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

Tuesday, October 22, 2002

OTHER DISCUSSION ITEMS

MR. SCHMITT: Before we break for lunch, let me just turn your attention to No. 4, which is the other discussion items category and see if there are things there that folks would like to comment on. I'm particularly interested in hearing from folks who have had experience with SANE and SART nurses, if working with them is easier or whether evidence gathered by those folks turns out to be better than gathered by nontrained folks or people who are not trained in those techniques and just how that fits with what you all do.

MS. SAMPLES: In my former life I was a criminalist in California, and my jurisdiction made extensive use of SART/SANE nurses, and once the counties that we covered started using those nurses the quality of our evidence greatly increased, and it was a wonderful thing. We were intimately involved in training them during their training program.

Now fast forward to New York City, which although it's five counties, it's hundreds of hospitals and thousands of transient nurses and doctors, and some hospitals have those sorts of programs; some don't. Most don't. The turnover there is very, very high. It has been very difficult to try and have any sort of continual improvement of the collection of sexual assault evidence. So it's very, very spotty, and any efforts to try and standardize it, require it, or otherwise implement it over everybody I think would only be of benefit to everything.

I mean we have had cases where we've opened up a sexual assault kit and there has been nothing in there because whoever collected the kit forget to put it in there. They sealed the box up and sent it to us, but it was gone. In that particular case the guy who had been arrested, the judge dismissed all the charges because the potentially exculpatory evidence was gone.

MR. GIALAMAS: Just to let everyone know, in California there is a program that is currently in place through UC Davis. It's called the California Medical Training Center, and it is a statewide program that teaches nurses and physicians how to collect forensic evidence in sexual assault cases. I am an instructor on that program.

They have put together I believe it's a four-day course that nurse practitioners and physicians go through with hands-on training and Power Point slide lectures. It's a very worthwhile program, and we've seen the success of that program. We now work very closely with our SANE/SART nurse programs, and we encourage them to come and take a tour of the laboratory, come and talk to the analysts on how their collection methods and techniques that they use are being applied, and we've found that to be a tremendous success in the increase in the high quality of evidence that we get.

MR. FERRARA: Just two quick points. One, there is a new publication, national publication that's out titled Forensic Nurse, which I think is an indication of the development and interest and also can be a valuable educational platform in itself.

Secondly, the design of Virginia's physical evidence recovery kit or rape kit was done in conjunction with working with the sexual assault nurse examiners or forensic nurses so that we developed a kit that was not only specifically designed to work well with ultimately an automated process in the laboratory, but one that also has first and foremost in the mind the comfort and ease and lack of further trauma to the victim themselves.

MS. NARVESON: The Phoenix area has really established what I think is a very excellent program that couples the expertise of well-trained SANE nurses along with the investigators for the Family Investigations Bureau. We actually have a Family Advocacy Center where the SANE nurses are on call and they do all the examinations. They work very closely in conjunction with the laboratory, with the prosecution attorneys, and with the victims' advocates. What we are seeing is the quality of the evidence is dramatically improved, and they are continually asking if there is something more that they could do to make it even better.

What we're looking toward is to even find a way where they may be able to assist the laboratories in screening some of the sexual assault kits. In other words, they can do the sex assault examination, but they do also microscopics for spermatozoa. We feel that we can train them to the level and utilize digital images that can be transmitted back to the laboratory along with records, and they essentially serve as our technicians in that regard.

So when it comes to outsourcing nonsuspect sex assault cases, we feel there might be an opportunity there for us to be able to get them to do some of the work on the front end and be able to send those cases immediately out for outsourcing and reduce the burden on the laboratory.

MR. SELAVKA: A couple of points just to follow up on what Susan said. There is the American Society of Testing and Materials, now called ASTM International, has a subgroup of the E30 committee on forensic science methods, and there is a working group that's looking at sex assault related evidence collection and testing of materials.

A huge argument that is not resolved is whether sex assault nurse examiners or other specialists in a hospital setting should do examinations. I don't think there is any consensus at all in the field about that. It may work in some places; it might not work in others. So I guess I politely would disagree with whether the locals should do anything without the crime laboratory's involvement.

What I wanted to say also is that you probably have already gotten the feeling we're all very proud of how the sex assault evidence collection kits when performed by a well-qualified SANE is running in each of our jurisdictions. We all make tremendous investments in that program. Our laboratory scores the kit quality and provides that feedback to the SANE trainers for their annual recertification, and you can localize it to a specific nurse when there is an issue, which is an important metric, and probably most of the programs that are doing it as well have a metric like that, but in a national model you would want to include that metric as well.

MR. CLARKE: I am a huge believer in the sexual assault either response team or SANS system. Having tried cases under both systems, I think the benefits far outweigh the disadvantages. I'll mention a little about the disadvantage in my view. But certainly the collection of evidence, the relatively, if not immediate response, instead of the delays of what could be hours for an examining physician to look at a sexual assault victim.

The collection of evidence I think is much more detailed and cleaner. I think a lot of that is the use - and again the majority, if not all, jurisdictions in most cases perhaps - I know in California the state mandated forms be filled out, and that provides the sexual assault nurse examiner to ability to follow a checklist, which is very important in these cases. There are many steps in a proper sexual assault examination for not only detailing the findings, the collection of physical evidence, and so forth, and those required forms I think are excellent in insuring that each of those steps are taken.

The only disadvantage I have encountered is by way of testimony, not for lack of anything on the part of the nurse examiner - well, occasionally, but mostly when the issue becomes physical or anatomic injuries and so on where the defense may call an actual emergency room physician, and that can be an unbalanced situation, but fortunately that doesn't arise too frequently. More I think is gained by the use of these examiners because they are much better at the detailed process in my experience than physicians are.

MR. SCHMITT: Other thoughts?

MR. COFFMAN: I was going to say we looked at the nurses helping in the screening for spermatozoa, and I just would say go with caution because we don't have a lot of SART and SANE programs in Florida, but it took us years to get them to stop looking at the slides because we found that between 60 and 70 percent of the time the doctor - typically the doctor was wrong. He would say no sperm present or unsolved sperm. We even had them say they saw motile sperm and there was nothing there, and then we're in court trying to say you're not a medical doctor. Who are you to disagree with the doctor?

So I would say just be careful. They're in a hurry. They've got a lot of people in and out. Their primary concern is the victim's care and medical care. It's not looking for the forensic evidence. So just be cautious in doing that because we saw, like I said, 60 to 70 percent of the time they were wrong and put down the wrong conclusion.

MR. SCHMITT: Susan, do you want to respond?

MS. NARVESON: I must say that early on I was not an advocate of the SANE nurses; however, since we have a great deal of control over the facility that they use and also who they are and work in very close collaboration with them, I feel confident that we can make this program work, but I do think the success of any SANE nurse program is it's just absolutely critical that they work in close collaboration with the forensic laboratories so they understand the forensic aspects of what they do.

MR. COFFMAN: I don't want to leave it that you thought I was against the SANE and SART. Doing the sperm searches for you was the only comment I was being cautious on. We're very supportive of those programs.

MR. FERRARA: The issue of sperm searches aside, we have seen time and time again not only the quality of the collection of the evidence, but the specificity of the information that the properly trained sexual assault nurse examiner can provide to the laboratory. It's a practical issue. When we're armed with good information and samples, when we open that kit, we know from the information provided in that kit which evidence to go after first.

In cases - we had one recently where a young 15-year-old girl was digitally penetrated. No sperm searches - I mean sperm searches all were negative, but the sexual assault nurse examiner had taken enough care to ask the victim if the perpetrator had touched her in any other way, and she indicated well, yeah, he sort of sucked on my earlobe. She had an earring on. They collected that earring and we got a good profile off that earring and made a hit.

So I think there is a tremendous value there in the same way as we would look at training crime scene investigators, medical examiners, anyone who is involved in collecting evidence in one way, shape, or form.

MS. HART: I just wanted to mention one thing. The Office on Violence Against Women at the Department has been mandated to provide some specific recommendations to Congress on a number of these issues, and so we will make them aware of the discussions that are going on here today since they are really the ones that are going to be taking the lead on this particular issue.

MS. HERD: I just wanted to make a comment before we adjourn for lunch. Wearing my prosecutor hat now, I really think there needs to be a much more substantial investment in training and technical assistance with prosecutors in the area of DNA, and while in some jurisdictions they have the luck to have somebody like a Woody Clarke or a Steve Reading, most jurisdictions have really no one they can turn to if they have a significant admissibility hearing that's coming up or a significant trial or if there is a new DNA technique that they want to use. This really has a huge impact on backlogs in crime laboratories for all the obvious reasons.

I know in the past there really has not been a very substantial investment financially in training for prosecutors, nor technical assistants. I think the more that you make prosecutors aware and the more that you give them the tools needed to handle an admissibility hearing or to argue with their legislatures about the need for more funding for labs or changing statutes of limitations or just educating line prosecutors to be sensitive to the needs of crime laboratories in terms of letting them know when there has been a case disposition and that sort of thing, that until you really address that and focus a lot of investment in that, you're not going to reduce the backlogs as quickly.

I know I keep arguing for that, but it doesn't really seem to change, and there doesn't seem to be that much funding that comes, and I think it's a critical need and I think the benefit of it would be enormous in terms of what you would see in terms of the impact.

MR. SCHMITT: Any other thoughts before we go to lunch?

MR. DILLINGHAM: Let me just say that I do have a little recommendation at an appropriate time later in the meeting that I would like to submit for consideration on that point.

MS. HART: Do you want to say it now?

MR. DILLINGHAM: Sure. I've got it here. I wanted to see how things went, but I guess the bottom line is we appreciate representing the prosecution community, just being here with the lab directors and others, and I know your focus is on backlog reduction and you have a number of complex and specific topics you're addressing, but I think there is a commonality in all of them, and that is one of resources and one of improved practices. When you take out those commonalities, you're still left with the bottom line on the resources, which is associated with the improvement of practices.

The National District Attorney's Association, which I'm wearing that hat today, has passed a resolution on DNA in which they embrace a public investment for the fair administration of justice in DNA testing. They also have specific recommendations where they embrace increased testing for the laboratories, et cetera.

The recommendation that I would have for NIJ to consider - actually for the Department to consider is one that is within the control of the Department of Justice and is one that does not necessitate any new legislation or even doesn't necessitate the funding, but it would be one that would recommend a certain option that I typed out last night here that I'll read to you.

It recognizes that NIJ has exercised leadership in the DNA area and continues to do so in research and development as well as in technology, but there is a sister agency, the Bureau of Justice Assistance, and there are other offices within the Office of Justice programs and the Department that also come into play in these areas.

The largest provider of state and local assistance, as you well know, to the law enforcement and criminal justice community is the Bureau of Justice Assistance. It does have state block grants, and within those state block grants you have purpose areas that are authorized. One specifically is for DNA, and it is caged in terminology for assisting the laboratories, the forensics labs in the DNA indexing.

Within the local law enforcement block grants there is no mention of DNA, and within discretionary grants, to the extent that there are any discretionary grants that aren't earmarked, the purpose areas of the state block grants apply.

The bottom line is this: I think DNA could be given a raised priority within the Department and its funding practices with federal funds for state and local law enforcement assistance. The recommendation that I drafted, which I tried to make it as flexible and as nonspecific as possible that the Department could finesse and maybe tighten up is this:

The Department of Justice consider establishing through its state and local law enforcement assistance a program that encourages all states to dedicate resources for the purposes of expanding and enhancing DNA testing, practices, and promoting the effective use of DNA evidence. This program should include a special fund or mechanism for state and local prosecutors to request support for DNA tests in emergency or exceptional circumstances. This program should also provide law enforcement officials, laboratory personnel, and prosecutors with state-of-the-art training in DNA technologies and its effective use to promote coordination, improve practices in the fair administration of justice.

So it's a very broad provision under existing funding programs of the Department of Justice that I think could provide more impetus and emphasis to DNA testing, training, et cetera. So I would recommend, even though this group is focusing on backlog reduction, that you can't get away from the resource issue and the better practice issue and that it does have implications for funding mechanisms. So I throw that out.

MR. SCHMITT: I appreciate that, Steve. Reactions to Steve's comments and suggestion?

MR. SELAVKA: The lack of the words "Public defender" in two places there would seem to me places that you could add it.

MR. DILLINGHAM: Let me address that, and I may not be the -

MR. SELAVKA: Since they need the training, too, and access to testing.

MR. DILLINGHAM: That is not excluded here, and it says that prosecutors would be eligible. I did have the specific provision there for emergency and special circumstances that prosecutors could request. I might be able to debate with you that prosecutors do have a unique role in the criminal justice system with professional and ethical responsibilities for the fair administration of justice that may not be incumbent upon defense counsel in some circumstances.

So whether to engage in that debate - we're not against expanded DNA testing at all and we're for the fair administration of justice. So I would allow the Department of Justice in its guidance as well as the states that receive these federal funds to come up with their own criteria and formulas and process, but I would say that it would be very important that prosecutors be eligible to request in special exceptional circumstances funding to support DNA tests.

MR. SELAVKA: I guess I would be more interested in the last paragraph about training. It would be very important to make sure that public defenders have the same training.

MR. DILLINGHAM: Sure.

MS. HERD: I do think also that there are a lot of training mechanisms or training funding pots available to federal defenders and other public defenders - at least that's what I have been told - more so than you might realize. Maybe it's getting out there in the community, but I do know firsthand that there really has not been very much on a national basis, I mean probably less than a million dollars over the last ten years available for 27,000 prosecutors. The turnover rates in prosecutors' offices are tremendous, so you're constantly having to educate and make people aware.

So I agree that it's important to train the defense bar. I do think those mechanisms are available, and I know that NIJ is supporting looking at additional mechanisms, but just for awareness issues.

MS. HART: Steve, I would like to get a copy of that when you feel it's something you can distribute, and I appreciate the thoughts. They're very good ones here, but given the exact language, I think that I appreciate the fact that you're trying to keep this a flexible a recommendation.

I think we're all very mindful that at the end of the day we're talking about evidence that has to be used in a court, and so if we have everything perfect in the crime lab arena and it's not usable in a court and people don't know what to do with it, then we haven't solved the problem. So it's part of this overall question about how do you make sure that DNA evidence is maximized to its full potential, everything from collection to the very end of the criminal justice system. That's one big issue.

MR. COFFMAN: Are judges trained? Can you train the judge?

MR. SCHMITT: To do what?

MR. COFFMAN: The reason I say that is a perfect example is what is going on in Minnesota where they just obviously don't understand the DNA - the community and the progression of the community, and the judges end up having the ultimate word. Are they supposed to be somewhat like the jury? They can't be - I don't know how to say it.

MS. HART: Tampered with?

MR. COFFMAN: You know how typically they want a judge that doesn't have any personal knowledge of the facts being presented to them. Are judges somewhat the same way? I just was curious because I think somehow they need to know the progression of forensic DNA in the country so they can make better decisions.

MS. HART: Sometimes there are issues when judges are trained based on training that's provided by one particular party. Let's suppose that you have plaintiffs in an asbestos case. If the plaintiffs' bar sponsored major training for judges, there could be a complaint that was biased towards the plaintiff's point of view. So it's very important that training materials be developed that are balanced and by an objective agency, and that's also why you need to go through the court's own training.

I mean, frankly, if MBAA developed the best judge training program in the world, it would not be as popular or used because it would be perceived as coming from one side. So I think NIJ can provide a very valuable role for spurring those kind of objective information exchange and being the honest broker of information.

We're going to break for lunch.