For example, you don't have people knocking down doors in suburban areas on drug busts and you have some felonies, a lot of felonies, drug felonies might wind up in databases and you won't have white, European, Caucasian people in these databases but who are just, who use drugs just as much, for example, but you will have poor people and African-American people and Hispanic people, a larger propensity of them in these databases. And it seems scary to me. And I just want to leave that as a comment. Thank you.

COMMISSIONER SMITH: What I was trying to say and perhaps didn't well is that that's, that's one of the central concerns for the Legal Issues Working Group in crafting a report for this Commission to help us consider it. We'll be trying to talk about that.

CHIEF JUSTICE ABRAHAMSON: Is there any other public comment at the moment? Well, then we do stand adjourned and there will be a group that will wait for the 3:30 to 4 time period so that if people want to come, they will be available, we will be available; otherwise, we're adjourned except for public comment. We will reconvene.

(Conference adjourned at 4 p.m.)

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