3 CHIEF JUSTICE ABRAHAMSON: Today we are going to
4 hear from the Legal Issues Working Group on their report,
5 "Forensic DNA Typing: Selected Legal Issues." The group is
6 Michael Smith, chair, David Kaye, reporter, Edward
7 Imwinkelried, Dorothy Nelkin, Phil Reilly, Rockne Harmon,
8 and Jeffrey Thoma.
9 MS. FORMAN: Do you want to do CODIS first?
10 CHIEF JUSTICE ABRAHAMSON: Michael, I am going to
11 hold a minute. I had forgotten that we had put you over.
12 Go ahead. CODIS. I apologize, Lisa.
13 MS. FORMAN: I will make this fairly brief because
14 I have spoken with many people on the Commission about this
15 already.
16 For the record, we received $15 million to help
17 reduce the CODIS backlog. We were assured of that
18 appropriation on December 27, because we had two continuing
19 resolutions or more. We have been working very diligently
20 on the solicitation to distribute this money and start
21 analyzing samples.
22 We decided that the main goal of that $15 million
23 this year was to analyze as many convicted offender samples
24 as absolutely possible and get as many hits as absolutely
25 possible within this fiscal year.
1 Because of our experience with the Laboratory
2 Improvement program and the difficulties that some states
3 have in getting that money filtered through their own
4 bureaucratic systems and getting things up and running, we
5 decided that we would take a one-size-fits-all
6 across-the-board approach, and based on the recommendation
7 of this Commission and our own thoughts on the matter, we
8 have decided that this $15 million will be spent only on
9 outsourcing.
10 There is still room for modification. We welcome
11 all input. But we have less than a two-week period to
12 finish this part up.
13 We will have two solicitations. One solicitation
14 will be to outsourcing vendors and the other solicitation,
15 which will appear later, will be to the public DNA
16 laboratories.
17 For the outsourcing vendors we will have two parts
18 to that solicitation. We will have laboratories that can
19 apply who can do high throughput analysis, whose labs are
20 ready at the moment the solicitation is tendered to us to
21 analyze between 120,000 to 250,000 samples per year.
22 We are also offering a quality assurance component
23 to the solicitation. So laboratories may bid for the
24 process of analyzing about 5 percent of the convicted
25 offender samples. These would be smaller laboratories, and
1 their minimums and maximums are estimated at this point to
2 be not less than 12,000 samples a year and not more than
3 25,000.
4 So we are looking for two different kinds of
5 laboratories, high throughput laboratories and small custom
6 laboratories, in order to fulfill this work.
7 We are requiring that all 13 CODIS loci and the
8 gender probes be applied to all of the offender samples. We
9 are requiring that only platforms that have been validated
10 by the forensic community be used in these analyses.
11 We are requiring the usual kinds of things that
12 you see in RFPs, like 30-day turnaround time; you pay for
13 mailing. All of the kinds of things that make it difficult
14 for laboratories to apply for these RFPs, but in fact they
15 do.
16 We expect that we will find three or four
17 laboratories that will meet these criteria. There will be
18 pre-award audits; there will be post-award surprise audits
19 as well. We will have included in our pre-award auditing
20 team a member from the Inspector General's office who has
21 already been auditing the CODIS program and who has agreed
22 to assist us in this matter.
23 When the laboratories have been awarded, then the
24 public laboratories will be able to identify to us through
25 their solicitation process how many samples they have in
1 house already collected on convicted offenders, which
2 laboratory they would like to use of the laboratories that
3 we can supply them with.
4 When we have all those numbers, we will be able to
5 decide an apportion of how many convicted offender samples
6 we will be able to analyze across the board. Everyone will
7 receive the same percentage of samples to be analyzed. If
8 one laboratory has 1,000 samples and another laboratory has
9 20,000 samples, we may be able to meet 78 percent of their
10 need, or 38 percent of their need, but everyone will get the
11 same percentage across the board.
12 In exchange for the vouchers that they will
13 receive for doing these high throughput analyses, and some
14 laboratories may opt to do the quality assurance component
15 as well, we are requiring that the public laboratories
16 respond by performing 2.5 percent of the amount of samples
17 that they are allowed to outsource in un-sub cases. There
18 is a carrot: you get your samples done; there is a stick:
19 you perform un-sub case work.
20 That is sort of the basis of the program as it
21 stands right now.
22 Barry.
23 MR. SCHECK: At some point you told us about
24 postconviction cases and whether a public lab could take any
25 of this money and use it in a postconviction case or at one
1 point there was some prohibition that they couldn't?
2 MS. FORMAN: In order for us to maximize our input
3 into the convicted offender database and our hits upon that
4 database we are trying to make this as streamlined as
5 possible. We are requiring that laboratories perform un-sub
6 case work. If you can convince us that part of that un-sub
7 case work would be something that might be associated with
8 one of your cases, that would be fine, but at this point we
9 are requiring that they perform un-sub case work.
10 I should tell you that I presented this at the
11 SWGDAM meeting last week to laboratory directors. There was
12 some concern on their part about their ability to perform
13 2.5 percent un-sub case work compared to the number of
14 samples that they had in their freezer for unconvicted
15 offenders.
16 One of the ideas that we talked about perhaps
17 implementing was saying that it would be 2.5 percent un-sub
18 case work that has been performed since the beginning of
19 fiscal year 2000, which is when the money became available.
20 Many of the laboratories felt that would be acceptable to
21 them, that they could meet that responsibility if they were
22 allowed to include any cases that they had done since the
23 beginning of this fiscal year.
24 CHIEF JUSTICE ABRAHAMSON: Jan.
25 MS. BASHINSKI: Have you given any thought to the
1 number of samples in that case work? That might be another
2 way, if you looked at the number of samples that they did on
3 unsolved cases.
4 MS. FORMAN: We have thought about it. Certainly
5 I recognize that this particular solicitation is going to
6 select for easy cases. Grab the vaginal swab out of the
7 rape kit and let's go. That would be all right for this
8 particular solicitation. No, we're not telling them how
9 many samples have to be in each case that they attempt. It
10 will be fine for them to do some creative development of
11 their case work.
12 CHIEF JUSTICE ABRAHAMSON: Ron.
13 MR. REINSTEIN: Do you have a ball park figure of
14 what percentage you think each public lab is going to be
15 able to do?
16 MS. FORMAN: Not yet. We know that if we use the
17 figure that we have been using in the Laboratory Working
18 Group of about $50.00 per sample and we have got $15 million
19 and every single penny of it went into doing the analysis,
20 we would only be able to do 300,000 samples, and we know
21 that there is way more than 300,000 samples. So we are
22 going to be doing some percentage, but we don't know what it
23 is yet.
24 CHIEF JUSTICE ABRAHAMSON: Paul.
25 MR. FERRARA: Two things, Lisa. It appears that
1 the $50.00 per sample estimate for 13 loci, which is
2 something we have used for estimation purposes, probably
3 should be a little bit higher, maybe 10 or 20 percent
4 higher. I have no interest in a private laboratory, but I
5 think as you develop the solicitation, in order to maintain
6 the high quality and everything like that, we ought to price
7 it. Nobody has a lot of experience in running high volume
8 of all 13 loci.
9 Secondly, the laboratories themselves, despite the
10 fact that these samples are being outsourced, there is a
11 drain on the contracting laboratory's quality assurance
12 section considerably to review, check, QA, all of the work
13 associated with the private laboratory. So I don't want to
14 ignore that. The grant probably can't address that, but
15 just for the record, there is that cost.
16 Thirdly, my governor's office required that I ask
17 this question: In a state which is already under contract
18 -- in Virginia, a three year contract; we are halfway
19 through it -- with a private laboratory to do the convicted
20 felon samples, would that state be eligible for the federal
21 funds?
22 MS. FORMAN: We are requiring that no STR analysis
23 be done on any of the convicted offender samples that are
24 outsourced by the laboratories. That state that had the
25 foresight to do all of these analyses would be able to
1 submit samples under the federal program that had not yet
2 been analyzed at all.
3 MR. FERRARA: I thank you and my governor thanks
4 you.
5 [Laughter.]
6 MS. FORMAN: There is no one size fits all for
7 this particular program. So the only thing to do is take an
8 arrow and shoot it at the target. We only have until at the
9 latest August and September to get some hits out of this
10 program. So we must move with speed, and if we try to make
11 exceptions for any particular group, it will just slow us
12 down to the point of not getting any data analyzed.
13 If we are successful in this particular endeavor,
14 we can go back to Congress and say, look at what we did.
15 Now can we please go ahead and do the rest of the backlog?
16 Would you please appropriate more money?
17 Then we will have a year under our belts, we will
18 have systems in place, and we can talk about special
19 situations with states that may be able at that point to do
20 their own high throughput analysis for the same or less
21 money than an outsourcing lab would cost.
22 We are not looking for the cheapest laboratories.
23 We are looking for laboratories who will fulfill the many,
24 many, many pages of requirements that we have listed in the
25 draft of the solicitation. We are not going for lowest
1 cost; we are going for highest quality. Our main concern is
2 the quality of the data.
3 MR. REINSTEIN: Do you have a target date for
4 making the awards?
5 MS. FORMAN: We do. I wrote it down yesterday and
6 I don't think I brought it with me. If we do not have all
7 the awards awarded by at least the end of April, it will be
8 extremely difficult for us to meet our goal.
9 CHIEF JUSTICE ABRAHAMSON: Jim.
10 MR. CROW: Give us some idea of how intense the
11 competition for these awards is. How many applications do
12 you have?
13 MS. FORMAN: We haven't put the solicitation out,
14 so we have no applications. I think Paul would probably be
15 better to answer that question.
16 MR. CROW: You can give us a rough guess.
17 MS. FORMAN: I expect that there will be between
18 16 and 20 applications for the high throughput, and I expect
19 that there will be between 5 and 10 applications for the
20 quality assurance part.
21 MR. CROW: Of those, you will award three?
22 MS. FORMAN: There will probably be three to four.
23 Both platforms will be available to the community. That
24 will be one of the criteria, that we make sure everyone has
25 access to platforms that they use.
1 MR. CROW: If you don't get all that you expect
2 and you have to cut back, do you cut back uniformly and
3 easily, or do you make a value judgment?
4 MS. FORMAN: If we have to cut back on the number
5 of samples that we can do because we don't have enough
6 laboratories? Is that the question?
7 MR. CROW: Yes.
8 MS. FORMAN: We would not cut back on anything
9 that has to do with quality. If we had to filter the
10 samples through more slowly, we would talk about that. I
11 don't think we have talked about that. I am expecting that
12 we will have an appropriate number of high quality labs.
13 MR. CROW: And one high quality lab is the same as
14 any other high quality lab.
15 MS. FORMAN: If they can meet the conditions of
16 the proposal, if they pass their pre-award audit, then they
17 should be pretty similar.
18 CHIEF JUSTICE ABRAHAMSON: Chris.
19 MR. ASPLEN: First of all, I want to commend
20 Dr. Forman and also the FBI in their efforts to get this
21 done very quickly. Obviously we are behind the eight ball
22 because of the allocation of the funding, but OST and the
23 FBI are working as quickly as they can. It's a very complex
24 process to get these solicitations out the door, but we
25 realize that unless we do it quickly, we are not going to
1 get the results back.
2 Along those lines, to the extent that we won't be
3 able to get as much result back as we would like from this
4 particular program -- Paul, it won't make your governor feel
5 any better, I imagine -- fortunately we do have examples
6 that we will use when the time comes, such as the results
7 that Paul has from Virginia, from their outsourcing
8 experience. While financially Virginia has taken on a
9 burden that they won't be reimbursed for, the value of what
10 they have done is incredible.
11 Paul faxed me this chart a while ago. In 1999
12 they had 74 hits, and that was after the outsourcing. Your
13 database is about 110,000, right?
14 MR. FERRARA: That's correct.
15 MR. ASPLEN: Which was more than every other year
16 combined?
17 MR. FERRARA: Since 1993, with a small database we
18 had a total combined of, I think, 31 hits going into 1999;
19 74 in 1999 when the database went up to over 100,000. Nine
20 of those hits came in November and 12 in December and 4 so
21 far this month. So it just jumps.
22 Of course the other side is the emphasis on
23 running no-suspect cases.
24 MR. ASPLEN: When the time comes, OST and NIJ will
25 be utilizing information like that, but also the success
1 that we have from this particular program jointly so that we
2 can make the argument again as to the value. The value is
3 clear from Virginia alone, and when we put that together
4 with Florida, et cetera, and some of the other states, we
5 can make a strong argument.
6 MS. FORMAN: As a final note, I would like to
7 especially acknowledge the work of Dawn Herkenham, who has
8 been a private consultant to the Forensic Science Systems
9 Unit of the FBI and to us on this particular development of
10 the solicitation. She has done a phenomenal job. I think
11 the way she has put this together will assure that we are
12 only receiving applications from very high quality
13 laboratories.
14 CHIEF JUSTICE ABRAHAMSON: Thank you. That is
15 very tangible evidence of the work of the Commission and I
16 think that is to be commended.
17 Okay, Michael. You have been sitting patiently.

Previous	Contents	Next
Back to National Commission Main Page