JUSTICE ABRAHAMSON: We are going to reconvene. Paul Ferrara will talk about the Laboratory Funding Working Group and proposed federal legislation. We then have a lunch, and Timothy Schellberg will give us a legislative update. And we're going to try and keep pushing the agenda forward, that is we'll take less time, and lunch will be a little earlier because we'll try and beat the snow out of Chicago.
So those of you who have very late flights might try and get earlier flights. The snow is expected later in the afternoon, and it's supposed to be light flurries. That's the best we can tell you. If you've got a five o'clock plane, we've been advised you should leave 3:30 to make that plane.
Okay. Now, Paul.
DR. FERRARA: Thank you, Madame Chair.
The Laboratory Funding Working Group that I chair has actually not met since the last full commission meeting. However, what I'd like to do is report on at least one important activity of myself and other members of that working group.
Specifically, on March 23 of this year, I and several members of the subcommittee and members of the commission received an invitation from the chairman of the House Judiciary Committee, Henry Hyde, to testify before the Crime Subcommittee of his full committee, which was considering three pieces of legislation dealing directly with the issue of DNA testing and DNA funding.
Bill McCullum is the chair of that subcommittee. Senator Bobby Scott from Virginia is the ranking minority member. The three bills that we spoke to were House Resolutions 2810, 3087, and 3375. These were bills that were introduced by Peter Visclosky, Anthony Weiner from New
York, and Representative Gilman and Patrick Kennedy of Rhode Island.
None of these three bills are the Forensic Science Laboratory Improvement Act bill, which is HR 2340, although I think it's important to point out that many members who addressed the subcommittee did refer to the Forensic Science Laboratory Improvement Act. Now, all three bills share some commonality and some differences.
Speaking to the bill were first the patrons of those bills. They also had written documents of support from Governor Pataki and the director of the FBI laboratory, assistant director of the FBI, Donald Kerr. Those providing direct testimony included myself, Dave Coffman, Mike Sheppo -- Mike representing not only the experiences and interest of the State of Illinois, but also representing the American Society of Crime Laboratory Directors. David Boyd presented testimony on our panel, as did Barry Steinhardt from the ACLU, and lastly, a representative of the Innocence Project.
Now, these bills -- for example HR 3375 -- and I think Tim Schellberg will be presentingprobably much better information with respect to some of these bills, but these bills include -- like 3375 included the $30 million over a two-year period that is the amount of the recommendation that we made with respect to the reduction of DNA convicted offender samples. It also provided almost $50 million for the reduction of DNA backlog cases, a $6.6 million figure for the establishment of a convicted offender database made up of those convicted of federal crimes and the District of Columbia, and $2.8 million for the development of a missing children DNA data bank.
That almost 50 million over two years for the case working laboratories included also the FBI laboratory, and also included in the District of Columbia and federal prisoners also military violent offenders.
Now, the bills vary somewhat in who they include any earmarks, but fundamentally all three bills cover much the same issues that we have been discussing in this commission, money to reduce the convicted offender database and also money to address the reduction of case work backlogs, which of course continue to plague laboratories throughout the United States.
I thought what might be somewhat informative would be to describe in general the support of the laboratory people that were testifying was favored -- the House Resolution 3375, but also went on to say that a more comprehensive Forensic Science Laboratory Improvement Act, 2340, really was a broader approach and covered other areas other than the DNA analysis, but also included them.
Now, with respect to the presentation made by Barry Steinhardt of the ACLU -- and I have copies of the written statements that each of these individuals had made. I can make them available to all the commission members should you be interested. It's quite a few pages. With respect to the summary of the ACLU's opinion, that can be distilled down to three areas.
One, there should be a procedure established for destroying the physical sample used in DNA testing, an issue that of course we've discussed at some length. It's on thing for the government to permanently store a genetic fingerprint. It is altogether different for the government to permanently retain the biological samples which can be used for future genetic testing.
Second point, only persons convicted of serious violent felonies should have their DNA entered into CODIS.While we understand the federal government's desire to help the states address their DNA backlogs, the government should only include test results from persons who have been convicted of serious violent felonies and where biological evidence could be relevant.
And thirdly and lastly, states should provide criminal defendants with access to DNA testing to establish their innocence.
Aside from the dissenting opinions or the opinions expressed by the ACLU, the rest of the members of the panel, with the exception of the representative of the Innocence Project, which had their own spin, the members were -- the members of the forensic science laboratories -- of course David Boyd, statements from Don Kerr, Steve Niezgoda, Dwight Adams from the FBI, were all very supportive of these three pieces of legislation.
Now, my observation in this was that the subcommittee is struggling with having, in their case, at
least three bills, all more or less aimed at the funding for reduction of DNA backlogs. And they were very supportive, although somewhat confused by the variety, to say nothing of throwing into the mix other legislation. I think Tim will have more information with respect to those other pieces of legislation.
When I spoke to the chief counsel for the committee, it was clear that the committee was very conscious and aware of the benefits of the DNA technology and the use of DNA data bank, andso I tended to concentrate our efforts and my remarks to the issue of what happens -- what are the failures of DNA technology and DNA data banks, and related specifically anecdotes with respect to individuals whose freedom -- who would remain jailed in Virginia, for example, for a period of six months until DNA results could demonstrate their innocence, as they contended right from the beginning, and for reasons of not being able to make bail served six months in prison strictly as a result of a delay of DNA testing.
And compared to case of Jemma Saunders that was a relatively small loss of freedom compared to the loss of Jemma Saunders' life, which is directly attributable to a DNA backlog in Virginia, where here -- the perpetrator of her crime could have been identified before -- the individual committed her murder was released because DNA results were not available.
The committee seemed very -- when put in those terms, that subcommittee really seemed to pay attention. They knew what the data banks could do. There was a lot of discussion with respect to the privacy issues, the retention of samples to the privacy concerns, and to how the data banks work.
The committee took testimony for a period of over four hours, and after the formal presentation several members of the committee including Representative Bobby Scott had long discussions with those of us who were present, trying to really get a grasp on this. Now, at this point I have not heard anything further from the subcommittee with respect to the next step of those actions.
Suffice it to say that here was an opportunity for several members of the scientific community and the National Institute of Justice and FBI to present some compelling reasons why funding for the reduction of DNA backlogs of convicted felon samples and case work were particularly critical.
One of the questions we had difficulty in answering -- and I think all three of the laboratory people did -- is we were asked point-blank what did we feel about the worthwhileness, the efficacy of a database of missing children, and we were all somewhat -- had some difficulty in trying to address that particular issue, because in practice none of the laboratories are really developing a database of missing children.
And we pointed out programs such as that of John Walsh on America's Most Wanted to encourage parents to get and retain blood samples of their children, and we pointed out that in the identification of missing children, usually laboratories would depend upon getting samples from -- that are representative of that child from their biological parents. A small portion of that total, roughly $100 million, had to do with the development of missing children.
The subcommittee seemed very impressed with -- the testimony provided seemed very supportive, but no action was taken at that point. And with that, that's a brief summary of the activities of myself, the working group, and that of other individuals associated with this commission.
And with that, I'll try to address any question.
JUSTICE ABRAHAMSON: Jan?
MS. BASHINSKI: Paul, can you give us any sense of the substance of the discussion about the destruction of samples and where you felt that was headed?
DR. FERRARA: I related to the subcommittee the very discussions that we had had here with the commission, and that the commission had discussed this issue, and under the -- through the request of Attorney General Janet Reno this commission had been specifically asked to discuss this and had not reached consensus except to say that we would like to defer any addressing that particular issue for a period of five years.
They understood and heard the same arguments with respect to the reasons why you retain the samples, and they also heard from the ACLU the ACLU's concerns with respect to the retention of the samples.
JUSTICE ABRAHAMSON: I'm sorry we didn't talk to Art about that yesterday. I don't know what the DAB ultimately did on the recommendation on retention.
DR. FERRARA: DAB did nothing. I think actually the DAB taken under advisement the recommendations made by this commission, and I believe remain moot on that point.
JUSTICE ABRAHAMSON: Are there any other questions?
(No response.)
JUSTICE ABRAHAMSON: Paul, Do you view that the group has completed its business? Will it have more in July or in November?
DR. FERRARA: Our group -- the working group which of course approached the issue of the reduction and the costs associated with the reduction of the convicted offender samples was able to come up with some pretty good numbers and estimates. The group continues to struggle with how we would ever develop a cost associated with the reduction of crime scene backlogs, given the infinitely more complex nature.
It is interesting to note that many members of that subcommittee questioned how these figures seemed extraordinarily low given our estimates of a hundred-fold increase in -- an estimated hundred-fold increase in the cost of a crime scene case vis a vis a convicted felon case. They also questioned the $30 million for the reduction of the convicted offender, when we -- hearing estimates of some million samples being backlogged of the convicted offender samples.
And with respect to the reduction of crime scene samples, they quickly recognized that they were dealing with a dollar figure that was much greater than they would even want to consider. That's when we got into the Forensic Science Laboratory Improvement Act, which I believe is something in the area of $850 million over a five-year period. But this committee was not -- it was not their intention to address that bill. It's just that several members of the panel who presented information tried to point out that that was a much more comprehensive, albeit extremely expensive approach.
The subcommittee was very supportive of any and all of these other three pieces of legislation, all of which realistically have a better chance of success than the Forensic Science Laboratory Improvement Act.
DR. DAVIS: Paul, is there any press interest in those proceedings?
DR. FERRARA: What was -- very little. I was stopped in the hallway by -- I didn't realize that a local Richmond radio station had a representative who follows legislation, and that was the only member of the media I saw.
JUSTICE ABRAHAMSON: Woody?
MR. CLARKE: There are -- as another member of the working group, and I think -- I don't know, Paul, if you agree with me or not, that we might need a little more direction on. One is a relatively -- well, it's a minor issue compared to the other, and that was the whole area of sample collection and whether or not we were going to seek a pilot study, so that's certainly one aspect.
DR. FERRARA: Right. Of the two major functions I think the working group wanted to be able to address was what are the costs associated with the reduction of the crime scene backlog, which as I've said, is a monumental task and one that could be probably as easily arrived at by some order of magnitude. And as Woody just pointed out, the other intention of our working group was to try to develop a model for sample -- convicted offender sample collection.
MR. CLARKE: So I think we might need a little direction on that. And the other is with regard to the backlog, I had at least -- and, Paul, tell me if you agree -- the sense that we had a pretty good handle on a per-case cost estimate. Then the only question became could we extrapolate that number into something that could end up ultimately in a recommendation? I think we're almost all the way there.
I think we have a good per-case, per-sample cost estimate. Then it's simply a question of multiplying. Of course, figuring what to multiply it by is certainly not easy to grasp, but I think it would be helpful to provide an estimate, and that calculation is most of the way there.
DR. FERRARA: Woody's right. We can -- in fact everyone if they had to guess would look at something in the area of maybe $5,000 as opposed to $50 for a typical analysis of a crime scene -- of all of the evidence associated with a crime scene. What the working group does not have is a good accurate estimate of the total number of cases that are out there, crime scene cases that would have to be the multiplier by the $5,000.
MR. ASPLEN: And that's a question that gets asked time and time again, and it's hard -- by legislators and also by way of updated commission staff work. We met with Representative Weiner the day before the testimony, and it's hard to explain why that number is almost an impossible number to get your hands around, and it's a constant problem.
DR. FERRARA: The survey information that we'd had from various groups really doesn't tell the whole picture: the participation in the survey, the completeness, the source of the data, et cetera.
JUSTICE ABRAHAMSON: The reason I asked you the question about the status and what else had to be reported is I'm looking ahead to November when we will give to the attorney general a final report, and as we see that final report, it would have an introduction that would look at the broad picture and explain the workings of the commission, and then have attached to it the various reports of the working groups as well as other information we may have gotten and materials we're putting out to the public that are not necessarily part of the report but we think the
public ought to see, and reports to the commission.
I think that's what we're aiming for, so I think that between now and probably July each of the working groups should put into final form that which they'd like to see as part of the final report, and then the appendices and et cetera that should be part of it.
DR. FERRARA: And if nothing else, we can do as the working group is present a model sample collection program, of course review the work we've done with respect to the convicted offender backlog sample, and also provide a good description of why the issue related to coming up with the cost of all of the crime scene evidence is so problematic, and perhaps at least list the vagaries and elements that affect that.
I had a laboratory director call me Thursday from a laboratory where her chief of police had directed that they would do every piece of evidence in a homicide case using DNA analysis and that is all, so that the various issues with respect to how laboratories streamline their work, deal with investigators and prosecutors in an attempt to develop the most probative pieces of evidence; the practical aspects of what you do and what you don't, even if we can't come up with a dollar figure to eliminate the backlog of case work.
And we could also describe the efforts that some cities and states are taking with respect to even
outsourcing certain crime scene samples or rape kits, which I know I have some misgivings about, and I think my counterparts do. But it is a reality and we have to address it.
JUSTICE ABRAHAMSON: I think that Chris is going to be in contact with all the group leadersand their reporters so that we move from here to final reports that might be the subject of the July meeting, as well as other things. Jan?
MS. BASHINSKI: This is really more of a question for you, Paul. What kind of discussions has your group had about the practical problems with out infrastructure and our ability to deal with this huge unmet work load? You talked about needing funding for training of DNA analysts. I've been asked to develop cost estimates for things like how much would it cost to outsource these unsolved cases in California, and of course one of my immediate responses is I'm not sure that's the best way to handle it.
And then the second response is, even if you did outsource, what is the collective status of the infrastructure, public and private labs, capable of dealing with that level of work load. Did you talk about that?
DR. FERRARA: Yes, we did, Jan, and quite frankly, ended up throwing our hands up in the air. Within the time frame and the context of the issues, when we started to try to enumerate all of the factors that contribute to the cost, not just the analysis -- not just the DNA analysis, which represents a relatively small piece of the total cost of processing crime scene evidence, but the collection of the evidence, the costs associated with building laboratory facilities, training personnel, quality assurance costs, and all of the indirect costs, we gave up in exasperation saying
how in the heck can we put a dollar figure on all of these.
And that's when we came up with the suggestion of at least let's lay out some of these factors that the lay person reading this might not -- well, why does it cost $5,000 to do a crime scene case, and what is a case, and what are the average number of samples and what's the difference between a B&E case and a rape when you're talking about mixtures and differential extractions and all of these really complex issues. So there is really no way to characterize a typical case.
We focus on rape kits, for example, which is excellent and that provides of course -- represents a large portion of the cases, but comparison between a rape kit and all of the physical evidence and issues associated with a violent crime, and the discussions with prosecutors, defense attorneys, what evidence should be analyzed?
We're facing in Virginia several cases of national magnitude where the national media get involved and say, So and so's been convicted in Virginia and Virginia won't analyze the DNA evidence. Well, what they fail to say is that vaginal swabs or oral-anal swabs were tested and found to be consisted with the suspect, so that by convention our unwillingness to examine every stain on bed clothing is -- the representation is they're not analyzing all the evidence or potentially exculpatory evidence, when in fact you have to try to, from a practical standpoint, arrive at some items of evidence that are most probative.
But invariably, if you don't analyze it all someone will come along and say, Well, if you did, could that be useful? Now the question becomes how dispositive -- if that's the right term -- is the analysis of 17 stains and perspiration and other stains on a bed clothing vis a vis the vaginal swab. Those are practical issues.
DR. DAVIS: Paul, if I were a legislator and somebody was presenting this to me with all of this vast amount of money and mushy stuff, my only approach would be to request that some studies or some projects -- pilot projects be developed where very clear questions could be addressed and an agency or a jurisdiction picked out, funded, and then the results analyzed after a period of time, because it looks to me that if we try to just dump money into this bottomless bucket with all these unanswered questions, it would be a waste and a disservice.
It would be nice to find out within a single set jurisdiction just how they did develop all thesethings, and I think the answers are going to lie there.
DR. FERRARA: One of the things we did discuss was to try to look at the amount of money, for example, that had been spent by state, such as Illinois, Virginia, and Florida in the last ten years, and try to point out the huge costs associated with those particular states in what they've done to put their program together. But when I told Representative Bobby Scott that we spent $9 million in Virginia for the convicted offender database, he said, I don't understand. Why would the entire US only need 30 million?
MR. THOMA: Paul, one question. What about owed samples, was that a topic of discussion at all, because I've spoken locally with parole and probation both up in Mendocino County, and they're at a loss -- they're not even familiar with our statute that made it mandatory in '96 and then got beefed up in '98. Is that even out there on the table --
DR. FERRARA: Well, that's kind of the thing that we -- actually, we haven't acted on it -- we've done some preliminary work, but Woody was going to, working with our working group, try to address those sample collection issues. How to address them if not quantitatively in terms of the numbers, the various difficulties that different states are facing with respect to the collection of those owed samples. And really, this gets to the funding needs for corrections and sheriffs.
In Virginia, I've been very fortunate for eleven years. Corrections officials and sheriffs have been
collecting samples from those in jails and in prisons without one extra red cent of funding at all, and with a state law. But again, while that's been successful in Virginia, it's been a disaster in other states.
MS. BASHINSKI: A short comment, Jeff, because you can call my office and I can give you all the information, because we are reimbursing local agencies $35 apiece for every sample that they collect now in an attempt to encourage them to do that.
MR. THOMA: Yes.
MS. BASHINSKI: So without that kind of incentive, it's very difficult to get people to do it.
MR. THOMA: I'm sure you have, but I'll pass the word along --
MR. CLARKE: We identified this problem long ago. It's not just 50 states --
MR. THOMA: Oh, no.
MR. CLARKE: -- it's every jurisdiction within those states and it's multiple agencies within those jurisdictions.
MR. THOMA: Right.
DR. FERRARA: That's right. Ironically, we've been struggling in Virginia as of late because we can take all felons. And part of that rationale, at least one factor, was the fact that corrections -- and the sheriffs said, It's far easier for us to take samples from every convicted felon rather than try to ascertain what charge -- what that person was convicted of.
The other difficulty we've had now is that despite the fact that we've made modifications in a local inmate data system to put a check when somebody is sampled, currently, this year, of the approximately 18,000 samples we receive a year, almost 50 percent have already been sampled. And obviously we need to work with corrections and with the sheriffs -- actually, the sheriffs now are using this local inmate data system. The state correctional people -- hey, it's easier for us to pull that second sample than it is to check a record.
So now I'm dealing with almost 50 percent duplicates, which if I don't ferret them out and send them to a contract laboratory I'm wasting a lot of state money.
JUSTICE ABRAHAMSON: Any other discussion?

MR. ASPLEN: I would just add, again, by way of an update, that NIJ has officially put out the solicitation on the CODIS funding, thanks to the efforts of Dr. Forman and John Paul Jones of NIJ. They worked very hard at putting something together that we hope will be effective.
We were somewhat constrained by statutory language in terms of the $15 million for offender backlog. We're working with folks to change some of the statutory language, should we get another round of $15 million to better enable us to be more efficient in the allocation of that money. I don't want to spend a whole lot of time on it, but so you know. We're on the move with that.
DR. FERRARA: And the deadline for the application is May 15, 30 days from now.
MR. ASPLEN: We're pushing very hard to move very quickly on --
DR. FERRARA: As well we should. I don't disagree. I think it's critical we demonstrate and impact as soon as possible.
MR. SMITH: Is there -- maybe I've lost track of this, but earlier we talked about what the methods were required by statute for the sampling of convicted offenders, and I'm just wondering, in your states anyway, is it two blood samples and 25 hairs and all that kind of stuff, or do we have a standard increasingly easy way of doing this? Is anything happening around the country on this?
DR. FERRARA: There is considerable variation throughout the country with respect to the nature and type of samples that are collected. We are still collecting venous blood samples in Virginia. Part of that is the fact that a venous blood sample tube is drawn by each convicted felon in that classification, so a second tube is relatively easy.
Secondly, while it's a more invasive, and you have all the difficulties associated with --
MR. SMITH: Classification. That's only then for those who are going through into your prison system.
DR. FERRARA: Into the prisons and into the jails.
MR. SMITH: For probationers and parolees, you don't have that opportunity.
DR. FERRARA: We don't have to. We get them when they go in, and have been for ten years.
MS. BASHINSKI: We're drawing blood from the probationers and parolees, and technically at the moment we're more comfortable with knowing we'll get --
MR. SMITH: Technically you're more comfortable?
MS. BASHINSKI: No. The reason that blood as opposed to saliva is that our number of samples that we would have to reanalyze is a lot less when we use a blood sample, and so we have -- that's a technical reason for using blood rather than saliva.
I think we do need to develop alternative collection methods in order for this owed samples to be most effectively collected.
MR. SMITH: It seems pretty obvious.
MS. BASHINSKI: And that's a very important issues.
MR. CLARKE: I think what you mean also, it's easy to deal with -- or easier to deal with the individuals who go to prison or stay in local custody. It's the ones who walk out the door are the difficult ones --
MR. SMITH: It's about 50 percent in a lot of jurisdictions.
MR. CLARKE: Pardon?
MR. SMITH: It's about 50 percent of felons in a lot of jurisdictions.
MR. CLARKE: Depending on the statute and the individual state, yes. If you've got all felons, like Paul, then you're going to have a lot of people going out the door.
MR. SMITH: I'm just wondering if we as a commission are doing anything on that particular subject, and if so, is it your group that's doing that?
DR. FERRARA: I think that would be the intention of the report, the second task our working group had intended to develop, and that was a model or the good and the bad and ugly of sample collection issues.
MR. CLARKE: Because we've heard, for instance, descriptions of technologies as simple as putting your finger into a laser lancet, I believe it was, that automatically deposits the sample on a card.
MR. SMITH: That was a year ago. By now it ought to be --
DR. FERRARA: I might point out that I wanted to go to a buccal swab for a number of years, but yet I have not yet been able to develop a kit that, as Jan indicated, one, you have the issue of retests and I think we can handle that. What concerns me more is the integrity of the sample.
With saliva samples, the opportunity for some interfering substance, exchange of biological fluids among persons who are going to be collected. We've noted considerable efforts in Virginia among the prison population to somehow avoid getting that sample. But I agree. There's got to be a better way to do it that would certainly be less invasive, but until I'm really comfortable with something we'll probably remain with the blood sample.
The laser lancet that Woody refers to is nice because there's no direct contact between the laser and the individual, so contamination issues, cross-over -- the amount of sample is probably sufficient. But $2,500 a unit multiplied by the number of correctional facilities and sheriffs offices just in Virginia, that gets to be cost prohibitive. Even a buccal swab sample kit would probably run four or five bucks apiece, where right now I'm not -- we're not paying anything to corrections. Of course, they're buying those extra vacutainer tubes.
And then the transportation --
MR. CLARKE: $2,800 or $28,000?
DR. FERRARA: $2,800 I believe for the laser lancet.
JUSTICE ABRAHAMSON: Something like that. Norm and then Ron.
MR. GAHN: Just two things. I know that -- we do buccal swabs in Wisconsin, and of course -- and I can tell you it's so much easier for probation and parole when you do a buccal swab, but even now in Wisconsin we had a kit which had that coarse brush at the end. That was for the RFLP. I'm told now that because of the PCR, our crime lab is just going to a Q-tip, so the cost of that is even less than what it was.
So my camp might be able to have some information -- our experiences and just what type of extractions we're getting, because those are all outsourced and how many have to be redone. I know some do, but it seems like it's awfully effective for us.
DR. FERRARA: Yes. Even -- you have to even take into account -- when you determine what kind of sample you want to collect from convicted offenders, you have to keep in mind the analytical process involved. In other words, to take the full advantage of robotics units, for example, for aliquotting or extraction, what works best?
Right now we're used to punching an FTA card circle, and that gives -- makes it pretty good for running a large number of samples. And a saliva kit -- you can't even see for sure exactly where the sample is, what's the loading, et cetera, et cetera.
MS. BASHINSKI: And that's been our biggest problem, because we have a very highly automated extraction processes. It's not not doable, but it isn't trivial either.
JUSTICE ABRAHAMSON: Ron?
JUDGE REINSTEIN: On the laser lancet, if you had a large jurisdiction for example of adult probation office where you could make everybody after leaving court go to a particular location where they essentially sign up for probation. Would that be workable? I understand that in local sheriff's offices and what not, but if you had hundreds of people going through --
MR. SMITH: 700 would cover the cost of the machine.
JUDGE REINSTEIN: I'm sorry?
MR. SMITH: 700 would -- if you could avoid the $4 cost of the kit, you'd only need 700 lancet experiences to have covered your costs.
JUDGE REINSTEIN: Well, what's the downside for the labs with the lancet as far as the card?
MS. BASHINSKI: I don't know -- I haven't investigated that particular piece of equipment, but you would be able to use that kind of a specimen.
We have a unique problem because we also have to collect a palm print and fingerprints at the time that the blood sample is given. The fingerprint is important to us because it identifies the sample. The palm print is important because our law requires it. We're trying to get a palm print file.
That begins to complicate it, because now you're dealing with having to be in a facility where somebody knows how to take that type of a fingerprint, so it really isn't the blood draw that's causing the problem for us. It's the complication of having to collect all these other things at
the same time. And so our people do go to a central place where they have a blood draw.
JUDGE REINSTEIN: Would the card create a problem, like you were saying with robotics, as far as outsourcing, as opposed to having a blood sample?
MS. BASHINSKI: No, because you'd have -- a lot of people can work with stains on a robotic station.
JUDGE REINSTEIN: Right.
MS. BASHINSKI: Bloodstains -- blood as opposed to saliva.
DR. FERRARA: Right. It's just simply a -- whatever methodology you are employing in the laboratory, you want to design your kit to make it amendable. But none of these issues are, as Jan said, are insurmountable. I'm still looking at developing a less invasive, simpler means of collecting samples, and in doing so, when we make that determination we'll also be looking at how will this affect the analytical side of the equation?
For example, right now we take blood samples and aliquot them on what I refer to as FTA cards. For saliva or buccal swabs or cotton swabs, the cards would then have to be somehow provided to all of the places where samples are being collected, so you lose control of that card. And then collection of the right information and then the transport -- actually, I don't think you could use FTA cards in some of those situations. You'd need to use something like -- because the FTA really binds up the DNA and affects your extraction methodology.
MR. SMITH: I'll bet there's a piece of writing that tracks the various jurisdictions experience with this today. Is there some place we can go and find out about Wisconsin's experience or -- it would seem to me that it would be useful to have such a thing in this country of federal experimentation and all that.
MR. CLARKE: It's also an institutional problem and in begins in the court. By court, I mean in the justice system. A judge, for instance, has to order this, at least in our jurisdiction. Many judges don't realize some crimes quality, some don't, and it's not a condition of probation. It doesn't really fall on our probation departments. It's a required by law statute.
And so if the prosecutor doesn't bring it up and the judge doesn't bring it up, that defendant walksout the door convicted of a qualifying crime, and nobody knows any better. Sometimes the jails pick it up or the Department of Corrections, but if they're a walk out the door type, there they go. That's an owed sample that'll probably never be collected.
JUSTICE ABRAHAMSON: This is something that you can do judicial education in, if it's up to the judge.
MR. CLARKE: Absolutely.
JUSTICE ABRAHAMSON: So what you have to do is call your -- California has a major office of judicial education and get it out on the agenda, and then you do it every year so you remind them.
MR. CLARKE: And that it helps improve --
JUSTICE ABRAHAMSON: Sure.
MR. CLARKE: -- it certainly increases the success rate. There's no question about that. And we try to do it at the prosecution level as well to ensure that for instance all defendants -- and that's a large group in California convicted of -- I'm not sure how it's called nationwide, but assault with a deadly weapon. That's a qualifying crime in our state, and there are thousands of individuals convicted of that crime every year.
And I'll bet the percentage who are actually ordered to go give a sample is less than half. That's just a guess.
JUSTICE ABRAHAMSON: Right. And the prosecutor can say to the judge, would you please order it?
MR. CLARKE: Exactly.
JUSTICE ABRAHAMSON: You've got a double covering there, as well as -- do you have forms -- unified forms in the various state, so if you had a uniform form, it might have it on it.
MR. CLARKE: It helps as a reminder.
JUSTICE ABRAHAMSON: Yes. Right. The bench book. Any kind of material like that. The bench book is a good one.
But, Michael, you raise a good issue.
MR. SMITH: If Barry were here he'd do this quite eloquently, but to me the idea that we focused all this attention on generating the capacity in labs to process stuff like this, and we haven't devoted as a country or a commission enough time to ordering our understanding and knowledge about what's necessary and best for doing it strikes me as too bad.
JUSTICE ABRAHAMSON: Is that a good symposium topic?
MR. SMITH: By November we should have solved this problem, at least with a report from somebody.
JUSTICE ABRAHAMSON: Okay.
MR. SMITH: -- that says what's going on and what's good.
JUSTICE ABRAHAMSON: Do we have enough information at the table?
DR. FERRARA: Woody said he'd take care of that. As part of that model system though, maybe where we surface all of the issues and what works and what doesn't.
In 1989 when we passed our statute it applied to all those incarcerated on July 1, 1989, so we've never had to deal with probationers or parolees. Clearly that's the place to take the samples, at intake, then you eliminate all the other problems. But the fact is that other states -- California doesn't do it that way, so now they've got to struggle with how do we get them from probationers and parolees.
MS. BASHINSKI: Well, we do now. We didn't for many years, so we have this backlog ofpeople that are out there.
DR. FERRARA: Fourth Circuit US Court of Appeals has ruled that you cannot -- refusal of somebody to provide a sample cannot affect their probation or parole.
MR. GAHN: It's not a revokable act.
DR. FERRARA: Yes. Revocation.
JUSTICE ABRAHAMSON: Well, Paul, maybe your working group can take an attack on this, and you obviously are not going to be able to do -- maybe you will -- a 50 state study, but you can at least do some of the states that are represented at the table and indicate what's happening and suggestions for a pilot -- for various pilot programs.
DR. FERRARA: We will do just that, Madame Chairman.
JUSTICE ABRAHAMSON: Okay. All right. Robin?
MS. WILSON: I just wanted to state for the record, for the federal legislation, all of the bills of course are available online at the House of Representatives home page, which is www.house.gov, and then Thomas is the Library of Congress search engine, and you can just scroll down to Thomas, click on it, and enter the bill number. And all of the testimony is online, and you can also access the Federal Register because there is oral testimony and there's written testimony, so a lot of times when the appropriations process happens they refer to the Federal Register and review the written testimony that was submitted to get information on the appropriations, just for information.
And also the solicitation is online as well, NIJ's website.
JUSTICE ABRAHAMSON: Thank you, Robin.
I'm going to now -- we'll break for lunch. We'd like you to get your lunch, come back here if you will, and we're going to do the statute. We've got additions and changes on the computer and we'll show them, and I wanted to thank Paul for making a very special effort to get here, and appreciate that.
Did you want to say something else?
DR. FERRARA: No.
JUSTICE ABRAHAMSON: Okay.
MS. WILSON: I wanted to just amend -- not the Federal Register, the Congressional Record. Lucy reminded me it's the Congressional Record that the written testimony is submitted to, not the Federal Register.
MR. ASPLEN: We do need to move rather expeditiously with lunch and such, because we need to get our speaker out of here. He's got an early flight, and we need to vote on the postconviction model statute before any other commissioners leave. So we do need to move quickly.
JUSTICE ABRAHAMSON: Let's go.
(Whereupon, a short recess was taken.)

Forensic DNA Legislation 2000

JUSTICE ABRAHAMSON: All right. If I can direct your attention to the screen? We have the model statute and we've inserted the changes we made yesterday, and Ron, take it away.

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