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

March 4, 2002, Meeting

PLANNING SESSION

MR. SCHMITT: We're going to move now to the planning session portion of your outline. And, again, I remind you that there are soft drinks and cookies and hot coffee waiting for you if you want to get that.

But let's thank this panel for their comments before we let them go here.

(Applause.)

MR. SCHMITT: We have touched on a number of issues during the day. And now we want to make sure that everybody has a rule in crafting the debate on these issues.

The director from the Attorney General to the National Institute of Justice was to convene a lot of smart people, ask a lot of important questions, and then for NIJ to provide recommendations to him on what we need to do to reduce the delay in DNA analysis in the states.

As a jumping-off point, what I'm having passed out to you now is a series of questions that we've developed here on the staff level that we, as we have discussed it over the last few weeks and months, are ones that we find that continue to come up. And what we really want is for each of you to chime in here in a very loose roundtable sort of discussion, not so loose that the transcriber can't keep up with us.

(Laughter.)

MR. SCHMITT: But a discussion so that we hear from you. And some of you, you know, have been more vocal today. Some have been less vocal. Here is your opportunity to effect federal policy in this area. Here is your opportunity to speak up and tell us what you think we ought to do.

So I want to go down this list in order, if I can get a list for myself.

My role as moderator is mostly going to be traffic cop and recognize folks and, you know, keep people from coming across the table at others and that sort of thing.

Well, we'll start with the first question. We decided that we ought to talk about short-term and long-term both. And especially Sarah and I in our discussions have talked about prioritization, where the prioritization is the solution for the short-term. And there are a lot of subparts to this. But let's start with this and give us your view.

Is the short-term solution to the backlog simply a matter of prioritizing what it is we put in, whether it be offender samples or casework samples, or is that just the wrong way to think about it? Is it the case,especially with casework, that to prioritize costs more money and takes more time than to just test everything?

I don't know the answer. And I don't know about Director Hart, but -

MS. HART: I don't either.

MR. SCHMITT: - she doesn't know the answer either. So please tell us. And one thing that we continue to back with: Are there offenders who quote/unquote owe samples who are being let-go out of the custody of the government without giving us samples? And what we mean by "owe" is that the state statute requires them to give a sample, and they're not getting it. I see lots of people nodding their heads.

Is there anybody who thinks that they aren't?

Paul?

MR. FERRARA: No, I agree there are an awful lot of both samples out there. In Virginia, that hasn't been as problematic as getting multiple samples from the same individuals and trying to fair at them out. But, yes, there are an awful lot of old samples. We take the samples when the persons go into the system. So if it's owed, it's taken.

MR. SCHMITT: So when they are first incarcerated, that's when you test them, not when they get out, but when they go in.

MR. FERRARA: In fact, even -

MR. SCHMITT: Now, let me ask you. In Virginia, are there people who get out of prison who owe a sample and have not been tested?

MR. FERRARA: There's got to be a few, yes.

MR. SCHMITT: But it's not - but it's just a drib and a drab. Somebody slips through?

MR. FERRARA: Right. But that's not necessarily represented of the country.

MR. SCHMITT: I understand. You guys are kind of an exception in some respects.

John?

MR. KREBSBACH: We've had a very similar experience as to what Paul's had, except we have a number of people that instead of going to prison - we're an All Felon state like Virginia is - we have a tremendous number of people that never make it to prison. They immediately go out on probation.

I think what a lot of systems have is the problem is an unwillingness because they just don't want to be doing it. The collection is on the part of either the Department of Corrections or whoever else is tasked with that.

We've been very fortunate in New Mexico that the Secretary of our Department of Corrections is a former prosecutor from Florida, very experienced with Dave's system down there. And he just immediately said flat out, We will do these collections as part of the Department of Corrections and it is our part to doing these collections.

Now, we do mouth swabs. Always have; always will. So it was much easier and much less expensive to get those collected. Not only do we have prison officials doing the collections, but every probation and parole officer in the state has been trained to do the collections right across the desk as the person who comes in on probation.

MR. SCHMITT: Now, do you ever lose people? They leave the courtroom and then they don't show up for their probation or parolee?

MR. KREBSBACH: Absolutely. There's only -

MR. SCHMITT: And you miss those.

MR. KREBSBACH: As Paul said, there's always a few that are going to slip through the cracks but we -

MR. SCHMITT: One of the issues is if you had - if you were - is it a matter of technology or just the way you structure your system that you couldn't get them in court. The judge convicts you. You're sentenced to, you know, six months probation. Thanks for coming. See you. Before you leave, we'd like to swab your mouth. That could happen with your swabs, but you just don't it that way?

MR. KREBSBACH: Right. It's a function of the structure of our system. The vast majority of the people that are sentenced to nothing more than probation will actually show up the first or second time. They may never show up after that, but we get the collections done on that first exposure.

MS. HART: Is this something where - Just to follow- up - that if there was, say, let's a technology that people even thought was easier? I don't know. You know, as you walk out of the courtroom, you got to push your hand down on something that gives - I don't know. I'm not the scientist. You-all are. I it something that if there was an easier kind of technology that could be available in the courtroom, do you think that would increase collections? Is that something worth looking at?

MR. KREBSBACH: Our situation it's not - the people that are tasked with doing the collections generally now, because they've been doing it for a number of years, have no problem doing those collections. It's the - the problem is having that collector physically in the courtroom. The court's want nothing to do with this.

They don't want to do any fee collections. They don't want to have to track anyone or provide any information for that matter. So for us it's a matter of physically getting someone who can do the collection, even though there is a number of them, into the courtroom where they're bogged down.

MR. SCHMITT: We'll come back to Tom.

CC?

MS. CROUSE: There's no doubt in my mind that part of the issue is just flat out communication, because in the beginning when the State of Florida did have an many statutes for collection of certain century felonies, the Palm Beach County Sheriff's Office was hitting maybe 90 to 100 percent and then slowly they started adding these other felonies and the word never quite trickled down or the word trickled down and they didn't get it. And what was happening is they just became overwhelmed and through up their hands.

And now that Dave has gone to the buckle swab, he's sending people to the lab. They sent people to our system and talked with the corrections, but it took a while for them to get it. Communication was a huge problem.

MR. SCHMITT: Dave had a hand up and then we'll come to Tom.

MR. COFFMAN: Well, I just wanted to say when we went to the oral swab we created a video and an interactive CD-Rom that not only shows them how to properly collect the samples, but it also gives them a lab tour and kind of success stories to get the behind the program.

Just last week, as a matter of fact, one of our toughest areas in the states, Miami, getting compliance for people who don't go to state prison. Well, it's just been ordered by the chief judges in the Dade area that the bailiffs will now collect samples in the courtroom.

So I think it's one of those things if you get one person to do it, you can - what we're going to do is work with them and set up a pilot document to then submit to all the other courts in the city and say, They did it. Here's how you could do it.

MR. SCHMITT: Well, you made the comment that the video gives them the knowledge. Who was the "them" you're referring to, bailiffs?

MR. COFFMAN: "Them" can be anybody from probation and parolee to juvenile justice facilities to anybody who request the training, but we've sent out over 5,000 CDs and probably about 2500 video cassettes.

MR. SCHMITT: Do you use oral swabs?

MR. COFFMAN: Yes.

MR. SCHMITT: Tom?

MR. GEDE: I was just going to say that the vast majority of judges that I'm familiar with and they don't see it as a judicial function. They don't want anything to do with it. And so the education and communication has got to be with parolee, probation, and, you know, through increased communications.

But you might get a judge here or a judge there, but by in large, they're not going to touch it.

MR. SCHMITT: Let me reask the question from the beginning, though. In your state or states that you know of, are there people who get out of prison who owe a sample but haven't given it at the time they're released?

MS. CROUSE: Do you mean - I'm sorry.

MR. SCHMITT: Someone is in -

MS. CROUSE: We follow ours at jail versus the prison system?

MR. SCHMITT: Or some sort of state incarceration where they're there for awhile where you could get -

MS. CROUSE: Absolutely. What are we doing now? Like 33 percent instead of -

MR. COFFMAN: Well, there is a difference like Cecelia says. The county incarceration, that's very similar to just probation or parolee in a way. So, yes, they do miss. As far as if they go into the state prison system in any way, shape, or form we're getting all of these.

MR. SCHMITT: Okay.

MR. COFFMAN: But not at the county jail level.

MR. SCHMITT: Marie?

MS. SAMPLES: I would just say that in New York State the samples are taken as they go in the prison so they're covered. But when the law went back to make it retroactive to parolees and probationers, then there were people I'm sure that had fallen through the cracks.

MR. SCHMITT: Well, Marie, in New York, do you miss anybody if they go - do misdemeanants, like I said, that's not a good example. Do people serve felony time in jails in New York State?

MS. SAMPLES: I'm not from the offender lab, so I'm not sure, but I would assume so.

MS. CASEY: Yes, they do. But they catch them - for the most part, they'll catch them if they're getting a probation sentence or, you know, time in a local jail. The local sheriffs, and the probation departments, even though they're county operated, have all been trained to do the collections.

And the state agency that's responsible for that oversight works very closely with those agencies. Probably the only ones - I really can't think of any that you would miss in that regard then with the current statute.

MR. SCHECK: Well, we would train them. That was a specific issue that our Forensic Science Commission mandated that they take the probation and parleys samples. There was enormous resistance because it was easier to collect them from people going into the jails. They didn't want to do it. And we required it. Now I hope we're really doing it. I only know that we issued the rules.

MR. SCHMITT: But even there, just - and if I'm tracking slow, I apologize. Even there when the probation and parole people do it, it's after the person has been released from the jail at his first or second parolee meeting, or the people who don't go to the jail.

But, I mean, the people who - we have them locked up for awhile, but they're not in the state prison. We missed them by testing them in the jail, but we get them at parolee and probation is what we're saying. And then we know that there are some we just miss at that stage.

I think we're trying to grasp whether if we were to have a more concentrated program to make sure that they're tested even in jails, we would gain an appreciable larger number or whether it's really onesy and twosy.

MR. GEDE: The window you're talking about might be right out of the courtroom -

MR. SCHMITT: Right.

MR. GEDE: - after conviction. Because as a - if they're just a detainee, it's not an issue. It's an issue after conviction. And if it's through probation, then they're out the door.

MR. SCHMITT: Well, I understand that.

MR. GEDE: And so unless like in New Mexico where a standard administrative procedure has been adopted or corrections has worked with all of the counties to ensure that the county probation officers are going to follow through with a program as they walk out the courtroom out the courthouse, if the judge doesn't say anything about it, somebody has to or else they're gone.

MR. SCHECK: Glen, the idea was you had to train the probation officers to do it because if you're thinking - I mean, think about it. If you're going to all felons, as you're planning here, the only people that are getting probation for felonies, right, are ones that were probably bailed out soon after their arrest. And, you know, they may do some kind of split sentence, you know, of four or five months or something like that. But in all likelihood, there are people that may never have been in prison, except right after their initial arrest. So unless the probation is doing it, no one is going to do it.

MR. SCHMITT: Okay.

Kim?

MS. HERD: Just real quickly. Along those same lines, you may want to train judges also to require it or to order it as part of a sentence, because prosecutors may not be asking for it or they may not be aware of it. It needs to be on their radar screens more.

MR. SCHMITT: That's a good point. And we're going to talk about training several questions down.

I want to talk about - I'm sorry, Sue?

MS. NARVESON: Yes, just one quick comment. In Arizona when the statute was passed back in '93 what they required was that they task the probation county jail and the state Department of Corrections with collecting the samples upon conviction or prior to release.

So there's a mechanism there for ensuring that you can do all the appropriate checking before they're actually back on the street. And they coupled that with an evaluation of the proclivity for violent re-offense.

So we actually have a prioritization if we have to use it, based on how serious of an offender is being released to the public. And that's helped in prioritizing the limited resources scenarios.

MR. SCHMITT: One of the other questions that we kicked about was whether we are losing a significant number of folks because the state laws are not retroactive.

And I know we touched on it a little earlier today, but I'm curious to get a sense from folks here as to whether there are a large number of people out there who would have to give a sample if they were convicted today, but don't because their state testing statute was not retroactive.

MR. GEDE: You know, Tim, though I don't see him here, or Lisa, they seem to me that the handout that they had indicated some of that type of information as to which state laws were or are retroactive. And we're kind of a small representative sample. I think you're going to find that that answer is all over the board.

MR. SCHMITT: Okay.

MR. SCHECK: How could that be all over the board.

MR. SCHMITT: I'm sorry?

MR. SCHECK: I mean, Tim's data on Washington State make it's very clear. Common sense tells you that if you make a statute retrospective, you're going to double or triple the number of eligible people.

There are also people on the street. So, once again, for the umpteenth time, somebody ought to be telling these people that they should be focusing on collecting those samples and making the statutes retrospective - retroactive rather than typing the people that are doing twenty or thirty years in jail. They are in the street.

MR. SCHMITT: Dave?

MR. COFFMAN: Just real quickly. In our state, probably close to 50 percent of the samples that we have in our database are there because we went retroactive. There's always a huge influx and then it goes back to what the normal convictions coming in. So I would say 50 percent in our state.

MS. HART: I just wanted to follow-up one thing that Barry said. Is there generally a consensus here that it is very important to be trying to get convicted offenders, serious offenders, who are going out on the street before you get somebody who is going to be sitting in a prison for about twenty years? You don't agree or you do agree?

MR. COFFMAN: No.

MS. HART: No.

MR. COFFMAN: We just need to work them. I mean because we're solving as many crimes, if not more, that are historical from people who are going into prison for awhile. Yes, you'll solve the ones that occur right after they get out of prison maybe, but there's a whole list of crimes that are needing to be solved that are sitting on the books and taking up investigator time and that type of thing. So I really don't think I can say that.

MS. SAMPLES: We already have victims out there that deserve, you know, that kind of closure to their event. I often presented as the fact that these individuals are being re-victimized on a daily basis, going to the grocery store, picking up kids up from school, wondering where that person is that assaulted them.

MR. SCHMITT: Let's go down here to the end.

MS. KREEGER: Yeah, I'm not Steve Dillingham. I'm Lisa Kreeger. I was just going to say, too, that the information that we have about sexual assaults is that by the time someone gets sentenced to the state prison on a sexual assault crime, they've committed as many as eight sexual assaults before that.

So having the information done and to tell us how many cases in the recent past ties to the person that's now going in for twenty years rise. This is important.

MR. SCHMITT: Paul, you're going to get that next question so -

MR. FERRARA: Okay.

MR. SCHMITT: - you might want to just wait.

MR. SCHECK: Could I just answer -

MR. SCHMITT: Okay, Barry.

MR. SCHECK: The solace to the victims only is going to occur when you type the unsolved sexual assaults. So don't tell me that it's putting - if you add 50 percent of your samples in there from people that are on the street or through retroactive, it's not necessarily typing the people that are in prison. It's typing the old, unsolved samples -

MR. SCHMITT: Now, we're going to get -

MR. SCHECK: - which nobody is doing.

MR. SCHMITT: We're going to get to casework in just a minute.

Paul, here's the question for you, and that is because your state is going to all arrestees.

MR. FERRARA: Right.

MR. SCHMITT: Does all of this change when you talk about arrestees? Are you going to be so overwhelmed that you now will have to prioritize the types of arrestees you test, or will it, because of oral swabs you'll still be able to process them all?

MR. FERRARA: No. On the contrary, with the arrestee statute, for example, one of the provisions is that after a determination by a magistrate the probable cause exist for the arrest, a sample shall be taken prior to the person's release from custody.

So in many respects that statute covers the issue of possible people getting out.

MR. SCHMITT: If you have the resources to do that?

MR. FERRARA: But the same - roughly the same - this testing on arrest doesn't dramatically increase the total number of samples in the data bank, because 90 percent or plus get convicted anyway. We just get the samples that much earlier.

MR. SCHMITT: I see.

MR. FERRARA: And if you're current, like we are right now, in effect, for all intents and purposes on convicted felon samples, then we can avoid the concerns that Barry has with respect to prioritization.

In other words, get them all and then you don't have to worry about distinguishing who is getting out and keeping track of who's getting out and when they're coming.

MR. SCHMITT: Maureen?

MS. CASEY: It just seems to me, and I'm not the scientist, but if you go by CC's little diagram about the things where we know we've already focused our efforts, which is speeding up the analysis time in the lab.

It seems like from what I've learned with respect to the convicted offender samples everything that could be done in the laboratory pretty much has been done to speed it up with the exception of the data interpretation and review.

But the real issue with respect to convicted offender samples is on the collection end. And that's at the front end, which is really beyond what the laboratories can do. And that may be something that we need to look at as one area of developing ideas and recommendations about what other pieces of the system can do in that collection effort.

But in terms of the laboratory itself, it seems like NIJ, together with everybody else, has done a great job in terms of speeding up that analysis process and everything that can be done in a lab.

MR. SCHMITT: I'm going to take Barry's point for the next part of this, which is clearly the system doesn't work unless you have both offenders and casework in it. And it's found to have a million offenders, but if there are no cases, you can't match them very much.

Do we need to be prioritizing certain types of casework such as sexual assaults and other crimes that we know that are characteristic - have offenders who characteristically repeat several times before and after their caught? Or is it that it's simply too much hassle or too expensive to do it that way?

Paul?

MR. FERRARA: Yes to both - yes, to both parts.

MR. SCHMITT: No, you can't have yes to all my - this was a disjunctive question.

(Laughter.)

MR. FERRARA: The running - the analysis of the samples of casework, you try to prioritize cases. I mean, our first priority, our cases are going to trial. That's pretty clear, because if a case is going to trial, the DNA evidence is needed. After that I don't think there's any good predictors of the outcome of a case just on the basis of the type of offense.

We can do, as you can soften the charts, we can do burglary cases and breaking and enterings, which are fairly straightforward and easier-type cases. And then in the process solve an awful lot of violent crimes by doing so.

On the other hand, I mean, certainly serial - whenever we run across a serial rapist or a serial murder case, like I've got six unsolved rapes all committed by the same individual in Fairfax County, as we speak. But no - I don't know who the offender is. But those cases are ready and it's just simply a matter of getting that offender and hopefully he'll be arrested sometime soon in Virginia.

MR. SCHMITT: Does everyone agree, and I'm not saying it's an effectual matter, because I have a feeling there hasn't been a lot of analysis on this. But does everyone agree that there's no way to know whether a certain type of case will get you a match more likely than another? That the burglary case is just as likely, or more so, to get a match with an offender than a sexual assault case, because it's somewhat counter-intuitive that that would be the case. It seems to me.

Marie?

MS. SAMPLES: In one sense, that's true. I mean, a lot of laboratories would say that if it's a statutory rape or a spousal rape that that sort of case is unlikely to match up with anything else. You have a suspect who's clearly identified and everyone agrees who that person is.

But by not processing those cases to generated DNA profile you are missing - you will miss potential case-to-case linkages, because someone who may be violent with his or her spouse - well, his spouse may also be a rapist. And like I said we just had a case like that last week.

MR. SCHMITT: Well, I believe that you can have the linkages. But my question is: Is it the case that certain crimes are more likely to have those linkages than others? I grant that all of them could have it to some extent. But should we say, Well, sex crimes are more likely to have linkages? Or burglary cases are the most likely to have linkages and so we should focus there?

Barry and then Dave.

MR. SCHECK: The British data is very persuasive on this. And when you see Dave's presentations and, I guess, others who have continued, you can see enormous increases in police forces, a, that are trained to collect more evidence from scenes, get more clearances with their DNA testing.

And burglaries, I mean, the British indicated to us from the very beginning that we were going to get all these hits from burglaries. And I don't know why that's so surprising. Everybody calls it not a crime of violence. I don't think that's necessarily true.

And you see the connection to sexual assaults and burglaries, because how many recidivists have we seen of people that are the ones that are going through the first-floor windows breaking in, and so that's the kind of adventitious thing that happens in burglaries.

There are rapes from people that wake up. Women that wake up. So I don't think that's a surprising thing. What is surprising to me is, again, the lack of typing on these unsolved crimes. And also I don't understand why statistics are not being kept on proving that this is a huge multiplier.

Now, maybe the reason that you can't keep those statistics is that, a, nobody collects data about what happens to these cases after they leave the crime lab, which is astonishing. I mean, none of these people in this room with the possible exception of Paul, because he went to get the statistics, can tell you once they finish with the case whether it's an exclusion or an inclusion. What happens to the disposition of the case?

And this kind of data collection should be peculiarly the property of the federal government frankly, because in this kind of integrated database system you really need that and there must be mandates upon the state to tie this data together so that you know what happens after you leave a lab, then we can have their better answers to the questions, but the British data, I think, is the most persuasive step I've seen.

MR. SCHMITT: Dave and then John Morgan.

MR. COFFMAN: Well, basically we do keep that type of information in our state ever since the NIJ grant. And we have some laboratories who are very good with providing me with the data. And burglary cases, in those laboratories, they're solving about 50 percent of the burglary cases they attempt.

Now, sexual assaults, they're solving approximately 30 percent. So I would say burglary has a greater chance of making a match to the database.

And in addition to that, just recently there was a pretty violent sexual assault and homicide of a small child. Having had any clues in, and because they worked the burglary case, they don't know who it is, but not a burglary case has been linked to that homicide.

So I would say burglary cases lend more matches to your original question than other cases right now.

MR. MORGAN: I had a follow-up question to this and that is to step back from the crime laboratory perspective. Is there a way to prioritize or is it useful to try to prioritize based on the likelihood of getting usable DNA from particular kinds of cases or from cases that originate from particular parts of your agencies or something of that nature? Is that a useful way to try to prioritize?

MR. SCHMITT: Maureen?

MS. CASEY: I just had a question that sort of goes to this whole discussion on prioritization. Do we actually know what the scope of the backlog on casework on all those unworked cases that we're talking about here?

MR. KREBSBACH: I think part of that is how we do define backlog? Is the backlog the case that's been submitted to the laboratory that's sitting on an evidence shelf? Or is the backlog the case that's sitting out in every one of these little four- and five-man law enforcement agencies that are not submitting cases, though they'd love to do so, because the state laboratory or whatever their servicing lab is has told them, Don't submit them unless you got a suspect.

So I don't think there's any way anyone knows what the backlog is because no one has defined what's meant by "backlog."

MS. CASEY: Should we try to be doing that? I mean, is that part of what - I don't know.

MR. SCHMITT: It's a good question. And it probably would be helpful to define the question before we try to answer it for the Attorney General. Let's continue and see how this develops.

MR. FERRARA: Glenn?

MR. SCHMITT: Paul?

MR. FERRARA: Just as a follow up to that. I mean, the question - it raises the question. Our laboratories are still restricting the types of cases that they will accept. We are not. But is that a prevalent practice?

MR. SCHMITT: That's a very interesting question.

How about folks that are here? Marie?

MS. SAMPLES: Our laboratory accepts evidence from homicides and sexual assaults. And up until September 11th we also accepted selected assault cases, burglary cases, robbery cases, and attempted homicides. But after September 11th we cut out those other categories. So unless it's a rape or a homicide, it's not coming in our doors.

MR. SCHMITT: I will contribute that when we worked on the DNA Backlog Elimination Act, and keep in mind that's what we named it, the Backlog Elimination Act. So we thought we were addressing the backlog.

We primarily thought in terms of sexual cases and homicides but mostly sex cases. Because we heard all the time from congressmen from the Great State of New York and other people that there are 16,000 rape kits sitting on the shelves of New York City alone. I can't tell you how many times I heard that. I have no idea if it's correct.

MS. SPEAKER: It was. Trust me.

MR. SCHMITT: But that is what is in the mind-set of most policymakers in Washington, as the backlog that needs to be fixed. But I got to say that sounds like a good place to start.

Why are there 16,000 rape kits sitting on the shelves in New York City?

MS. SPEAKER 1: Do you want to answer that Maureen?

MS. CASEY: Yes. Prior to - and now I can say that fortunately there's probably less than 10,000, but as they worked through the backlog. But prior to January 1 of 1999 a lot of it had to do with the capacity issue and a policy issue. The capacity of the medical examiner's officer to analyze ever single rape kit that was collected.

And the policy prior to January 1 of 1999 was that only known suspect cases would be analyzed. So all of the no-suspect cases, which we know are very important, weren't being analyzed.

So in January of 1999 that policy was changed. The Medical Examiner's Office got some additional staff to handle every single rape kit that was collected. And then the backlog project was instituted where we would analyze the backlog, but a lot of it had to do with capacity and the policy of the Medical Examiner's Office and the police department at the time.

MR. SCHMITT: Paul, I'm going to pressure you on this because you made the point that your prioritization is because certain cases have to go to trial, and I understand that.

Let's assume we were able to find a lot more qualified people for you and give you a lot more money so that you didn't have to worry about that. All your cases are going to trial you could take care of.

Would you then say, Okay, next I want to do all my sex cases? Or would you say, I'll do a combination of sex cases and burglary cases because Dave makes a persuasive case on burglary? Or would you say, No, I'll just take anything anybody wants to send in first-come, first-serve? That's the most equitable way to do it.

MR. FERRARA: Let me briefly give you a anecdote that - a short anecdote that involves a case where, again, we make a determination. A woman is raped. The investigators indicate that she had had - she admitted to having prior consensual sexual intercourse 45 minutes before her attack, and her perpetrator or an alleged perpetrator did not ejaculate.

The evidence is presented to the laboratory. And they say this guy we're holding on shoplifting charges. Can you prioritize this case? In other words, raise it to the head of the line over a thousand other cases that we're sitting there. We did our best. We didn't get to that case.

Eleven days later he kicks on the shoplifting - he gets kicked on the little shoplifting charge and 11 days later rapes and murders a woman. We go back to the original rape kit of the rape that occurred. There was only one foreign profile. It matches Christopher Banks, the guy that murdered the woman. There was no evidence of a previously consensual sex partner. Obviously he had ejaculated. And unless you have the clarity of a 20/20 clarity with a crystal ball, you cannot predict what priority should be given.

(Whereupon, Attorney General Ashcroft entered the proceedings.)

ATTORNEY GENERAL ASHCROFT: I just want to thank these folks for being here today.

MS. HART: Well, I don't think I need to give much of an introduction here, but I think all of you know the Attorney General John Ashcroft. And I am delighted that he has taken the time to come down here today, and I think he also has some important news that he can give you.

With no further ado.

ATTORNEY GENERAL ASHCROFT: I bet people can hear me even if I talk like this. And those that can't are lucky.

(Laughter.)

ATTORNEY GENERAL ASHCROFT: I want to take a moment to thank you for your work in this important area. And I just announced at a news conference that over the course of the next year or so about $100 million is going to be devoted toward the further utilization refinement of our capacity to use DNA as a means of elevating the integrity of our decision-making and enhancing our ability to bring to justice with certainty individuals who are responsible for the commission of serious crimes.

And our commitment in this respect is in some significant measure a result of our confidence in the fact that you-all can help us make good decisions about deploying this technology effectively. It's a substantial amount of resource. But the innocence or guilt of individuals is a very, very problem to address with the greatest of seriousness and the greatest demand for integrity and certainty.

So with that in mind, I just wanted to come thank you. And if you don't mind, I'll just shake hands with you before I leave the room. But I want you to know that we are committed to putting the resources to work to make the work that you do, work that means a better outcome in terms of the ability of our system to operate effectively to convict the guilty and only the guilty of committing crimes that are serious and threaten our security and safety and those of our families.

Thank you.

(Applause.)

MR. SCHMITT: Take your seats, please. Well, the Attorney General mentioned resources. So let's go ahead and move to the second question on the list.

Now, what's the best way to clear the backlog in the short-term? Which I have a feeling you're going to tell me is resources.

CC?

MS. CROUSE: I'm really tempted to break out in a Barbara Streisand song called "People."

MR. SCHMITT: Which one?

MS. CROUSE: People.

(Laughter.)

MR. SCHMITT: People who need analysts for their DNA laboratories.

MS. CROUSE: When we go into the laboratory kingdoms that we have, with this incredibly loyal people that we have, I mean, I work with an unbelievable group that I thank God for every day.

I don't care if it's Arbor Day, I buy them something, you know, and just bring it in. But when I look around and I see what we're able to do in that laboratory, if you add some hands, it would unbelievable what we could do for our county. People is the biggie.

Although we're still looking at the extraction and the ABI-6100. We want to do that. I mean, there are some things that we can do without the people right now, but that's just a sad state.

MR. SCHMITT: Lisa Forman asked me to you how much automation would help you. If you didn't get people, how about robots? I know that's the imprecise term.

MS. CROUSE: I didn't think that it could at first. I really didn't. But I saw a very impressive talk at Promega, the international meeting by Susan Greensbude (phonetic) from the Virginia lab. And now I'm very convinced that this is something that I'm going to walk forward through. And as a matter of fact, I have the literature. I have the people coming out to the laboratory. I think it's very doable.

MR. SCHMITT: Let me get you to focus on short-term, because we'll get into long-term in just a minute. But short-term on both offenders and casework.

Marie?

MS. SAMPLES: I think as much as many of us in the laboratories hate to admit it, the short-term solution is often contracting out. The rape kits that the NYPD had in its storage that was from 1998 backed to only 1994, I think, that they have them.

There was certainly no way that my laboratory when we went online to start doing the current rapes we could not have handled that backlog that it had accumulated over the years. And the only way to deal with it was to send it out.

That said, the cases are getting a level of analysis less than they would get if they had come through our laboratory. For example, items such as underwear not being examined. And any additional items such as clothing or bedding are not being examined. Whereas, if they had come into our laboratory now as a normal case, they would get examined if the kit was negative.

MR. SCHMITT: Tom?

MR. GEDE: For those of you who know Lan Skima (phonetic) in California, he sends his regards to you-all. I just met with him before I came out to this meeting. And his answer is - you've already heard people and resources. His answer is: Robotics, robotics, robotics.

He's done statistical analysis and is finding not only on offenders but also in the casework that the ability to run simultaneous and more rapid robotic work makes a difference. He can show that. He can show the numbers.

And so that's the message I was going to deliver.

MR. SCHMITT: Is that kind of technology available for the short-term? I mean, if we gave you a quarter of a million dollars, you'd go out and buy all sorts of stuff?

MR. GEDE: I think so. Although right now they're doing blood, and I think they're going to be moving to swabs. And so the technology has got adjusted in the process.

MR. SCHMITT: If we gave you a million dollars, would you buy automation or would you buy outsourced work at private labs?

MR. SELAVKA: Both. You have to open boxes first.

MR. SCHMITT: I beg your pardon?

MR. SELAVKA: You still have to open boxes.

MR. COFFMAN: And examine the evidence, yes, I agree.

MR. SCHMITT: Go ahead, Kim.

MS. HERD: I'm going to switch back to the low-tech people again and advocate on behalf of more funding for prosecutors, because we need to have some type of statistics on how all this new legislation has impacted the prosecutors offices. We need better trained prosecutors.

Over and over again I talk to lab analysts and they say, you know, I submitted this - the evidence was submitted to me. I returned it to the prosecutor. I never heard back. You know, that the case was pled before I analyzed all this evidence. And there's all this wasted time, effort, and money, you know, that that could go toward solving other cases obviously.

And think that a lot of times when NIJ or OJP sponsors grant programs for prosecutors, the amount of funding set aside to hire a prosecutor is very minimal. And it's only for a year period. And prosecutors can't really do that. So they don't really have - what they really need is more manpower and womanpower in there doing this.

And I think we should really try to push hard for that and to try to give them a sustained period of time to get somebody in there and trained and available to actually handle the cases, to interact more with the labs, and that will really streamline the process more, and I don't think we should ignore that.

MR. FERRARA: And I would just add in terms of training the prosecutors. I'm trying to emphasize upon them consideration of trying to keep their laboratory, people in the laboratory and not sitting in - not wasting a lot of time in the courtroom, too. I mean, there's a lot of that wasted that goes on.

(Laughter.)

MS. HERD: And part of the reason is because prosecutors are so overwhelmed with their caseloads. You know, once they close it out, then they go onto the next case, or they're in trial the next morning and they don't know which trial is going to go. So they're up to 10:00 o'clock at night preparing, and it's really because they're overworked. And they need education; that they need to be more considerate. But the fundamental problem is that there's just not enough resources for state and local prosecutors.

MS. HART: One of the issues that comes up periodically here having been a prosecutor and doing that 10:00 o'clock at night prep and always feeling that we needed - I needed more colleagues. But looking at it on this end, one of the - somebody brought up earlier today the fact that federal funding does not go on forever. And as much as we would like to think, well, we're hoping. We're hoping that it goes on forever but one can't guarantee that you're going to have a sustained level of funding like this.

And so if you look at this from the point of view of capacity building. How can you use federal funds to get you where you need to be? And so that you can sustain it. How would you use that? I mean, I don't want to be in a situation, for example, where you pay for prosecutors. And all of a sudden the funding runs out and they're gone and you have no ability to do anything.

MS. KREEGER: Sarah, I wouldn't hire more prosecutors necessarily, but I would train the ones that you have.

Going back to something that was said earlier several times. We have existing resources. They're just not being tapped or they're not being used to their potential.

In a number of other criminal justice areas we are now well aware and we seem to be implementing better a multi-discipline approach to crime prevention and crime solving. And it seems to me that the forensic sciences is just a little bit behind. We have the ability to train and to build teams and to build units that include law enforcement laboratories and prosecutors. We're just not spending our money or trying to create those teams.

We seem to be addressing factualized (sic) areas. How can we improve the labs? How can we improve the law enforcement training? Two things about that. One, the nexus systemically prosecutors.We are by design the people that have ultimate responsibility for all for the prosecution. We interact with both on a regular basis.

And secondly the other thing is that the communication is out there. It's just happening by stance. And so I think that it's not so much matter of allocating federal funds to higher prosecutors. It's allocating funding and changing the commitment to building teams and building communications.

MR. SCHMITT: Paul? Go ahead.

MR. SCHECK: I would strongly support that last statement. You need some kind of criminal justice coordinator. I mean, I hate to say this again, but why is that the prosecutor doesn't know that you're still working on a case in the lab that's been pled out? Because nobody in the lab knows what's happening to the case when it follows through.

And I don't think you're necessarily going to solve that problem by hiring a person that's, per se, a prosecutor, especially in various jurisdictions where the prosecutors offices are in various different counties. The lab may be regional or statewide. I think you might be better off in demanding that state and local entities come up with information systems so they can tell you what happens to the cases.

And if you make a proposed grant like that, then depending on how the jurisdiction works, you'll get people coming forward and saying here's a team that we propose that's going to tell you what happens to the data that you should be very, very clear on what data everybody should be getting.

MR. SCHMITT: We're going to get to a little bit of that question in No. 4 here in a minute.

Paul?

MR. FERRARA: Just one other quick short-term suggestion as how NIJ funding could help. In the past when we have been able to afford to pay our limited number of examiners overtime that has had a very beneficial short-term effect of knocking down a backlog.

Now, in my case and cases, money for overtime in the states may not be available. But if that's something that can be done, that gives you immediate reduction.

MR. SCHMITT: Let's move to long-term and see if the answers vary any. I assume that they will.

What is the solution in the long-term? Is it the capacity? Is it additional speed? Is it something else? Is it all those things?

And one of the things that I'm particularly interested in is should we assume that there will always be some capacity in private local - private labs available to you on a going-forward basis so that you will do some in your own and you'll farm out some, and not just offender samples but casework samples, too.

Tom?

MR. GEDE: Again, I think Lance's point has been automation increases the speed with which cases can be - and information and data can be made available and increase the number of cases per scientist per month. And he's been available to show that as he's taken every step in automation forward.

MR. SCHMITT: Carl?

MR. SELAVKA: It seems like - you asked the question going forward. We will continue to generate higher capacity demands as we increase our capacity allowances. We will train prosecutors and juries to expect that they'll always have the DNA.

In every case we, through TV, have trained the public that DNA is required in every case. And their expectation will have to be met and it will go up. Any large case that requires many more samples to be tested than usual will be the kind of case that we might farm out, because to take all the bullets and fire it at one target takes away from the firing of all the other targets. The cases will always have to be prioritized that we do.

So having outside laboratories to assist is going to be important later as it is today.

MR. SCHMITT: And the capacity issue? Well, let's go ahead.

CC?

MS. CROUSE: I just have a question. I'm not exactly sure how the Burn grants work, but I know they've been around for a very long time. And I think - going back to what Kim said, if you had a grant system - let me erase that a minute.

We had an auto theft division that had a tremendous amount of success confiscating these cars, but the prosecutors couldn't get to them. They wrote a grant that provided the State Attorney's Office with one person that is responsible for making sure that all of the cases are somehow addressed, or at least farmed out, you know, to one of the other prosecutors.

They still have that to this day. They just keep writing the grant, and getting some money. And they do it every day. I don't know why there can't be a long-term system where you get a prosecutor in there that's dedicated, especially with this case reduction grant that's out there. If it was married to a prosecutor, and a detective, and a corrections officer, and who knows what else, I don't know why that can't be long-term.

MR. SCHMITT: I think it's permissible use of Burn funds. It's just the state has to decide that's what it wants to spend its money on.

Bill?

MR. TILSTONE: Now, you asked the question about the capacity of the private sector to help with this. I don't think the question so much the capacity is the capability.

Our phone rings every week with a biotechnology company asking how can we get up to speed to be able to compete for the dollars that have to do for forensic casework. And these people, they can't spell forensic, far less be able to meet the very stringent requirements that we have all - well, that you-all have to meet to actually do cases but they are there.

If you had some sort of program that targeted them and targeted their capability, rather than a capacity, I think there is a potential to make a large dent in whatever backlog you have.

For example, there are 45 guaranteed testing laboratories accredited by AABB, and there's only about ten of those that do forensic work. But what are they doing? They're looking at biological samples and they're using DNA to characterize them. So it shouldn't take too much effort to convert that into a resource that could be used if you wanted.

MR. SCHMITT: Keep in mind that one of the aspects of the long-term solution is to prevent backlogs from reoccurring. Let's assume you take care of the ones that exist as more states go to all felonies. And you go to - and have more capability and cops realize oh, I can get a sample now from a cigarette butt or from a trigger guard. And they begin to take more and more samples for you, you're going to have more and more things to do.

So in order to have the backlogs not reoccur, I think you have to have greater capacity. And so that's part of the longer term solution as well how to prevent that.

We talked a little about automation. I assume from what I've also heard today that it is a question of lab space and machinery and qualified people, as well as some private sector capacity either for the easy stuff offender samples or the really hard casework that will bog down your state labs that you'll want to toss out and have them focus on it.

Yes. Anybody disagree with that inarticulate summary?

MR. FERRARA: I would not only agree with that. I'd only simply add, and I think it's already quite well established that those private laboratories must meet the same standards that the public laboratories require.

MR. SCHMITT: Unquestionably.

Barry?

MR. SCHECK: Now, if I were the czar, long-term I would look at trying to get robotics and private laboratories to handle all the data banks from buckle swabs and take it away from these labs; that you should concentrate on building up the capacity to do caseworks on the state and local level, because that's what they ought to be trying to do best.

And a more difficult thing, as Marie pointed out, was outsourcing the 16,000 rape kits, which incidentally is the tip of the iceberg. I mean, when you looked at the numbers, that's where most of the numbers came from. And your program that came out of the New York City Crime Lab and the Medical Examiner's Office, but there were problems. And they were - you know, one thing that these people are - meaning, the web directors here, would be better at is you can almost train these private people.

I mean, I know that it's pretty easy to proficiency test with these old, unsolved rape kits. Give them some that, you know, you know the answers to and see if they get the right results.

And that was a pretty easy and effective kind of proficiency test, and I know that we got some pretty good reads on who was good and who was bad and they were missing underwear and other things like that.

The other thing that you haven't discussed is mitochondrial testing. Paul raised it before and you better watch out because this is going to be huge. We're already looking at, what is it $750,000 that the State of Oklahoma has to pay to look at Joyce Gilchrist cases. And you think Joyce Gilchrist is an exception to the rule?

Well, she was a bad apple. No, no, no. She's bad because she was - the allegations are that she misstated trace evidence and everything else. But when you get from the FBI itself the statistics, the 10 percent of their inclusions on hair examinations of all cases, and these are cases where Doug was looking at them after he has said, okay.

I agree with the analysis of the state laboratory. And about 10 percent of the time they're getting a different result than the hair sample. You know, very soon people are going to be looking at that, and there is no excess to do a hair comparison instead of a mitochondrial test now and any case that's meaningful.

So I don't see where the state and local laboratories now have near the capacity to do that. I don't know whether you should build big regional labs or something else, but that is a huge capacity problem in the long term.

MR. SCHMITT: I have to ask the follow-up to that last point before we get to Sue.

The FBI has proposed - Joe, you can't listen to this. The FBI has proposed, you know, regional mitochondrial labs, four big ones, that the federal government would help pay for and then you could all kind of tap into that. And Joe you'll probably want to correct my not-so-glib analysis of that.

Is that something that the federal government should be pursuing? Will states instead prefer to have their own capacity developed within their own labs?

Paul? Or is mitochondrial not going to be the answer that we all think may be? It's going to be such that we don't need that much capacity now?

Marie?

MS. SAMPLES: Fifty percent of rape cases in the backlog, the NYPD backlog project, don't have semen on them. So it's unknown how many of them might have hair evidence associated with them. And the kit if there is more additional clothing items that might be in existence. But certainly those are the sorts of cases where mitochondrial DNA analysis of hairs might be very useful. And there's a lot of those sort of cases out there. Every rape case without ejaculation.

MR. SCHMITT: Joe?

MR. DIZINNO: Just one comment about mitochondrial DNA exams and hairs. We've been doing it since 1996 in our laboratory. And since that time every hair match has been followed by a mitochondria DNA.

And I just want to emphasize the importance of maintaining the hair microscopy expertise is essential to maintain that if you're going to perform mitochondrial DNA exams, because you can't begin to start performing mitochondrial DNA exams on every hair in the case.

So if you're considering maintaining or starting mitochondrial DNA expertise, you also need to maintain the hair microscopy expertise. They go hand in hand.

MR. SCHMITT: Sue?

MS. NARVESON: I think for some regions in the country, too, especially in the Southwest, where, you know, remains, human remains, can be found after even a relatively short period of time where there is no nuclear DNA available.

Mitochondrial DNA is another tool that we can use. Just preliminary evaluations, and I would encourage laboratories to do this on their own. Working with your medical examiner and your investigators to find out what might be out there is very surprising.

I think the potential for many more cases in addition to the hair exams might fall into mitochondria scenario. Also, any kind of, you know, arson-related incidents where you may have burned bodies, where you just have nothing for DNA, a nuclear DNA.

We were surprised by the numbers that we saw. So whether it's regional or whether it's some capacity for being able to do some preliminary screening and directing to regional, I think we do need to look at that seriously.

MS. HART: Does anybody have any kind of numbers or information about what the demand would be for mitochondrial DNA?

Cecelia?

MS. CROUSE: We did do a study when the case backlog grant was proposed last year, and we went back and saw how many cases that we had. We had ten. And we are not going to do DNA in our - I'm sorry. We're not going to do mitochondrial DNA in our laboratory. I just personally don't think it's necessary for that number.

But I really think we need access to some place that our poor, little jurisdictions just don't have this kind of money. And even our medical examiner, when they get bones, they just sink because they know they've got to come up with this extra money.

I would love to have a central lab. I don't know what the waiting time would be, though. Maybe that's a consideration. However, I guess, if you need it, you'll wait for it.

MR. SCHMITT: Joe, you're a central lab, aren't you?

MR. DIZINNO: Yes, we're the only public lab right now doing it. Let me also make one point that - it goes back to training, I think, in the collection of DNA that might be amenable to mitochondrial DNA testing. We don't even know what that is right now. And it goes back to collecting and preserving that evidence at the crime scene. Many times right now, even in hairs, they're just not even collected or dealt with.

So it's more than just a mitochondrial DNA hair issue. It goes back to collection, preservation, and training of the people collecting that evidence.

MR. SCHECK: We have some interesting numbers on that, though. When you begin to look at the post-conviction exclusions now, increasingly they're mitochondrial. I mean, part of the reason is what Marie was talking about. But also homicides, old homicides. That's the only testable evidence that you get in crimes of violence are shedding hairs.

And so I would put in - I mean, long-term you have to look at this as a capacity that has to be built because we're going to start demanding it in casework. And you shouldn't be caught up short. I think that we've learned something from the World Trade Center identifications.

I know that Cecelia was working on some interesting assays. I know that Tim's company and others have been looking at other mio-assays. He may able to bring down the unit costs. But I think you definitely have to do that capacity.

And one final point that we haven't talked about is another backlog. Because I asked him about, but it was a hidden ball. You are going to get - there are 22 states now with post-conviction DNA statutes. And maybe we'll even pass the Innocence Protection Act. I just asked the Attorney General, if he would support it.

MR. SCHMITT: What did he say?

MR. SCHECK: What?

MR. SCHMITT: Did he answer?

MR. SCHECK: He nodded and he thanked me for being here.

(Laughter.)

MR. SCHECK: But there are 218 sponsors in the House of Representatives and it does have a lot of sponsors. And you're going to get more of these statutes.

Now, already we're seeing in places like Texas which passed a pretty good bill a year and a half ago that you go to Dallas County and they go, Well, I can't do casework. I'm months behind. God knows what's going on with my database and now you're hitting me with these cases which under the statute we all have to do.

And, you know, so that is another backlog you have to define. And I would say that what Dave said about the old unsolves is an extremely important point that I hear from labs all across the country and I travel in a lot of these circles.

You are not getting submissions from state and local authorities on cases that could be typed. You know, much less they're throwing away these rape kits, because they're afraid that I ask for something that might be an interesting case to type when I'm educated about it.

As a law enforcement officer, you won't do the one that I think is the high priority that I have to do now, because the lack of capacity to do casework is so terrible, you know, on a state-by-state, lab-by-lab system. And these post-conviction cases are going to cause more of a - something more of a backlog unless they're specifically funded by you-guys.

And also the mitochondrial was going to be a very important part of that, because so many of these old cases are only going to be solved by hairs.

MR. SCHMITT: The clock is an evil task masker. So we're going to move on to the next question, unless there's any burning, burning desire to comment more on Number 3.

Hearing none. Number four. Here's your chance. Oh, by the way, the answer to Number 4 is not yes to all of those questions.

(Laughter.)

MR. SCHMITT: At least I hope that it's more than yes. But what should the federal government be investing its research dollars in? And this really is, you know, what should NIJ put our research money in, in this area? Is it expert systems? Is it management systems.

And Barry touched on this earlier. Should we have case-tracking systems?

Now, when we thought about this, we were thinking for situations like Paul has where he has arrestee data that what happens if the guy is acquitted. Or if the federal statute passed, you know, two years ago where we required federal and military offenders to have their data in the database. We have a provision in there that if they are - if their conviction is overturned later on, the data has to be kicked out of the system.

Well, we went round and round with Justice as to how that notice would be given to the point of, you know, can the offender just mail a letter to the director of the FBI and say, Hey, guess what? I'm no longer in jail. Take me out of your system.

Do we need to have a case-tracking system of some sort to allow the lab to know what's coming along?

And, Barry, you mentioned it for yet another reason tracking to find out what good this DNA analysis is used for later on down the line in the cases.

And what is a part of this is what are the areas where the private sector won't develop it for you?

Carl?

MR. SELAVKA: It would seem that the case tracking systems, if I learned anything from my time with federal and two states and a private laboratory, they're so different trying to invest federal dollars and then will lead to models which have poor applicability elsewhere.

It should be - I think the owner should be on the states if they take federal money to develop these systems using IT infrastructure and resources available to them elsewhere. If you want to give us a little money for that for buying a computer that will do something, it's different than having you support research on that. On the other hand, expert systems will work in every laboratory that follows specific technologies. And there's only a couple of technologies we use.

So if you have an expert system for each or two to meet the requirements of comparison that George said, that might be a better use of the resources that are limited. Management system, I'm not sure what that means. So I'm not sure if we need money for it.

MS. HART: LIMS?

MR. SELAVKA: LIMS. We get LIMS money from other sources, I think -

MR. SCHMITT: John?

MR. SELAVKA: - other than DNA.

MR. SCHMITT: John?

MR. KREBSBACH: Kind of following up on the management systems. There are a number of companies, prior companies, already out there that provide some better, some worse than others. They're very good management information systems, and these companies are perfectly willing, at a cost, of course, to customize any system that is out there to suit the individual jurisdiction's needs.

Again, they can be very expensive but they're out there. So there is no sense in my mind to reinvent the wheel and throw more money at researching something that already exist.

MR. SCHMITT: You need somebody to buy it?

MR. KREBSBACH: You need money to obtain it, yes. That is probably the bigger issue.

As far as that case tracking goes, you can have the most perfect system in the world, specifically tailored to do what you need it to do between your officers, your laboratory, your courts, your prosecutors, whoever. You still got to have somebody to put the data in. And if you don't have the people willing to put the data then, which is also probably the biggest downfall of any management system, is people don't want to do more work than they're already overburdened with to generate statistics for somebody out there.

So, again, it becomes a first on issue. And then maybe that we pay for the statistics to be gathered. You know, I think we want the statistics.

MR. SCHMITT: Other points on Number 4?

I'll come right back to you, Mary Ann.

Go ahead, Bill.

MR. TILSTONE: I think in terms of the question you're asking about investment in technology you already have the answer to a large part of it from the discussions you've had today.

If you want to look at it at step by step by step, then there are solutions that have reasonably matured for applications of technology to each part of from the scene to the answer in the database.

But I have not heard anyone really address a stimulus to technology to completely replace everything. A star trek phaser, if you like, so that you can go to the crime scene and get an answer on the spot for everything quickly.

And, you know, I think people may say that's too big a task. But if you go back 45 years to when lives were being buried under the demands for blood alcohol testing, the answer to that wasn't to build a better system of analyzing blood alcohols in the lab. It was to go to breath testing, which was a different technology applied to the source of the problem, and it worked.

MR. SCHMITT: Over here and then we'll go to John.

Mary Ann?

CHIEF MARY ANN VIVERETTE: One of the speakers, I believe, it was from George earlier mentioned the value of traveling to other jurisdictions and learning from one another. And I haven't heard anything about best practices.

And in law enforcement, and particularly in accreditation, we tend to learn from each other through model policies or best practices in various cities.

So it seems to me that we could learn from each other by sharing information. We hear it around this table, but is it getting out to the other labs and to the other people that have not experienced this information so it can be shared with others.

MR. SCHMITT: That will be our Number 5 after we get John's comment.

MR. MORGAN: Well, I just wanted to put it to the group. There are one or two people during the technology panel that raised the issue of needs for greater sample extraction protocols and capabilities. Is that a consensus of a need that does exist?

MR. COFFMAN: Yes. That's what I wanted - that's what's missing from this list. And I think it needs to be near the top is technology for casework to automate certain procedures.

We had a private sector laboratory come through our lab last week on tour, and we went out to lunch and we were just discussing. And they've automated the human quantitation for casework type of samples. But because they decided not to pursue casework, it's just sitting on someone's shelf. So the technology is out there. We just need to fund someone who is willing to come up with the solution and then put a price tag on it and then the states can apply to buy this from NIJ and put it in labs.

MR. SCHMITT: But this is not something that exist that you want to buy. It's something that needs be developed?

MR. COFFMAN: There's a lot out there developed. But, I mean, you probably would need some more development and then the ability to purchase it.

MR. SCHMITT: There was a question coming up. Okay, Tom.

MR. GEDE: A question, Glenn. What does it mean when you phrased the question: What technology should the federal government be trying to develop? What is within that suggestion that NIJ should spend time, energy, resources, working on the development of technology, or should it be more of the exchange of information about what's out there and what the developmental needs are, or that kind of thing?

MR. SCHMITT: The question, when I wrote it, was the former, which is not to say that we don't do the latter. But a lot of what is done by the Office of Science and Technology at NIJ, headed up by Dr. David Boyd, is we come up - we develop where we think there is a gap in law enforcement related technology.

And someone will say, Well, you know, there's some bits and pieces that we think could be developed into something that would be great for cops or prosecutors or whomever. And then we give out research money to people who then develop that at the direction of our project managers and David and folks like Lisa, and that sort of thing.

So we do - that's part of what NIJ does is to give out the money to make that happen. So that's what I had in mind.

More on Number 4? Okay. Moving right along to Number 5. Besides - I mean, this is I guess somewhat similar to maybe Number 3. But we talked a little about training and education. And maybe it's sharing of information, as well, not just training and education.

Let's talk about what we can do. That it's not just buying new technology or developing new systems. What else can the federal government being doing to help states become self-sustaining?

MR. TILSTONE: Can I just address the kind of training and trying to deal with some of the issues that came up in the presentations. And also go back 18 months to when NIJ organized the CLIP Summit. I think this was the first time recently, as in the last five years, that a group got together and really said, Here are the main priorities that laboratories need and identified if it was training was first. Training was second and training was third.

But in doing that, there was some issues that came out quite strongly. And the one that left the biggest impression in me was the presentation that Mark and Dale made. And succinctly what Mark said was, If you want to be a cop, you get a job with the state or the city and you get to the police academy. And 12 or 16 or 20 weeks later, you come out and you wear a badge and you go in the street and arrest people.

But with that same jurisdiction, employees are used to being forensic scientists. They're just employed and put in the lab and there is nothing to orientate you.

That was being followed up by people who said essentially the sort of things that CC said and that Dave said. What happens is it's up to the individual lab. And nine times out of ten, what they do it is mentoring. And mentoring is extremely inefficient. It will take 12 or 15 or 24 months in most places. I know there are exceptions to produce somebody who is usable. And 15 months later, CC disappears.

If you look at somebody like DEA who have actually tried to quantitate it, they say it cost about $300,000 in real terms to take someone from the university to the stage where they can do supervised casework. And that's a huge investment and that's a real challenge. It is it worth it?

But I hope I've got some good news. As a result of the CLIP Summit, with the agreement of the Office of Science and Technology, we were able to take Mark Dale's concept of the forensic academy and build three pilot academies into an NIJ-funded program for this year.

The first of them is halfway through just now and it's on controlled substances. What we've done is produce a 16-week program. It's got 11 people on it. These are people who have just been hired by labs as control substances analysts.

At the end of the 16 weeks, they will have a mixture of training, which includes law and it includes courtroom procedures, and it includes ethics. It includes communication and report writing. But most importantly, it includes all the essential elements that they require as an analytical chemist professional to go into the lab and start doing supervise casework.

They will go eight credit hours. Some from the University of Florida and some from Florida International University. Later in the summer, we'll be doing the equivalent for firearms. And to get to the point, in the fall, late fall, or early winter, we will be doing the same thing for DNA analysts. And the model will be the same.

We've got four and half thousand square feet of training facility with a DNA lab in it and the teaching accommodation. We've already begun to talk to people about cooperating with us to develop the curriculum. And I think the point was made by someone.

We don't want to be Number 257 and 257 totally unrelated uncoordinated activities. We want to do this working with all the key people in the community and get something that is a consensus of what should be in a DNA training program.

So that at the end of it, when we take all of three programs together, we'll be able to tell you does the 16-week academy concept work? Is it producing people ready for supervising casework more quickly, more cost effectively? Maybe even down right more effectively than mentoring.

Can going into the labs and do things they couldn't do just straight out of the university. If the answer to those questions is yes, then we have a curriculum, which NIJ will make sure it's passed on to anyone. And if the country wants to use it in their own jurisdiction for training.

MR. SCHMITT: www.nftc.org, Right?

MS. KREEGER: I was going to make my plug that I made earlier. But if self-sustaining means income generating and/or the ability to fund itself without the - dependence upon federal moneys, I think again you have to increase the role that the prosecutor is playing in this field.

I think that the prosecutor translates the results to the community and the prosecutor translates the results to the legislators. And I think that under what capability that our jurisdictions has that they can translate results that their jurisdiction is created, they're not going to get it funded and prior involvement as much as there ever was.

MR. SCHMITT: You're saying that part of this is a greater awareness by prosecutors because they can help drive the funding decisions, whether it's a Burn grant or other funding?

MS. KREEGER: Absolutely.

MR. SCHMITT: They champion this as something they need to make their cases than you're more likely to get the funding to keep it to go on.

MS. KREEGER: And just like there is a mentoring process within the forensic science community, unfortunately, and this may come as a shock to all of you, the prosecutor turnover, because it is not the highest paying public service job.

There's frequently only mentoring going on within a prosecutors office as well. It's one prosecutor who teaches the other. This is how you introduce this DNA evidence, or this is how you read this lab report, and this is when you call the analyst and say, Wait. I need this instead.

So you have that same sort of problem going on and that's why you need to have prosecutors be trained to help internally as well as to then speak externally.

MR. SCHMITT: Kim?

MS. HERD: I would echo that obviously. But I would also emphasize that sometimes grant programs really do jump-start a community and they force cooperation at the state AG level with the local DA's which is obviously needed.

A lot of times local AGs or local prosecutors and state AGs have a very important impact on what legislative initiatives are pushed by their AG. And clearly with, you know, regard to DNA evidence that is something that comes up over and over again.

So I think the beauty of a grant program or some type of a recognition that we need to pull prosecutors in more than we are now will really pay off with big results.

MR. SCHMITT: If we were to fund either overtime through a grant program or internships by college students who were pursuing a degree in forensic science to come work for your labs, which would you prefer to have?

MR. KREBSBACH: Interns can't touch evidence.

MR. SCHMITT: And we can't do overtime. We're on salary.

MR. KREBSBACH: But full-time temporary staff maybe.

MR. SCHMITT: CC or Marie? Either one.

MS. CROUSE: I asked Bill Tilstone if his program also includes serology? And he said it could, if he wanted it to. And the person that left in June we think the replacement is going to be May the 1st, so that gives us May, June, July August, how long before September, so that's five months. So I could probably fit in the serology.

But I think this is a very important program and it needs to be tested and to see how it works. I think we just absolutely have to do it that way.

MR. SCHMITT: Other comments, Maureen?

MS. CASEY: No. I was just going to say when we're talking about the training and education, we just can't forget the front end of the system, and we've talked about it. The collection and preservation of evidence, the training of law enforcement, it's going to be really important to do that package in the team concept that Barry has talked about and some people have kicked around here.

MR. SCHMITT: Which kind of brings us to Number 6. Which on that one maybe everyone says the answer is: Yes, to all.

Does anybody think that the answer is no to any of those?

Yes, I have two, Number 6s.

The first Number is 6.

MR. SCHECK: Well, in terms of education, what I've always thought would be very useful, and I guess it's a term that has currency and transparency in government. Right?

I mean, why can't you train the judges at the same time you're training the prosecutors and the defense lawyers? Frankly, when it comes to something like DNA testing, how it's collected, what the principles are, what the uses of the technology can be for investigative purposes.

If any prosecutors attended the talks that we give to death penalty lawyers in Monterey, you know, you'd see that half the time we're talking about the things that everybody in the lab should know. How you extract DNA - how you would identify stains. How in certain kind of cases you have to make Christmas tree slides to identify the sperm so you really - you know, you're really extracting sperm as opposed to something else.

How you don't confound yourself with mixtures, how you have the evidence collected, how you make a proper chain of custody.

I teach, you know, police officers, prosecutors, and defense lawyers. And I am telling you I don't say anything different to any of them. And there's no reason why it shouldn't be that way. Especially to promote in the sense of professionalism and scientific progress in this community of people. I mean,that's what you really want to do.

Forensic science should be an independent third force within the system. So when we train the other actors in the criminal justice system, the judges, the prosecutors, and the defense, I don't think we should be giving them any mixed messages. You might add defense lawyers to that Number 6. You left us out.

MR. SCHMITT: Fair point. Fair point.

Tom?

MR. GEDE: I'm intrigued by your term "procedures guides." Is this - what was your thinking when the protocol manual or something that takes standards that are fairly uniformly involved here? What was your thinking?

MR. SCHMITT: That was the thought, and I hoped it would prompt some discussion. You know, there's a dangerous ground when you have a procedures manual who want to put out best practices because we want people to know kind of what you're supposed to be doing. But we don't want it to be that if you do not follow these five steps in this order, it creates, you know, an issue for the defense, when it doesn't - when those five steps don't necessarily have to be in that order, or that you can't do four prime rather than four in your list.

So I don't know what the answer to that is, but that's the point. And this leads me to a question that I want to pose as well. With respect to all of these training materials that we're talking about, who should be preparing them? Should they be DOJ materials? Should they be National Forensic Science Technology Center materials? Should they be ASCLD training materials? I mean, who should be on these materials? Which also drives who puts them together.

MR. TILSTONE: Well, in terms of what I was talking about, there's no question of it. We are doing this funded by NIJ and the intellectual property ownership. What to do with that after that is NIJ's. It's not ours.

MR. SCHMITT: For some strategic reasons, if I were a prosecutor, I'd say that it is yours rather than mine. If I were defense counsel, I'd say it's mine rather than yours.

Sue?

MS. NARVESON: Well, I think what you're talking about is something that has been successful in the past and that is by the community bringing an issue to NIJ and seeking support. The TWGED is one good example where ASCLD is partnering with forensic educators to address establishing some guidelines for forensic education, forensic science education, and training.

And I think along those same lines there probably are many other community based and supported needs that could be brought to you along essentially with what we're doing right here, establishing some guidelines.

MR. SCHMITT: Mary Ann?

CHIEF MARY ANN VIVERETTE: Sometimes beyond having the training materials available to you have to have some impetus for the states to use them so it may be getting the post-commissions involved, whether it be a requirement to have a number of hours for entry level and in-service training, or beyond that, if that was an acceptable then legislation to require it.

MR. SCHMITT: Joe, is there a portion of the National Academy that trains state and local lab folks? Do you know?

MR. DIZINNO: No. The National Academy is devoted to law enforcement agencies. The Bureau puts on training for state and local and international forensic laboratory personnel in a number of different disciplines.

MR. SCHMITT: Tom?

MR. GEDE: We'll chalk it up to a prosecutor's paranoia. But I have no problem with training materials. But the minute you start moving to the manual, the procedures guide, I would get worried particularly because the technology is changing constantly.

Good criminalistic practices are something that are always going to be before the courts. But the technology is always changing. And I'd be very nervous about seeing NIJ engage itself in something that becomes the recorded policy or procedures that folks should look at.

MS. HART: Let me just tell you that I'm very aware of those kinds of issues. And from my point of view we want to make sure that we get as much helpful information out there and that there kind of be a consensus in the community that this is what is helpful, as opposed to publishing something that we might think is great and the best thing out there, but, heck, we can be wrong and I am very concerned about having something look like it is a national standard that binds all of you.

So it's that delicate line about making sure you get the best information you can that we can get you and also so you can learn from yourselves without looking like we're trying to control what you do.

MR. SELAVKA: I would also just amplify. I'm always intrigued by anybody that says they can train judges.

(Laughter.)

MR. SELAVKA: Having judges show up at all for something that you try to offer them has been - I cannot do it. I tried it in New York and we tried in Massachusetts. It doesn't happen. They go play golf.

So whatever the notion that we could force them to do it would be amazing.

MR. SCHMITT: Well, one of the things -

MR. SELAVKA: They didn't show up.

MR. SCHMITT: - that you offer training and golf together.

(Laugher.)

MR. SCHMITT: One of the conferences that the National Institute of Justice puts on is the conference on science and the law where judges come as well as prosecutor and other folks, and we have it at a real nice place.

And it may be those sort of events where you have some training available. And I have a feeling that a lot of judges would be interested in DNA. Maybe at the ABA convention you have some training breakout session on the use of DNA.

I think that so many of them are aware of how cutting edge this is and how far behind they are that they would walk in the room if it were at the place they're otherwise going to be.

So we might want to - I mean, somewhat have to take the training to the people who need it rather than a horse.

MS. HART: And also keep in mind that oftentimes when you train one judge, the materials go back and get shared with other judges. Yes, granted there will be some judges who will not be interested, but I would not write them off. I think most judges generally want to learn, although they do have serious commitments as to their time.

MR. SCHECK: One thing you would definitely want to do is if you would look for the - if you wanted to really accomplish something, a take even on backlogs, he would look for the administrative judges in your states, because the administrative judges are the ones that probably have the most power over probation offices to mandate that they collect the samples in certain ways.

Believe me, some of the these people would be very interested in, you know, automating it, looking at the privacy concerns, et cetera. In the long-term, you know, when you start taking samples from people who are not in custody, right. You're really going to need that kind of cooperation.

MR. SCHMITT: Kim?

MS. HERD: I say it when a multi-disciplinary approach because judges are traditionally squeamished when it's just one entity teaching them like prosecutors or defense counsel. You'd want some type of an integrated approach. I think that would work fast. And they'd be most receptive to that.

MR. SCHMITT: More on the first Number 6 before we move to the second Number 6.

And the staff came up with these questions. Maybe we haven't asked all the right questions. So what have we not discussed today that you think really need to?

Oh, here we go.

MR. CLINE: As it was discussed earlier, one thing causes other things to happen. It has a domino effect. In Illinois, when we first put into practice taking DNA samples from - it started out as just sexual offenders and then went on to other things. The IDOC would say, Okay. We'll test them before they get out of the penitentiary, but at that time our statute of limitations for sex crimes was three years.

So we were yelling because they were giving us samples on people on cases that we couldn't prosecute. So our statute of limitations was pushed back to ten years ago. But we're rampantly approaching that time frame when people - because their idea was if somebody is in jail for ten years, we'll take a sample from them nine years and six months down the road and not worry about it.

The other big issue, and I think this is perfect for it, is we can't charge cases just based on DNA alone. I mean, we have to have witnesses. We have to bring forth whatever evidence is available. As we get over cases, it's harder to bring those cases to bear. The prosecutors want to talk to witnesses who have moved. Sometimes we have a problem finding victims.

So, I mean, there is in our current caseload doesn't stop. So that drives overtime for our sex investigators. And that's something that as we get better, success breeds success.

That's one of the things that comes up is that we get better in identifying offenders on older cases. It drives our overtime on our current investigators while they keep up with the current caseload trying to put together those old cases. Because you ring Ms. Jones's bell, she moved two years ago. And we have to find her because she was an eyewitness and the prosecutor won't approve charges until we bring Mrs. Jones in and have a lineup and along with the DNA evidence.

So there's a lot of other issues here that Number 6 talks, the second Number 6 talks, very well about is on the law enforcement end and the detective end is resources that we need.

MR. SCHMITT: Cindy?

MS. GUIDO: This isn't something that wasn't totally discussed, but I still have - I'm wondering about it in my head. And that is whether or not anybody has done any studies or tried to follow whether or not having a DNA evidence makes it more likely that the individual is going to plead guilty.

And the reason I ask this is because, you know, earlier it was mentioned that some people are concerned. The prosecutors are concerned that they're going, you know, they're overworked. They're going to have this big caseload. Well, that's come up recently with us in Pennsylvania as we've been trying to come up with the post-conviction DNA bill that prosecutors, defense attorneys, everyone can live with.

And originally that they were going to have, you know - the Commonwealth was going to pay for all this testing. And then the state police said, Well, if that's going to happen, then we want it done in our lab.

But then the more it came up talking about it then they said, Hey, wait. We don't want it done in our lab, because then they'd have to be gone for days at a testifying.

So I think it's of concern to both the prosecutor who is going to have to try those cases, but also to the labs, unless this is just not been a problem. You know, that the more - the more you delve into that backlog of cases, the more likely you may have cases; that you're a scientist. If you've only got five, and three of them are off testifying court, that's less than you can do.

MR. KREBSBACH: Maybe we're just lucky. But if you've got DNA evidence with the rare exception or maybe a death penalty case, homicide, something like that, it ain't going to court. It will disappear for one reason or another. But maybe I'm just lucky I don't know.

MS. HART: Well, I think we intuitively think that. But I think this was the point that Tim was making really earlier today, which is when you want to convince policymakers to go with a particular, one way or another, people want to know what it's going to cost. And we really do not have those kind of assessments.

Intuitively I think that my sense is like yours and I think Cindy said most of the cases will result in pleas, but we really don't have, at least I don't, and maybe somebody else does, we're hoping if you're raising your hand, maybe you have that answer for us.

MS. KREEGER: The National District Attorneys Association is in the process of gathering information and attempting to refine the questionnaire that we're distributing in order to increase the accuracy of the information that we're getting about when you have DNA what does it mean? Does it mean that you always go forward with charging decisions? Does it mean that you do not offer pleas? Does it mean that you do plea your cases? Or does it mean that you're in trial?

I mean, that's generally what we're asking now. But I think, John, you are incredibly lucky. It's been my experience that, you know, I never want to underestimate the defense part. And as soon as the evidence becomes more frequently used, more frequently expected, and more frequently gathered, all that will happen will be that the criticisms for the challenges or the rejections of it will be sharpened. You know, we have had fingerprints for how many years? We now have fingerprints in cases and there's just always an excuse and always a reason for why those prints are there.

MR. SCHECK: I have a number - I told you before I have a number of old grant applications NIJ rejected that would have given you this data ten years ago.

(Laughter.)

MR. SCHECK: Because, I mean, you just want to show that it's cost-effective.

MR. SCHMITT: Of course, Sarah and I got here so.

MR. SCHECK: Well, I understand. I'm just pointing out their old grants. Paul took one of them and you still haven't had the data collection go on, but you got funded somehow. You were on my original grant.

MR. SELAVKA: I was?

MR. SCHECK: Yeah. Don't you remember the one that we were going to look at what happened to the cases and - well, in any event, you should keep track of that.

MR. SELAVKA: As a collaborator, but we never got any funding.

MR. SCHECK: No, we never got money. Right.

MR. SELAVKA: No.

MR. SCHECK: We do now. He's my witness. We never got money.

(Laughter.)

MR. SCHECK: And there were a lot people at that point.

You didn't discuss anything concerning ethics today or privacy, all right. For the continuing problem people will raise about destroying the samples at a certain point in time to prevent people from complaining that you're going to go into that data bank and use it for other kinds of DNA tests.

We've had that debate before, but it's still a very important debate. You didn't discuss what arose at the end of our commission, which Cecelia and others who are on the list of - producing very disturbing data. And that is the existence now of state and local territories having their own capacity to create their own data banks. They are off-line from CODIS. And what is in there?

We heard that some people were putting the DNA samples of victims into in data bank - into this, you know, I'll call it, for a lack of a better time, the usual suspect data bank, because they thought that might be interesting to see if the victim would hit something if they thought the victim was involved narcotics or maybe people weren't even thinking.

You have the whole issue of collection of samples from potential third-parties who you want to use to exclude, right. Exactly how that's done, how the consent is obtained, and what the size of these data banks are is, you know, a problem that I think is within the purview of the Department of Justice to be thinking about it.

Recently, I noticed that some groups in Great Britain have become increasingly concerned about the very interesting issue that exists under our law, too, and that is what happens to the DNA that is on this glass that I just drank from? And then we all leave the room somebody decides to take it.

The British are saying, Well, I'm not too sure that the state ought to have access to that not for identification purposes. We all agree that's abandoned for identification purposes. But what about testing to see whether or not, you know - I'm crazy. You-all already know that. Perhaps a susceptibility to some mental illness or some other kind of disease, et cetera.

They're very concerned about that issue and that is going to be increasingly I think an issue that, you know, you might want to look at. So unfortunately when we had our last commission all these very interesting issues arose the last week, right.

So maybe you-guys could start thinking about them at the beginning, particularly those usual suspect data banks.

MS. HART: I will say, Barry, I mean, you raise a lot of very interesting questions and ones that I think people can really debate a lot of that, the pros and cons. My real sense of this right now is candidly that if we get bogged down in trying to resolve all of those issues now, we're not going to be able to go forward on ones where there is a clear consensus of the view.

And so part of it is to try and identify those things that we certainly can move forward now and making recommendations as soon as possible and to make recommendations to continue to get funding out there while people are still interested in providing funding out there.

MR. SCHECK: But I would only suggest - I mean, unfortunately that's always the case on all issues concerning privacy, ethics, things like that. Well, it's not easily quantifiable and let's not discuss it. It gets the short shrift in the end.

But one thing you really have to get data on are the size of these state and local data banks, because they're a lot bigger than you think. And there are people around this table, who I won't ask to speak, right, who are seriously concerned about it. And they're people in law enforcement and they see things going on they don't like. And, you know, now that the capacity exist on the state and local level, you don't need NDIS or CODIS or LDIS or - how low does it go SDIS? I forgot SDIS.

MS. HART: The FBI is going to be upset to hear this.

MR. SCHECK: Well, the FBI know this. I mean, you don't need those computers. You have an STR machine and you have a computer and you have software and you can make your own data bank and I don't think - and lab people don't really - I mean, lab people have suspicions and are concerned about it.

Because when the privacy violation hits, they're going to be - all of a sudden they're going to start coming to these people and say, Why did you put that in there? And they're going to say I had no idea what this was. A cop came to me and gave me the sample and said it came from a suspect. All right.

And I actually think those things - many of them are unlawful. They're unethical and they're illegal. And in the long-term, they're not in the self-interest of this community.

So NIJ can help by trying to identify the size of these banks and issuing regulations on or suggestions or guidelines on the proper collection of samples and what would be improper to avoid it.

I mean, we all had agreement incidentally that you shouldn't be taking the DNA from victims. You shouldn't be taking the DNA from third-parties that didn't consent to it and putting it into these state and local data banks. I actually that is illegal.

MR. SCHMITT: We just asked this question. I'll bite a little bit on what Barry is asking.

Do any states have any kind of random checks of the samples to make sure that they are what you think they are? What they are in an offender sample to what they are in a case scene sample tied to an offender? Or do you perceive the need to do that?

MR. FERRARA: Random check with respect to the appropriateness of samples in a database?

MR. SCHMITT: Yes.

MR. FERRARA: Before we report any hit, we check the Virginia Criminal Information Network and confirm that, indeed, that sample, it did come from a convicted felony.

But Barry is talking about something beyond that. It's something the commission on the future of DNA evidence left in and undecided was the constitutionality and the ethicality and legality of maintaining suspect databases, which I might add, if they do exist, and they can exist in some states, do so because it actually increases capacity of the laboratories because you're not running the same suspects over and over again.

MR. SCHMITT: And in all those cases where they exist, they exist pursuant to some state authorizing legislation?

MR. FERRARA: That's right. If they do exist. I don't have one in Virginia because my statute does not clearly give me the authority to, although there is a bill pending, as I speak, that would give me that authority to maintain suspects database.

MS. HART: I don't presume that there's anybody here at this table who is recommending that states should be going out and collecting samples where there is no authorizing legislation, are they?

MR. COFFMAN: Barry, you correct me if I'm wrong. But I think what Barry is asking is there are local labs that are outside the state - you know, the state typically follows what the national standards are for the NDIS.

I think what you're saying are you making sure that someone is not slipping victim samples up to the state being called a forensic unknown or something like that so it can go on up to national or?

MR. SCHECK: There is no - in most places - I think Florida is the one exception, or that I know of. There is no authorizing legislation to database samples. But the position of law enforcement is, is if I collect this from my coffee cup after I leave the room, and I go to one of these people here and I say, I want you to upload it into your suspect data bank, right.

Unfortunately most state and local authorities feel that they can just put that in. It doesn't go into NDIS. It can't go into the system because it's not a forensic sample. It's not a convicted offender. It's not a lost person. But they still will keep that DNA pattern as a suspect's sample.

And there are collections of these data banks growing on a state and local level and I think it would useful. You're spending all the money to create these. Don't you want to know to what extent they exist? What we only - the reason I said that is that we had a very spirited discussion about how those samples were getting in. There were a number of people that took the position, police, that they can ask the state and local authorities to take these samples.

If I'm investigating Case Number 1 and I ask you, Sarah, for your DNA, because you were in this room when the crime was committed and we think you might have adventitiously left the DNA there, am I allowed to keep that sample forever to look at other investigations in the Washington D.C. area?

We know you can't put it into CODIS. You gave consent just for this investigation. Are you telling me that people are taking out of those data banks. If you're Rock Harman, Rock Harman says I can get as many samples like that as I can into the California data banks and I want them there.

MS. HART: Is this something, though, that you think is appropriate for a federal mandate, or do you think this is something that should be reserved for the states to set the standards about what goes in their databases?

MR. SCHECK: Well, I actually think it would be - federal money is creating - these computers and machines and analysts are being paid for with federal tax dollars, all right. And so it seems to me that you're at least under an obligation to find out how much of this is going on.

MS. HART: Do you have evidence that this is going on or to what level? Do you have - other than -

MR. SCHECK: Yeah, we had two meetings of it, and everybody was talking about how it was going on. I mean, I'm not even saying that these people - it's not like a crazy thing.

Did I take your DNA sample promising you that it's going to be just for this case and then it goes into the local state suspect data bank and it doesn't come out? I can produce a lot of people that would tell you that they don't think that's unlawful, all right. And a lot of people think it is.

This was the last issue that arose at our future of DNA commission and it was - I think we had a consensus on certain samples, but it still caused controversy. And it would seem to me that this is certainly your mandate. It's your money. It's our money.

And you've created that capacity, and it's a - and my argument has always been to this community. It's in your enlightened self-interest to prevent silly, privacy violations that are going to upset people, because then a lot of the money that we want for all these other things, the state and local authorities won't grant and you'll have other kinds of political fallout.

MR. SCHMITT: Well, that certainly is an excellent point. I'll tell you that I will pursue this individually with folks as I learn more about this, because I have to confess that I don't know much about suspect databases. And I will ask questions after the meeting in the next couple of weeks and talk to folks and maybe even talk with you some more, Barry, and pursue that.

CC?

MS. CROUSE: I just want to make one comment about this discussion. With regards to why we're here today, the case backlog. We will be sending victim samples. And in a sexual assault case, we will be sending them, because sometimes you're going to get a mixture and you're going to want to try to get the nominal alleles that come out.

And I think we do need to be aware that when you get this stuff back and you start to interpret the data, if it does go into CODIS, I think you should be very circumspect about what happens with that. I think something should be said very strongly about what happens to that victim sample. That it does go into the local database or whatever.

The problem is, and Dave knows this, he can't come down and say, you know ex-county. You can't put this in there. We certainly can't send it up to him. But I think we should address that. With regards to the case backlog cases that we're sending out, if we have victim samples that they just can't be stuck in a database.

MR. SCHMITT: More questions on - more comments on what we're missing before we get to Number 7?

Keeping us on track then, we'll turn to Number 7. This is really your chance to tell all of us what your interested in doing with us going forward. The charge is to NIJ to report to the Attorney General. We brought all of you here as smart people to tell us things, and we don't profess that we now know everything at the end of the day.

What is your recommendation to us as to how we should go forward to develop some of these ideas into a more concrete set of recommendations to the Attorney General? Should we have another meeting? Should we try to come up with a report and ask folks to contribute data from their states? Should we have staff drafts that we then present for you for written comments to us? And then perhaps another meeting to go through the draft? Or what's your ideas?

Paul?

MR. FERRARA: Off the top of my head, based on the input that you've all heard, much of it repeated and see some things where there's a clear consensus. My preference would be to see the staff develop based on that information a draft set of recommendations that could be passed around and we could comment on and actually have a work product come out of this meeting.

I think it's important that we come out with some document, at least reflecting the clear and consent - the clear consensus with respect to training these robotics new technologies people et cetera. That's one eye view.

MR. SCHMITT: Other views? Additional comments?

Maureen?

MS. CASEY: I think, too, that there was a lot of unanswered questions about like definitions of backlog and what the full scope of the problem is both left with respect to convicted offender and unsolved casework and things like that Carl mentioned, you know.

If we talk about training and education and making sure that what's recommended out of here is not inconsistent with other things that are going on to get some more information, like, TWGED and what direction they're going in so that things are consistent.

So I think that at least from my perspective there may be a need for some more information from us before some of the recommendations can be done.

MS. HART: Certainly one of the things that we were specifically asked to discuss was an assessment of the backlog. And I think what has come from this is we know some things and then there are a lot of things we frankly don't know.

And coming from here, I'm not even sure that we could even figure it out in a timely way. I mean, a lot of what I'm hearing here is that, you know, yes, there are backlog of samples. But there are a lot of police forces out there that are holding samples, not even sending them. And I don't know of a realistic way to get a handle on that at this time.

And so it may well be that what we have to say is we can tell you x and we can also tell you what is unknown, what we expect, that there is much more out there.

But if people have ideas about ways to do that kind of assessment I would appreciate those suggestions.

Susan?

MS. NARVESON: There is one solicitation that's out right now, and that's to conduct a 2002 census of public crime laboratories. And part of that is to identify what the needs are.

ASCLD is partnering with a couple of organizations that have sent in the solicitations to be able to assist in formulating some of the survey questions. If that could be a vehicle, I know there's a very short time frame on that turnaround, and I don't know who is going to be awarded that particular grant. But that might be a vehicle for being able to incorporate some of the needs of this committee for data acquisition and making some of those assessments.

MS. HART: With BJS solicitations?

MS. NARVESON: Yes.

MR. SCHMITT: Tom?

MR. GEDE: I just want to make sure that you don't miss a lot of what George Herring and Mark Nelson had. They had good succinct cogent recommendations for where the problem areas are and recommendations are.

But I think if your staff could work on putting together a draft of some sort that includes these six, or seven, or whatever numbered items here, including long-range, short-range and use your mental energies to sort of take what George and others and all of us have had in recommendations. And then intellectually separate it into the categories you need to separate it in and then shoot it back out to us for comment and then maybe another meeting. That would be very helpful.

MS. HART: That sounds good to me.

Carl?

MR. SELAVKA: I would apply that. There seems to be policy opportunities that are well identified, and some that we don't know. There is statistical opportunities that need to be defined and some that we know. Technology both pre-analytical, analytical, and post-analytical.

And I think if your staff breaks that down into things we don't know and things we do know and where a consensus has already been derived this will have been - I would amplify what Paul said, too. This would have been very fruitful and brought a lot of people together, all that smart people in one room was funny to hear about us, but it would have been a very productive meeting, and it would give you a launching pad.

MR. SCHMITT: Other views?

MR. KREBSBACH: I think in a sense this is an outstanding idea and I think ASCLD is a perfect place to start with the laboratories. For the same time just - and I'm sure you're thinking of this too, but just to make sure that you guys understand. There's a lot of law enforcement agencies out there that are not being represented in any way, shape, or form to speak of by a laboratory.

So you almost need to attack every single law enforcement agency in the entire country in some fashion.