Monday, October 21, 2002

PUBLIC COMMENT

MR. SCHMITT: I will now invite public comment. To those people who care to make a comment, I ask that you identify your name at the microphone, which is behind me and come to the microphone and identify yourself so the transcriber can take your name down. If you care to give us an affiliation, that would be helpful I think to everyone here. We ask that you ask a question. If you want to make a comment, we ask that it not be a speech, but a comment. I'll invite people at the AGID-LAB group to comment in response if they care to. Just to note for the folks in the public, we will be having some discussion on the postconviction testing, and perhaps we can allow for a second round, but brief public comment on that as time permits.

So we'll open it for public comment at this time.

MS. KREEGER: Lisa Kreeger, APRI DNA forensic unit. I was just going to say that in addition to prosecutor awareness or competence level in DNA usage in mito, it seems that in listening today one theme kept hitting me, and that was that ongoing communication between prosecutors, law enforcement, and laboratories is crucial to evidence screening, to time usage in light of policies, specifically postconviction, or court orders or court calendars, time usage in light of admissibility or discovery issues or pretrial preparation issues, time usage regarding cold cases and communication regarding case disposition.

It's crucial to the efficacy of the criminal justice system that that is an ongoing reality, and one of the things that I wanted to suggest or point out - and maybe this is a segue to tomorrow - but it would be useful if the recommendations either encouraged or monies required demonstration of multidisciplinary efforts that address those issues on an ongoing basis, and I just wanted to point out that I think that having teams and having communication and having demonstration of that on an ongoing basis would be extremely helpful.

MR. SCHMITT: Is there other public comment? Any response from the AGID-LAB members up to where we are or further comments on what we had been discussing?

MR. COFFMAN: I know there is a lot of rules, and we just saw that with the 5 o'clock thing where you had to stop. So this is probably oversimplifying and I know it probably can't be done, but why couldn't there be just sort of a - Mary said slush fund; that's not a good term to use here, but a pot of money that attorneys or people who really feel the need to have a mitochondrial in the case that there is an application process, and just say the case has to meet certain criteria, and we will hand over - you can check the community and find out what a fair price is and say if you can find it for 2,500 a sample, then go and do good things. Why couldn't there be that application process since there seems to be such an up and down feeling of what each state would - the case load they would have?

MR. SCHMITT: There is no reason why there can't be some appropriate fund created. It's just a question of what the legislative branch chooses to allow us to have to use. Some might suggest that if you create a fund, people will come flocking to it. You can perhaps say in response that you can deal with that with the criteria, kind of poor labs have to show why they're poor and why they couldn't otherwise do it. The district attorney who has to work out of his home can make a case that he needs it more than a big city lab that also applies for it.

MR. COFFMAN: And it also would prevent the laborious process of setting up a contract in a state. Right now if we have specialized cases that come in, you don't have to go through the bid process to have a case worked. This way you wouldn't say that we're going to send 100 cases off for mitochondrial and then we have to do a state contract, which takes on the books 30 days, but it really takes 90 to 120 in most states, and then your year is almost up. You're running out of time and you can't get the money spent where if it's a case-by-case basis, you would just say here is a fair price. If you can find a vendor that will do for it for that, we will either pay for it or if you want to use a vendor that's more for whatever reason, you make up the difference.

MS. FORMAN: When we develop a program, one of the things that we try to do is stick very close to the goals of the legislation, and so there is no room, for example, in convicted offender analyses to develop a mitochondrial database because you can't solve a crime necessarily with just mitochondrial DNA, using that identification.

What we've had people looking into is is there a way to do no suspect casework using mitochondrial DNA, but the function of the programs that we have thus far, even though we tried to make the convicted offender program as user friendly as possible by having the states not have to fill out a lot and just working through the vendors is that the program as a whole has to kind of hold together.

So an individual pot for accessing mitochondrial DNA testing on a per case basis seems sort of beyond the scope of what NIJ has done in the past, but there might be other agencies that could be tapped into for that sort of thing or not even agencies, but groups that could be tapped into for that sort of on thing. So, for example, something like the Forensic Resource Network might be an appropriate place where something like that could exist as a program area.

MR. COFFMAN: Could the National Prosecutors Association - if I got it wrong, I'm sorry - could they apply for a grant and have prosecutors go through them to distribute it?

MS. FORMAN: So it would be prosecutor initiated?

MR. COFFMAN: That's usually who is demanding it, so...

MS. HART: I think what this highlights is the fact that you need some flexibility in funding because sometimes you may want to be doing trade-offs as opposed to having enough funds to let's say go do timely testing of a burglary no suspect case let's say. You would want to say no; I would rather pool and for those 10 no suspect burglary cases I could get a mitochondrial case, and I think that's more important.

So one of the things that we have certainly been pushing for is greater flexibility in the funding that is going out so that the state and local labs can make rational choices about where they get the biggest public safety benefit of the dollars. So I think that's something that certainly on the Hill there has been interest in making the funds more flexible.

MR. SELAVKA: I can only imagine what Barry would be saying if he was here, so I'll say it for him, and with all due respect, Woody, the balance of the prosecutor's resources against the defendant's resources through even indigency accounts in major crimes is - granted the government has the burden of proof, but it would seem resources of this type you would have to create some sort of balance for access, and I'm not sure that the Federal Government is going to be in a position to do that. There are strong arguments that leaves this up to the states. It's a state issue to begin with in the vast majority of cases. So it would seem like tapping into federal resources for forensic science infrastructure improvement or law enforcement infrastructure improvement is the wrong approach. It would seem that's more of a state issue and let them handle it the same way they handle the balance of access through funding for indigent clients on the defense case.

MR. COFFMAN: I was just kind of making the suggestion because we're already using this DNA money the help pay overtime for prosecutors and overtime for law enforcement officials to help us identify the no suspect cases that need to be worked, so I just thought this would be a natural progression in that direction.

MS. FORMAN: And we tried to build that kind of flexibility into that program, and it is possible that that flexibility can be maintained in that program, but remember that that program is funding to states. They have to ask for it in their proposal to NIJ. So that's a very big possibility, but, again, it speaks to what Carl said. If the state or the applicant identifies that that's important in their situation, then they need to put it in their application.

I think it also begs another question, and that is what Sarah said. The flexibility in that program is not really there beyond no suspect cases, and it's the identification of the case type that really limits the program in the way that the states can apply for funding.