JUDGE REINSTEIN: Well, if you remember the last time we met, we had a lot of discussion about this and pretty much ran out of time, and Woody had indicated that he was going to try to do some suggested changes that he had discussed at the meeting and Barry also said that he was
going to submit some changes. I got Woody's changes. They're in front of you now, where it says final draft, not officially approved. The underlined sections and deletions are all Woody's suggested amendments to the draft that we had in D.C. at the last meeting.
And I didn't get anything from Barry. I looked through my notes about some comments that he had the last time and we can go through those. I thought maybe Chris could lay a little bit of ground work for us regarding what's happening with Congress with Senator Leahy's proposal, and there's also Senator Durbin's proposal, and some questions that raises as to what we do with the model statute which is, as we've always discussed, the model statute for state legislatures to consider, review, utilize in any way that they see fit. I will tell you that in my state, in Arizona, in
this legislative session there have been efforts that were led by myself and the Maricopa County Attorney's Office, and also the Arizona Prosecuting Attorney's Office to introduce legislation that pretty much mirrors the draft that we have. We've gone though a couple of iterations of it and combined that with a DNA expansion statute regarding the number of crimes that we take. We're not going to be as good as, in my view, Virginia yet, but probably in about three years. The concern was overburdening the laboratories and the like. But the postconviction statute and the DNA expansion statute have pretty much sailed through. I don't think there's been one vote in either the House or the Senate against either one. The only thing that's hanging it up right now --this is a non-budget year. They have a two-year budget cycle in Arizona, and there's a $227,000
appropriation for the Department of Public Safety laboratory for this, and that's been the hangup, not the content of either of the pieces of legislation. But, Chris, if you want to just tell what's
happening federally?
JUSTICE ABRAHAMSON: Before he does, I want to say that Superintendent Terry Hillard has come in, and welcome.
MR. ASPLEN: Thanks, Ron. There are right now pending in the Senate, there are two different bills which I believe have been supplied to you in your information. One was introduced by Senator Leahy. The other was introduced by Senator Durbin, and they both purport to establish postconviction rights, if you will, in the kinds of cases that we've been discussing. SenatorLeahy's extends to all states and convicted offenders, however, Senator Durbin's pertains t federal
offender matters. Also, Senator Leahy's bill has extensive provisions for the issue of competent counsel in death penalty cases, which obviously is not -- is something that we have gotten into. Right now, the Justice Department is considering what response it should have regarding those
particular pieces of legislation. As you can see from looking at Senator Leahy's bill, the standard -- the initial standard that establishes the right to test the evidence is a bit different than that which we state in the model legislation here. I think that it's important to point out that the model legislation that Judge Reinstein is talking about is designed as recommendations for the individual states, as model legislation for the states. It's not a commentary by act or by omission on the federal legislation. That's not before us, and I think that it should be noted that our discussion is limited just to the state recommendations. We don't -- what will ultimately happen to the Senate bills we obviously have no idea, and what course they will take, we don't know, but the commission's recommendations are heavily a part of that. You will notice that in fact, the first purpose listed under the legislation on page 8, the first purpose is to, "Substantially implement the recommendations of the National Commission on the Future of DNA Evidence in the federal-criminal justice system by ensuring the availability of DNA testing in appropriate cases." So again, the commission's work continues to go out on that level, and we'll keep you informed on that status of that particular legislation and things like whether or not it ultimately gets attached to some of the funding legislation that we'll also be talking about, funding legislation that has come up in the House, authorizations for database -- both convicted offender database and forensic index database reduction.
JUDGE REINSTEIN: And as far as the draft that you have in front of you with the amendments that Woody has proposed, I reviewed them all and I don't have a problem with any of them, but they're open for discussion. And in looking at some notes that I had from Barry's comments the last time, I think the only thing that we discussed that is not in here is that on the first paragraph, request for testing, after the word conviction, the last word in the paragraph, we talked about whether that should include, And that may contain biological evidence, as far as the evidence that's in possession or control of the prosecution, law enforcement, or the court and that is related to the investigation or prosecution that resulted in the judgment of conviction. And we could put, comma, and that may contain biological evidence. We discussed that at the last time.
The other was in the preservation order, paragraph 4, under procedures. Remember, this was Barry's suggestion. It said on the end of the first sentence there, during the pendency of the proceeding. There was a suggestion that we include something to the effect that an inventory of such evidence shall be prepared and supplied to the defense, and that had to do with the evidence that was currently in the prosecution's possession or control that could be subjected to DNA testing. And other than that, I think those were all the comments that we had, unless somebody else remembersanything differently. Woody, do you want to comment on any of the changes that you had?
MR. CLARKE: Just that they related -- the primary ones that I dealt with was the addition of the number four about halfway down page 1, and that related to our discussion about some type of diligence requirement, and I think we discussed that at some length, although we certainly didn't refine it or hone it down to any language. So that was language that I developed. And the second item was near the bottom of the first page that just dealt with if any other testing had been conducted. And I included by either party, although frankly, if the prosecution or law enforcement had it done, it better had been turned over to begin with.
JUDGE REINSTEIN: Right.
MR. CLARKE: But frankly, I tried to make it as all-encompassing as possible. But I did have a question about whether or not an or in there should have been an and, or it may be my misunderstanding.
JUSTICE ABRAHAMSON: Are you referring now to B?
MR. CLARKE: Yes. B1, and then the small a and b.
JUSTICE ABRAHAMSON: While we're on that, what's the difference between a and b?
MS. BASHINSKI: Maybe you mean potentially exculpatory.
JUSTICE ABRAHAMSON: Pardon me?
MS. BASHINSKI: Maybe we mean potentially exculpatory rather -- because this is a less clear-cut situation.
MR. THOMA: I don't know if there is any difference.
VOICE: I don't know whether there's any difference either.
VOICE: Well, it seems to me there could be a difference. The techniques now are not what they were years ago, and the evidence could be stronger or weaker, as the case may be.
JUDGE REINSTEIN: But on the issue of -- you're just talking about B1 a and b, and are a and b redundant. Right?
MS. BASHINSKI: Does exculpatory legally mean the same thing as exoneration?
JUSTICE ABRAHAMSON: That's what Chris and I were just saying.
MS. BASHINSKI: Okay.
MR. THOMA: Actually, just to give you an example, something regarding exculpatory evidence could point to another defendant, but -- point to both of them as opposed to one person doing everything. And for example, in a capital case that could be crucially towards mitigating the sentence of death, for example --
MS. BASHINSKI: Right.
MR. THOMA: -- if another perpetrator was more involved in one aspect of it. And that's just an example. I'm fishing, obviously. But I don't really see a difference. I did want to speak to C3. I want to say that I do totally agree with Woody's modification here. We have a case in California that allows the defense to do testing without -- if they're not going to use it without letting the prosecution know what the results of that testing are. That's up to trial if it's not going to be used during trial.
I think what Woody's correction here does it brings us to a court of equity, literally, and this is
really an equitable statute that we're talking about, and you've got to come in with clean hands. If you're asking for some relief from the court here, you've got to come in and show all your cards literally, and if you've got another test or a test that really proves the prosecution's point, so be it, but all the cards should be on the table. As a defense attorney, I do agree with my friend Mr. Clarke here. I think this is perfect language to be added at this point.
Going back to B1 a and b, I don't see a difference between the two, but leaving an or in there I don't think really matters one way or the other.
MR. CLARKE: Actually, I think if you reverse the two and do b first, they both make sense. It would be a reasonable possibility exists that testing will produce exculpatory evidence, and then basically the second provision is, and as a result of that, the sentence or conviction would have been more favorable, so I think if they're reversed they do make sense.
MS. BASHINSKI: Yes. That's right.
MR. WOOLEY: I think if you read the Supreme Court cases, Bagley [phonetic], Kyles v.Wheatley [phonetic], Brady, all those cases, they define exculpatory evidence to be what is in a, evidence that is favorable to the issue of guilt or innocence and/or punishment. So you actually have one subparagraph b, which is defined by a, and it can be accomplished with just one. It's the same thing.
MR. THOMA: Then I think the prosecution and the defense are agreeing here.
MR. WOOLEY: Yes.
JUSTICE ABRAHAMSON: We don't accept that stipulation, counsel.
MR. THOMA: And I do agree with Jim's interpretation of the Kyles v. Wheatley too.
JUSTICE ABRAHAMSON: So what's it going to be? Do we just keep a, just keep b, or have it perhaps redundant?
MR. CLARKE: I think a little redundancy doesn't hurt here. If you put b first and then that directs a judge -- okay. I have to decide is there a reasonable possibility that something good will come out of this evidence, basically. Then if that happens, then the second question is would that have been favorable had it been known or helped produce a more favorable result. But I agree. There is certainly some redundancy in it.
MR. THOMA: But by and, are we just putting an extra barrier where we're really not doing it, where we're all agreeing that they're both the same thing? If by putting an and, you're saying that both a and b have to occur -- though for the life of me, I can't think of a circumstance where one would be satisfied and not the other.
JUSTICE ABRAHAMSON: I'm going to suggest if it's agreeable with the group that we check out the definition of exculpatory, and if it's as you stated, then I suggest we keep one. Otherwise, as a judge, I would say one of them has to be a higher barrier -- a higher hurdle that has to be jumped. But if they're really synonymous we ought to just keep with one. If they're not anonymous, we ought to know what the difference is, and I'm sorry, but I just don't -- case names are familiar but I can't visualize the language as such.
JUDGE REINSTEIN: Do that while we're here?
JUSTICE ABRAHAMSON: Well, somebody must have a computer and can get into WestLaw Lexis and pick up these cases. Chris?
MR. ASPLEN: We'll do it. The --
JUSTICE ABRAHAMSON: Well, if not I can call the office tomorrow and get it from Madison.
MR. ASPLEN: The only reason I ask that is that I think there are some jurisdictions that really are looking to us putting together something, and if we don't do it now we wait until July, and there's legislatures that will --
JUSTICE ABRAHAMSON: If this is the only hangup, I think we can proceed.
MR. CLARKE: Actually, California has a statute this week that wouldn't hurt to have this.
JUSTICE ABRAHAMSON: And so we can do that, and if you give me the case names again, I'll -- we'll get them checked out and can get them faxed up here and look at them. No problem. Okay?
JUDGE REINSTEIN: Fine. What about the suggestion about -- is this surplusage on the first paragraph to add the words, and that may contain biological evidence?
JUSTICE ABRAHAMSON: What line are you on?
JUDGE REINSTEIN: This would be at the end of the first paragraph after the word conviction.
JUSTICE ABRAHAMSON: (Perusing documents.) Oh, I'm sorry.
MS. BASHINSKI: That makes a lot of sense. Otherwise it could be anything.
JUSTICE ABRAHAMSON: Yes. Does everybody agree with that change?
MR. THOMA: I'd ask Dr. Crow, you just mentioned something that all the time we're making advances, and at one moment there may not be what we think to be the forensic DNA evidence, and some time in the future it may turn out that there is that. Would you be comfortable with a change that includes this language?
DR. CROW: Well, I haven't thought much about this, but things are changing, and what was good evidence ten years ago would not be regarded as good evidence now, I'm sure, just because of the nature of the state of the art. And how the language should reflect that, I'll leave that to you.
JUSTICE ABRAHAMSON: And the phrase you want to add is, that contains biological evidence?
JUDGE REINSTEIN: And that may contain biological evidence. Right. Yes.
JUSTICE ABRAHAMSON: Okay.
JUDGE REINSTEIN: And then the other one was in C4, after the word proceeding, should there be a provision in there that an inventory of such evidence shall be prepared and supplied to the defense. I guess the question is is that a burden, is that a reasonable requirement?
JUSTICE ABRAHAMSON: You'll have to do that again for us. Preservation order four. Is that the one we're talking about?
JUDGE REINSTEIN: Right. And then after the word proceeding on page 2 --
JUSTICE ABRAHAMSON: Just a minute. That's at the end of the first sentence, "Must be preserved during the pendency of the proceeding." And what do you want to add, Ron?
JUDGE REINSTEIN: An inventory of such evidence shall be prepared and supplied to the defense.
MR. CLARKE: So that would be an inventory, current, as opposed to what would the inventory presumably would have been years earlier?
JUDGE REINSTEIN: Right. Because it says, "In order that all evidence in the prosecution's possession or control that could be subjected to DNA testing must be preserved during the pendency of the proceeding."
MS. BASHINSKI: And the court shall order that the inventory, so it's -- the court shall order two things. One, you preserve it, and two, you prepare an inventory.
JUDGE REINSTEIN: Right.
MR. CLARKE: In other words, this would only kick in if a judge decided, All right. This application has enough in it that now we want to make sure we retain the evidence.
JUDGE REINSTEIN: If there's a preservation order at all, that's what I mean.
MR. CLARKE: Right. Yes.
JUDGE REINSTEIN: So for example, if somebody submitted a motion to the trial judge that handled the case and it was a consent defense and there was not just eyewitness identification, but you've got -- not a consent defense but a confession. A judge may decide, I'm not going to order preservation here because this is a frivolous claim. This would be a category five type situation that we had in the original postconviction report.
JUSTICE ABRAHAMSON: Now, where do we have an order in the rest of the statute?
MR. THOMA: It's just the number 4, preservation order under C4.
JUSTICE ABRAHAMSON: Okay.
MR. WOOLEY: But doesn't it say when the proceeding is instituted under this act the court shall
order the preservation, and the proceeding is instituted just by the guy filing it. Isn't that what the first paragraph of the statute provides? So what you've done is you've mandated that the courtissue the order upon the filing, unless I've read the statute wrong.
MR. THOMA: There's a mandatory testing, which is a, and then there's testing in the court's discretion, which is b.
MR. WOOLEY: I'm talking about simply, Jeff, the preservation order. There seems to be a clear mandate that the court shall order the evidence preserved upon the -- when the proceedings instituted. The proceedings instituted whenever some guy files it under paragraph one, so now the guy can -- if I'm a jailhouse lawyer I'm going to institute the proceeding and accompany it with my demand that the court order the preservation of the evidence. And I'm not sure that that was what Judge -- I'm not sure that's what your intent was.
JUDGE REINSTEIN: No. In fact, I've had a few of these already, and I've denied them all because they were all what I would categorize as Category five cases. They're just somebody who read something in the paper. They're cases that I handled and they were -- there's no way that testing would produce any exculpatory evidence at all. So by the filing of the motion, I guess on the case that I've handled, I don't consider that as instituting a proceeding other than me being able to summarily dismiss it without even waiting for a response from the state.
MR. SMITH: That's the language you use --
MR. WOOLEY: I could tell from your comments that wasn't your intent, but I think the language possibly can be interpreted that way.
MS. BASHINSKI: So at what point is the proceeding instituted then?
MR. WOOLEY: Well, paragraph one says when the guy files it.
MS. BASHINSKI: So that's -- there is some ambiguity there.
JUSTICE ABRAHAMSON: We'll all have to speak up and into the microphone, otherwise we can't hear you.
MS. BASHINSKI: There is, I think, some ambiguity there.
JUSTICE ABRAHAMSON: And the response was it is started at the petition, the request for testing?
MR. WOOLEY: By the way the statute is drafted, Your Honor, that's how I see it, and I heard the judge's comments. I don't think that's what he meant, and I think it can be interpreted that way, because it says that the person may at any time institute a proceeding. So that means when it's filed he instituted the proceedings, and then on page 2 it says, "When the proceeding is instituted the court shall" so the court is required simply because of the filing, so there needs to be some working of the language to give what Judge Reinstein I think clearly wants is some discretion in the court to say, This is frivolous. I'm not going to order anything.
You could just put instead of instituting a proceeding, I guess you could put just may file a petition under this act requesting the forensic DNA testing, and then you get after notice of the prosecution and opportunity to respond, the court shall order testing if it finds, so once you receive the motion you can summarily rule on it, which our jurisdiction would allow the court to do without receiving a response, if it's a dismissal. I guess the proceeding is the hangup as opposed to just filing the petition.
MR. SMITH: Is there any reason to worry in a different and less orderly jurisdiction about the time between the initial filing and the time when the court actually gets an opportunity to consider whether it wishes to let this continue? Presumably, one of the things that people are concerned about is the deliberate destruction of evidence.
VOICE: That's what I was going to bring up.
MR. SMITH: And suddenly the opportunity and the need becomes apparent. Now, courts candeal with that too, but it's just whether that should be --
MR. THOMA: And with that in mind, if I can follow up on what Michael is saying, the inventory and preservation makes sense at that point, especially if you're concerned at all about a possibility of deliberate destruction once this is coming under the ambit of the court.
MS. BASHINSKI: Then as a person who may have custody of the evidence I become a lot more concerned about having to do inventories in cases such as the judge is discussing, where ultimately the judge would decide that it was a frivolous petition, because that would open a much larger flood gate of burden.
MR. THOMA: And I appreciate that, especially from your position, but it's difficult for the court to fashion an order and not destroy and evidence that's in the possession of the prosecution, law enforcement, or the court if there's no up to date inventory of what is not to be destroyed.
MS. BASHINSKI: I understand.
MR. THOMA: Okay.
JUDGE REINSTEIN: Well, in looking at the statute that I drafted for Arizona, I eliminated the word proceeding. Thanks, Jim. And I -- because I drafted this there, and it says at any time a person who was convicted of and sentenced for a felony offense and who meets the requirements of the section may request the forensic deoxyribonucleic acid testing and then any evidence that's in the possession or control of the court or the state that is related to the investigation or prosecution. Then I go into after notice and an opportunity to respond, the court shall order testing if -- so we eliminated the word proceeding there.
JUSTICE ABRAHAMSON: So what is the pleasure of the group? Do you have a suggestion for us, Ron?
MR. CLARKE: Is the goal to have for instance something of a prima facie showing prior to a preservation order, or in the alternative it's preserve it once the motion is filed? I don't have a good feel for how many of these are encountered. For instance, they're very rare where I come from, but that doesn't mean they aren't individually important.
JUDGE REINSTEIN: I think they are very rare, although with all the publicity and the like, there may be some that increase for a while. But just like anything else, when you've got something like this, I think it's going to be a peak and then quickly dissipate as far asclaims go. But even with all the publicity that we've had, we've seen very few that have come through. MR. CLARKE: The only thing I'm afraid of is it sounds fairly easy, but in some of these cases with large volumes of evidence, it is a significant undertaking to inventory physical evidence. That's the only fear I have. Obviously in those cases where this testing is going to be granted, those are the perfect cases for that order to exist in. The flip side is do we end up ordering that in a significant number of number of cases where it's not a productive undertaking?
MR. SMITH: Maybe Jeff has to be wrong. That is, maybe it is possible to order the preservation of evidence before there's a full inventory of what it is. In a sense, there'd have to be that capacity, and maybe that's the right way to do it.
MR. THOMA: And certainly the wording without adding anything more should preclude such destruction, and it's worded correctly, I think, for everybody to accept, that this is only during the pendency of the proceeding, and Ron's point of some of these proceedings are going to be awfully short when they come to his desk and he can see that they're frivolous, this order isn't going to last very long. So perhaps we could just keep it the way it is.
JUDGE REINSTEIN: What about if we just eliminated the words institute a proceeding under this act, and change requesting to request, so it's going to read may at any time request theforensic DNA testing.
MR. SMITH: Leaving open the question, when it's instituted?
JUDGE REINSTEIN: Yes.
JUSTICE ABRAHAMSON: Well, the theory is that the proceeding is instituted on a request. Is that it? Maybe we should just say, when a request for testing is made under this act, the court shall order all evidence in the possession to be preserved? You don't want anyone to destroy it. Then the next sentence, which is an add on, is an inventory of such evidence shall be prepared and supplied to the defense. The question there I have is by whom? By whomever has it? So you may have several inventories. Is that possible?
MR. THOMA: It is possible.
JUSTICE ABRAHAMSON: Okay. And shall it be supplied when -- as soon as possible after the request, or is it going to be supplied only if you've gotten mandatory testing ordered?
MR. CLARKE: Would it make more sense to have that as a permissive type order by the court about an inventory? There may be no need in some cases and there may be a significant need in others. For instance, at least in many jurisdictions I'm familiar with, a defense lawyer can go down and look at the evidence and see what's there, literally. Other jurisdictions it may be necessary to have an in-house inventory.
MR. GAHN: I've had some experience. I think without the benefit of a statute, I think prosecutors around the country have been dealing with this oftentimes without even going into court. Defense attorney comes to you and says, Look, I really think I've got something here. We need some DNA testing done. And the problem -- the reality of this is that you'll have someone who may very well wish to have DNA testing done, and it may be a very valid request, based upon the nature of the conviction. And the question that the defense -- causes problems -- where is that evidence? Whether some is at the crime lab. Some is admitted by the court. Some's back at the police department. Where is it? And it's very frustrating for the defense to try and locate and make sure that that is preserved, that evidence. Therefore, I think that some type of order is
necessary at the onset, but I think you could make this permissive and say the court may order that all evidence -- because I think some cases you get are going to be able to be dismissed right away and say this isn't a Category one or this isn't going anywhere. Others are going to be something that yes, I would like for somebody to find that evidence, locate it, and tell whoever's in charge of it that is to be preserved now. And you probably could accomplish it by saying the court may order that all evidence in the possession instead of making it mandatory, because we've been making these judgments for years now --
MR. THOMA: Wait a minute. You're saying -- I was going to agree with you for a second there, but I think, if I could, I'm going to agree with Woody that yes, during the pendency of this proceeding there is an order and we don't necessarily have to have an inventory. We have to believe that people are honorable enough to follow it. But let's go with a permissive statute that the court can order an inventory, especially in the cases that Woody's talking about, where there is a lot of evidence, there are a lot of custodians of the evidence, and the court's going to need that to help foster its way through any postconviction testing. So we could add that, a permissive inventory however that the court can make, but I think otherwise, we leave this the way it is, except for the Chair's minor change at the beginning to just explain what we mean by when this order should occur. That's my position.
JUSTICE ABRAHAMSON: I'm going to ask that we do a slight redraft, taking these comments into account on four. I'm not going to ask for a -- and we're going to look at four and we're goingto look at B1 a and b, and we're going to put this on for tomorrow, because I won't call for a vote
on this today. But I think that four is relatively easy to redraft, and I'd be happy to join with the others and Ron and Jeff and Woody and Norm, anyone else who wants to gather in, and then we can have it typed and brought in. And the other thing I'm going to do is move on to our next order of business because both Dr. Eisenberg and Smith -- Jennifer Smith who are here and will comment have to take a plane out of Chicago to get home. So I'm going to move into, for the moment, the DNA Advisory Board update by Dr. Eisenberg, and Jennifer Smith asked if she could comment at that time right after Dr. Eisenberg as part of the public comment so she can get out of Chicago back home before it snows again. Again. Let's --
MR. WOOLEY: May I ask a question of --
JUSTICE ABRAHAMSON: Yes.
MR. WOOLEY: Will we have a chance -- I had another question about Woody's comments in paragraph three at the bottom of the first page. Will we be discussing that --
JUSTICE ABRAHAMSON: Yes. Why don't we do that right after this --
MR. WOOLEY: Great.
JUSTICE ABRAHAMSON: -- and then come back? That will be fine. Because I'd like to get all the comments in and if there has to be redrafting and tinkering -- because we would like to get this approved if we can get that done tomorrow, Monday. Dr. Eisenberg? Dr. Eisenberg is chair of the DNA Advisory Board and both and Paul Ferrara sit on that board too, and attended at least part of their last meeting, and this is especially relating to the use of statistics on DNA in court proceedings, although I don't know what he's going to specifically talk about. And you have before you the database -- you've got a paper on the database that was circulated to all of us. It's dated February 23, 2000, statistical and population genetic issues affecting the evaluation of the
frequency of occurrence of DNA profiles calculated from pertinent population databases. You need an acronym. That's a joke. Okay. Go ahead.

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