MR. ASPLEN: Okay. Folks, if we can take our seats, please, for the final push of the day.

I don't know whether or not it was a good thing to put the two lawyers at the end of the day; however, as I look out and I see the extent to which the seats are still full, that's a good sign at least, but we're very fortunate to have the two lawyers that we do have here.

The first attorney that I want to introduce is Lisa Weinreb. Lisa has served as Deputy District Attorney for San Diego County since 1995 as Deputy. Correct? Okay.

She serves on the Board of Directors for San Diego County Bar Association, Crime Victims United and San Diego County Bar Foundation.

She has served as a special assistant to the Assistant, to the Assistant District Attorney for the City of San Diego. She's currently an adjunct professor of trial advocacy at Case Western School of Law and has instructed for the California District Attorney Association National Institute of Trial Advocacy, the National Conference of Child Abuse Awareness and Prevention and theTennessee District Attorneys General Conference on Domestic Violence.

But quite frankly, what she is doing right now with her colleague, Woody Clark, in San Diego is some of the most important work in the post-conviction area that's going on in the entire country because what San Diego has done is they have, I guess, first recognized the responsibility that all parts of the criminal justice system have in these post-conviction matters.

San Diego is the first county in the country that is proactively looking at post-conviction cases. They're going back and reviewing over 500, and she'll tell you about them, cases without being asked to, without motions being filed, without defense attorneys screaming and ranting and raving, but rather recognizing that this technology does put us in somewhat of a different position.

And I think it's fair to say that San Diego isn't doing this because there is a great concern about the validity of their convictions. I don't think that's the case at all.

I don't think they're doing this because there's a great concern about the quality of the law enforcement work that went into investigating their cases. No.

It's a recognition that things are a little bit different now because of DNA and, again, it's a recognition that prosecutors may have some responsibility.

They are taking the lead, and I believe that there are now a few other counties that are beginning to consider doing that same thing and a couple other counties that may follow, but if we talk about something being visionary and something being on the cutting edge in terms of the lawyer's aspect of DNA and the prosecutor's role in integrating DNA into the system, you don't get more leading edge than Lisa Weinreb. So with that, Lisa.

(Applause.)

MS. WEINREB (Ms. Weinreb's PowerPoint Presentation): Thank you very much, and thank you for that introduction, Chris.

Well, you know, some people have asked me a lot of questions about this particular project, and they must think we're crazy I think, but the way it really came up is we were sitting in a Legal Policy Committee meeting. We have these once a month. It's compiled of a number of the Deputy DAs in the office, the Assistant DA and occasionally the Elected DA comes into the meeting.

So at some point, I believe it was in March, we were having this meeting, and in the meeting Woody Clark, whom I know many of you know, a deputy in my office, wonderful, wonderful man was bringing up and updating us on some of the federal legislation as it relates to post-conviction DNA testing, and he was giving us an update to tell us, you know, these are coming down the pike, what we are going to have to do when one of them eventually becomes law and how it's going to affect law enforcement and how it's going to affect our office directly.

So in that discussion, one of the deputies pipes up and said, Well, why should we sit back wait for them to come us? Why don't we just go ahead and look at our cases and look at them on our own, be proactive, instead of reactive?

Well, as you can imagine in a group full of litigators, Deputy DAs, there was quite the heated discussion about the whole issue, and the DA who was in there said, Absolutely. That's exactly what we ought to do. He said, We're going to be proactive and we're going to go out there and we're going to look at our own cases. We're going to test our own cases.

Just like Chris said, It wasn't that we were concerned because of the quality of the work. We just have seen what is going on nowadays with post-conviction DNA testing. We see what's happening all over the country with people being exonerated. I think that we're finally coming to the realization that what we do is not perfect.

So despite all of our best efforts over the years, despite wonderful police investigations, despite very hard work on behalf of the prosecutors, inevitably, we see that sometimes there are people who are convicted who are not guilty, and I know many of you have looked through this book that National Institute of Justice put out which profiles a number of those cases. It's pretty amazing to see some of those cases.

What we've had to do in reviewing our cases is just take a step back for a moment and put on a different hat or look at these cases from a completely different perspective because when you look at some of these cases where there's some overwhelming evidence, eyewitnesses and some serology from before and then a proclamation by the defendant that he's not guilty, sometimes you tend to say, Well, no way. With all of this evidence, guilty. Forget it.

But now in looking at some of these cases in here and reading some of the fact patterns and then you find out that it exonerates them, it's pretty eye opening.

So after we decided we were going to take that proactive stance, the DA turned to Woody and myself and said, All right. Get busy.

So where did we start from there? Well, Woody and I named the project the DNA Project. So it's something pretty original and unique, but it's the best thing we could come up with.

So from that we decided, okay, now what are we going to do? We knew there was going to be a whole host of problems that we were going to encounter. We didn't know what we were going to find, so what we ended up doing is we -- can turn a little bit of the lights up? Thank you. So I can see what I'm doing up here.

We decided we were going to first decide what was going to be the standard that we were going to apply to some of these cases, and what we did is we looked at some of the federal legislation that was out there to kind of make that decision.

Now, you're I think going to have some discussions about this legislation more tomorrow so I'llbe really brief about this, but there are two Bills that are floating around out there. Well, we're going to call the Leahy Bill, and what that says is that in post-conviction DNA testing, testing can be done if that testing can produce noncumulative exculpatory evidence that's irrelevant to the claim that that person was wrongfully convicted or sentenced.

Now, this is a very broad, broad range and it allows a lot of latitude in what can be tested.

In this particular one, I can give you an example of where this might come into play where somewhere someone would be allowed to have this tested.

Imagine, as I'm sure some of you might has seen, let's say that there's a rape case and it's an adult woman who is the victim and perhaps this happened let's say in a hotel room on bedspread of the hotel room.

So let's say this defendant is continually claiming innocence and is telling you, Go test that bedspread. You're not going to find my DNA there. There wasn't ejaculation. So we don't know what we're going to find.

So if we go and we start testing that bedspread, you can imagine that we're going to find a lot of different samples of DNA on that, maybe not this person. So that is one that we might not want to be tested; however, that information, let's say it comes up and it doesn't come up going to that defendant, is certainly relevant to that claim that he's been wrongfully convicted.

What is important for law enforcement to recognize that also in this federal legislation it deals with evidence retention, and that is, of course, a big issue and concern to all of us. Does that evidence still exist?

But with this federal legislation, it tells us that we must keep the evidence for as long as that defendant is in custody.

If someone is sentenced for life that's a long time, and we know that our evidence rooms are packed the way it is. But this is something that you have to know that might be coming down the pike, so you have to think about that and consider that.

Then there's the Hatch Bill. The Hatch Bill basically allows post-conviction DNA testing if there's a potential to produce some evidence that could establish a defendant's actual innocence.

Now, under the rape case scenario I gave you, I don't think that would be one that would be tested under the Hatch Bill.

The actual innocence standard is one that the DA's office is using in determining which cases we are going to be testing.

So if it's just going to be some information, yeah, there might be some testing that can be done. But is that going to answer the question and prove actual innocence? If it won't, then we're notgoing to go forward and test.

Under this Hatch Bill, evidence retention is also addressed, and that just basically says that once a motion is made for post-conviction DNA testing, the law enforcement has to take those appropriate steps to preserve that evidence until all of the, those proceedings dealing with that are completed.

So does it deal with what happens before that request is made? I don't think so. But this is also against something we all need to think about.

I've been speaking with some people in the audience about what the policies are of their particular police departments, and it's varying in degrees.

I know that in San Diego homicides they basically keep forever. I don't know. We'll see, but that's, they're supposed to be keeping those forever, and other things they just wait until the appeal period is done. Then they send a notification to the prosecutor asking if it's okay if they destroy that evidence. So typically, that was done.

But recently we have contacted all of the different police chiefs in our county and have asked them in certain cases, Please don't destroy this evidence, and so if those requests are coming to our office, we're not going to be approving any destruction of evidence at this time until our project is done at least.

There is also kind of a similar Bill right now in California that's going through. It's dealing with noncumulative evidence. It's material and relevant to the defendant's assertion of innocence. So I don't know what's going to happen with these Bills, but that's coming down for California and for us. So with those two -- with all of that legislation in mind, this is how this whole project came about.

So what is this project that we're doing and how have we determined who we're going to test and who we're going to look at.

Well, what we decided is that we were going to take a look at all of those defendants who are currently in prison serving their original term and that they were committed to prison 1992 or earlier. Those were our parameters.

So we called the California Department of Corrections and asked them to run a database search for us and produce this list for us. So that gave us a number of inmates, 560, from that inquiry in San Diego County alone.

So we have that list. We know what prison they're in. We have got their case number. So then it became the process of how do we go about reviewing these cases?

We hired two law students to do it, at least to do the initial hard work. So these two students are sitting in this little, tiny cubicle with two little computers and surrounded by boxes upon boxes ofDA files.

You can almost not find them when you walk in there to try to talk to them amongst all of these boxes, but these are two law students who have been given directives by Woody and I about exactly what they are to look for.

We have created a review sheet that they are to follow. It's like a template. They fill it out. They fill out the case summary, the information, the crime, how long they're in prison, when they were convicted, when the offense occurred.

So they fill all of this out after reviewing the file, and I'm going to get exactly now then how it goes.

When they're going to do is they're going to have to request each one of these files. Sometimes they're off site and they have to be delivered to them. They're going to look through. They're going to go alphabetical order A to Z. Unless we get a particular question from an attorney, from an inmate, then we'll just pull that case and look immediately at that one and then continue on.

So to this checklist that I was telling you about, after they fill this out, they're also going to attach a number of court documents to that list that Woody and I are then going to review after they create the packet.

So Woody and I are the two Deputy DAs who are reviewing every one of these packets that come to us.

So what we're looking at in these particular packets that these clerks are preparing is they have to tell us on this sheet and on this report what was the statement the defendant made to the police, if any. So they're going to write out a summary of that in their report.

We also want to know what statements, if any, were made at trial or was it a plea, and then we're going to ask them, What statements were made to the probation officer? Because those are also very important to us.

So if they're continually claiming innocence throughout, then, of course, that's something we're going to look at a lot more closely, but, of course, they're admitting to the crime, pleading guilty, we're pretty much done with that case.

Now, at the end of this list, you see the parole board exception. We keep pretty detailed files in our office in what we call the Lifer Unit. It's a unit that handles all of our parole hearings, and so we have all of the transcripts of the parole hearings and reports made to the board. We will look at those statements made by the offender, but those will not exclude them from additional review.

If someone is claiming innocence all through the process and then all of a sudden at their parole hearing is singing a different tune, what we know that sometimes they might be saying just whatthe board wants to hear so they can get out. That's not -- if they're admitting it to the parole board, that's not going to exclude them from our further review.

Cases that are not included are some of our three-strikes case. I think you're all familiar with the three-strikes-and-you're-out law in California. They'll get life after their third strike. We're not looking at those or our one-strike sex cases.

We have particular sexual assault cases that qualify for 15 or 25 years to life based upon certain circumstances surrounding those, but both of those really didn't go into effect until 1992 or later. So those are not in our group of cases.

So, like I said, we're looking for cases that will show actual innocence, that there will be dispositive physical evidence that will show actual innocence.

Then let's say we find a case that we think falls within our guidelines. Of course, our next hurdle would be evidence preservation. Does it still exist? So we'll go, of course, first to the police department and then probably to the courts to see if any evidence was moved into evidence.

Then if we determine that the evidence still exists after we've reviewed it, we determined we would like to look further, then we find out there's evidence for us to move forward on, we will then take that case to our major case review panel.

What that is, is a panel comprised of very experienced trial lawyers in our office, and what's typically brought in front of this panel is cases where we want to seek the death penalty on.

So we'll present that case to the major case review and they make recommendations to the District Attorney who makes the final call. So we will be presenting that case to major case review before we move forward.

All right. Again, I referred to this book by the National Institute of Justice. There was a Frederick Daye case discussed in there which was a San Diego case. Back in 1995 DNA evidence exonerated them, so it just brought home the fact that we're not infallible and that science is not infallible. So that was another reason that we thought this was a proactive stance that we could take to make sure that something like this doesn't happen again. Again, a case two eyewitness identification, some serology evidence and then later testing exonerated the defendant.

All right. So now once we've decided after we have done a major case review, we're going to be going forward on some additional testing on our case, we're going to have to offer this service to the defendant through their counsel.

We've had meetings with the public defender's office in our county discussing this project with them and have also spoken with the president of the Defense Attorney's Bar Association and confirmed that this is the way the process is going to proceed. So we're going to first have to contact the last known attorney of record to offer this testing to them.

Then we're going to probably use either government or private laboratory, obviously what else is there, to test these different testings and we're going to incur those costs ourselves. The county and the DA's office will do that, but we also have to also advise the client, the defendant's client, the defendant that they will be placed in CODIS if they're not already in there and that there's possibilities that they would be linked to other crimes.

So I imagine at that point we might have some people not opting for our additional DNA testing. We'll see if Chris can speak to that. I am not sure.

So it will stop there or then it will continue, and we don't know what's going to happen after that, I'll let you know, but we have not gotten quite that far in our process.

I can tell you where we are so far. So I've explained the process first to you that the law clerks produce this packet that then I review, I make my comments, and then that packet goes to Woody so he can do an independent review and he makes his comments.

There's sometimes cases where Woody and I just sit down and talk about it. I say, You know, let's talk about this case. It's interesting issues. They're claiming innocence. Let's just discuss the evidence.

In this packet also that the clerks provide us are change of plea forms, probation reports, any statements made to police, so we are looking over the work of the law clerks. We're not relying simply upon all of the work that they're doing.

Another important piece of information is if somebody pleads guilty and it is a West plea or Alfred plea, we have different terms, that's basically a pleading guilty to take advantage of the plea bargain. That's not going to automatically exclude them also from additional review if it's a West or an Alfred plea. We will still look into that, but we do also make those clerks attach a copy of the change of plea form, any appellate decision, any statements and aggravation filed by the prosecutor at sentencing, any statements in mitigation, a number of different documents that would assist us in reviewing this case further.

Also, if there's any evidence listed in the file, as there should be, we have them attach those evidence lists for us, and if there's been any prior serology testing, any type of testing like that done on some biological evidence, we want those attached as well for us to review.

So as a part of that result -- so far those law clerks in about seven weeks, that's how long the project has been up and running, have reviewed 96 inmates. Of those, about 82 of them were homicides and 14 were just others, attempted murders, sexual assaults, very aggravated robberies with guns, gun uses, things of that nature.

So far, 36 have completely gone through the process that I described, Woody and I both reviewing the cases. Thirty-five were rejected based upon a host of reasons, either they're pled guilty or maybe they were gang drive-by shootings. I have seen a lot of those where there's no serology evidence whatsoever that we could possibly test. So those are also rejected.

One we have sent off for further investigation. We took a little field trip to the basement of the courthouse to find if there evidence still existed in a case from 1990 because the police department had destroyed the evidence after ten, ten and a half years, you can imagine.

So lo and behold, the court still had a pair of jeans and a T-shirt worn by a 12-year-old victim in a sexual assault case. So we're just going to take a look at this and see if there's even any biological evidence on that clothing. So that's where we are right now.

If we then find something, we might take it then to major case review and then go forward, but actually, it's too early to tell right now.

So far also in those 96 that we found, 54 of them went to trial and 42 pled guilty, but what's really interesting is only 17 of those 54 were actually denying their guilt. The rest of them just wanted to take their chances to see if they could get a better deal than perhaps what we were offering or were claiming self-defense or a different level of intent. It wasn't first degree murder, it was second degree murder. So only 17 of those were saying, It wasn't me. I didn't do it. So it's just very interesting to see what we're actually looking at.

Out of also the ones that we were looking at, four of these cases were direct inmate requests. We're receiving lots of fan mail from the local prisons all throughout California, so four of them were saying, You know, I'm innocent. Please look at my case, which we're doing. We pulled those cases.

One an attorney referred to us and we're looking into that. One an inmate's mother sent us a letter saying, Oh, my son is not guilty. Please look into it, and one we got out of county request, so I referred that over to Los Angeles for them to take a look at.

Actually, we also got one letter from someone just telling us really what a great job we were doing. So it was kind of nice just to hear that.

So that's basically the project that San Diego County has embarked upon. It's quite a process. So we're just a short time into it. So I'm sure that there will be a lot more statistics and a lot of information to glean from the entire project, but again, I want to reiterate that now looking back on all of the cases where there has exonerations we at the DA's office felt that we needed to take a proactive stance, look at these cases, understanding that science has changed so very much over the past ten years that there are tools out there that we didn't have before.

So if we could just use those tools and look at some of these cases, you know, a year of our time is not all that much when you look at perhaps somebody might be sitting in prison who shouldn't be. We're willing to take that time, expend the effort and making sure someone has not been wrongly convicted. Thank you so much.

(Applause.)

MR. ASPLEN: You know, we lawyers take a lot of crap, but --

UNIDENTIFIED SPEAKER: Deservedly so.

MR. ASPLEN: All right. Deservedly so, but I think when you look at something like this and you look at lawyers doing something that is so involved in what is really the truth-determining process, a lot of times we get caught up in the adversarial process and it's necessarily about, you know, guilt beyond a reasonable doubt. It's not about actually truth. It's rare we get to deal in the realm of actual truth.

As an attorney when you see something like this, quite frankly it's a profession that I could be pretty proud of. So thank you.

Let me ask you this: I don't know what was said. I don't want to know. I'm feeling pretty good right now. I'd like not to blow it.

(Laughter.)

MR. ASPLEN: Let me just ask you this question: What are your concerns about things like evidence storage now that we're having to go back and look at these cases sometimes proactively, sometimes not proactively? Do you have any? Ma'am.

MS. ARCHETTO: Linda Archetto. I'm the director of laboratory services for the Las Vegas Metropolitan Police Department.

We've had a couple of cases that have come up for either review through appeals or, and one even that was an innocence project case where the laboratory has been called to gather up the evidence and send it somewhere, and in the process of trying to find where the evidence is, we, since it has already has been to court, the District Court now has the responsibility for maintaining that evidence, and what we found is actually kind of frightening because although the Police Department has an evidence-storage system that is, has certain rules and things, we found that the District Court evidence fault system is not manned in the same fashion.

MR. ASPLEN: How diplomatic.

MS. ARCHETTO: And they've really been angry with us because the evidence is in District Court, and just last week before I came I had an argument with a defense attorney who had submitted a court order to the laboratory for us to produce certain kinds of evidence, and we produced what we had, which was very limited, and the rest of the evidence was in the District Court evidence vault, and he was furious with us that we didn't go get it and send it to his lab of choice.

That's one of the problems that we're having is just trying to get people to understand once that's gone to court, we're not responsible for it any more and the manner in which it is stored, of course, you know, leaves much to be desired. So that's just one of the issues that we found with some of these things.

But I have a comment about what you said. I just wondered if your laboratory is scared to death what you're going to generate for them.

MS. WEINREB: I hope we don't have to generate all that much. Can you guys here me back there? Well, we recognize that we can't inundate one our own laboratories there. We're going to have to send them out, maybe rely upon the FBI crime lab, I don't know. Hint, hint. Now that I've just volunteered them.

MR. ASPLEN: Dwight, get off the floor. Breathe.

MS. WEINREB: So far out of 36 that we reviewed, only one is something that we're looking at. So you can see that our numbers, even if we come up, if that maintains the same course, it's not going to be an enormous number of cases.

So we recognize that we can't inundate our own crime labs so they can keep up with their casework or other private laboratories. So we're very mindful of that. We've spoken with other crime labs around and tried to let them know what we're doing.

MR. ASPLEN: If I could add to that anecdotally, one thing we do know is that in states like Illinois and New York specifically that have actually had post-conviction legislation on the books for a couple of years now, we haven't seen an avalanche of post-conviction cases. You know, that great fear of we're opening the floodgates really hasn't come to fruition.

You know, again, it's a different proposition when you're doing it proactively, but in terms of what they're getting in those states that have the laws, it hasn't been a great burden on the systems. Paul.

DR. FERRARA: I had a question of Lisa. When you mentioned the agreement on the part of the person convicted, that if you were to proceed with testing that that be allowed to be entered into the databank, you took, you're taking cases from 1992. Doesn't California's databank law dictate that their sample is in the databank anyway?

MS. WEINREB: Yes, it does, but with backlog, I don't know if they're in there or not. So I suppose that we're just covering our bases.

DR. FERRARA: Oh, I see.

MS. WEINREB: Yeah. They are already required not in every felony though, but in most of our sexual assaults, homicides, things like that.

DR. FERRARA: Yes, I assumed in these kinds of cases.

MS. WEINREB: Yes.

DR. FERRARA: If you determined that in like that one case that's being investigated that anadditional, that another trial is indicated in California, is that in the purview of the District Attorney to order a new trial at any period of time after the original trial?

MS. WEINREB: No. We're going to need to speak with the Attorney General's Office as it relates to those matters. Are you saying if we decide that there's evidence we tested and its exonerated?

DR. FERRARA: Yes. Assuming we have a limited amount of time after conviction that new evidence can be introduced and, of course, in Virginia it's only 21 days.

MS. WEINREB: Yeah. Oops.

MR. PLOURD: Arizona is at ten.

DR. FERRARA: Actually, I think they expanded it now to 45 days, but --

MS. WEINREB: There are parameters. We're going to be testing if it's showing innocence. So I suspect if we come up with a sample and it shows actual innocence, we're going to petition with the defense to get that person out of custody.

DR. FERRARA: Or the Governor could grant clemency.

MS. WEINREB: Yes, that's right.

DR. FERRARA: Thank you.

MR. ASPLEN: Superintendent.

UNIDENTIFIED SPEAKER: Do you inform the victims?

MS. WEINREB: You know, we haven't gotten that far yet because -- we're going to.

UNIDENTIFIED SPEAKER: There's problems there.

MS. WEINREB: I know.

UNIDENTIFIED SPEAKER: Everybody is always looking out for the defendant. What about the victim?

MS. WEINREB: No, no. Absolutely. We need to get our victim witness involved. We have separate, as many DA offices do, their victim witness division who deals with that, and yes, we'll have to get involved with the victim, explain the entire process to the victim, the victim's family. Who knows, are we going to have to go in later and get additional samples from other, from maybe other partners if it's a sexual assault case. There's a whole host of events that we would hope we wouldn't have to go through, but yes.

Actually, Woody and I did talk about it in this last particular case that we were looking in a little further. Do we want to go to the little girl's mom and talk to her about this?

If it gets further and after decide we're going to go forward, yes we will have to and we will talk with the victim's family using our victim services.

Could I pose a question out there? I'm interesting in knowing if there, what the different policies are of some your other police departments of evidence retention. I've only spoken with a few. But do you keep homicides forever, closed homicides? I'm not talking about these open ones and how about sexual assault cases?

UNIDENTIFIED SPEAKER: For 25 years.

MS. WEINREB: For 25 years on homicides or sexual assaults?

UNIDENTIFIED SPEAKER: Sexual assaults.

MS. WEINREB: Anyone different?

MR. ASPLEN: Anybody less than 25 years? About how long?

UNIDENTIFIED SPEAKER: Our agency, if the person is finished their time or died in prison, the detective will make the decision after talking with the DA. So you could have a guy maybe get arrested for a murder, ended with second degree or manslaughter or something, does four or five years in jail and we'll get rid of it after he's out of prison.

MS. WEINREB: How about a case where all of the appeals have been exhausted, do you still keep it after that?

UNIDENTIFIED SPEAKER: Generally, we've gotten rid of it in a timely manner after the appeals.

MR. ASPLEN: Sir.

UNIDENTIFIED SPEAKER: Homicides always we're keeping them forever, sexual assaults, and it's really an issue now and I think it's going to be more so in the future. We haven't. Once we get through the appeal period, then the sexual assault evidence, that was gone.

We were speaking earlier what's going to happen now as -- I mean, STR is the evolving technology now. Will we be in a position where we'll have to hold evidence for sexual assault cases almost forever because of evolving technology.

MR. ASPLEN: Right. That's the big question. Go ahead, sir.

UNIDENTIFIED SPEAKER: Can I ask a question of Lisa, please?

MR. ASPLEN: Please.

MS. WEINREB: What is your thought process on if the person has been convicted and does his time and gets out of detainment?

MS. WEINREB: Of retaining the evidence?

UNIDENTIFIED SPEAKER: Yeah.

MS. WEINREB: Well, my -- well, I'm trying to think of what other reasons to retain the evidence other than if the person just wants to continue it and have it wiped off their record, fine.

In our case, we would have three strikes. It's still a strike, so that might be a reason.

If I can tell you, for example, in the case that we're looking at the guy is currently serving 29 years on a different case, 12 years on a case we're looking at.

So if we exonerate him, he's not getting out of prison, but it's going to maybe erase a strike for him so that when he does get out in another 19 years he doesn't have two strikes as opposed three.

MR. ASPLEN: You'll actually see that in the federal legislation that's been introduced that they talk about it specifically in the context of either, you know, the conviction that you're serving time on or some other conviction which enhanced the particular sentence that you're serving.

So you may well be in a situation where it's a crime that the individual did their time for; however, it did count as a strike and it goes away. So you destroy the evidence because he's in for another five or ten years, but they want you to go back and retest it, but it's gone because it could essentially -- it could get him off of life sentence. The three strikes -- if they're in a life or if it's a death-penalty situation, that's really important to understate the issue. Yes.

UNIDENTIFIED SPEAKER: One other point about retention of evidence, I would say in Kentucky we were so excited when we first got our DNA CODIS hit within state, an unsolved case from 1996, and we were going back to the prosecutor and going back to the law enforcement agency with our CODIS hit, that initially the suspect was exonerated that we got him originally.

So when we went back to the PD to prosecute this case and advertise our first CODIS hit, come to find out the evidence had been destroyed and we had to drop the prosecution of the case and not go public with it.

MR. ASPLEN: Ouch. Another issue that comes up in this particular instance necessarily then is, Okay. What then do we retain? Not how long do we retain it, but if we have to anticipate the defense filing an appeal for, you know, any biological evidence that may have been exonerative to their client and given the nature of the technology that we've learned a little bit about, didn't gointo a whole lot of detail, but given the extent to which we can get a DNA profile from a biological substance that we can't even see, okay, we can get evidence so small to give us a DNA profile. When they say retain the evidence till whenever, what does that mean?

If what we found is a blood spot in a car, does that mean that we have to retain the spot that we cut out, the swatch that we cut out of the seat or does it mean that we need to retain the seat or does it mean that we need to retain the car?

The implications are pretty obvious, but I think it's the kind of thing that we need to, again, deal with somewhat proactively and think about, and you folks need to talk to your prosecutors and try to get what their opinion is. There may be some guidance in the case law, but quite frankly, I kind of doubt it. I kind of doubt it because we haven't had to really deal with this that much before, but it's a big issue and it's one that we've talked about a lot.

Again, considering that federal legislation has been pending, the issue of what a biological sample is or what evidence is a huge question. Sir.

UNIDENTIFIED SPEAKER: Do you ever see the day that the technology can be advanced where you don't have that, ask this question if everybody is relying on DNA evidence in the first instance that then they wouldn't have to worry about saving it or would that still continue?

MR. ASPLEN: That's the whole point of this whole endeavor. The whole point is this post-conviction issue theoretically is a finite issue. It's a finite group of cases, a finite universe.

As we do more to use DNA in the investigative process, you obviously can't have anybody at the end of the trial period going, But wait, they didn't do DNA testing because you already did. So the answer is clearly yes.

The post-conviction dynamic is a limited finite dynamic that we have to deal with right now because of the chronological stage that we're in with the development of the technology.

If we get to the point where we are doing DNA testing in every case from the investigative stage, post-conviction DNA cases are no longer an issue.

MS. STERNICK: My name is Jennifer Sternick. I'm a prosecutor for Providence, Rhode Island, and I think that that question is starting to be answered by the way we're handling cases now.

I know that I've prosecuted in both Virginia and Rhode Island, and routinely in both of those states we are during the process of the prosecution offering the defense the evidence now. You don't like our test, you don't like our statistics, you don't like the lab, you don't like the kit, you do it. Do it now before we get to trial.

I think that what we're seeing is they don't want to do because they know once I've got a one in 400 trillion chance of it being somebody else, the last thing they're going to do is make that number go up by a hundred fold by getting another test that we can add to the mix.

So while I think with the old cases it's still an issue, I think the problem is we're stuck with what did we do with the evidence ten years ago? Do we still have it?

But now we know and now, you know, the DNA advisory board, ASCLD, everybody is saying, Keep the samples. Let them test it. It's the best defense. If somebody really thinks they're innocent, let them do it now. We should be open to that. We should be secure enough in the testing that we believe in it, and we should let them do it. I really think that's going to answer the question pretty quickly.

MR. ASPLEN: Amen. Is there another question down here or comment?

MR. CORNELIUS: I'm Tom Cornelius. I'm from Colorado Chiefs of Police. Maybe I missed something, but what about the unknown hits that we might get?

If you don't retain the evidence on somebody who has done some time in the penitentiary once they have served their time or whatever and later on down the line through, through better database information someone who had no idea this guy was the suspect gets hit, then we've got no evidence on the suspect in that case because it's been destroyed. What about that?

MR. ASPLEN: I'm sorry, try the question again.

UNIDENTIFIED SPEAKER: Let's say someone gets convicted of a sexual assault and does some time in a penitentiary. Then after they've served their time, they get out of the penitentiary and their evidence is destroyed and five years later you get another hit on something that was still in the database but that physical evidence doesn't exist any more.

MR. ASPLEN: On that original case?

UNIDENTIFIED SPEAKER: Right.

MR. ASPLEN: Well, the data that's in the database isn't going to come out, so you're going to have him in as a convicted offender, and if you had him in as a, from, on the crime scene of the forensic index, that's still going to be in there. That profile will still be there.

So I don't see a reason why you would go back and test the original evidence on that original case that's destroyed because you have got what you want already if I understand.

UNIDENTIFIED SPEAKER: You have already what you want already from a prosecution standpoint, but isn't the defense going to argue that they want that retested and there's nothing to retest?

UNIDENTIFIED SPEAKER: Chris.

MR. ASPLEN: Yes.

UNIDENTIFIED SPEAKER: What I think he's really getting to is the idea of the, if you have a CODIS hit, you still need to get a serve warrant, you still need to draw your suspects blood and you're going to retest it against your forensic sample. That's what he's getting at.

MR. ASPLEN: Does anybody have a response for that? Go ahead, Matt.

MR. REDLE: I think the response to that is you still got the evidence from your new case, right. All CODIS did was it pointed you in the direction of who you needed to get the search warrant for.

You're now going to get that blood sample, you're going to test that blood sample, you're going to get that match and you're going to test it against the match you got on your forensic sample. Okay?

MR. ASPLEN: Anybody else? Sir.

MR. GILSTRAP: Name is Preston Gilstrap. I'm with the NBP. I'm an old Baptist preacher. I don't know how to use this thing. I'm confused.

MR. ASPLEN: Okay.

MR. GILSTRAP: If is this best thing since sliced light bread, why haven't the Feds bought into the thing completely and have mandatory DNA lines on all people in federal regulations and in the penitentiaries and all of this if it's a good thing? If it's truly a good thing, why don't we lead out and then you can bring everybody in because if you're just a little bit hypocritical about the way you really want this thing done, why don't you just bang it to the floor or just tell us the real deal without the underlying thing and if there's another shoot it's going to hit the floor.

(Applause.)

MR. ASPLEN: Now, you're talking about the post-conviction testing itself?

MR. GILSTRAP: No. I'm talking about DNA testing.

MR. ASPLEN: Okay. All right. Remember what Dwight said, the FBI doesn't even have a federal offenders' database established yet.

MR. GILSTRAP: Yes.

MR. ASPLEN: Right. This is the time when you look at the stenographer and say, Take your fingers off. I was going to say if there's somebody else who doesn't endanger their job, number one, it all comes down to money. Even if you think it's a good idea, because we all think it's a good idea, and certainly the Attorney General thinks it's a good idea, it all comes down to money.

MR. GILSTRAP: It's not about money.

MR. ASPLEN: No, it is about money.

MR. GILSTRAP: No. When we reduce it to money, we take humanity out of it, we take justice out of it. Justice is about restoration. It's not about anything else. It's not about revenge or any of those things. It's about restoration. You don't reduce it to money. When we reduce it to money, we take the human element out of it.

MR. ASPLEN: Okay. Well, then implementation is about the funding. I agree with you a hundred percent. I agree with you a hundred percent.

In the concept -- you're right, it's not about money. The concept is -- I'll tell you a story. It's about saving people's lives.

I mean, it is rare in the criminal justice system that the allocation of dollars so tangibly, and I'll go word for word, is so tangible that it affects people's lives. Okay.

It is rare that you have an opportunity to spend $50 and literally take somebody off the street that's going to save their life.

This is not midnight basketball. This is if you don't spend the money, then you wind up with some rapist or some murderer out on the street who's going to take your son, your daughter or whatever, your neighbors or whatever. Okay. You're absolutely right.

But where does the money come from? The money comes from Congress, be the Federal Congress, the National Congress or be it your State Congress.

It's not like you people don't get it. It's not like victims don't get it. It's not like prosecutors don't get it. Where am I? They're the ones that need to get it. So, you're right, the issue itself is not about money, but getting where we need to go is about money.

Now, if we did absolutely nothing, okay, in the next ten or 15 years, in ten or 15 years, we would have a pretty solid database. We would have a database where we had most of the data in it that we need, but, quite frankly, there's a lot of lives to be lost between now and then.

The issue isn't do we get between here and there in ten years? The question is how quickly can we get between here and there? So that's the whole point.

The answer to your question unfortunately is that the money isn't there to implement what we all know works, and that's one of the reasons that we're having this meeting.

(Applause.)

MR. ASPLEN: Thank you for that opportunity. Matt. Stop me, please.

MR. REDLE: Matt Redle. I am a prosecutor from Wyoming, and in terms of the Feds buying in, one of the Bills that the Hatch proposal does provide that the Feds would become a part of CODIS, and their prisoners and, in fact, their delinquent, their adjudicated delinquents would also be a part of CODIS database.

MR. GILSTRAP: Is it in committee?

MR. REDLE: Yes. Thank you.

MR. ASPLEN: Another question in the back there?

MR. CATTERSON: I have a comment more than anything else. I would like to drag this back to, before we got off on a tangent on the Feds. We can pick. My name is Jim Catterson. I'm the District Attorney of Suffolk County in New York, and if Lisa -- I was fascinated, Lisa, with the project that you got into because really we're in the business of truth finding. It's great to win a case. As the supreme said, we can strike hard blows, but not unfair ones. We certainly have a continuing obligation to look into our cases.

The question is, How long do we let the evidence survive? You know, the worst thing you want to hear is, Oh, my gosh, do you still have that over there?

Let me tell you a quick story, if I can, to indicate why we should save it for a lot longer than most people in this room would agree.

In 1982, there was a vicious rape on Long Island. A housewife returned home from shopping, she was assaulted by a masked stranger, and I say masked, a ski mask. He looked her in the face and he said, I'm back. We're going to do it again. She had been raped six months before in the same place.

The person was eventually, great identification as far as height, picking people out of the lineup and an audible identification, went to trial, conviction.

Nine years later we got a request from a defendant who was in jail who's now represented by Mr. Scheck that he'd like to have DNA testing, and at that time, we resisted. We didn't know what we were getting into, but eventually, without my knowledge, the lab sent it out to a friend of Dr. Scheck's and Mr. Scheck is out in California, name is not important.

Didn't have enough evidence for RFLP, and about eight months later decided that he had enough for a PCR and then he decided, and testified, that while all of the markers were the same, there was an additional marker.

The test in New York is that newly discovered evidence, if the evidence as produced could convince, could demonstrate to a trial jury that they could have found a different result based upon newly evidence we're duty bound to vacate the judgment and dismiss the entitlement.

We fought and we fought and we fought and we lost, and I finally had to go along with this. This was 1991 when I didn't know PCR from RFLP.

The lab maintained the evidence, and in August of 1996, a young woman was pulled over a throughway, expressway, a guy flashing a badge, I'll make it as short as I can, taken into the woods, forcibly raped. The individual then irrigated her with a bottle of water. She got the last couple of numbers of the license plate, you can see this one coming, traced it to only one car like that in Montauk registered to a woman who drives up in the car; the same individual.

If we did not have the evidence, we couldn't have gotten him on sealing order, we could not have compared the semen that was found on her jeans, it was on her leg and transferred to her jeans, compared to the known sample of the individual who we hadn't let out. P.S., he's back in jail doing another 15 years.

So there's one compelling argument the other way, Lisa, of why we may want to save this material a lot longer than we thought we should have saved it or it works.

The talk about I'm the person who got himself out of jail "by DNA" it's big a question of whether STR would have explained it today, but that's another story. We put him right back in for a subsequent rape based upon the same evidence. So there's the best I can tell you.

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