13 CHIEF JUSTICE ABRAHAMSON: I am going to cut the
14 Commission discussion for the moment because the time has
15 come for public comment. I don't want to cut off anyone who
16 is on a time frame here. Is there anyone sitting out there
17 who would like to comment now? Then we will return to the
18 Commission. Woody Clarke and Judge Reinstein and others
19 have their hands up.
20 Yes, ma'am. State your name, please, and your
21 affiliation? Do you have a microphone?
22 MS. HERD: I think I talk pretty loudly. My name
23 is Kim Herd and I work with APRI's legal assistance unit.
24 I think Chris has a very good point. We have
25 started to incorporate this type of concern into our
1 training. I think it is an excellent suggestion that we
2 continue to offer that as a reason why we need additional
3 funding, because we don't have very much funding. We have
4 about $150,000 a year to do all the training in technical
5 assistance that we do. We increased that from last year
6 from $125,000.
7 You have other programs in other areas of the law
8 that are getting an enormous amount of funding, but for
9 something as basic and as critical as DNA evidence training
10 for prosecutors there is a huge gap in the actual amount of
11 funding that we are getting. That is an area that
12 definitely needs to be worked on.
13 CHIEF JUSTICE ABRAHAMSON: Thank you.
14 Anyone else?
15 MS. CROUSE: Can I be a public person?
16 CHIEF JUSTICE ABRAHAMSON: You can be anything you
17 want. Just give me one more second. I'm going to come back
18 to public comment, but since it's four o'clock, I did want
19 to open it up in case anyone had to leave.
20 I see no other hands up and no one approaching the
21 microphone. So I will return to the Commission.
22 Go ahead.
23 MS. CROUSE: This is to Dr. Crow. I think on page
24 48 of your report you discussed an increase in the
25 sub-population frequency data for publication. One of the
1 very important issues is that the journals are really not
2 accepting these anymore. They are not considered novel;
3 they are not considered new.
4 I've talked to Bob Gaennslen about this extensively.
5 They are very difficult to review. They take an inordinate
6 amount of time. I would like to suggest that there be some
7 kind of a Web site where people can put their information on
8 there and it can be analyzed by virtually anyone that wants
9 to analyze it, and then the discussion can take place in
10 whatever forum. I was wondering if it would be possible to
11 also make that recommendation versus publication, which is
12 becoming increasingly difficult.
13 MR. CROW: One thing we said is that the Journal
14 of Forensic Science now has a new policy as of last year.
15 They have a special format for putting in data. At least
16 that is a step in the right direction.
17 I'm aware of how hard it is to get data published,
18 and this is one way, and the Web site. I'm all for both of
19 them.
20 CHIEF JUSTICE ABRAHAMSON: Woody.
21 MR. CLARKE: I was just going to underscore to
22 some extent what Cecelia brought out and what Kim Herd and
23 Chris described about prioritization. These cases that we
24 have and that we prosecute, when they get to the stage of a
25 trial it becomes a rather unique dynamic. To some extent
1 this wonderful monster that DNA has become has two edges to
2 its sword.
3 MR. CROW: Two edges is a new concept to me, but
4 go ahead.
5 MR. CLARKE: The second edge, so to speak, I think
6 it places many of us in our prosecutorial role about to try
7 a case in a position in which we have to be concerned not
8 just about proving guilt, but about showing that the
9 government did everything it could. That is particularly
10 true most commonly in the most serious cases that we try.
11 Homicide cases; forcible sex crimes, especially now that
12 they carry penalties that are so great, put them in a
13 similar if not identical category, and then ultimately
14 capital cases where I think the government is put to its
15 greatest test.
16 Day in and day out lawyers in my office who are
17 supposed to come to me for approval for DNA typing look at
18 me and they say, I agree with you. I don't expect any
19 surprises to come out of this testing. But think about what
20 you are doing when you stand up in front of that jury. Are
21 you going to leave a stone unturned? That doesn't mean they
22 need to do all 100 blood stains in a case, but they may
23 otherwise need to do testing that on its face may appear to
24 be superfluous or duplicative or whatever. That is that
25 constant tension.
1 I think the answer is, of course, we as
2 prosecutors and as crime laboratory directors and managers
3 have to step in and say no, we agree with you. We have got
4 to do these stains, but we are just not going to do the
5 others. So it's a difficult tension at times.
6 To illustrate it briefly, I have my own sex case
7 set for trial in a couple of months and I had some DNA
8 testing results that weren't very definitive. So I asked
9 myself to do further testing, and I want you to know I
10 turned myself down.
11 [Laughter.]
12 MR. CLARKE: So there is a certain amount of
13 fairness to the situation. I think it does illustrate the
14 problem, and I don't know that there is a solution to that
15 problem.
16 CHIEF JUSTICE ABRAHAMSON: Ron.
17 MR. REINSTEIN: I don't know if it's a solution.
18 I agree with what Woody says. I think it's a judicial issue
19 too. When you come to me or the defense comes to me and
20 asks for a continuance because you know how long it is going
21 to take the lab to do it, I find myself being more sensitive
22 to the lab's point of view as a judge than the prosecutor
23 is.
24 One of the things that I will say is, well, first
25 of all, are you guys going to be putting on cumulative
1 evidence? Are you going to be keeping this guy in jail for
2 a longer period than is necessary? If he gets convicted, he
3 should be in the state prison and not in the county jail.
4 If he is going to be acquitted, he should be out on the
5 streets. So these are the types of things I think a judge
6 needs to do.
7 I was telling Jeff, if I get a discovery request,
8 I may just say no. If it's the judge that has to do it,
9 that is kind of a shame. It really should be the prosecutor
10 working together with the laboratory and law enforcement.
11 One thing I would suggest. If you have a state
12 lab where you have an attorney general that represents you
13 as opposed to the local district attorney, maybe you get
14 that attorney general to represent you in this dispute and
15 have some type of a conference. That is one of the
16 suggestions I had in Arizona.
17 It's important that you recognize the cases where
18 you need more than a vaginal swab. In Milwaukee they have
19 had that discussion, and more often than not it's just a
20 vaginal swab that is necessary. When you talk about
21 cumulative evidence and continuances ad infinitum, I think a
22 judge can step in as well.
23 MR. FERRARA: Clearly more than at any time do
24 laboratories need legal counsel. I've been using our
25 attorney general's office. Fortunately we have got
1 prosecutors who understand the technology and such more than
2 the attorney general's office, but it's the attorney general
3 office's responsibility to learn to be able to assist us.
4 One quick point, if I may, Madam Chairman. We
5 have had this discussion about the priority in cases going
6 to trial. We've heard about and pointed out some of the
7 pitfalls. Keep in mind that we have not discussed yet,
8 because it hasn't gotten to that priority, the rape that
9 just took place last night where the police have no suspects
10 and the investigators are working that case. Biological
11 evidence is available. A serial rapist is out on the loose.
12 In the laboratory we are struggling with all the
13 cases that are going to trial, and the more we do and the
14 more successful we are, the more goes to trial.
15 I think one of the points of the Laboratory
16 Funding Working Group and this Commission is that we have
17 got to do something to address those investigative cases
18 before any lawyers are involved at all.
19 We give priority to court cases. We have to. But
20 there are a couple of times when I have said to my staff, in
21 effect, screw the courts, do that case. There is somebody
22 out on the loose. I'll handle the contempt citation. We'll
23 figure out something. The prosecutor can get a continuance.
24 There is some other way around this, because somebody is out
25 on the loose raping and murdering.
1 That is what was of most concern to me, and I
2 think I related to the Commission in previous meetings a
3 personal history that still pains me with regards to this
4 delay in investigations.
5 This even further compounds it. We're talking
6 about the first priority here, cases that are going to
7 trial, but leave us not forget to be successful, for DNA
8 data banks to be successful, we have got to get to the
9 situation of running crime scene evidence. At that point
10 it's usually the lab working with the investigators and no
11 one else.
12 CHIEF JUSTICE ABRAHAMSON: Thank you.
13 I've got Michael Smith, Terry Gainer, and Barry
14 Scheck.
15 Michael.
16 MR. SMITH: This point may not be of value. I
17 don't know. Listening to this conversation and remembering
18 the earlier conversation that Paul just mentioned, it
19 strikes me as a lay person that the accumulating experience
20 about how to do this, how to decide how many to test, and so
21 forth, and how to balance out the competing priorities, is
22 the accumulating wisdom being harvested and published and
23 analyzed and exposed to peer review?
24 If it's not, then the training issues, it seems to
25 me, are insurmountable. Somehow the conversation you
1 started to have here needs to be embedded in a literature
2 that is accessible to people who are trying to train others.
3 I worry. I've never seen anything written that is
4 intelligible on this subject except complaints.
5 If that doesn't exist, maybe we should suggest
6 that NIJ or somebody else start collecting this kind of
7 expertise and publishing it.
8 CHIEF JUSTICE ABRAHAMSON: Chief Gainer.
9 MR. GAINER: I want to affirm what Paul was
10 saying. I think from the law enforcement perspective it is
11 the non-suspect case that is going to present our greatest
12 opportunities, especially as we pass out these some 45,000
13 bulletins and our pamphlets and quadruple that. There is
14 substantially more evidence that is taken in cases where
15 there are no suspects. We are quickly raising the
16 expectations of our police officers and detectives that case
17 linking and analysis of that has to be done.
18 That was on my mind as I listened to both of you.
19 I think we are going to be missing something if we don't
20 address that now. Clearly a suspect who is waiting for
21 trial is very important, but let's remember, what percentage
22 of arrests do we make in cases? Given the recidivism rate,
23 we need to start working on non-suspect cases.
24 From talking with some of our crime scene people,
25 I was astounded to learn that they weren't doing gunshot
1 residue in cases. They weren't picking up blood because,
2 they said, the labs won't do them anymore, and it's just a
3 waste of time.
4 I'm saying, hey, you collect it. I'll figure out
5 how to get it analyzed, but don't you dare not collect
6 evidence because we don't know what to do it with. We are
7 in a "what to do with it" phase nationwide.
8 MS. CROUSE: Our lab has never turned down a case
9 like Paul was talking about. As a matter of fact,
10 non-suspect juvenile cases, we assign it, we drop it. It's
11 not as though we ever hang up on anyone. It's just that the
12 process can get confusing if we don't have a little bit
13 better handle, as Barry said, a coordinated effort on what
14 to do.
15 CHIEF JUSTICE ABRAHAMSON: Barry.
16 MR. SCHECK: I couldn't agree more about the
17 non-suspect cases, and you are going to get more of it,
18 which is great.
19 When it comes to the training, I think that we
20 should not make a mistake that was made eight or nine years
21 ago on how to approach this expertise. There really is a
22 right way to do this and a wrong way to do this.
23 The training should not be limited to prosecutors
24 when you are talking about how to assess crime scene
25 evidence and what kinds of DNA testing could be done on it
1 and what makes sense and what doesn't. It should be money
2 that goes to judges and defense lawyers. We all need to
3 know this.
4 I can tell you that in all the talks that I give
5 to homicide detectives, sex crimes detectives, judges or
6 defense lawyers, I give the same lecture. There is no
7 difference in terms of how to assess this. Both sides need
8 to know it, frankly. If you want to get an assessment from
9 what a defense lawyer could argue about things not done,
10 reasonably or unreasonably, then you might as well hear it.
11 In the prosecutors' lecture, I'm sure that Chris and Kim do
12 that. You wouldn't be giving a very good talk unless you
13 said this is what they may say.
14 Frankly, I think we shouldn't make the mistake
15 that was done in the past. Eight or nine years ago, when we
16 first started down the road with DNA, if on many of the
17 statistical issues or other issues we had more of an
18 eclectic or joint approach, I think there were a lot of
19 stupid fights that wouldn't have happened. The consensus
20 within the communities about how to do some of these things
21 would have been reached faster.
22 I think whatever funds the federal government has
23 might be well spent educating people in the system about
24 this issue as opposed to more narrowly focused. The defense
25 never gets money anyhow. I just throw that in.
1 [Laughter.]
2 CHIEF JUSTICE ABRAHAMSON: Jan.
3 MS. BASHINSKI: I just want to remind ourselves
4 that we are working on a couple of training initiatives.
5 One is with the police officers and the other we are talking
6 about how to look at old and cold cases.
7 It seems to me this is an element in both of those
8 types of training and potentially what is developed there.
9 Adding old and cold with what has already been developed
10 with the post-conviction analysis, we will have a wealth of
11 material to give scenarios and situations of value in
12 teaching. We ought to aim some of our development of that
13 material toward the end of gathering that stuff and using it
14 for the purposes that have been discussed here.
15 The other point is about the training for officers
16 when we talk about elimination samples. We should be
17 talking about standards as well as elimination and making
18 sure that people understand how critical it is early on that
19 that be collected. I was encouraged that we emphasized that
20 point in that particular type of training as well.
21 CHIEF JUSTICE ABRAHAMSON: Lisa would prefer to
22 talk tomorrow morning. We will start off with her. She has
23 got a form of the solicitation that she will hand out and
24 then talk from that. I think that will be good.
25 Any other comments on the Laboratory Funding
1 Working Group report?
2 Chief Gainer.
3 MR. GAINER: We raised the issue about non-suspect
4 capacity. What is the next step beyond a little bit of
5 dialogue?
6 CHIEF JUSTICE ABRAHAMSON: Chris.
7 [Laughter.]
8 CHIEF JUSTICE ABRAHAMSON: A good chair delegates.
9 MR. ASPLEN: I was sitting here thinking whether
10 or not I should pipe up and say, okay, now what? The big
11 question is, okay, we now have the information; we now have
12 the report that tells us here's the situation. The question
13 is, what do we do about it?
14 It seems to me that there are a number of ideas
15 gelling. One is the educational approach. I agree with
16 Barry. When I mentioned prosecutors, I don't mean them
17 exclusively. There needs to be made a recommendation
18 regarding education in general to the attorney general.
19 Just thinking off the top of my head, some kind of
20 coordination with the ABA or some kind of program with the
21 ABA and APRI, et cetera, et cetera.
22 Another matter that we need to address on the
23 non-suspect issue is what are the considerations that are
24 currently out there on non-suspect testing funding. I know
25 there are some. I know from some of my discussions that
1 there is some legislation pending regarding finances. I
2 don't know what we can do to discuss that or not.
3 MR. GAINER: Do we have some measure of what
4 unused capacity there is in our lab systems to absorb
5 non-suspect cases, if any? Can we do some analysis that
6 said if police start asking for 10 percent more analysis of
7 non-suspect cases, what does that do to the system, and
8 chart that out?
9 CHIEF JUSTICE ABRAHAMSON: Paul.
10 MR. FERRARA: We have been looking at just that,
11 Chief, trying to predict ahead of time. Virginia's General
12 Assembly is in session. The money committees have measures
13 from me with respect to new personnel to expand the capacity
14 in Virginia even further to do the work.
15 We have reduced our backlog successfully down from
16 over 1,000 cases to under 700. Our turnaround time is
17 coming down in the area of four months. Jan can relate to
18 us her experience and situation in California. So we are
19 definitely making progress.
20 The implementation of the technology, the
21 standardization of the technology, the more facile admission
22 of evidence, the training programs -- as experience comes we
23 are increasing our capacity. I'm to a point where I feel
24 somewhat comfortable with predicting the number of examiners
25 I need to do X number of cases.
1 What I can't predict but which needs looking into
2 are the old, cold cases that Jan alluded to. I've got
3 investigators crawling out of the woodwork as they hear the
4 successes, when we do have them, that want to submit old,
5 cold cases.
6 Then there is the proliferation of samples and the
7 use of this technology not just in violent crimes, but in
8 nonviolent crimes.
9 I'm at the point where I'm trying to ask for as
10 many positions as I can physically fit in the laboratory
11 spaces I have. I think it's going to be a long haul before
12 the laboratories ever get to the point where the capacity is
13 commensurate with the demand, plain and simple.
14 In Virginia, where we have had the program for a
15 long time and had a lot of success with it, I have vice
16 squad people submitting bongs and want us to swab the
17 mouthpiece to help them identify who smoked the bong. I
18 tell them, get out of here with that. I don't want to be
19 bothered.
20 On the other hand, I can see their point. They
21 may have a case; a major investigative lead may come out of
22 a search of the data banks. The data banks themselves are
23 just going to explode.
24 I don't know when the forensic science community
25 is ever going to be able to respond fully to the total need.
1 I think that's why this issue of priorities is going to be a
2 constant battle; communications between prosecutors,
3 investigators, the lab.
4 The lab funding group tried to even think what is
5 the cost of eliminating just the backlog of crime scene
6 evidence. There are too many variables.
7 I might point out, if I may, that New York City
8 has taken probably the first stab at actually outsourcing
9 12,000 unworked rape kits. That is a pretty remarkable
10 step. Obviously the forensic science laboratories with
11 respect to databasing need to avail themselves of capacity
12 and capabilities in the private sector. I will be
13 interested in seeing how things work in New York City. Rape
14 kits are quite a different thing than convicted felon
15 samples.
16 Forensic science laboratories are going to take
17 some time and a lot of money to develop the capacity.
18 Jan.
19 MS. BASHINSKI: We are struggling with exactly the
20 same situation in California. I've been asked, what would
21 it take to fix the problem? Of course that depends on how
22 you define the problem. As the potential increases, then
23 the potential workload increases proportionately.
24 The direct question that precipitated the answer
25 was, is there unused capacity? I would say absolutely not.
1 I think in states like ours where a lot of the burden is
2 borne by local agency crime labs as well as by the state
3 crime lab it's even worse. You have a lot of small agencies
4 who have excellent DNA programs but each one of those is
5 going to have to get additional funding in order to begin to
6 meet the demand in their own local jurisdiction.
7 MR. GAINER: We are going to need to be pretty
8 clear in our final report on what our limitations are. I
9 would submit to you with the type of CD-ROM training we are
10 doing all we are going to do is raise the expectation of a
11 police officer that somebody is going to process the
12 evidence that I am telling him to collect.
13 MR. ASPLEN: Chief, along the lines of what else
14 can we do, one of the things we have already done is passed
15 a recommendation last time for that law enforcement summit
16 for the particular reason that law enforcement needs to take
17 this issue on as their own. This non-suspect case issue and
18 things not getting done has to be theirs also.
19 To some extent, the pamphlet and the CD-ROM are
20 forcing that issue. No doubt about it. They are going to
21 force people to sit up and take notice, and it is going to
22 be an uncomfortable fit for a long time, but hopefully it
23 will get people there sooner.
24 What did IACP do at the last meeting? They passed
25 a resolution on arrestee testing. They didn't pass a
1 resolution on non-suspect testing. The resolution they
2 passed, if actually implemented, would do what the
3 Commission was fearful it would do in its last
4 recommendation.
5 A big part of the answer still goes back to law
6 enforcement taking the issue on as their own because it's a
7 matter of priorities, and when it comes up far enough on the
8 priority list, when they go to their funding sources, that's
9 also when they start to see the money for it.
10 MS. BASHINSKI: That's critical.
11 CHIEF JUSTICE ABRAHAMSON: Norm.
12 MR. GAHN: Just one point I want to make. I think
13 there is some capacity and you have to look for it at the
14 crime labs. We meet regularly with the prosecutor's office,
15 the crime lab, the police sexual unit, and the sexual
16 assault nursing examiner. You can't forget that person who
17 is drawing this evidence.
18 But I can tell you this. We approached it from
19 this standpoint. We have technology that is available to us
20 that can identify a sexual assault assailant, and we owe it
21 to the victims to utilize this technology. That's why I
22 think you saw we are issuing arrest warrants for genetic
23 codes, because we owe it to these victims. Everyone at the
24 crime lab and the sexual assault nurses have taken that as
25 their mantra: we owe it to these victims; we have this
1 available.
2 I can only tell you that in Milwaukee County if a
3 victim goes into the sexual assault center, that evidence is
4 picked up within 24 hours, taken to a crime lab, and that
5 foreign profile is taken out and it's worked on right away.
6 Somehow the crime lab found time; somehow I found time to
7 add all of this to my caseload, as did the sexual assault
8 police detectives. We now just gave each other our cell
9 phone numbers. We call each other Saturdays and Sundays.
10 But it's called your job, your devotion to duty, the oath of
11 office that you took. And it can be done. I think we are
12 doing it.
13 CHIEF JUSTICE ABRAHAMSON: When we dealt with
14 taking samples from arrestees we didn't deal with whether
15 you should or shouldn't; we just said, hey, you've got all
16 this other backlog, including non-suspect cases. So we
17 don't think it's pragmatic to get to the arrestee. We said
18 first do the offenders. That is a major issue and I think
19 it should be clearly set forth in the lab working group
20 report on how to set priorities.
21 It goes back to the issue that Michael Smith
22 raised of trying to put together information if we have it,
23 or if not, getting it, as to what is the practical
24 experience of people here on priorities in testing.
25 The other point you made, Michael, if I wrote it
1 down properly, is what materials should be tested, and to
2 what extent you should call a stop at any point.
3 MR. SMITH: It seems to me that if there is a
4 community of wisdom about this, it's not too early to share
5 it in ways that are broader than this room and this
6 discussion. Judges, for example, should be reading about
7 this, because they are going to be making rulings on
8 motions.
9 MR. SCHECK: That's why I would like to compliment
10 what Norman did on this whole issue of the statute of
11 limitations. When you look at what Norman did with those
12 warrants to extend the statutes -- and it's a good example
13 of priorities -- he didn't say let's just abolish the entire
14 statute of limitation for sexual assault crimes; he took
15 cases where it was absolutely evident from the facts that
16 they were violent sexual assaults. They weren't cases where
17 somebody could be pulled in ten years later and say this was
18 consent, and how am I going to defend, blah-blah-blah.
19 He took cases that were obviously the appropriate
20 ones. It's cost efficient. It's a better legal solution,
21 frankly, than lots of others that people would propose that
22 would wind up flooding labs, costing money, saving more
23 samples than you need.
24 It came right out of the direct practical
25 experience about what do you do about these cases and these
1 victims and the possibility of a serial offender. I think
2 that is a real good model. I would much rather see people
3 do what Norman did than try to rework the entire criminal
4 code on sexual assaults, which I guarantee is going to start
5 happening to everyone.
6 CHIEF JUSTICE ABRAHAMSON: Any other comments
7 about the Lab Funding Working Group report?
8 MR. CLARKE: Just about our working group. You
9 raised the question about what we should do. We have
10 wrestled with the question of should we try to put a number,
11 so to speak, in terms of the amount of money knowing there
12 are a number of variables involved. I might have brought up
13 that it would cost about the cost of three F-16 fighters to
14 basically take care of the existing problem. That was a
15 rough estimate.
16 I'm curious if the Commission feels that we should
17 try to do that based on the CODIS survey and the other
18 materials that we have. I don't know if the rest of the
19 working group shares the feeling. I think we can put some
20 numbers on it without a great deal of difficulty. We did go
21 through a fairly extensive process of estimating cases per
22 analyst and so forth with some attached costs. So I think
23 we are in a position where we can do that.
24 MR. THOMA: I certainly think it wouldn't hurt to
25 have that just to make our decisions as to where our
1 priorities lie.
2 MR. SCHECK: I think it's important. I get asked
3 this question constantly. I don't know how the hell you are
4 going to do it. You've already told us now that the number
5 of items submitted per case increases. We used to base it
6 on the average sexual assault case was going to be what,
7 five or six at most? Is that a real estimate? Now we are
8 talking about mitochondrial DNA testing on hairs, which are
9 going to be important in sexual assault cases, and that is
10 running a grand a hair in many places.
11 I think we have to start somewhere in terms of how
12 many unsolveds are there out there, how many old samples are
13 there, blah-blah-blah. I'd love to have a number.
14 When we talk about how much it would cost to do
15 what is an infinitesimally small number of post-conviction
16 cases that are appropriate, on the scale of things they are
17 an infinitesimally small number compared to what you are
18 talking about. I like to quote the cheapest number, so I
19 ask Lisa, as opposed to what a private lab would cost. I'd
20 love to see you try it.
21 CHIEF JUSTICE ABRAHAMSON: Any other comments on
22 this?
23 I want to thank Paul and Cecelia for a job well
24 done. We will continue this in the morning with Lisa
25 Forman.
1 Any other public comment?
2 [No response.]
3 CHIEF JUSTICE ABRAHAMSON: Seeing no one at the
4 microphone and hearing no one wanting to speak, the session
5 is closed for today.
6 [Whereupon at 4:35 p.m., the meeting was
7 adjourned, to reconvene at 9:00 a.m., Monday, January 17,
8 2000.]

Previous	Contents	Next
Back to National Commission Main Page