Meeting in the above-captioned matter was taken on Friday, July 28, 2000, at the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue, N.W., Washington, D.C., commencing at 8:45 a.m. before Carol T. Lucic, Notary Public.

REPORTED BY: Carol T. Lucic

MR. ASPLEN: If we could take our seats, please, I would like start off by introducing our first speaker this morning, Mary Lou Leary, who is designated by the President to serve as the Acting Assistant Attorney General of the Office of Justice Programs. It is fair to say that this audience and you participants in this particular conference understand the import of the Office of Justice programs in terms of getting things like technology and innovative programs into the hands of your law enforcement officers.

Mary Lou is now responsible for that integration of those programs and those technologies into your hands and ultimately onto the streets. Mary Lou comes from Main Justice immediately prior to her position at OJP, but prior to that she was the Deputy Associate Attorney General and also served as chief of staff to the Associate Attorney General in the U.S. Department of Justice. Prior to coming to the U.S. Department of Justice from January of '97 to '98 she served as United States Attorney for the District of Columbia.

Throughout the course of the last day and a little bit this morning I've offered at times my personal thanks to people, and my personal thanks to Mary Lou is that she hired me, and at times I thank her for that, but that's actually most of the time.

Before that she began her career as an assistant district attorney for Middlesex County in Massachusetts. She's a prosecutor's prosecutor, and the law enforcement community is well served by having her now as the person in charge of the Office of Justice Programs.

So with that, Mary Lou, thank you for being here.

MS. LEARY: Thank you, Chris. I think that you all can tell from the results of this meeting over the last day or so that Chris is probably one of the best hires that I made at the U.S. Attorney's Office, and then when the Department of Justice called me when I was serving as U.S. Attorney and said we really need somebody to help us with this DNA Commission, we need somebody who understands it, who has been out there, who has been doing this kind of work; could you please send Chris Asplen over here, I thought, oh, boy. You can imagine how good he is in trial, what a great prosecutor he is, but I could see that greater good called for Chris' services, and I'm just delighted with the results.

I'm grateful to you, Chris, for the work you've done on this conference, and I think it has been terrific. It's wonderful to see all of these folks come together, police, prosecutors, technicians, a whole range of people from across the country. It's a very, very, important gathering, and you all are the folks who will go back to your districts and make things happen and push the envelopewith DNA and use it. So I'm grateful for you taking the time out to be here.

I'm delighted to be at this summit because I think the issue of DNA technology is an absolutely critical one for all of us who are involved in the criminal justice system. As you heard from Chris, I kind of grew up professionally in the criminal justice system, serving first as an Assistant DA in Massachusetts and then 15 years in the U.S. Attorney's Office here in D.C., so I know the kinds of challenges that you all face in your work, and believe me I'm with you.

Yesterday you heard a lot about how DNA data banks have been a very powerful tool for law enforcement, and you heard about all the work that's going on in the federal, state, the local levels, work that's geared towards improving our capacity to use DNA evidence in criminal cases. You heard some about how post-conviction DNA testing is being used to overturn convictions and to exonerate the innocent.

I think one of the issues that I would like to talk to you about is something that we didn't really discuss very much yesterday, and that is the very human impact that DNA evidence can have on victims.

When we talk about DNA evidence in this country, the focus in the last few months or perhaps a little bit longer has really kind of shifted to post-conviction testing and post-conviction issues and exonerating the innocent, and this, of course, is a very powerful tool and it's important to be sure that nobody in this country is unjustly convicted and remains unjustly convicted post-conviction, but I think it's also critical to remember the role that the criminal justice plays in protecting the public and insuring justice for victims.

These two goals should be the primary focus of DNA technology, and, as I'm sure that you all recognize, victims have often been ignored in the criminal justice process. It really wasn't until the 1980s when the President's task force on victims of crime began that focus that we started recognizing the rights of crime victims and working to address their needs. I'm sure that everyone in this room has had an experience with a victim of crime where you have come away from your interaction with that victim feeling like no matter what the outcome of the case, you helped to restore some sense of wholeness, some sense of dignity, and some sense of justice to that victim, and there cannot be any greater reward for those who work in the criminal justice system.

We've come a long way in addressing victims in the last 20 years. I think that police, prosecutors, and others in the criminal justice system respond much more sensitively to the needs of victims. Every single state in this country has enacted victims' rights laws, and more than 10,000 victim assistant programs have been developed across the country. Every state now has a crime victims compensation program. But in our discussions of DNA we find we have sometimes forgotten to talk about how we can use DNA as a tool in moving forward in addressing the needs of victims. I saw firsthand as a prosecutor the impact, the powerful impact that DNA evidence can have; when you get a DNA match, that powerful sense of closure and relief that can bring to a victim.

I would like to share with you the story of a couple of victims and the impact that DNA had on their cases and on their lives. Let me tell you about Debbie Smith. In 1989 Debbie Smith wasdragged from her home to a wooded area nearby. She was brutally beaten and repeatedly raped. During that attack her assailant kept saying to her over and over, "I know where you live, and if you tell anyone, I'll come back and I'll kill you."

When Debbie finally dragged herself home, all she wanted to do was take a shower and wash away the pain. Of course, she didn't understand that in doing so she would also wash away critical DNA evidence, but Debbie's husband was a police officer, so he convinced her to wait, to notify the police, and to go immediately to a hospital where trained medical people could examine her and check the physical evidence that might identify her attacker.

When Debbie came to testify before the DNA National Commission, she described her six and a half years of anguish as police continued to pursue her case and there were no results. Her life was consumed by fear. She was always looking over her shoulder sure that her attacker would come back and kill her.

Finally in 1995 Debbie's long nightmare ended when forensic scientists for the State of Virginia discovered a match in the DNA data bank. Her attacker was already in jail. He was serving time for abduction and robbery. Debbie described her feelings, and for the first time in six and a half years she said I could actually feel myself breathe. I felt validated. It was a real name and a real face to go with my nightmare. Finally I could quit looking over my shoulder, and finally within the pain began to subside, healing began, and peace came at last.

Debbie learned later that her assailant had gone to jail only months after raping her, but because there was a backlog in Virginia's DNA database, she had to wait six years to hear about it. She lived with that for six years.

There is a Florida victim who has a similar story. This is the story of Kelly. At the time that Kelly was raped Florida was not processing nonsuspect cases because they didn't have the funding to do so, but three years later there was one detective who was persistent, and he asked that they dust off the rape kit from Kelly's case. Some officers thought that that rape was similar to crimes that had been occurring in Daytona Beach, less than two hours north of her home.

When they entered that data into Florida's local DNA database, they found almost instantly a match with the FBI's CODIS system. So although her rapist's profile didn't match the profile of the Daytona Beach rapist, it did match that of another man who was already serving a 25-year sentence for beating and raping a woman just six weeks before Kelly's attack.

So both of these courageous women are using their stories now to help other victims and to insure that offenders are appropriately sanctioned. Kelly travels around the country giving rape awareness seminars and talking about the healing process and talking about the importance of DNA in solving cases. She actually drafted a bill that was introduced in the Florida legislature that mandates consecutive sentences for convicted sex offenders and murderers in prison who are found guilty of subsequent offenses, and last May that bill was signed into law.

I think these two cases illustrate the tremendous role that DNA can play in solving crimes andbringing peace of mind and justice to victims. I think these cases also illustrate the critical need to increase our capacity to analyze DNA evidence. We have all 50 states now requiring DNA samples to be taken from convicted offenders, but not all 50 states are hooked into the FBI's national database, and most states have huge backlogs in collecting and analyzing samples. The FBI's CODIS system has a large backlog as well.

The National DNA Commission has identified the elimination of DNA backlogs as an urgent priority. Here at the Department of Justice we are absolutely committed to helping to reduce this backlog. This year we will be awarding $15 million to states to help reduce their DNA backlogs. This will help free up laboratory resources to analyze new DNA case work samples and will permit more comparisons between known offenders and the unsolved or what we call cold cases.

Another $15 million will support the crime laboratory improvement program. This program provides assistance to improve and expand forensic services in state and local forensic laboratories. We've asked Congress to increase the funds for this program and for the DNA backlog initiative next fiscal year. We've actually asked for a total of $50 million to support these efforts.

But you know these improvements will come too late for some crime victims. One Los Angeles woman that I know of who was bound and was brutally raped for hours by a man who broke into her home as she slept, seven years after her attack DNA evidence identified her assailant. Unfortunately for this victim, the break in her case came one year too late because in California rape cases have a six-year statute of limitations.

Because current crime backlogs often mean that victims have to wait for many years for DNA evidence in their cases to be analyzed, some states are actually extending or dropping the statute of limitations on prosecuting rape and other violent offenses. In 1997 Florida removed the statute of limitations on any rape case where potential DNA evidence has been collected. Some states are looking at removing the statute of limitations on other violent crimes as well. Some states have begun filing John Doe cases against serial rapists using only the genetic profile.

These actions I think give hope to victims who are waiting for their attackers to be identified, prosecuted, and convicted. As the leading law enforcement officers and lab folks in this country, I hope that you will take the time to think about the impact that DNA evidence and DNA technology can have on crime victims and think about how you can work to increase the capacity of DNA evidence to insure justice for victims of crime. I hope that you go back and use your influence to promote the use of DNA in criminal cases and to convince your state and local purse holders to support crime labs for analyzing DNA evidence.

We will never be able to provide enough federal money to clear up the backlogs across the country. We have to have support at the state and the local levels as well. So I urge you also to support more training in DNA evidence identification, collection, and preservation. That training really should include guidance on working with victims and helping folks understand the importance of DNA in identifying an offender and securing a conviction.

Most rape victims' very first instinct is to just wash away all signs of the crime. These victims need sensitive counseling. They need appropriate counseling and immediate referral to sexual assault nurse examiners or other trained medical personnel who can collect the DNA evidence. Once that evidence is collected I hope that you will encourage your officers to work closely with prosecutors and with crime lab personnel to solve crimes and insure justice for victims.

I know that law enforcement personnel are often really frustrated, as I was frustrated, by the amount of time that's needed for crime lab analysis, but I think we've heard here from the beleaguered state crime lab directors those labs are often times doing the very best they can with extremely limited resources, and they need our support.

Finally, I encourage you to encourage your departments to be dogged in pursuing cold cases that could be solved with DNA technology especially in those states where the statute of limitations has been dropped. Advances in DNA technology can mean hope for victims who are lost in a kind of a purgatory of not knowing who or where their attackers might be and whether they might come back and attack them again. As Debbie Smith told the DNA Commission, every day a victim has to wait is another day stolen from her life.

I want to thank all of you for accepting the Commission's invitation to learn more about the issues of DNA technology. I want to thank you for the work you do in protecting the public, and thank you very much for all you do for the victims of crime, who really depend on your sensitivity and your professional expertise. The Department of Justice stands behind you in your work and will continue to support you. Enjoy the conference.

MR. ASPLEN: When the Attorney General signed the charter for the National Commission on the Future of DNA Evidence, it was a recognition that we have before us a tremendous opportunity here. It was an opportunity to bring together all representatives of all parts of the criminal justice system to have a national discussion on ways to improve that system using technology.

I should say that when somewhat characteristically the Attorney General at its first Commission meeting asked the commissioners to act immediately and not to wait until the end of its process to make its recommendations to her, we began the implementation of that vision. I think it's fair to say that absent the Attorney General's vision on these issues we wouldn't have the national discussion that we have right now on issues like post-conviction testing and on finding ways to get it right every time, and it's fair to say that we wouldn't be here today talking about the kinds of issues that we are that are so important to putting this technology into the hands of law enforcement officers and by doing that, by putting it in the hands of law enforcement officers, by saving people's lives very tangibly, very visibly, every single day, that is a wonderful, wonderful vision.

So if I might introduce to you and I might say very proudly so a great friend of law enforcement, the Attorney General of the United States, Janet Reno.

MS. RENO: Thank you, Chris, and thank you all. I am delighted to be here today, and I want tothank everyone that is participating because I think this is one of the most important issues that face. I particularly want to thank the Commission. It's not my vision; it's the Commission's work that has advanced this so far, and it is critical work. I believe it has been instrumental in promoting a national discussion, and I think we are now beginning to see the results.

The development of DNA technology has done so much in these ten years to improve our criminal justice system. I remember as a prosecutor in Miami beginning to understand absolutely the awesomeness of it all and not quite able to get my hands around it. I realized how long I had been in Washington by recognizing that eight of these ten years have been spent here watching it just mushroom across the nation. We have seen it go from a technology used by a few prosecutors in a few jurisdictions to a technology now accepted in every court in the United States. We now have legislation in every state creating DNA databases of our most violent offenders. We can now identify suspects in cases where no other evidence exists but the saliva or the skin cells. We can now use DNA to solve cases that are 10, 20, or 30 years old, and we can identify a suspect in a crime from Florida from his prior conviction in the State of Illinois.

However, while we have come so far and achieved so much with this technology, there is still far to go. I believe that what the Commission recognized in asking that the conference be held is that we still have a tremendous amount of work ahead of us if we are going to fully realize the potential of this technology and make our communities and our nations safer, and I believe strongly that while it is science that has given us this powerful tool, our ultimate success in realizing its potential lies in our commitment to those who must use it, in our commitment to you in law enforcement.

DNA evidence lies as only potential until it is properly identified, collected, stored, and analyzed, and we must make sure that we remember it is human beings that are doing that. We can never say that it will be technology that solves the problem. It will always be humans interpreting the evidence, using the evidence, collecting the evidence, maintaining the evidence that will insure ultimate success.

We need to insure that our police officers and crime scene technicians have the knowledge, the skills, and the tools necessary to collect evidence so that if DNA evidence exists at a crime scene, they can find it, collect it, and preserve it in a way that guarantees its reliability. This means investing in the training and education of our law enforcement officers and a commitment to provide them with the resources necessary to take full advantage of the power of DNA evidence.

The Commission's training pamphlet, "What Every Law Enforcement Officer Should Know About DNA Evidence" was made available to every officer in the country. While NIJ originally printed 1 million copies of the pamphlet, demand was so great that we had to print another 500,000 copies. I think the need for that kind of basic knowledge is clear, and I understand that this morning you also got a demonstration of the Commission' DNA CD-ROM training for first responders.

As we begin to rely more on technology and not just DNA, we need to rethink our commitment to the training and education needs of our officers, and I think this is going to become more andmore critical for every police department in the country. It is so difficult when resources are limited, when you need every officer on the streets or in some critical role to pull them in for training.

That training is going to be absolutely critical as technology changes before our very eyes. It is going to be critical in a whole range of issues, but clearly in DNA, clearly on issues relating to cyber crime, how we keep up with the technology that staggers the imagination, and, as Adlai Stevenson said, converts vanity to prayer.

That presents a management problem, but let's use technology to try to deal with the management problem as well. Let's be creative in learning to do distance learning. It may be just distance learning from the squad car to headquarters with a video system in the squad car that can permit interactive learning, but we have got to be prepared in these next 10 and 15 years to educate our officers in a whole range of issues, and DNA is again one of the most critical.

We must realize that law enforcement differs. The issues facing a sheriff in Wyoming who may be first officer on the scene, crime scene technician, detective, victim advocate all in one are very different from the issues of the specialized crime scene technician in Washington, D.C., facing limited evidence, storage space, and more crime scenes than she can respond to in a day. Nevertheless a victim in either jurisdiction deserves the benefit of this technology.

How can we best support our law enforcement officers' efforts to protect our citizens through the use of this technology? We must be sure that when law enforcement does its job of properly identifying and collecting the appropriate evidence, that our laboratories have the capacity to test the evidence and that our databases have all the DNA profiles in it necessary to catch the right perpetrator, and as always, when we use technology to identify the correct suspect, we then exonerate someone who might otherwise wrongly have been caught up in the web of suspicion.

It is important that we all speak with one voice, one powerful voice to make this happen. Our goal should be an investigative process where DNA is identified and collected properly at the crime scene, processed, and run through the database quickly, and leads to the identification of a suspect followed up quickly and reliably not because the technology will replace the value of traditional investigative work, but because by using DNA and DNA databases efficiently and effectively our detectives can focus on other aspects of the case or even move on to the next. We can more efficiently reallocate our resources.

But we have got to explain that. We as we go to state legislatures and as we go to Congress have got to let them know not only are we saving lives, not only are we catching dangerous offenders, but we are also making law enforcement far more efficient.

Think of the cases that you have had to deal with or have had some familiarity with where you have followed every lead that led you towards one person and for nine months you followed the case leading towards that one person. You have been building a case, following every point that points to this one person, and then boom, it's not that person. Somebody else confesses, and you look at the money that you've spent.

We've got to put it in dollar and cents terms so that people will understand the savings that DNA can produce if we do it the right way, use it the right way. While individual state offender databases in the CODIS system have been available for a relatively short period of time, one thing is absolutely clear. They do work. Perpetrators are being identified all over the country as crime scene DNA samples are being entered into the system and are being compared. Crime scenes are being linked to other crimes enabling different law enforcement agencies to work together, taking advantage of each other leads, creating partnerships in investigations that would not exist absent this system. As a result of that cooperation more crimes are being solved more quickly.

We have got to speak with one powerful and united voice that lets all the funding authorities in government understand this is a mighty tool. It can be used so effectively. It can save money, it can solve crimes, and it can make law enforcement more efficient each time we do so.

Early on in its work the Commission recognized a significant barrier to our utilization of these databases that have much potential. Throughout the country our state and local laboratories have significant backlogs of DNA offender database samples and crime scene samples waiting to be tested. There are in excess of 1 million convicted offenders whose DNA profiles should be in this database, but are not, and perhaps more tragically the Commission has found that there are over 180,000 rape kits sitting on the storage shelves of police departments throughout the country.

When the victim of a sexual assault crime consents to a medical examination, even assuming the help of an experienced sexual assault nurse examiner, it remains one of the most horrible and traumatic experiences possible, but that victim proceeds with that examination with the hope and the assurance that there will be a benefit to her continued trauma. That victim believes that the results of that examination will be used to help identify and convict her attacker.

Currently in over 180,000 cases across this country that victim is wrong because we are not able to bring to bear the most powerful technology we have to catch rapists, DNA and the DNA databases. Our laboratories simply lack the resources necessary to perform their case work analysis and their database analysis, which can reach the tens of thousands. The advent of the CODIS system has exponentially increased the workload of crime labs, but the funding necessary to make the advantages of CODIS a reality needs to keep pace.

It's a simple cost-benefit analysis. We know the more offenders we have in the databases, the more arrests we will make and the faster we will make them. That translates tangibly and immediately to a reduction in crime and the number of future victims, but in order to reap those benefits we must invest in the people, the training, the technology necessary to reduce those backlogs accurately and efficiently and as quickly as possible. We must never be in a position where we say to a victim that the guilty person was in our system, but we just did not have the time or resources to identify them before you became their next victim.

Finally we must continue to integrate DNA technology into our criminal justice system in ways that maximizes its investigative potential, but at the same time done in a way that serves to promote public trust in the system. Our civil rights and civil liberties are precious not only toprivacy advocates, but to every single one of us, and as we find new and better ways to solve crimes using this powerful tool we must be mindful of our stewardship of the rights of the individual, the rights of the accused. We must proceed wisely, thoughtfully, and with an eye towards the constitution and how it will be interpreted in light of these new applications of technology.

I like to think of what John Marshal as chief justice would have thought when he talked about the constitution as a living document and what he would think as he applied the constitution to the technology and the development of science today. I think he has been proven right, but he has been proven right that it is a living document, that it can adjust to all sorts of circumstances because people have tried so hard to insure that he was right and have tried to apply the technology in a way consistent with our constitution.

These tools have given us the opportunity in some cases to see where we have been wrong and where mistakes have been made, and I see this as an opportunity. It is an opportunity for us to learn from our mistakes so that our criminal justice system continues to serve as a model for democratic societies. It is important as an opportunity to engender public trust in our system, a system that is never, ever afraid of the truth or the tools that help uncover the truth.

To that end I have requested the National Institute of Justice to consider the feasibility of a study that would look into why wrongful convictions occur and how we can prevent them. This does not suggest that our system is fraught with mistakes and wrongful convictions. I don't think that is the case. Rather, such a study like the appropriate use of DNA technology is important because those of us charged with the administration of justice cannot be concerned with averages or percentages. Our mission must be the concern for the individual in every case. It must be to protect the innocent person as well as to convict the guilty. This is a hallmark of our system. We have an obligation to seize every opportunity we have to improve our system.

We have made some progress in understanding why innocent people are convicted because DNA has given us the tools to identify those people. Sometimes it's eyewitness testimony. Five people seeing something happen have five different versions. Sometimes it is what I call the blinders theory. Somebody decides that person did it, pursues every lead he can to identify that person as the defendant, and shuts out every clue that would lead to the real perpetrator. Sometimes it's a jailhouse confession. We must use this tool to show what we have done in the past that can be improved on for the future.

In closing let me speak of the true foundation of our success, the dedication and integrity of our law enforcement community, for our success in the future of our criminal justice system lies not on our greater reliance on technology, but in that officer who walks the streets, who covers miles in a rural county in a sheriff's car. It lies in the evidence. It lies in the detective. It lies in the chief who knows the value of this tool and uses it to its fullest.

As it was in the past, it will be in the future. The success of our criminal justice system lies with you. In these past seven and a half years law enforcement across this land has been on the front line. Crime is down now seven years in a row because of you, because of you focusing onpunishment and prevention, on professional law enforcement, on the use of technology. It has been an incredible experience to watch you at work in your communities across this land.

We can either become complacent and watch the crime rate go back up or we can continue the dedicated effort that you have demonstrated in these years. We can gain support from city and county commissions, from state legislatures, from Congress by showing them the return on their dollar, if you will, but most of all we can show them that by the dedication and the excellence reflected in this room and around the country in law enforcement agencies across the country we can use technology. We can use data. We can use facts. We can correlate those facts together and in the end we can, if we work together, eliminate the culture of violence in this country. We will never eliminate violence completely, but we will return this nation's level of violence to those of others around the world.

The experience of being Attorney General has been an extraordinary one to try to use the law the right way to make America safer, healthier, freer. My contact with law enforcement, however, has been one of the great experiences. You do an incredible job for this nation, and I would just like simply to say thank you from the bottom of my heart.

MR. ASPLEN: Thank you, Miss Reno. I believe that we do have a few moments for a few questions from the participants.

MS. RENO: I would also ask you one question. If you were the Attorney General of the United States, what would you do to support your efforts on DNA or otherwise across the country? That's simple. Thank you all.

MR. WHITE: I'm John White from Dothan, Alabama. I would threaten to cut off highway funds and maybe they will fund us properly.

MR. CATTERSON: Jim Catterson, district attorney in Suffolk County. How are you, General? Everyone in this room in law enforcement is there because not only are they good, but they understand the structure and the system from whence they come. We found out through NDAA that the clout of the prosecutors in the country is disproportionate to the numbers, and I think the same thing is true with law enforcement officials such that every one of you know a Congressman, a Senator who relies on you for good advice and counsel from time to time, and it seems to me that the -- and I don't want to use the word lobby effort, but persuasive efforts of law enforcement in dealing through the process, in putting the word out to the Congress, which is where the funding must eventually and ultimately come from, is something that has been overlooked many times by law enforcement officials.

They assume the system is going to keep working, and yet the old squeaky wheel syndrome is so important. I think we have a squeaky wheel that needs a lot of grease, and I think the grease in the form of a personal lobbying effort by law enforcement officials with their Congressmen and with their Senators to get the word out almost as well as the criminals have gotten their word out and how we've protected their rights -- I think it's about time that the victims' rights, which is a made-for campaign type issue that should be very attractive to every political official, issomething that we can do as a group.

I think if we had a little guidance, and I know you yourself don't lobby except at the highest level in making the truth known, and that's not lobbying somebody said yesterday. I agree with that. But I think as a collective body they could assist you in bringing the word from 101,000 different sources to the Congress because that ultimately is what the bottleneck could be.

MS. RENO: That's awfully kind of you because I can't tell anybody to contact Congress and I would not, but let me just stress to you how important it is that you be able to demonstrate clearly with hard facts and figures the people that have been apprehended and convicted, the dead ends that have been avoided, the savings involved, but most of all the reduction in crime and the saving of lives, and the more we can describe that to everyone, I think the more effective we will be.

MR. KOSIENSKI: I have a statement to make for you. It's not a question. First of all, we're proud to be here with you today. My name is Chief Robert Kosienski of the Meriden Police Department, Connecticut. This is an outstanding, very educational, informative technology summit that we're at. I'm very proud to be here. I've learned an awful lot. I thought I knew a lot, but to be here with you today certainly makes me proud and thank you.

MS. RENO: Thank you, sir.

MR. ASPLEN: Believe it or not, I believe that I have in fact found probably the one person who could possibly follow that up in our next speaker. It's a rather daunting task I know, and it is just kind of a professional jibe, if you will, to put the extra pressure on him, but I really believe that Jim Wooley is the best person to talk to us about the issues that he's going to discuss.

As the Attorney General mentioned, it's critical that as we seek to integrate DNA technology into the system, we are mindful of what the law and the constitution has to say about that.

Jim is a commissioner on the National Commission on the Future of DNA Evidence, but Jim was also an Assistant United States Attorney from 1990 to 1999 in the Northern District of Ohio. He also served as the U.S. Attorney assigned to the organized crime strike force and was the ethics officer from '98 to '99. Before becoming an Assistant U.S. Attorney he served as an Assistant District Attorney assigned to the trial division of the Manhattan District Attorney's Office.

Jim is absolutely instrumental in much of the training and education that goes on in the country for prosecutors. He is, quite frankly, one of the most well-versed individuals on DNA in the courtroom that I have ever met.

The other thing that you should know about Jim, though, is that Jim is one of the persons responsible for our being able to use DNA in the courtroom in the first place. We talked a little bit yesterday about some of the, quote, unquote, admissibility wars and the DNA wars of the late '80s and the early '90s. Well, Jim was right in the middle and was responsible for one of the most significant cases in the admissibility of DNA evidence in the country.

So we owe a great debt of gratitude not just for his training and his knowledge of the subject and for his being here today, but for the actual work that he has done in the courtroom in making this technology a real reality for us and a tool that we can actually use in the courtroom and at the crime scene.

So with all thanks in taking up the task of following the Attorney General of the United States, ladies and gentlemen, Mr. Jim Wooley.

MR. WOOLEY: It's an honor and a privilege to be here and be on the same program as the Attorney General. I will be available for photos and handshakes when I'm done as well. It's an honor and a privilege. It's also at another level a relief that she left in case I go in the tank here, you don't want to dive in front of her.

Like everyone else, I should thank Chris for having me here today, but I can't thank him because I hate him. But it's a hair thing. It's very shallow. I don't know where to go with that other than to continue to be angry about it. Actually in all honesty Chris may be the most knowledgeable lawyer in the country about these issues at this point in time, and you can get his photo later. You may want that one.

I have had involvement in these issues for several years -- well, you know, the last 10, 11 years, and I've always had involvement as a prosecutor in these issues. I am now in private practice. I feel I need to say, though, to my friends from the crime labs who encountered me getting coffee this morning that no, I haven't gone to what you folks lovingly refer to as the dark side. I've left and gone actually to what I would call the dull side, frankly. I'm at a corporate law firm doing some things. Mostly I've got several hundred children and I need to get them all educated, and I'm trying to address that. They're in dire need of higher education, my kids. If you knew them, believe me you would agree.

I'm going to talk today about the legal issues that are arising and being discussed and the current debate of DNA in light of today's technology, the DNA availability and capabilities, but I have to qualify what I'm going to tell you up front by repeating something you already know, that is, I'm a lawyer. I'm not a scientist. My profession has shown a remarkable, almost limitless ability to screw things up when talking about science.

Let me read you some real trial transcript testimony. This stuff circulates around. Maybe you have heard this. The defense attorney has the coroner, the chief scientist witness for the State onthe stand. This is a lawyer talking about science.

"Doctor, before you performed the autopsy did you check for pulse?
"ANSWER: No.

"Did you check for blood pressure?

"ANSWER: No.

"Did you check for breathing?

"ANSWER: No.

"So then it's possible that the patient was still alive when you began the autopsy.

"ANSWER: No.

"Well, how can you be so sure, Doctor?

"ANSWER: Well, let me put it this way: The man's brain was sitting on my desk in a jar, but I suppose it's possible he could be out there practicing law somewhere."

How good is that?

What we've seen, though -- and I'll get to some discussion of these issues in minute -- what we've seen, though, is that we lawyers have also brought our A game in this regard to the legal discussion. Remember the World Trade Center bombing case? Terrorists blew up the World Trade Center and sent a letter to the New York Times claiming responsibility for it.

The FBI does a PCR DNA test on the envelope, the flap, and the stamp, and comes up with a very interesting result, that one of the suspects licked the envelope flap or that his DNA profile is present on the envelope flap. It also comes up with this result: Larry Pressley, the FBI guy, comes up with this result: Someone else licked the stamp, which my immediate reaction to that was that's a hell of a conspiracy, folks. You've got your envelope lickers, your stamp lickers. That's quite a division of criminal labor there.

Anyway, this is a big case. This is the then trial of the century, and you would expect that the lawyers involved in this matter will have their real scientist thinking caps on and we'll have a high-level legal discussion about this issue in court. By the way, this wasn't my case. This was a case with a lot of good evidence and it was very important, so by definition it wasn't a case I prosecuted.

Let's see how the lawyers talked about DNA in the then trial of the century. Here is the cross-examination:

"Can an animal have its own DNA?," of Larry Preston.

Larry says: "Well, sure. I'll allow that.
"Would a horse be different?" This is how we're trying the case in the trial of the century in New York City.

Larry is thinking, man, horse. "Yes, sure, to my knowledge," as opposed to anybody else's knowledge. Well, according to me it's different. Some folks may find some similarities, fans of Mr. Ed. I don't know.

This is cross-examination. This is the point they're making.

"So the horse DNA, if it's sitting up there on the envelope flap would not affect the results." That's the level at which we lawyers were discussing this.

Again to his knowledge, no.

Do you know what they were getting at there? I've shown this to a lot of people. Does anybody know what they're getting at? Glue. Where do you get glue? From a horse, which is one of the amazing things in the world to me scientifically, horse, glue. But that's what they're getting at.

The guy moves away. The lawyer moves away from attacking -- he drops the idea that he can sell to a New York jury that a horse blew up the World Trade Center and claimed responsibility for it, and he moves on now to challenge the statistics, and he is going to make some points regarding how they have different statistical estimates you can find from different databases for this DNA profile.

So he cross-examines Larry this way: "These databases, this one shows 3.6% of the population has this profile.

"Yes, sir.

"Someone running the same test is saying 4%.

"No. They say 3.6."

Here is what our attorney colleague says about this: "Would that be three adults and a kid?"

We're rolling. That's how we talk about it. Except for guys like Chris, who are very fluent, that's how we lawyers talk about this. If we're not dazzling people with important questions about these matters in court, what else are we doing to them?

This is the last thing the guys says, which I thought was the understatement of the trial: "Please forgive me. Some of my questions may appear stupid, but I have them and I just want to go over them while you're here," which to me, if you think I look stupid asking these questions whileyou're here, imagine how stupid I'm going to look if I'm still asking them after you're gone. I don't know this guy. He's probably the greatest guy in the world, but whatever.

This is an old case, but there is something timeless about goofing on lawyers. Anyway, so if we're not dazzling them with this kind of Q & A, what else are we doing to them? In Ohio we're putting them to sleep. The trial court dismissed one juror during trial for having slept through the entirety of the DNA testimony. That's a lot of sleep, folks. If you're getting seven or eight a night or even close to that and sleeping all day long, that's a lot of sleep. But we grow them smart in Ohio, so what does a defense lawyer do with this in a pretty significant case? Finds a way to cooper that up into an argument that the guy shouldn't have been convicted. We know he was convicted, those of us who were prosecutors for a long time. They can attest to this because of the simple matter that a sleeping jury is a convicting jury. I learned that a long time ago.

But what the lawyer does, he argues on appeal that everybody was sleeping through the DNA testimony, and he supports his motion with affidavits of spectators, which is crap, because if the jury was asleep, they were asleep, too. There is no question about that. But the appellate courts in Ohio consisting of Ohio raised lawyers are one ahead of this guy. They dismiss this and they say the trial court said it closely observed the jurors and believed that the closing of the eyes was due to concentration and not to sleeping.

I have found this to be a very handy device at NIJ Commission meetings when Chris is speaking. Afterwards, he says, "Jim, you were sleeping? No, Chris. I was concentrating. I can't explain the drool and stuff, but I was concentrating when my eyes were closed."

Let me turn to the issues that you will need to be considering in your jurisdictions, and I think that these issues all flow. I view myself as very much a Joe bag of doughnuts guy on this science stuff. They all flow from the recognition and understanding of two very fundamental and rather simple but unique aspects of DNA typing as we now know it.

First, DNA answers the question that we have been asking forever and a day, which is can we make some meaningful association between a piece of biological evidence at a crime scene and a person? DNA answers that question better than anyone ever dreamed science could answer that question years ago. You know from people much smarter than me that DNA works on different types of evidence, hair, sweat, saliva, skin cells, on shirt cuffs, collars. It works on small, older, very, degraded samples. It gives far more powerful results both in terms of inclusion and exclusion. We're not just doing blood and semen anymore on big, fat fresh samples and getting one in ten or one in hundred. We're not looking at hairs and seeing whether they're visibly consistent. We're getting dispositive evidence with DNA.

What does that mean? It means we want to use it a lot. It's that simple. Understanding that and understanding this leads you to an understanding of all issues. You get more private information with DNA in addition to more crime solving information. When you have got someone's DNA, and now we want a lot of it from a lot of different kinds of people, theoretically you have the ability to learn a hell of a lot more about that person beyond whether or not they just can be associated with a piece of biological evidence. You can screen them and see if they're carrying adisease that makes them predisposed to get Alzheimer's, a disease gene for Alzheimer's or one that has been associated with colon cancer or breast cancer. Theoretically that can be done by people who possess a person's DNA. You can't do that with any other piece of evidence that you ever would collect in a criminal investigation.

All current issues I believe flow from a recognition of these two simple things about DNA life as we now know it. There are a lot of issues. There are tons of issues, and you can talk about each one for days and days and days, but what I'm trying to do is I've tried to identify issues that I think relate to your lives as law enforcement officers. I'm not going to talk about core presentations and trial preparations beyond just goofing on me basically, on lawyers, and I'm not going to talk about issues that I think are settled. We're not going to explain why we think it's constitutional to go ahead and get DNA samples from convicted felons and put them in databases. We all know that's a settled issue. I'm not going to tell you what the resolution of these issues should be, which, as I think about it, I don't know why I'm here, frankly, but somebody had to go after the AG.

Actually I think that's for you and your prosecutors and your legislatures and people in your jurisdictions to have those discussions, and I think there are an incredible amount of materials from the debates that have gone on and discussions in the Commission that you would be well served by reviewing, but you need to have these discussions in your jurisdiction, but you're going to be facing and talking about these issues.

In current case work there is no legal issue about whether or not you're going to be able to use DNA in court if you use it at a crime scene, but what I think you're going to face now because everybody knows you can use it in every court in this country -- I think some people disagree with that, but on this one I'll give you my side of it. They're wrong, I believe. It's just used everywhere.

What you're going to be facing now, though, as law enforcement officers is what I would call a DNA expectation, and that's fact finders, juries, judges nudged along by able, informed defense attorneys will be expecting that DNA will be done increasingly and in cases involving evidence you never thought would involve DNA, you know, envelope flaps, stamps, cigarette butts, shirt cuffs, shirt collars, telephone mouthpieces, rims of drinking glasses.

If it's not done in cases, I think fact finders are going to ask you why. They're going to ask and they're going to put this to you: Why didn't you process the crime scene and handle the evidence in a way that maximizes the chance that we could have done some DNA testing? So the extent to which you have crime scene processing, evidence handling issues, you need to consider how much additional training you need to put in place. You need to re-examine your standard crime scene processing approaches, evidence handling, chain of custody issues to make sure that are you're taking a DNA-wise approach to every case because you're going to pay a price for it I believe in cases that you never thought you would have years ago because the technology is that good.

The next issue that you're going to face in current case work is this question of who to sample. Imean as the techniques continue to improve and it's easier and easier to get powerful results on less and less biological material and it's easier to sample people -- you don't need blood; you can swab the insides of their mouths -- you put that together, and you're going to maybe decide you want DNA from a lot more folks than you ever thought you needed biological evidence from. Do you want it from arrestees?

You will face and discuss this issue I think of whether or not you should collect samples from all arrestees at or near the time they have been arrested before they have been convicted. People you have probable cause to believe committed a crime, do you attempt to collect a DNA sample from each person you arrest on a felony? This has been proposed in New York, talked about at the Commission. There are a lot of issues here relating to this. Do you attempt to collect DNA samples at arrest from suspects only in cases where you have biological evidence or do you try to get it from all felony arrests? Do you need a separate search warrant for the taking of DNA samples at the time of arrest or can it be justified on some other ground such as it's a lawful search incident to a lawful arrest?

Then you have this secondary issue, which most -- I mean is not to say it's less important. If you take DNA samples on arrests, you develop a DNA profile, and then the guy is exonerated, what do you do with the DNA profile after you've analyzed it and the sample you got from this guy? Do you keep it like a mug shot and throw it in a drawer and use it for future investigative purposes because you got it lawfully or do you treat it differently because it's not a mug shot? It's very different from a mug shot. From a mug shot you can't tell whether or not somebody is going to get sick. There is no theoretical possibility you can abuse that mug shot in that kind of setting. So do you destroy it in light of the unique nature of what you're holding onto?

You're also going to be taking samples from people who will never be convicted, like the arrestee who is exonerated or from folks who will never be charged or never even be accused, the elimination samples, the husband or the boyfriend you want to exclude. I mean if it gets easy enough that you decide you want to do this, you'll do these mass screenings like they did in England. You get 10 or 12 guys from a building to give a sample in a case just to eliminate them. What do you do with the samples from those folks after you've eliminated them? Do you hang onto them? Do you get rid of them? How do you get them from people that you have no probable cause to believe they've committed a crime? How do we generally get that? Generally you get it from consent. You ask them for it, and they give it to you by consent, but now what you face is do you say something or anything different about what you're asking them to do in light of what you're asking them to give you?

Another issue you will face in current case work that's being discussed at the Commission level and other places is this relating to the fact that DNA could be an identifier of physical characteristics. As the technologies get better and the scientists can do a lot more with crime scene analysis, scientists will tell you we don't know who that is obviously, but I can tell you I think you're looking for a person from this racial group and from this ethnic background. Well, that is damned useful crime solving information, the same way if a victim told you the man that raped me was a white man or the man that broke in my house was Hispanic. But there are a lot of people, a lot of very smart people that are very concerned about the idea of the state developingand using genetic tests that classify people by race or ethnicity.

Moving away from current cases, cold cases, these cases that you thought were dead, dead ends a long time ago, there may be promise now in light of the new improved -- there definitely is promise now in light of new improved DNA capabilities, and I think what you need to do is consider whether or not you're actually going to put in place some kind of a program to re-examine old, unsolved cases. There is a fellow out in Oakland, Alameda County named Rock Harman at the Alameda County DA's office that would be an excellent resource for this discussion because he has put in place such a program, and he goes back and he digs through old cases, and has taken the position that no case is too old.

Recently, just this year, because of that program and that effort the Alameda County prosecutor brought charges against a guy on a 1984 rape and murder of a teenager. This was a child killer who was already on death row who they found 16 years later through finding old evidence and working it up. The suspect, the guy that they found did this other crime, was already on death row for something else he had done, but it was still an incredible relief and closure for that family.

I'll read you a quote. I should have put this up there, but I didn't. Here is the quote from the article about this case where they announced they caught this guy 16 years later because somebody decided with the new DNA capability I'm going to go back and look at these old cases. I'm going to see what I can do. This is from the dad of this poor kid. "You remember the day you had to identify her in the morgue, and that vision never leaves," said Julie's father, Jim Connell, at the news conference Tuesday. "When you don't know who the killer is, you're always thinking it's somebody walking by."

So even though the guy was on death row and he wasn't out there, still the kind of things you can do and the things you can bring to families of victims and victims after a long period of time on these cold cases with this DNA I think almost makes it imperative that people think about a program to re-examine old, cold cases. There is no such thing as a dead case anymore with biological evidence.

Because it's so good, you're going to face issues of statutes of limitations. You need to look at them in your state, look at what they are, see if you should talk to people about whether or not they can be lengthened. Someone you will hear from in a little bit, Norm Gahn, an excellent, knowledgeable guy about DNA from the Milwaukee DA's office, I'm sure is probably going to tell you what he did in a case. He indicted a DNA profile to deal with the six-year statute of limitations. He found that the same profile was present at several different crime scenes. He indicted the profile. He had to because the statute of limitations was only six years. It's a very creative way and resourceful way to deal with a problem that I think maybe needs to be addressed, lengthen the statute of limitations.

Most importantly to you guys I think in light of this is you need to look at evidence retention and destruction policies in light of the knowledge of how useful this stuff is now in cold cases. You need to consider what you're doing with things now. Do you have a policy that maybe doesn'tmake sense, a policy to destroy things after time that maybe doesn't make sense in light of the current capabilities? What are you doing with your old rape kits?

The last set of issues relates to post-conviction. Issues in old, not cold cases because they're solved; someone has been convicted and someone is going to prison on evidence that didn't include DNA. They've been convicted in a pre-DNA world, and now we're having cases looked at in the post-conviction mode. This is an issue. I drop names because they're informed people. You talk to them. Barry Scheck at the project Innocence has done a lot of work in this regard, and Barry is a defense attorney and a law professor, but also you should talk to a fellow by the name of Woody Clark, who is a prosecutor from the San Diego County prosecutor's office where within his office they're doing some things with respect to post-conviction cases on their own without prompting from any particular defendant in a defense bar. We've got statutes in Illinois. We've got statutes in New York. We're having current discussions about a federal statute that would allow post-conviction testing for DNA.

Relating to this evidence retention destruction policy, I think I need to mention just this simple concept to you. The laws can be different in every jurisdiction, but generally I think the case law is that when a defendant is seeking relief because the police destroyed evidence that could have been tested and maybe provided exculpatory information, the defendant won't get relief unless he can show bad faith on the part of the police officers.

It's a Supreme Court case that holds that, and I think that that's a pretty fair paraphrase of what that law is. But now what is or is not bad faith will be judged in the DNA world, and everybody will be tagged with the knowledge of knowing everything about DNA capabilities when you think about destroying evidence.

Finally there is a spill-over issue I think from all this post-conviction DNA activity, and that's this, and this will happen over time. I don't think it's there right now, but in every case where DNA proves a man innocent who was previously convicted it's contradicting something else. It's contradicting some other form of traditional evidence, and it creates the possibility, a very real possibility over time that people's confidence in that type of evidence is going to be eroded, eyewitness testimony, hair comparisons, confessions, jailhouse snitches, all that stuff. I think in doing your jobs as law enforcement officers I think it's a good idea to maybe keep that in mind when you're doing your cases. Maybe you don't stop at the one good eyewitness, not that you would, but you've got to keep in mind that people's thoughts about the infallibility of things like that will change over time the more and more cases that are discovered where people were convicted on that type of evidence and DNA later proved them innocent.

Those are the issues that I think are most worthy of your immediate attention, and I would recommend you to people associated with the Commission, mostly Chris, and through him he can find you people. I like to keep him very busy. He ages too well, and I would like to see him under a little more stress. Keep him very busy, and then take these issues back to your jurisdiction, and I think you will embark on pretty significant discussions over these types of issues.

It is an honor and a privilege to be here amongst you, and I'm grateful for the opportunity to have done that. I will leave you with a Q and A again to my savvy attorney cross-examining the coroner, and then I will be done.
"Doctor, how many autopsies have you performed on dead people?

"ANSWER: All my autopsies are performed on dead people."

I appreciate the opportunity to have addressed you today. Thank you very much.

MR. ASPLEN: See what I mean? Let's take a 15-minute break. Again, we thank you for all your attention.

(Whereupon a brief break was taken, after which the following heard:

MR. ASPLEN: I have been reminded to make the announcement about sign language interpreters that are available if anyone needs them, so please let us know.

We decided to take a break before the discussion section. It has kind of been a little bit of a long morning, so we decided to take a break. Quite frankly, I forgot that we were supposed to have the discussion session afterwards, so we're going to do that now for as long as we need to for anybody who might have any questions or concerns about these kinds of issues.

Again, as Jim mentioned and as we've talked a lot about in the Commission, one of the most important things that we have to be mindful of as we seek to take advantage of new investigative possibilities with this technology is that we don't make mistakes, that we don't do things that the day after we try it winds up in the newspaper as something that is not supported by community or is not understood by the community so that it can be supported by the community.

So much of this also has to do with educating our communities about what we're trying to do, how careful we are about privacy, how the fact that in the DNA database, how those 13 core STR loci don't tell you anything about an individual's physical characteristics. They don't tell you anything about ethnicity, that they are just digitalized representations. We need to make sure that our communities understand that so that they can again be confident in the applications that we're making in what is a genuinely sensitive area when we talk about DNA.

Does anybody have any questions about things like that?

MR. HERRIN: George Herrin from the GBI in Atlanta. Jim or Chris, either one of you can answer this. Could you tell me what the constitutional or the feeling of the lawyers in the audience here are about the constitutional issues relating to search and seizure or unreasonable search and seizure if you collect buccal swabs from an arrestee, because you are doing according to some civil libertarians some sort of an invasion of their bodily space to collect that sample? It's not just the same as a fingerprint.

MR. WOOLEY: Fourth Amendment cases have focused on whether you have a bodily intrusionover years on the general theory and belief that you have an expectation of privacy of things inside. I'm not sure what the analysis will be with buccal swabs. Because it's so easy to get them, you don't have an expectation of privacy, which is the lynchpin of Fourth Amendment analysis. If you have an expectation of privacy with respect to something you are being searched by your state or government when they're taking that from you, and that needs to be justified by various requirements under the Fourth Amendment.

This is where again it's a personal thing for me. I think where that plays out that is you have an expectation of privacy with respect to your genetic material in that setting, and I think whether you take it from a buccal swab or from a stick, I think you need to justify that under the Fourth Amendment depending on where in the process you're taking that. Is it a search incident to lawful arrest pursuant to a search warrant or from an inmate who has already been convicted who has a lessened expectation of privacy at that point? I do think that you need to analyze that under traditional Fourth Amendment principles, though. I don't know if Chris agrees with that.

MR. ASPLEN: I do, but I think in practical application I think some things to look towards I guess in the context of that, I think a buccal swab, if states decide to analyze it a little differently, obviously it would be better than a stick, but this will be decided initially on an individual basis in individual jurisdictions. You know, state constitutions and constitutional law especially when issues first arise often times rise up somewhat differently unless and until it gets to the United States Supreme Court.

What is really, really important in all of these issues is going to be that when you consider doing something like that, that you have a very good discussion with your prosecutors, that you understand what the legal landscape is ahead of time in your jurisdiction according to the jurisprudence of your particular state.

Another example of that is the idea of doing an intelligence screening. If you choose to take advantage of that investigative tool, what you need to understand is the concept of informed consent in your jurisdiction. You all know that if we look at what informed consent is for a statement, if you will, there is a difference between taking a statement from a guy who is chained to your desk as opposed to taking a statement from a guy who you've offered a drink, the door is open, you can leave any time, here is a cigarette, et cetera, et cetera.

There is this whole spectrum of cases. It's going to the same kind of things in issues like arrestee testing, in issues like intelligence screens. It's going to be an analysis that occurs on very specific facts according to very specific case law in your jurisdiction. Don't ever make a move like that without having a very thorough discussion with your prosecutors.

There are also I think going to be some technology issues that may help some of those considerations. One of the things that will be interesting to look for will be the developing technology on taking DNA from fingerprints themselves. We can possibly imagine a time when an individual is arrested. He's brought in. You're essentially taking two types of fingerprints. Your taking one for the standard fingerprint analysis, and then you're taking a second set on a tacky substance and maybe swabbing that. I don't know exactly how that would go, but actuallygetting DNA from the skin cells left from that other set of prints, the extent which that may help that constitutional analysis of actually drawing it, I don't know; however, it's not the actual draw itself. It's what are you taking, not how are you taking it. It's what of mine that belongs to are you taking. So there are kind of two analyses that go on there.

MR. WOOLEY: The thing that overlays or underrides it is this theoretical possibility that when you get that from someone, you're getting something a lot more theoretically about this person than you would ever need in your crime solving life. In other settings that's just not the case. You get a guy's mug shot. That's all you need it for. The whole world knows what he looks like anyway. You can't do anything with that.

Those voices will weigh in on these debates at the highest level. You get a case before the Supreme Court and you will see amicus briefs filed by groups everywhere on that issue.

MR. ASPLEN: Let me explain something that Lisa pointed out, the use of term "intelligence screen." We haven't talked about that much. What I mean by an intelligence screen is when you go and you ask a large number of people to give voluntary samples. Like the example that Jim used, you have a building and you want to test 10 or 12 guys from the building in which a crime occurs. That's an intelligence screen. You don't want to get to the scene of a crime and say, hey, I know they do this in England and they're really successful, so before anybody leaves I want somebody at every door and I want you to ask them for a sample. Hey, the headline in the newspaper the next day is really bad, but what is worse is the legislation in the legislature the day after the headline that now precludes you from doing it. Now you are affirmatively precluded from taking that action because we didn't do it the right way in the first place because we weren't thoughtful about it and didn't roll it out in a way that was legal, but was also in a way, as we will talked about, that engenders public interest. So there are those important considerations.

MR. CHANDLER: Keith Chandler, chief of police, Melbourne. I think the answer to the first part of the question is no, but I'm not sure about the answer to the second part. Obviously there is no case law out there or we would have been talking about it; is that correct?

MR. WOOLEY: On which issue?

MR. CHANDLER: On DNA sampling.

MR. WOOLEY: There is case law that says that when you take someone's DNA, you've searched them.

MR. CHANDLER: And it has been upheld?

MR. WOOLEY: Most of the case law I'm familiar with relates to on that issue the data banking issues, the CODIS things. People challenge those statutes. Prisoners challenge those. They say you can't take it and then they say I have been searched, and my understanding of that case law is that generally, well, you're sitting in a different spot, pal, because you have been convicted and you're sitting in prison, and we can come in your cell and we can do all sorts of different kinds ofthings to you in light of where you are in the system.

So when you start with the premise that it is a search, then you just move it to different places in the process and see what do you have to do to justify it, and I think that -- well, anyway I answered your question.

MR. CHANDLER: The second part or the first part is if there is law out there anyway, can we maybe get some cites so we can let our attorneys look at them as we try to expand the use?

MR. WOOLEY: That's going to cost you. I'm sorry. I can't see you because of the light. Are you really a big guy?

MR. CHANDLER: I'm not really a big guy, but my gun is.

MR. WOOLEY: Why don't you and I get together later and I'll give you a list of cites.

MR. ASPLEN: I think, quite frankly, you really should go to your prosecutor because you've got to bring your prosecutor into this. Don't assume that your prosecutor understands this issue. Don't assume that they understand the implications of something like this. You have been here for a day and a half now. I think that now you go to your guys and you say hey, we were talking about this issue at this conference I was just at at D.C. Can we sit down and talk about some of these issues and what can you tell me about it? They may have to go and do the research. That's their job.

MR. WOOLEY: Part of the research should be a stop at the NIJ Commission's materials, which have a lot of those cites and stuff in it where people have come in. Legal issues, working groups, post-conviction legal issues have been written about. There is a string of cites. I mean it can be a jurisdiction-by-jurisdiction thing.

I think probably everybody understands this, but the constitution at the United States level sets a floor, and then through the 14th Amendment every state has to pay attention to certain of the bill of rights. It's just the way it works, but each state can add another layer of requirement on its law enforcement folks as long as it doesn't go below the United States Supreme Court floor.

So in your state you may give people more rights than under your constitution there. I know that was the case when I was in New York in a DA's office there. Back then in the '80s it was pretty common to find that the United States Supreme Court would set a constitutional floor this way, but in New York we couldn't do a certain thing. Once a guy indicated he was thinking about talking to a lawyer we couldn't even ask him a question again, so you have got to look at it on a jurisdiction-by-jurisdiction basis.

MR. CHANDLER: Thank you.

MR. SANDERS: We were talking about this this morning, and I was asked about what about if a person gets a blood transfusion, and, of course, I'm automatically thinking we're talking aboutretention of samples, and I started to espouse all the discussion we had, but the question really was, so if I have a blood transfusion, does that change my DNA and would that be a defensible argument? I know we talked about it, and I didn't know who you might want to talk about it, but I'm sure if we talked about it this morning at our table, then other people, it will come to them what happens if in fact a person receives a blood transfusion? I just put it on the floor to see if you would like to respond to it or have Dr. Forman or somebody respond to it.

MR. WOOLEY: That would be who I would ask. Dr. Forman, would you like to answer that question?

DR. FORMAN: There have been many studies that have been done on whether or not blood transfusions change a person's DNA. You can certainly identify when a person has a fresh transfusion, but their own DNA profile does not get removed. As the days post-transfusion go forward the transfused blood profile does get removed from the blood, so there really would not be an extreme concern about this. You might get a confused answer to begin with. You would see the person's own profile and the transfused profile originally, but that fades fairly quickly.

MR. WOOLEY: I was going to say that, but...

DR. FORMAN: Lucy reminded me except when they die in autopsy. That is true. The time doesn't get to pass quickly enough for their own profile to replace the transfused profile. Being prompted by my colleague, Dr. Harron, you would not get that confused answer if you used buccal swabs because in point of fact you would be using the person's -- the buccal swab would not be affected by the transfusion.

MR. WOOLEY: This is unrelated to what was just said, but I'm going to say it anyway. We talked about how this is a different world because of this theoretical possibility of things that could be done with DNA other than match it, use it for crime solving purposes. I want to make sure everybody understands that that's very theoretical, but I want you to know when you have these debates in your local legislatures and in your local settings, the argument that I know to be true and solid at this point is no cop in his right mind is going to give a rat's ass about a disease gene and nobody is going to be motivated to do anything with that capability, and it is purely a theoretical thing.

I agree with that. I can't imagine why anybody would have any interest in that thing. What I'm telling you is just having been involved in these debates now is that won't end that. You will still hear loud voices from people who will talk about -- loud credible voices from people who will talk about the state now possesses this item about me, the state now has the ability to do these things, and that voice will be heard and is not dismissed in these debates by the argument about the truism of today, which is we don't do anything with disease genes in crime solving and we have no motive to do anything with disease genes in crime solving, but I raise it just to make sure that you understand that you will be need to be discussing that argument or addressing it, and you won't be able to dismiss it easily by saying those types of things.

MR. ASPLEN: If I could just take a second to highlight something that Jim talked about in hispresentation, one issue that is becoming a bigger issue all the time that, quite frankly, there just isn't a lot of legislation on is the elimination sample issue, and I do want to highlight it for you because I think it's one of those areas like intelligence screens that if we don't do it thoughtfully, you will get legislation that says specifically you can't do it.

By elimination samples again what we mean are those opportunities that you have to -- let's say you've got an investigation and you need to eliminate the husband, the boyfriend, or whatever, something like that, from suspicion, and in doing so you take that sample and you have it tested and you eliminate them. What do you do with that sample afterwards? Do you keep it around? Do you destroy it? Is there an investigative value to it? How long do you keep it if you keep it at all? People who voluntarily enter into the process for one reason, because, you know, they volunteer, they consent to have their blood or their DNA used for one purpose, to what extent can you deviate from that purpose to which they've consented?

It's a huge issue, and it's one of those I think hot button issues that you really, really have to think about and you have to approach very thoughtfully. Any other questions?

UNIDENTIFIED PARTICIPANT: You've stated that there is some case law on this. Is there any case law specifically that addresses consent to this, and why can't Chris write up like a card or a form for collecting DNA similar to like what we have for Miranda warnings? We have a card that says will you consent to this. Just write up a Miranda warning card or a sample for us to utilize in law enforcement to get that consent.

MR. ASPLEN: There are consent forms for that purpose out there. If there is anybody here who has some of those, I would ask that they let people know that. But those informed consent forms -- they're not cards; they're forms -- do exist. Again, it's very akin to -- really the way the law works, a lot of times if the law has never addressed a particular issue, what the law then does is just look at similar issues. What is informed consent for a statement? You know, can I use a statement against me in this case or that case or whatever. So we have other examples of that.

Jim, do you know if there is any specific case law on this particular issue?

MR. WOOLEY: I'm not aware of it, but I'm sure that there is specific case law and informed consent to get a blood sample from a guy to use to do an enzyme testing. I just don't have that at my fingertips, just informed consent to say we would like to search your house. That legal framework, that model I think will just be transposed over onto this thing and someone is going to be whispering something in the left ear, that argument about now you're getting something different; you have to say something a little extra, and that's where I think it will be, but the model of what you have to say as law enforcement officers to get anybody's consent to allow you to invade an area regarding which they have an expectation of privacy, which is again the lynchpin, that's out there. There is a ton of it. I'm unaware of a specific case about informed consent to get a DNA test and that playing out in any way different than usual.

That shouldn't give you a lot of comfort that I'm unaware of it, but I think maybe we would have heard about it. I think Chris would have heard about it for sure, if there had been a case wherethey threw out DNA testing because they didn't tell the guy enough about why they were taking it. I think Chris probably would have heard about that, and he would probably be able to tell you.

MR. ASPLEN: Any other questions? Seeing none, we will move directly into the next panel discussion. Jim, thank you very much.

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