MR. ASPLEN: Thank you. Okay. It's time to move on to our last speaker. Chris Plourd is a criminal law specialist and he's been practicing litigation for the past 19 years, and he specializes in forensic criminal and civil cases. He's been engaged extensively in litigation and consulting, particularly on scientific matters.

He is a member of the American Academy of Forensic Scientists, the Association for the Advancement of Science in the American Society of Forensic Oncology, Odontology, and Chris is another individual who has been very involved in the Commission process.

He's a member of the Working Group for crime scene investigation and, quite frankly, a critical member of that working group because, and I think all of us would agree, it is essential to know where your opponent is coming from when you proceed in matters like this.

The best idea that you can have of what the attack is going to be on your evidence is going to put you in the best light to address that attack.

So I want to thank Chris for all of the work that he's done up to this point in the Commission work and for the work that he's going to continue to do because we're not quite finished with him, but I want to introduce Chris Plourd to you. Thank you.

(Applause.)

MR. PLOURD: It's a pleasure to be here. I hear it's lonely at the top, but being the only defense attorney in this room with that point of view, it's real lonely at the bottom, too.

I talk a lot to attorneys, sometimes I lecture to judges and so forth regarding DNA evidence. Most times it's to people that don't know a whole lot about it.

When I gave my secretary this calendar, this schedule to calendar for me and she looked at it, she's Hispanic and she says, voi aken tir el enfossa de los la onus, you're going into the den of the lions, that's true, but I reassured her that lions don't like sharks, so I might be okay.

The points that I want to talk about are varied. I look at things from a different perspective because I kind of look like, from the inside out, from the outside in. I've got to look for some angle because I'm obligated to represent my client.

For example, when you hear talk, and the truth is that laboratories are understaffed, my perspective is totally different. I go to laboratories all the time to look at case files.

I've been involved in this technology for a number of years, and whenever I go to a laboratory, I usually have two people watching me the whole time. I think they must have nothing better to do. I have guards when I look through the files, so that's my perspective in some respects.

I want to talk about a couple of things. In reality, the defense lawyer is sort of the last person that gets involved in this whole forensic evidence DNA technology because he's going to have to do something with it once it's utilized, either plead guilty for his client if he looks at it and concludes that it's probative and convincing or go to trial and try to contest it. Sometimes he doesn't have a choice.

The third area is if he needs to use it for his case, and I've been very much involved in a number of those types of cases. In fact, my experience is, is that the first case that I had it was the prosecution that raised a fraud hearing and contested the DNA evidence that exonerating to the client claiming that the technology was not valid that was used by the defense. This was when the technology was virtually brand new.

My history is essentially that in 1986 I was appointed to represent a defendant who was accused of capital murder, it was an African American young man who was a parolee and he was accused of murdering a young lady, a Caucasian white school girl who was walking to school. She was 16 years old and brutally raping and murdering her, and this was the very difficult case for any lawyer, any murder case is, but this one was particularly difficult.

There were only -- there was an attempt to do some DNA testing on some hairs, particularly one hair, and there was, they couldn't do RFLP testing and there was only one lab that did PCR testing and it had never been validated, and we basically argued about this and eventually did the DNA work, but there were only three private labs in the country that did DNA testing, no government labs.

So I had to learn about DNA testing, and then all of these years later is the result. I had to continue to learn about it, and eventually the case was resolved by a hung jury and eventually settled, but the technology has advanced quite a bit since then. It's changed.

When the technology was first introduced, it was RFLP technology, and it, two labs were doing it. Then eventually the government labs got into the RFLP program and PCR was sort of kind of on the back burner.

In fact, the person that was proposing the PCR technology might be useful was sort of put down in the early days as being, you know, it's not valid, it has too many problems, and then quickly within five years it just overcame and now RFLP technology has gone by the wayside.

It's good to know the history about how DNA testing has evolved because it continues to evolve, and what I have seen is that governmental entities have put a lot of resources into a particular technology. It takes a lot of time.

By the time it gets going real strong, then the next technology takes over and you're already committed to this whole technology, and it's real tough to, you know, switch over and it's expensive. It's not easy to get governments to approve it.

I want to quickly go through some slides and make a few points as I go along. I want to talk about -- I have to touch all of these different areas because I'm the only one here for the defense, and I'm going to mention a couple of things. Some things are going to be controversial, but these are the issues that are really addressing things.

The first thing I wanted to bring up was, is that for a lot of practical reasons there's not, the courts are not throwing out DNA testing. You know, you mentioned DNA testing. Generally, generally courts are going to accept. It even though it's a new type of test, it's a new technology, it is over with.

The only thing that's being debated now is which test do we do. Do we do this mitochondrial test or do we do some other type of test? Rare exceptions to that, but in general, that's the case.

One of the principal reasons is really, is that defense lawyers, in general, for, one economic reasons and, two, for practical reasons aren't contesting these cases any more.

I get a call once a week on a case, on cases from around the country and the question is always the same. We want to fight this DNA test. I'm very excited. I say, oh, that's wonderful. Send me $350,000, because that's about what it takes to do a scientific validity test when you're hiring experts and you're going to have six to eight weeks of a hearing and hire every prominent expert in the country. Well, obviously, the test doesn't get done.

The next thing is defense lawyers, like myself, Well, we use these tests to free innocent people. How can we go into court? So we sort of had to put those challenges to the wayside.

The only challenges that are coming about now are really technical. You heard, and it's a very valid question, the defense asked for discovery from the company who developed the test. They claim a trade secret, and they beat it on a technicality because they convinced some judge that that's something that they need. I don't involve myself in that, but that's what's going on now. Technical challenge has nothing to do with scientific validity.

So basically, courts are accepting these tests pretty regularly. Even the mitochondrial tests, several appellate courts have done it. There's a lot of new technology. This is the old technology, like reverse dot blots, PCR. It's sometimes very complicated. It's been replaced by very computer generated. It's a new look. It's extremely specific. You can test a lot of different genetic markers that can sort out mixtures. This was a big problem for a number of years.

A lot of cases were inconclusive because you could not separate one person's DNA from another. Now you're able to do that. Major component; minor component. These are critical issues.

This is what's being litigated in court, you know, who is the major contributor? Why is somebody a major contributor versus a minor contributor, etcetera? What does it really mean? And there are a number of key situations that it applies to.

In the courtroom, you have a number of new genetic markers, and I know we've talked about it. I won't go into all of them.

You have new types of DNA. That's the mitochondrial. Also the Y chromosome male DNA or boy DNA, and then incredible technology as far as the ability to test robotics, doing, you know, mass quantities of testing, and that's just growing exponentially, and some of the human genome work is going to really make that even more significant.

They you have a little bit of non-traditional biological evidence; plant, dog, cat DNA, things like that that comes up very rarely, but is significant in the right type of case.

We get into the new and the old cases, and I want to touch on some points on both of them. They're both very similar basically as far as the problems and the issues.

As far as innocent people and as well as old, cold cases, basically these are the general statistics is that when the innocence projects that are going on around the country approximately 75 percent of the people that want their case looked at don't get it looked at because the evidence is gone, destroyed or never existed or whatever the case may be. The courts are throwing it away. The police departments are throwing it away, so they're off the plate right from there.

Out of ten cases that get looked at, seven actually identify the person who is in custody. Approximately three, these are the general numbers and it's not very statistically significant, three out of ten get exonerated after all of this is gone through. That seems to be the general consensus of how the numbers are coming down. Most people get no test because there's no DNA to test.

With reference to genetic markers, the current wave is RFLP, DQAL, poly markers, that's out, but a lot of labs are still spending a lot of resources doing it, but the STR loci profiler, that's where, that seems to be the gold standard now. That's going to be around for a long time. I think it's wise to invest in those technologies because they're very robust and they're very specific and they're database oriented.

The Y chromosome helps in certain types of case when you can't get a result because you have too much female DNA or other DNA mixed with male DNA and you're looking for the male suspect.

There's a tsunami coming as far as the technology because there's been so much research on how to collect more DNA from smaller samples and doing mitochondrial DNA, and it's just overloading the court system in laboratories. It's phenomenal.

When you're training all of these law enforcement officers, as has been started to happen, they're starting to collect stuff. It's been mentioned a lot. It's going to overwhelm the system, and it's done that already and it's going to get worse by tenfold in the next couple of years.

I'm going to skip the mitochondrial because you have heard a lot of technology stuff and the first responders.

It's basically because you're now starting to educate people on collection, storage, identification. Crime labs are very good now at extracting better techniques or using better techniques to extract so that they actually recover more DNA. You get it from virtually everything.

I've got a handout that demonstrates that, a little abstract of an article that lists about 40 different things that nobody would have ever thought of that you could collect DNA from and it's in your program material.

Cases that have gone to court regarding animal DNA, vegetable, that's basically identifying biological material. Semen, insects, viral DNA, I'll talk a little more about that. There's an article regarding that.

I'm going through these quickly, but for example, one of my areas that I looked at extensively and done a lot of research on it and tried to convince NIJ to grant more funding to the research on this is when children are sexually assaulted, sometimes it doesn't get reported until they go to the doctor and they have some type of venereal disease, and there's some investigation going on, there's some research going on that these are, these viral venereal disease are polymorphic. In other words, that they're not all the same. You can separate them.

So you can tie that child's disease to a particular offender if he has the same strength, the same type. Very, very interesting research, and those are some of the toughest cases that you can ever run into as far as an investigator.

I can't see these very much because they're basically items of evidence and so forth, but I wantedto talk about a few more things and then I'll wrap it up.

There was a good question that the preacher brought up about why the Feds aren't, you know, buying in the CODIS and so forth, and it's a very sensitive subject, but basically, it's a very hot topic and it has to do with DNA databasing. It has to do with taking arrestee samples, and that is racial profiling.

There is a perception that some believe, and me being a criminal defense lawyer, I've seen it happen. At least in my mind, I've come to believe it. I didn't believe it when I started doing this work, but when you take arrestee samples and if there is some element of racial profiling going on, some probable cause determination based upon the color of the individual's skin, you're disproportionately putting in, those minorities into the databank and you're disproportionately affecting those minorities.

That's a very valid concern and that's something that's going to hamper, if not kill, arrestee sampling. Unless you can prove as law enforcement professionals that you don't have any racial profiling going on in your department, people are not going to allow you to take arrestee samples. It's simply not fair.

Even convicted offenders are disproportionately impacted if the premise is correct that people get stopped arbitrarily because of race. Well, you disproportionately have more minorities in your database because they get stopped and they happened to get caught more often than other people. It's a very interesting issue, and believe you me, it's not going to go away.

With reference to innocent people, I want to talk about some cases, but I want to talk about what I call the shark attack. In other words, how does the defense lawyer attack the DNA evidence assuming the testing itself is done reliably?

Well, it's really the, it really comes from the Simpson case. You juice the DNA. You attack the collection. That's where it's going to come from. The garbage in, garbage out, mishandling of the evidence.

The evidence in the Simpson case was extremely strong, but it was an attack based upon mishandling and basically, even though some will say that the result was predetermined, basically the jury reacted to that. They didn't trust the police officers.

Well, they grew up with those police officers, and essentially, the attorneys in that case were preaching to the choir because they were willing to accept something that they live with their whole lives.

I went up to the O.J. case a number of times. I actually helped out in a little respect with the prosecution in the case, but when I saw the jury, I understood completely how that case was going to go down, and you get a whole different perspective if you go and you look at the whole dynamic theory.

Mishandling of the evidence is a critical concern because you're getting test results from such low quantities that you're going to pick up very minute, low copy numbers is what they're calling it, DNA sources that you'd never expect and it's really to going to spin some cases around the wrong way.

I want to finish up by talking about a couple of cases that I have been involved in, and I get involved in cases around the country, but I do most of my work in the San Diego area and I'm very confident that they won't find very many wrongfully convicted people in San Diego because a lot of testing has been done in that area.

It's been a very lucrative area for attorneys at least since the 90's and late 80's because one of the first PCR DNA cases was litigated there that DNA testing has been used, and a number of times it's used in crime labs because they're overstaffed or under-educated they miss the evidence, and it's the defense that finds the evidence and then gets the test done or works with the prosecution to get a test done and they're exonerated. Then they don't get convicted so that they don't have to be unconvicted.

There was one recent case, and I think it's important to look at cold cases, you know, cases that couldn't be solved, weren't solved, and when you do solve them, that's a rare event. You got a lot of media coverage. It's a great thing.

Why didn't you solve them? Because you don't want to make those mistakes in other cases obviously. Did you buy -- the polygraph test turned out to be bogus or whatever the reason was. Did you accept somebody's alibi and then put the person off the suspect list?

The same is true of innocent people that have been proven positively to be innocent. Why were they convicted? You don't want to make those mistakes again.

The big debate about the innocence project and the people that have been exonerated is that, Well, you have proven conclusively that X number of people have been falsely convicted. Now you've got 100 cases over here where there's no DNA evidence. Well, you know because the same type of evidence was used with them, some of those are innocent, too. You just can't prove it one way or the other because you have the eyewitness, you have the false confession because you're seeing these types of cases. These things are happening.

Now, when there's no DNA evidence, why would one think it does not happen in some of those cases? This do not mean that eyewitnesses are not good evidence because it could be perfectly valid, but it could also be one hundred percent wrong.

A couple of cases and I'll let it go. One case in San Diego County about to go to trial. It was going on for a couple of years. The defense was claiming that the suspect transient did a murder of this girl.

The three defendants, some of whom confessed, some made admissions were about to go to trial one after the other, and then the defense had a DNA done, with the cooperation of the prosecutor,and apparently some blood was missed have, some blood spatter off a garment that the transient who the prosecution could not commit, came back a blood spatter from the victim. They took this off the suspect the morning after the crime. They had three basic confessions and they had to dismiss the case.

Litigation follows and there's now money litigation where the children's parents are suing for damages. The case is still very controversial. Some people still think the kids are guilty even though the DNA test exonerates them.

Another case, a gentleman by the name of Herman Atkins, an African American gentleman in the Riverside area in 1986.

Basically, he gets arrested, charged and convicted and spends 12 years in prison for rape. The victim worked at a store, and the African American person went in. There were some other shoppers. He waited for the other ones to leave and then with a very brutal attack and a repeated forced oral copulation, the rape then occurs, ejaculation.

The victim is taken for a rape kit. Back in those days, serology was the type of testing that was done. Nothing conclusive came out of that.

The victim went to the police station, was just looking through yearbooks and mug shots and various things and happens to see a wanted post of Mr. Atkins on a police officer's desk for some other petty claim, burglary, robbery out of LA, That's him. Does a photo lineup. The victim is positive. Mr. Atkins goes to prison.

Eventually DNA testing shows that absolutely conclusively it was not Mr. Atkins. He spent 12 years in prison, but the victim was one hundred percent certain.

Take-away comment there or the point is the victim just happens to pick somebody out because they notice them. You know, it's not sort of like a lineup or there has to be something else that ties the person to the crime. You've got to be suspicious of that because sometimes victims feel compelled to do something like that.

Now, my favorite case is the case of Greg Martin. I've got a copy of a letter in the program materials, as well as some envelopes, and this was a DNA case because we did some DNA testing on this envelope, and Greg Martin, I got to know his father because I did a little education.

I educated his father on some DNA testing because his father was a detective, and we had a couple of days on the witness stand with him and he learned a lot, and I enjoyed teaching him a few things and he was very respectful of the fact that I was very assertive, aggressive, knew what I was talking about and brought up some very valid points.

Well, one morning I get a call from Greg Martin's father. He had just retired and basically he wanted my help. His son was in jail for murder, a very difficult murder, a baby murder. Nothinggets worse than a baby murder.

That's the one type of murder case where you really feel that the jury not only wants to kill your client, they want to kill the attorney, too, for representing him. It's a very, very difficult case.

So essentially, Greg had a little switch of position in his life because he had met a girl, the girl had a baby and they had kind of fallen in love. He moved in with her about a month and a half later. This baby -- he calls 911. His girlfriend had just left to go to work and he goes back into the apartment and the baby's crying and then codes and paramedics come and basically the baby is brain dead.

Since he was there, they feel that he had done it, and his girlfriend, you know, in the abundance of loyalty testifies at the preliminary hearing a few days later it wasn't me, and it had to be one or the other, and essentially he gets charged with murder.

So instead of being a jailkeeper, Greg Martin, who was a Deputy Sheriff as he happened to be, became jailed. He was put in jail with a million dollar bail. His girlfriend -- we did a lot of investigation. His girlfriend had a history of abuse on the child that predated this relationship, and we had a great case with the girlfriend we felt showing a history, but the case took a long time. He was in jail for a year.

She had a little mental problem, and she starts writing a letter. She complaining about us be we're investigating her.

She writes a letter, Yes, I killed my baby. So what the f**k are you going to do about it? Well, she was the District Attorney's star witness and she had testified at the prelim and was their star witness at trial. I thought that this was impeachment. It affected her credibility about hurting this kid.

So we had to disclose this and eventually there was a mistrial, and we had to do some testing and so forth because what happens is they went to interview her and she died writing the letters. Well, he's in jail. So we had to get the envelopes tested, eventually handwriting is done and he's exonerated, but he's a good example. Even a law enforcement officer can be exonerated through DNA testing.

I've gone on a little longer than I think I should have because we're a little bit over time. I apologize.

The last thing I want to mention, and this is a good point, it's an investigative point, is I look at a lot of cases and a lot of times because of the old technology you get inconclusive results in cases that you may have handled, but you get -- the lab reports now is inconclusive, but you get kind of faint results that might be able to suggest to you that you're looking in the right direction or that you're not going in the right direction.

So you may want to look at those cases because I do that all the time, and I can pretty muchpredict how cases might come out based upon faint results that aren't interpreted because they don't meet certain threshold limits. You can learn a lot from those and then now get more sophisticated, more sensitive testing.

It's been a pleasure being here. I always enjoy doing this, and I want to thank you for your attentiveness.

(Applause.)

MR. ASPLEN: I also want to thank you for your attentiveness. Again, we know it's been a bit difficult because of the cramped quarters, but we're going to take care of that tomorrow.

Remember that tomorrow we are in the Atrium room. Also, tomorrow you'll notice on the agenda that the 8 o'clock session, while it's the coffee break, we're really going to be doing some stuff there, so I really do encourage you to try to be here at 8 o'clock because what we're going to do is we're going to role out to you folks our CD Rom training that I think, and I hope, that you'll find quite good.

So we're going to kind of go through that with that with you before we actually start the real program. The Attorney General is still scheduled for 9 o'clock, so hopefully that will we remain the case. Have a good night.

(Thereupon at 5:10 p.m. the proceedings was adjourned.)

CERTIFICATE OF NOTARY PUBLIC/REPORTER STATE OF MARYLAND: COUNTY OF BALTIMORE

I hereby certify that the foregoing transcript is a true and accurate record of the proceedings.

In witness whereof, I have hereunto set my hand and affixed my Notarial Seal, this 4th Day of August, 2000.

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