Transcripts of the Attorney General's Initiative on DNA Laboratory Backlogs (AGID-LAB) Working Group

March 4, 2002, Meeting

DNA ANALYSIS BACKLOGS

MR. SCHELLBERG: Good morning. My name is Tim Schellberg. I'm with the Smith Alling Lane firm. And over the last two and a half years Smith Alling Lane has been involved in tracking and monitoring DNA forensic date of expansion and legislation funding, and casework, and things like that.

We have how to increase in dealing with the legislation? We track all the news articles that deal with this issue. And we service a resource to lawmakers, crime lab staff, congressional staff, and various other interests that track this to date.

We frequently receive phones calls from crime lab directors who's built relationships with most of the crime lab directors throughout the country. They call us wanting to know facts and figures, issues going on around the country, as the policymakers expand forensic DNA, and we serve to help them.

We also called some state legislators almost on a daily basis wanting to know what happened in a particular state when they implemented a particular bill; how did they overcome some of these objectives.

So in summary of what we've done is we just become this information house to help people that want to look at expanding the use of forensic DNA. We bundle a lot of this information together each week and Smith Alling Lane produces something called the "DNA News and Legislative Update." And I believe probably most of you in this room received this update each week from us.

And I wanted to - she's walking away, but Lisa Hurst, she is the author of that report, and she is the one that coordinates that effort for our firm. And for those of you that do not receive the report, please let Lisa know, and she'll put you on the weekly list.

Currently, that report gets sent out to 3,000 people each week. And actually Bill Tilstone is in the audience. He was the very first person I called two and a half years ago to ask him if he wanted to receive that report. But since then it's grown quite a bit up to 3,000.

I'm pleased to announce also that we are running a campaign this spring and summer where we anticipate we'll be adding 8,000 members of law enforcement to the list by the end of the summer, the detectives, the new management, so we can start educating law enforcement about what's going on out there regarding the growth of the current DNA.

What I'm going to do today - we plan to speak for approximately 45 minutes and then hopefully have a discussion for about 15 minutes. I'm going to talk about the growth of the DNA database statutes, where we've been, where we're going on that issue, talk about the casework, where we're headed in regard to casework, and then talk about what are some of the objectives with DNA advocates that we've identified, who are the decision-makers that will be in charge of implementing those objectives,and what do those decision-makers need in order to move forward.

And before I start, I was looking at your charts, so to speak, and I'm sure that will develop over the course of the day. But basically you're looking at an issue of backlogs. And I think when I see the word "backlog" it's kind of a loaded word. It's not just the backlog sitting in evidence on the shelves around the country. To enhance the - to get rid of those backlogs, we also have to consider growing our database statutes, because if you make the databases more successful, you're more likely to process those backlogs because you're going to have a more successful hit rate. 44

You'll also obviously have to be concerned with future backlogs in making sure that you're going to a crime scene and testing evidence right away. So I think the issue of backlogs is broader than just the backlogs currently in these evidence lockers.

So with that, I'm going to take a look at where we currently are on the database laws in the United States. Of course, all fifty states at the close of the legislative session of 2001 have implemented the database statute for sex offenders.

Forty-five states have implemented the database for sex offenders in violence crimes. The only ones who have not enacted the date are Mississippi, Kentucky, Delaware, Connecticut, and Vermont.

And burglary, we have 33 states that implemented first sex offenders, violent crimes, and burglary. And we currently stand in 14 states collecting DNA from all felons.

Now, this was just a handout given out to you. We track - we keep a chart of where the 45 states are and this is a resource that were given the most to state legislators so they can see where they fall and should be doing what.

This is on the Power Point, of course. So if you would like to see this Power Point for a reference, you've heard of that.

I think it's important to take a look at where the expansion legislation has been, kind of the direction we're going. Prior to 1998, we were lucky if we saw perhaps five states per year trying to expand the databases. And they would generally do this in an old-fashioned way. And they'd move from sex offenses and likely for violences and violences to burglary and ultimately to all felons.

But in 1998 to 1999, we did start to see a little bit more of legislation being introduced. Forty-seven states - or 47 bills in 21 states were introduced.

And during the 2000 and 2001 legislative sessions we really saw an increase of 148 bills introduced in 38 states. And if you consider the states that have already passed the all felons legislation, and the states that introduced legislation in 2002, there are only three states in the country that have not tried to increase their database over the last three years. That's Idaho, Nebraska, and Massachusetts. So basically every state is constantly trying to increase the size of these databases.

In 2002, there's quite a lot of going on in the legislatures. Currently there are 17 states that have introduced the All Felons Bill. The ones in the blue are states that currently have all felons under statutes. So we don't expect many bills out of them. But as you can see, quite a bit of states are moving forward this year, and we expect even a few more as the year draws on.

In addition to all felons, there are four states that have introduced expansion bills, short of all felons, them being Missouri, Kentucky, Ohio, and New Hampshire.

And there are two states that it introduced the Arrestee Bills being Virginia and Arizona. And I suspect we'll see the Arrestee Bills perhaps in New York, again. Connecticut has over the last few years have introduced that legislation.

Some of the trends that we're seeing - the biggest kind, of course, is the movement towards all felons. And I'm going to talk specifically about that in a minute. But some of the clauses that are showing up in the 2002 legislation I want to bring your attention. The one that's the most prevalent, I think, is the issue of moving from blood draws, as the means of collection, to swabs.

I would say out of these 17 states, just a rough guess, about 14 of them have that provision to move to swabs. And the reason they're doing that is that they've been told that it's much cheaper. And I believe the fiscal notes reflect that.

The average fiscal note to collect blood from an individual runs about $40. That includes the time of the phlebotomist, the materials. And so in the fiscal notes, it appears $40 per offender to neglect. And, of course, their $40 from the analysis.

However, the fiscal notes on swabs run at about $5 per offender. You pay perhaps a $1 or $2 for the kit and then you're paying about $3 for the tech to actually take the swab.

And we've seen most of the legislators being very comfortable with that. However, we've had a lot of legislators calling us saying, Hey, the crime labs are telling us that they don't want to move to buckle swabs. It's just a couple of states that said that. And the reason that they've mentioned it is they've said there's low reliability rate on moving the swabs.

So we heard that a couple of places. So we checked that out. And what we found was the labs told us that, No, they get plenty of DNA to test and it's very reliable. What happens is, is the person collecting the swab, taking the DNA of the cheek. It's not actually scraping it hard enough or something like that.

So if states are moving toward swabs, they need to make sure that they're moving or train the individuals to take the swab appropriately, but we've been told that they were dis-lined (sic).

And another clause of interest that I wanted to bring up and it's only appeared once they've - that I thought was quite interesting this year - is Minnesota has a clause that says, They're going to take from all felons and any other crime in which rises out of the same set of circumstances, the all felon.

What this means is what they're getting at is the people that are plead down in misdemeanors that are arrested for all felons, which is just quite unique, and we haven't seen in that year that clause until this year.

So that's kind of where we're at in 2002. And here is the list. I think this is also with your handout. If you can't read that, there's a handout of all the bills that have been introduced in 2002 at the end of status and who's the sponsor of that information.

The biggest trend of the last couple of years is the start the movement towards all felons. In 1998, five states had all felons legislation and those were basically put in place in the early 1990s, and we didn't see any of those introduced in the past in 1998.

In 1996, Wisconsin passed the all felons legislation. In the year 2000 in Georgia. And then all of a sudden in year 2001 we saw 14 states pass the all felons legislation, quite a difference in growth.

In 2002, I'm estimating that basically there's going to be somewhere between seven and ten states this year, again, to introduce and pass the all felons legislation. The ones that I think are going to pass for the moment, based on talking with the crime lab people, the legislators, the advocacy groups that are out there, who sponsored the legislation, my guess is the ones that are going to pass this year are Washington, Utah, Arizona, Iowa, Illinois, Ohio, which actually currently has a less than All Felons Bill, but there is a movement to change that. There's a lot of information and we kind of pushed towards all felons, and I suspect that's going to be New Jersey in the same boat and potentially New York.

The ones in red, for various reasons, I'd give less than 50 percent odds of that passing in the all felons this year.

And then looking out. Where are we going to be in five years in all felons? I predict we could be at 45 states electing from all felons by 2007. However, that's contingent on these legislators and policymakers having excellent data that gives them information to move forward and a continuation of federal funding.

In year 2001, the reason we had such a significant jump was simply because of the backlog that the nation has. I think when that was drafted, and Glenn Schmitt here in the room, and you were being the architect of that bill, it was my understanding when that bill was drafted you were merely looking at backlogs and you had no idea that this would be used as the incentive to create all felons. And that's exactly what's happened.

The legislatures have figured out, Hey, if we pass all felons and create a backlog, Congress said, They'd pay for it. And that's exactly what's happened and that's all the legislators are talking about.

So thank you, Glenn, for that guidance.

(Laughter.)

MR. SHELLBERG: Anyway, the big push this year isn't necessarily the funding. It is the data. There is new data coming out of the State of Virginia that is basically a slam dunk in going towards all felons. And these legislators are seeing this data and they realize they shouldn't forward the all felons.

So, again, to be in 45 states, that it's going to be relying upon the data and on the continuation of federal funding.

Now, when we first started tracking this, basically we thought of the states in two categories. Those that were all felons and those that were not. And when a state passed an All Felons Bills, you kind of assumed they reached the end of the road and they were as far as they could go.

But just this year I really started to understand that there are two different types of all felons legislation. There is the small type of all felons legislation which really doesn't collect that many samples. And then there's the big significant type of all felons legislation which collects a whole lot of samples.

So what I'm going to do now is I'm going to show you a break down of all felons legislation, so that you can see missing pieces of all felons and show you how many samples would be collected for each element. And the numbers I use are from the State of Washington.

They have an All Felons Bill as far as this year. It's very comprehensive, and they did a wonderful fiscal note breaking down how many samples are included for each clause. And so we're going to walk through that so you can see the differences between the two types of all felons legislation.

Felons serving time in prison. If the legislation is just limited to new offenders going into the state penitentiary system, in Washington State, that is only 5,600 new samples a year. There are a few states that did this. Take for the last year, the State of Texas, the gentleman held in passing a great outcome of legislation, but it really fell short. It's only collecting for new felons. It's not retroactive and it's for only those going to prison.

However, if you collect from people that do their time in the county jail, Washington State would have 15,000 new samples a year. So you can see that's quite a significant jump. So if you leave out those spending in time in jail, you're really missing out on getting it better into the system.

Juveniles. In Washington State, juveniles make of 7,952 felon offenses per year. And those that do not do time in the prison system or in the county jail that are doing time in corrections to the county corrections program, that adds 840 samples.

And retroactive. Meaning, the people that are currently in prison that have not been tested. In Washington State, they currently collect from all violence. For those non-violent offenders in the Washington State system are 6,100. And Director Hart was saying that's the issue of going back and getting these people that are being released before they get out, and it's very important.

And retroactive to jail, a smaller number, 1,863. And here's a real significant one. Retroactive of those in prison that are now out on probation or parole are 10,300. So you can see if you limited your bill to just those new felons going in the state penitentiary, 8,000 or 5,600. But if you are doing all of these other elements, you're annual collectively is 23,792 and your retroactive samples are 18,263 for a total first year in Washington State alone 42,055.

And so that kind of gives you an idea of the differences between all of the types of all felons legislation. And Washington State, I suppose, is your average state. I think they're ranked 13th in population at 6.5 million. So you kind of take a guess. In a bigger state, you can kind of figure out what the impact would be and then a lesser state you can make that as well.

And I think it's very important to understand that these lower - the people on this list, the people going to jail, the juveniles, the medium corrections, they are the people who are retroactive and they're going to get out of jail soon.

They're the most important people out of the database. But Director Hart brought that up earlier. These are the people that are going to re-offend the quickest. They're the ones that we'll have hits on it and so that is very important.

Also, you should be aware that a lot of states are starting to really increase the amount of misdemeanors that go in the database. The common offenses being considered, sex-related crimes, lewd and indecent activities, communicating with minors at risk was the purpose of this list. Those are the typical kind of states that quickly enacted under misdemeanors.

However, the ones that are missing, that

I believe should be considered, is solicitation of prostitution. And the reason I say that, coming from Washington State, we just recently had two very large, serial murder cases. One has been solved and the other one they have a primary suspect. The AIDS case out of Spokane where he murdered 15 prostitutes, and then the Three River case that most of you have heard of.

We've had 50 murders starting back in 1982, and they made an arrest three months ago, had a prime suspect. All of those individuals were convicted of solicitation of prostitution early in their criminal careers, and perhaps there may be a correlation. Perhaps the data can suggest if that may be a common misdemeanor and you may want to add it to the list.

The other types of misdemeanors. We see violence-related crimes. In my state, we call this fourth-degree assault. And a lot of the legislations, I think Michigan, and some others added the fourth-degree assault to the list.

Stalking is a common one to add.

Harassment. The misdemeanor forms of harassment. And we've seen the obstruction of property in a misdemeanor level being proposed.

If in Washington State all of these misdemeanors were added, and they're not in the current version of Washington State's Bill, that would add an additional 6,500 samples per year, and that's an estimate.

Now, legislators seem very comfortable to have the sex-related crime misdemeanors in the database. However, what we've seen when legislators have proposed adding things like fourth-degree assault, obstruction of property, we see some resistance. Legislators say, Why should we have a college kid that just got in a bar and a fight on the campus be in the DNA database? He's not likely to re-offend.

And so there are some issues with this with these lower, level offenders being added to the databases. It is not as easy as passing the all felons legislation, and I would assume some resistance will continue.

Now, I'm going to spend sometime on the arrestee testing legislation. The way I see it there are basically two different types of arrestee testing legislation that's been imposed.

The State of Virginia, and Paul Ferrara will tell you, has just passed - they're the first one to do the arrestee testing legislation. That is it was planned to be implemented, although Louisiana does have something on the books.

Now, Paul's bill, what it does, it says, We will database temporarily during the disposition of that case and then we'll expunge that sample. So it's not a permanent database statute. And, in addition, they will take that arrestee and they'll run it against the unsolved database.

Now, comparing it to the unsolved crimes database seems to be a concept that I believe most of the state legislators are going to be comfortable with. Databasing arrestees, I believe, is going to continue to fail. However, Paul's kind of a hybrid approach where you database them to determine the disposition in the case may be acceptable.

So if you just want - if you want to permanently database these samples, the bills are going to continue to fail. We've seen in Connecticut. I believe Florida had a bill like that. It failed in New York. The Arizona bill lightly failed.

The legislators just do not want a database DNA for the same rules of arrestees. And until they can be convinced otherwise on a permanent basis, they're probably not going to do it.

However, Paul's bill, or a version of it, we're merely comparing the unsolved databases temporarily, temporarily keeping them in a database. I believe that most legislators may be comfortable with that. And we saw the media support this effort in Virginia, The Washington Post, the New York Times. That version of the bill was very acceptable to individuals.

And I consistently heard that compared to the agency database. They use the finger. And we do this for finger imaging. Why not DNA? And so perhaps there is a version of this bill that can be acceptable throughout the country.

However, I believe that you will not see states move forward with this unless they doubt a very significant unsolved crimes database like Virginia has, like Chicago, and Florida. Because it doesn't make economic sense to take DNA from all the arrestees to compare it against the database on unsolved crimes when you don't have much of the unsolved crime databases that exist.

I believe in most of the states they have databases of less then a hundred people. So that's quite a bit of money to take from all the arrestees. They're very low percentages getting hits against that database.

Also, if the states move forward with this, and I suppose that Virginia will request, is that CODIS statute perhaps should be changed to allow arrestee samples to be compared against the NDIS database of unsolved crimes. Because right now all we can do is compare his arrestees to his Virginia unsolved database. He cannot load it to the Department of Justice research statewide, and perhaps that is an initiative to be considered.

I should mention that I believe that the legislation may not be necessary to take arrestees' DNA and search it against unsolved databases. There's nothing in the Federal Constitution or State Constitution or statutes that prevent this.

What would be prevented, I believe, is databasing the arrestees. But merely collected and run it against the unsolved crimes to see if they're wanted for some unsolved crime, there's probably not any Constitutional issue or statute that would run against that.

What drives all felons legislation? There are a number of things, but I kind of rank them in order. The state agency advocacy. If what I've seen is - if the state agency - I'm not speaking just about the crime lab. I'm talking about the agency that's appointed by the governor and that person and that agency, if they are behind in the all felons legislation, these bills will past nine times out of ten.

Most of those agencies have governmental affair liaisons. They're working to build law justice committee people. They're pushing it forward. They're requesting the budgets. And that's what makes the bills pass.

And we've seen that last year in Florida. We saw it in Michigan. Those bills move very quickly with no problems. If an issue came up, it got low write over, because it was being pushed by these agencies. This here was seen at Utah and Washington.

Now, you compare that to places like Kentucky, Oklahoma, and Missouri, and Hawaii. We talked to those agencies and the legislators. The agencies, it's being driven by the legislature without the agency support. And those bills will fail 80 percent of the time.

And so that is the number one thing you can do to position yourself to pass these bills is to get to those agencies and get them to support moving forward.

The second thing, of course, is the continuation of federal funding. That drives, as I mentioned, the off-line databases. And, of course, I mentioned earlier that the passage of Backlog Elimination Act and how they're seeing that as an incentive to move the bill forward.

We have heard some complaints, though. You may want to consider this. Is that - the Backlog Elimination Act money is only limited to paying at the moment where your diplomate is paying for the analysis of $40 or so per offender for the analysis.

However, states are saying that they need money for collection and administration costs moving towards all felons. And what I mean by administration costs is the storage, the database management.

And what that's running in Washington State at this moment I believe they estimate that that cost is $350,000 for the first year and basically 200,000. They go from an on-line database to an all felons. And you might just think that that's not a whole lot of money for a state budget to come up with. But people in this year and perhaps next and this recession runs state and local government budgets, basically every bill you'll introduce to the legislation that has even a dime of that is presumed dead before it even starts. But that's just the way it is right now with most states facing billions of dollars in -

So if there's a way to say that state's can somehow give money for collection and admin costs, you know, that's an objective of this group and the Department of Justice wants to pursue, you may want to consider that.

Law enforcement association advocacy is the third thing that drives all felons legislation. The state police chief and sheriff's associations when they're on board and pushing and using their lobbying resources that makes the bills go much quicker.

This year the State of Utah's association, Washington State, and many others are actively involved in pushing these bills forward.

And, finally, the ACLU and some of the criminal defense parties themselves, when we first started tracking this, most of the bills were defeated. And we researched why most of the bills were defeated. And it was because the ACLU and the criminal defense bar came out and said they didn't want to do this.

And, however, starting last year, this has basically gone all away in most states. In Florida and Texas, the All Felons Bill and the ACLU and the defense bar were completely absent. This year I have not heard of any of those two lobby groups being actually opposed to these expansion bills.

And the reason for that, and I think Barry Scheck had a lot to do with it, when we talked about all felons legislation is expanding the databases to all felons, perhaps it's monitoring innocent people.

When you have a bigger database, you're more likely to hit on the right person, therefore, not in interrogating innocent people and, therefore, not having to arrest innocent people, and ultimately convicting innocent people. Bigger databases off all felons help you reach that goal.

And I think that message has been played out on the state associations for the chance of arguing to the ACLU and then perhaps why we're seeing a lack of interest in feeding these bills.

Now, I'm going to talk about casework for a little bit. I think there's no secret here casework needs improvement. The current backlogs, some have estimated that a couple of hundred thousand cases sitting in evidence lockers throughout the country.

Furthermore, I believe the law enforcement is not routinely collecting and pursuing casework on new cases. And let's evaluate some of the reasons why that's happening.

The first reason is probably because the hit rate is so low in most states. Limited offender database size, if you go to any given live crime scene and collect DNA, perhaps you're down below 5 percent chances of solving that crime.

Now, is that an efficient use to spend thousands of dollars to do casework when the chances of getting matched are now below 5 percent? That may be a reason that law enforcement is not pursuing casework.

Number two is law enforcement is still learning about DNA. It's no secret. If you talk to your average police chiefs and sheriffs throughout the United States, they basically go blank when you're talking about the database. They don't get it. They need a lot of education to understand the power of the database. They understand that DNA is being used to match the sample of the suspect as termed to being prosecuted.

But to use it as an investigative tool, they're not there yet. You need to understand that. When they do, it trickles down to the detectives and then their detectives will start learning as well.

Lack of funding. Even though this year NIJ didn't have enough applicants for the money they had to give out for casework, there's a perception that there's a lack of funding. And if everyone did pursue casework, you're talking hundreds of millions of dollars needed and the money just isn't there right now, and so there's perception.

And number four is a concept that I want to explain to you. Forensic scientists historically have been centralized. There are a few of you that have local crime labs. Most of them are all in a local center. There are casework to the state level.

And by doing that you basically remove it from a local level where most of the work gets done where budgets can be created by county's council and city's council and putting it into casework. And that's not there.

And because of that, I think there's a disconnect by sending it to the state lab, and, therefore, lacks the funding requested. And perhaps that's an issue to consider.

One thing that perhaps we should consider with the future grants is to allow local agencies to directly apply to NIJ for casework. I witnessed a few things this summer during this solicitation work. Local agencies were screaming at the state agencies to apply for these grants, but they couldn't. And the state agency wasn't prepare. They said, Well, we need to come up with three people to do the application for a week. We can't do it. All of these excuses. So you've got the mind when you're looking at the issues.

Now, let's take a look at the next five years. And I've identified three primary goals for the DNA advocates that I think that most people advocate for. One is moving the states to all felons in all but a few states. Of course, there's going to be a few states that will never get all felons unless they're forced. And that's just the way it is. But I believe that we can probably get 45 within five years.

Number 2. The casework backlog is clear. Obviously that's an objective that everybody subscribes to.

And Number 3. Routine and quick casework at all relevant crime scenes. And those are some worthy goals.

Now, who's in charge of making these goals a reality? The decision-makers that we've identified are defined. The state legislators obviously are in control of the database. They're in control of the tool.

And they're the primary decision-maker of that. And, of course, they also decide how much state funding goes towards building the databases and doing the casework.

I talked about the state and the importance of state agencies. Those people are appointed by the governor, and the director says, This is my lab. You need to be educated and to decide to push the state legislators in that direction.

Of course, Congress involves a lot of the federal funding. And those of you have used the Department of Justice. You're going to control the information to get it sent to Congress and implement them and move forward.

Law enforcement, of course, is in charge of making decisions to move forward on casework. And are going to come back to the city and county government, because, again, those city councils and county councils, the mayors, the city managers, the executives in accounting, they are going to decide if they start putting resources into casework and the budgets to do that.

Now, we've identified some of the goals, the people who would implement those goals. But what if the decision-makers' players need to go forward? Basically they need two things. They need comprehensive data of the power of running the DNA, and, of course, they all need to be educated. But I'm going to focus mostly on the data.

Policymakers, state legislators, Congress, they want to know facts and figures of what expanding these databases and doing aggressive casework. What does that mean? Four things. What does it mean to solving crime and preventing crime for making law enforcement more efficient?

So I basically have taken those three things and put into four broad quality questions that we will walk you through right now.

First of all, what does passing the DNA databases expansion legislation do to the odds of solving crimes? What if passed in legislation do to the hit rate? We've been talking about the hit rate, and we've been hearing a lot about that.

What happens? What is the chances of going to a rape scene, collecting DNA, putting it into your state database and getting a match? What are those odds? And if you can break down those odds and show the state legislators it will be a very, very powerful thing.

And we've heard some anecdotal stories of chances that have taking place. And now we're starting to see in the House of Virginia starting to analyze their data and what that means. And so Virginia is kind of giving us a teaser of some of the data that is potentially out there in all your states we can take a look at. So we're going to take a look at some of the Virginia data.

We asked Virginia - or they did this - for those people convicted of one out of 500 or more crimes that Virginia has, if they get a full hit. What were they in the database for? And what we can see is over two-thirds of the hits are from nonviolent offenses.

Burglary, 42 percent; drug crimes, together is 18 percent; forgery and check fraud, those types of thing, 4 percent.

So the legislature is not passing nonviolent legislation for the database. You're missing out on quite a bit of your potential hits. And with this data you can say to a legislator - what if they said, Okay. We're going to move forward with the all felons, but we don't think there's a relationship at that time, so we're going to remove the drug crimes.

What does that do? In particular, a drug possession. We can take cross-data and you can say, Okay, legislator, if you're moving the drug possession, you would have missed out on 58 percent of your hits.

And then the legislators might say, Well, actually but wasn't that for burglary? You can say, Well, actually, no. Look, those people in the database of drug possession were responsible for rapes, 15 homicides. When the legislators can see this information, there's no going back. They know that it makes sense to include this thing.

You could also come back and say, Okay. Well, let's takes a look at forgery. What is your proof of people connecting a forgery check product of being responsible for violent offenses. And you can go to the forgery side and you can say, Well, look, in Virginia they're responsible for eight rapes and two homicides.

That data, again, is very powerful. I saw it used firsthand in the State of Washington. The Governor Gary Locke, the policy director on criminal justice called us up and said, Well, what the governor wants to do, he wants to make database expansion. Let the governor request those year.

And, I believe, the Washington State Police will be the first state that the governor actually proactively went out and tried to expand the database. Most states have a procedure for allowing the governor to introduce legislation. And I believe Washington State will be the first one to do that.

The governor said, He didn't want drug crimes in the database. And so the policy staff called us up and said, Can you get some data? Now, at that time we didn't know the Virginia data existed.

So Lisa called Paul and Paul forwarded the new data that we had. And rumor has it that Paul is the director at one end of the governor, slid in Paul slides, and within five seconds the governor changed his mind and decided to go with the full, all felons legislation.

And, again, that's his testimony about the power of the data of what we can see if we can get this data even more comprehensive.

The second question policymakers want to know is with funding complete, DNA casework past, current, and future how many crimes will be solved? If you can clear out those evidence lockers, and you've expanded your databases, how many of those whole cases will be solved?

We saw this, for example, in the State of Maryland which had that 20/20 episode where they took forty random rape kits and then ran it against the Maryland database which is an all-violent offenses. And everybody was astounded that they got five hits, twelve hits. Well, Paul stated that happened. And the bill of evidence suggests that you would have perhaps had twenty hits.

So you want to be able to calculate certainly the night extension. What would that actually do if you ran all those evidence log samples into the new databases?

The third question that policymakers want to know is how many crimes, particular rapes, and homicides would be prevented if you had the bigger databases in place. We all know - and I think the story that sticks out in my mind as we all heard Howard Saffir speak, and he shows that slide where he wanted to get all of this.

And the reason he wanted that was that there was an individual that they arrested in the subway on the turnstiles with an automatic rifle. And they took him in and arrested him. Then they released him on bail, and he went out and raped and murdered I think four or five individuals.

And, however, if they would have taken that individual's DNA upon that arrest, they would have known that he was wanted for two other rapes and homicides, and, therefore, they have homicide three, four, five, and six, and perhaps it would have never happened.

So legislators want to know what is the impact of any crime when you're able to renew these individuals and get them right away.

And finally this question keeps coming up time and time again. What are the efficiencies involved to law enforcement and the other players in the criminal justice system for moving forward at these main objectives and bigger databases and more casework?

Does law enforcement then save an investigation slide, and if so, how much? Do prosecutors find themselves getting pleas more quickly? How much does that save? Court time and things like that.

And somehow we need to quantify this to show the legislators, to show to the city and county councils, and the state lawmakers how much money we're saving, and, therefore, why you should invest in DNA technology.

Some of the conclusions that we've reached, I suppose, if you look at some of the data that I've presented is one - the one that I keep coming back to is larger databases, that tool, if you put that tool in place, it will drive casework.

It will cost people to go out there and do more casework because the hit rate will increase and you won't be able to ignore the success. And, therefore, it will create more casework just by its nature.

Secondly, the conclusion is 25 states will be at all felons real quickly. And, however, the next 25, I believe, will be more difficult unless the federal funding is maintained and continued and the data is presented. Because a lot of these legislators and the people involved with him, the agencies, they're just not going to move quickly unless they're shown the data and shown the money.

Casework does not mean aggressively pursued. That's not the conclusion that we've reached. And I'm sure most of you believe that as well. And that conclusion is a development of comprehensive data that is essential to accomplishing DNA expansion. And finally law enforcement must be educated more than they are now in order to prepare themselves to do casework.

Now, a few things. I suppose this group is thinking about options for you. Based on these conclusions, what are some things that you can consider? Besides the development of data to get out there to the policymakers, which I think is the key, some other things have been going on to consider and explore.

Looking at some of the past activities of the U.S. Department of Justice, particularly the FBI, when certain things come up, they would have aggressively gone out and worked with the state agencies so I could advocate to them moving forward.

We saw that with AFIS. When AFIS was created, the technology existed for finger imaging. The FBI and others went out and directed all the state agencies and said, Okay. This is how you write your legislation. Get this in place. And they basically lobbied the agencies to move forward.

I believe that also occurred on the sex offender registration and the original sex offender DNA Bills. I'm told that Dawn Kirkingham had a task to basically meet with all the state agencies, walk through the legislation, show them how to do it. But really that has not happened since then.

So since the implementation of the sex offenders DNA statutes to the all felons, the U.S. Department of Justice is basically been informing but not really pushing. And perhaps if that's appropriate maybe that's something you may want to consider in order to get folks to more forward more quickly.

But, of course I think developing programs for law enforcement to educate them and to train them has already been some worked out on this. I think that's the key.

And I'll leave you with a thought I've had based on the first conclusion. If casework is clearly driven by the size of the database, perhaps when you're talking about federal fundings needs, one of the things you may want to consider is what if the federal government takes over paying for all the database numbers?

What if basically the states say at the end the year they tabulate how many cases they put in the offender database and there's some baseline of costs for analysis and election administration. They send the bill to the federal government and they get reimbursed.

Then the federal government continues casework over the next year or two throughout the backlog to show - to start showing how successful those databases are. Because with federal funding being permanent, the state legislators will quickly move towards all felons. It will happen probably in the next three years, not five, and they build that tool.

And then the casework comes up and you we'll have casework driving and showing the success. Then the federal government can phase out a casework, because once you have this giant tool in place, it's going to be so successful. It will be hitting on every offender case of 50 percent of the time.

The state governments, the local governments, will basically be forced, for lack of a better word, to do casework, because it'll be impossible for them to explain to the citizens why they're not doing casework when the hit rates have been 50 percent.

And so that's a concept that I thought of time and time again. And I've heard others mention it. So you may want to consider that.

So with that, I hoped I've left time for some questions. And thank you very much.

(Applause.)

MS. HART: Tim, I got to tell you that was really excellent. I appreciate it greatly. I wanted to leave time for obviously for questions for everybody.

If you could just state your name before you do your questions so we can at least get it on the transcript. Thanks.

MR. SCHECK: Tim, could you - I think it's, what, 22 states that have post-conviction DNA legislation? You didn't reveal those. And I was wondering what your observations are as to whether, a, the existence of that legislation has contributed to backlogs of any kind.

And, b, what your view is as to what brings those statutes into being or doesn't?

MR. SHELLBERG: You're talking about the post-conviction effort. We track, of course,post-conviction efforts. We're not as actively involved in our expansion efforts. So our chronologist is not quite as high.

However, what we noticed is that in 2000 and 2001 most states were struggling to pass these bills, and there's a lot. However, this year it doesn't seem to be as much effort to past the post-conviction law. Perhaps that's because most of them have at least - maybe he'll answer it.

There's perhaps half of them have post-conviction statutes in place.

And so there seems to be a dropping off to effect that. I don't know if that's because your efforts on the commission and things. That was the main focus. That it's kinds of falling off on pushing the model policy.

But that's kind of what we've noticed over the last few years. And so you had another part of your question.

MR. SCHECK: Well, in those states where it's been adopted, do you have feedback on reports that the requests are causing some kind of backlog that distresses state or federal or local officials?

MR. SCHELLBERG: Yes. What we've heard, I think, is that that's really not an issue. There's not been any controversy. People seem to be comfortable with moving forward. We just haven't heard of any complaints about it.

MS. HART: Susan?

MS. NARVESON: Tim, in all of your research and contacts with the various agencies, have you delved into the issue of infrastructure needs of these agencies to be able to have the staff on board to actually process the samples, whether it's in-house or prepping them for outsourcing?

MR. SCHELLBERG: Well, some of the states that have not moved forward on the all felons, one main reason is sure the federal government is paying for analysis, but I need building space. I need more equipment. I need to train people.

And $40 per sample isn't covering that. I suppose the congressman's answer to that is that's why we're allowing him to outsource, and that's where the baseline of our price has been.

We've heard a lot of people complaining and that is probably the main reason why the states that have the all felons have not is because they want infrastructure in place before they move forward with the all felons.

MS. HART: Go ahead. I can't read your name.

MS. CROUSE: I gave a presentation to our prosecutors last week. And I'm extremely excited about the casework or the backlog grant that's coming out. We certainly have applied for that. They were astounded that we didn't consider the impact it would have on their office.

They told me they were broke at this point. And if we start - if we start pursuing this kind of casework and getting the kind of hits that we think we might get, based on the past experiences like with Sue's laboratory, they're not sure how it's going to impact them over the next year and a half to a year.

Do you actively pursue data on how state attorney offices are going to be handling this?

MR. SCHELLBERG: No.

Lisa, do you hear that? Have you ever come across anything like that?

MS. FORMAN: No.

MS. HART: Tom?

MR. GEDE: Tim, you mentioned that there's the historical centralization in the state agencies and that there might be some advantage to grants going directly to local government.

Have you done any analysis as to the risks inherent and centralization versus more local casework being handled and whether there's a possibility of bulkinization (sic) or lack of standards working with the centralized agency?

MR. SCHELLBERG: Not necessarily. I suppose that, you know, you can look at those various local labs. Cecelia is one. There are others here at the table. Susan, and perhaps chat with them and kind of work though that. We haven't analyzed that yet.

MS. HART: Tim, you talked about the retroactivity issue, which as you know, is a pet peeve of mine. Do you have any idea of how many states out there have that particular issue where the testing requirements change depending upon the conviction data of the offender?

MR. SCHELLBERG: I'm having a hard time hearing you. Could you repeat the last part of that?

MS. HART: Do you have any idea how many states have different requirements for testing depending upon the conviction date of the offender? In other words, they would test sex offenders who were convicted after, for example, the effective date of the Act.

Do you have any idea how many states have different standards based on conviction dates?

MR. SCHELLBERG: Well, we started tracking this basically in 1999. And from that point forward, we can tell you that, and I'm guessing, we're at about 75 percent of the bills introduced post-1999 have retroactive clauses in them. We need to go back and get the people convicted of those crimes.

But part of that when most of the statutory were enacted, at least for the sex offenders and mild crimes, I don't know that answer. We could certainly start working on that, and that has a good point -

MS. HART: Do you have any ballpark? I mean, I don't want to hold you to it. But do you any idea - rough guesses?

MR. SCHELLBERG: My guess would be 50 percent.

MS. HART: Thank you.

Carl?

MR. SELAVKA: I amplify a bit on Cecelia's comment. Our prosecutors were quite ambivalent about us putting in a request on the solicitation that just came out.

We did put in a request, but we really limited it to those cases that we felt they could reasonably assure us they'll have an opportunity to look at first to clear the hurdles that were required to meet this grant request, that is, they have to pre-qualify cases before we should get involved with them in order to have some semblance of an opportunity of solving them if we should actually find DNA and type it and use for profiling to help resolve a case.

MR. SCHELLBERG: I -

MR. SELAVKA: And there's -

MR. SCHELLBERG: I gotta - I cannot hear a word you're saying, I'm sorry.

MR. SELAVKA: Sorry.

MS. HART: Come to the mike up here -

MR. SCHELLBERG: Oh.

MS. HART: - at the table -

MR. SCHELLBERG: Okay.

MS. HART: - and then -

MR. SCHELLBERG: That makes sense.

MS. HART: - it will be more intimate.

MR. SCHELLBERG: And intimacy is important among us.

(Laughter.)

MR. SELAVKA: I'll try to paraphrase. Essentially we had ambivalence in our prosecutors. As we went for our grant, they said, Well, we don't really have time to try to pre-qualify cases to make sure that we have good suspects, good victims, good case scenarios, even if you generate DNA profiles that are helpful in resolving that case with probative information.

So we had to limit our grant request. And the current solicitation, there's no real way of getting at this issue. There's no - there's only so much overtime you can ask for and so many hours in a day for them to work without starting to need to hire more prosecutors.

We have a snake. We have the right, and the snake, and it moves through the snake. And each time it moves down one position, we're influencing another part of the criminal justice process. It's not just law enforcement and it's not just laboratories. It's also courts, then corrections, then -

MR. SCHELLBERG: Sure.

MR. SELAVKA: - ultimately probation and parole. We have to find a way to address that.

MR. SCHELLBERG: Yeah. There was talks, I believe, at the CODIS meeting about something similar to that is that one of the problems is perhaps you need to have the ability and the grants to allow somebody to come in, in the office to rate these backlog cases and say which ones are most practical to being put forward, which is the most likely to produce DNA and which one meets the other elements in the criminal justice system where it's not going to take a lot of resources to do that.

MS. HART: Paul?

MR. FERRARA: While we tend to focus - in fact, our current grants focus particularly and appropriately. So on the other side of the equation getting that casework done and concentrating on crime scene evidence, we hear a term often described as working on unsolved cases, cases without suspects.

What we have to keep in mind, and when looking at cases, and which case should be done first and which is most likely to provide some probative useful results, often the nonactual life, those predictions are not possible. Even - we have to keep in mind that even about 25 percent of cases, which are presented as suspect cases, quickly become un-sub cases.

(Laughter.)

MR. FERRARA: So to waste a lot of time and effort in trying to discern which case to run first may be misguided sometimes.

MR. SCHELLBERG: Yeah.

MR. FERRARA: It's been remarkable the case you would expect - the least likely case you would expect to get some useful information turns out to be sometimes the most informative case.

MR. SCHELLBERG: Yes.

MR. FERRARA: Obviously we need to concentrate on cases and prefer to concentrate on cases where no suspect is named. But it's been very important when we can quickly eliminate a suspect, get the police away from focusing on the wrong person, and at the same time point their investigations in their right direction.

So I think we need to keep that in mind. There is no simple formula.

MS. HART: Paul, if I could just follow-up on that. Is part of what you're saying that if efforts to, for example, pre-qualify a case and decide whether - let's say you have a good victim and a really good prosecutable case, that that may costs more than just running the testing.

MR. FERRARA: That's correct, Director Hart. That's - I think it's important because - I think it's important that we look at all of the cases, whether there's a suspect or not, and run those cases rather than spend a lot of resources trying to ascertain and guess and crystal ball which ones are the best.

MS. HART: For example, I mean, I would think, you know, in a case, in a rape case, where, you know, it's a consent case you certainly don't want to be running a DNA test. I mean, I imagine there's some very simple kinds of screenings that could be done that would not be as costly where you're saying you don't advocate that at all.

MR. FERRARA: Well, what turns out to be a least an alleged consent case, ultimately may or may not be, but you have to establish the facts of the case in that - I mean, it has to be - the analysis has to be performed, if there is prosecution.

If it's submitted to the laboratory, I think we need to concentrate on all the crime scene evidence. And we have to anticipate, as Tim said, as we continue the education, which we should be doing of law enforcement agencies, as to what the laboratories can do and what these data banks can do, the amount of the evidence being collected in the variety of cases that were evidenced as being collected is skyrocketing.

My DNA casework went up 30 percent just last year alone because of the success. Success - with that success comes increasing backlogs. I mean, we're going to be fighting this issue, particularly of crime scene backlogs, for a long time, but we have to continue that fight.

CHIEF MARY ANN VIVERETTE: Tim, you mentioned that Howard Saffir had a position about arrestees. And you talked about the importance of decision-makers knowing what the potential benefit is from getting someone off the street.

Is that - you know, one of the things we do as police chiefs, the most difficult things, is to try to measure our crime prevention efforts, what we prevented.

Is that just kind of a pie-in-the-sky type of work? Would there be some type of database that we could figure that out?

MR. SCHELLBERG: I think that you can reach consensus to move forward on an arrestee testing if it's a version like Paul's. I think that everybody would - not everybody, but most would be moving forward as comparing an arrestee sample against the unsolved database.

However, when you database, for example, permanently databasing arrestee samples, Barry's not here, is he? Did he leave?

But I know that people around this table there would be some that would have a problem with that and that - and then you get the criminal defense bar, the ACLU, coming out and opposing those bills, and it's more difficult.

So when I put up the three objectives of moving to all felons, casework, and getting rid of the backlogs, I put those up because I know that those are things that everybody agrees on. But when you move to arrestees and permanently databasing them, I mean, that's what Paul ran into. It was aggressively opposed. And so it's - those are things that are going to be controversial and, 98 therefore, may take more time.

MS. HART: John?

MR. KREBSBACH: Some of the discussions we've had and questions and things that have been going back and forth is issues of do the prosecutors have the resources to prosecute these crimes? Do the investigators have the resources to investigate the crimes once we've had a match?

I think that's possibly somewhat short-sighted on their part, because I think in a sense they're not taking into account the fact that DNA cases, at least in our jurisdiction, rarely go to trial. And if we can lay on the table and tell an investigator that this is the guy you need to look at vastly simplifies the investigation of a crime that they should already have been investigating.

So I think in the - they're not looking at the fact that we're actually doing them a service, doing them a favor, and reducing in number of times, the amount of work, and the amount of resources that both law enforcement and 99 investigators and prosecutors have to put into a case.

I think they're not looking at the fact, also, that a lot of the cases that traditionally had not had DNA,which now do sexual assaults and homicides, were much more difficult to prosecute in the past, were much more difficult to investigate in the past. In a sense, we've already taken out the time that they're now saying that they don't have for future cases.

MR. SCHELLBERG: And I think that data needs to be further explored and quantified. And I think they'll find it that it is more efficient.

MS. SAMPLES: I'd like to just add a little bit to what Paul Ferrara was saying. Anecdotes are always interesting. And we just had one last week where a sexual assault case that we had analyzed in the laboratory was a spousal rape, so clearly it was a consent issue.

That semen profile in that case matched to a case that was analyzed through the New York Police Department's rape kit backlog project. So my 100 feeling would certainly be that a rape case is a rape case, and they should all have DNA testing. I understand that laboratories individually have to prioritize things, but the best thing certainly in my opinion is to do them all.

MS. HART: Kim?

MS. HERD: I don't think we ignore some of the comments of CC and the gentleman from Massachusetts with respect to the prosecutors, because their caseloads are already just so high and it requires a lot of training on DNA forensic analysis for them to even understand what they have and what they're dealing with.

And I know that the backlogs are only going to be transferred to them. And I just think that it's really time to look at marrying up some type of a grant program, like a three-year position for prosecutors, and individual offices in the state and local prosecutors offices to help to understand this and to start working on it, because you need the support of the prosecutors.

And you're not going to get it if they're 101 thinking about how much more of their caseload is going to devolve onto them. Because already they're really hit all the time with so many cases that I don't think people really appreciate that.

MR. COFFMAN: I just wanted to say that is the same issue with the prosecutors and the investigators. When they added a 100,000 police officers on the street a few years back, they didn't do anything with the crime labs. So, you know, we were further down the snake, I guess, as far as getting benefits from that.

So I think this is always going to be an issue no matter what you do. And when we move the bottleneck somewhere else, then they can petition and get assistance for that as well.

And then I have another issue about the arrestee. I think what Virginia has done is probably the only way you could get an arrestee passed at this time. What I would hope is using the same facts and figures they used to justify it that after a year or two when you see how many people keep getting re-arrested and re-arrested and you 102 have to do a re-analysis and re-analysis that they can then go back and show hard numbers of the potential waste of resources and funds this is and that they will some day be able to keep the DNA profile once it's been collected the first time.

In Florida, we have over 2 million arrests a year. And in a one-year snapshot, that's only 900,000 unique individuals. And then over a five-year period if you extrapolate that out, we're only getting about 300,000 new people that have never been arrested before in Florida.

So I think there's a potential of a lot of re-analysis that would be unnecessary if it stayed this way. But I do agree to get it passed this was the only way to approach it.

MS. HART: Paul?

MR. FERRARA: If I could add. When we were discussing this arrestee bill with the members of the General Assembly and the State Attorney General's offices, one of the main selling points that made a big impact on legislators was that they realized that when we were - when an individual 103 finally had gone through a rather long adjudication process months or years after an arrest, and that's the person who became a convicted felon, and he was or she was entered into the DNA data bank, as is mostly the case when you add the felons and compare it to all the forensic profiles, that's where most of the hits occur, not the other way around, as one might think.

You enter a crime - as often as you entered a crime scene and search the database and make the hit, it's when you get the felons and you run the samples.

Well, in a year or six months or a year and a half that takes place from arrest to ultimate conviction, I mean, the vast majority of these cases, these persons are being convicted, you find out that you have - you could have solved six months or a year earlier, by taking the sample upon arrest, all these unsolved crimes that don't get solved until they finally get a conviction.

Finally, if you take a sample upon arrest and follow the case through its adjudication, you 104 don't have to take more samples. When the person is convicted, you don't retest. You've already got sample, the convicted sample, that the person when he's convicted now becomes a permanent part of the DNA data bank and can finally go up to the national level where it could be searched. Current law right now precludes that happening.

MS. HART: If we could take a break right now.

I'd like to thank Tim for that presentation. That really was excellent.

MR. SCHELLBERG: Thank you.

(Applause.)

MS. HART: If we could take about a ten-minute break. I should tell you that the men's room and ladies' room I'm told are down the hall here. And the men's room is on the left and the ladies' room is around the corer. And if we could try and get back here in about ten minutes.

Thank you.

(Recess.)