<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:86042.wais]
S. Hrg. 107-895
JUSTICE FOR SEXUAL ASSAULT VICTIMS: USING DNA EVIDENCE TO COMBAT CRIME
=======================================================================
HEARING
before the
SUBCOMMITTEE ON CRIME AND DRUGS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
MAY 14, 2002
__________
Serial No. J-107-79
__________
Printed for the use of the Committee on the Judiciary
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WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
------
Subcommittee on Crime and Drugs
JOSEPH R. BIDEN, Jr., Delaware, Chairman
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
HERBERT KOHL, Wisconsin MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
George Ellard, Majority Chief Counsel
Rita Lari, Minority Chief Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 1
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 5
prepared statement........................................... 55
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 71
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 7
WITNESSES
Adams, Dwight E., Assistant Director, Laboratory Division,
Federal Bureau of Investigation, Washington, D.C............... 11
Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of
New York....................................................... 9
Fairstein, Linda A., former Chief, Sex Crimes Prosecution Unit,
New York County District Attoney's Office, New York, New York.. 28
Hart, Sarah V., Director, National Institute of Justice,
Department of Justice, Washington, D.C......................... 13
Holbrook, Debra S., Nurse and Certified Sexual Assault Examiner,
Nanticoke Memorial Hospital, Seaford, Delaware................. 34
Morgan, J. Tom, District Attorney, Stone Mountain Judicial
District, DeKalb County, Georgia and Vice President, National
District Attorneys Association, Decatur, Georgia............... 39
Narveson, Susan, President, American Society of Crime Laboratory
Directors, Phoenix, Arizona.................................... 36
Smith, Debbie, Williamsburg, Virginia............................ 24
SUBMISSIONS FOR THE RECORD
Adams, Dwight E., Assistant Director, Laboratory Division,
Federal Bureau of Investigation, Washington, D.C., statement... 48
Elster, Jeri, statment........................................... 111
Fairstein, Linda A., former Chief, Sex Crimes Prosecution Unit,
New York County District Attoney's Office, New York, New York,
statement...................................................... 57
Hart, Sarah V., Director, National Institute of Justice,
Department of Justice, Washington, D.C., statement............. 77
Holbrook, Debra S., Nurse and Certified Sexual Assault Examiner,
Nanticoke Memorial Hospital, Seaford, Delaware, statement...... 92
Morgan, J. Tom, District Attorney, Stone Mountain Judicial
District, DeKalb County, Georgia and Vice President, National
District Attorneys Association, Decatur, Georgia, statement.... 94
Narveson, Susan, President, American Society of Crime Laboratory
Directors, Phoenix, Arizona, statement......................... 101
Rape, Abuse and Incest National Network, Scott Berkowitz,
President and Founder, Washington, D.C., statement and
attachment..................................................... 108
Smith, Debbie, Williamsburg, Virginia, statement................. 114
JUSTICE FOR SEXUAL ASSAULT VICTIMS: USING DNA EVIDENCE TO COMBAT CRIME
----------
TUESDAY, MAY 14, 2002
U.S. Senate,
Subcommittee on Crime and Drugs,
Committee on the Judiciary
Washington, D.C.
The Committee met, Pursuant to notice, at 10:40 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Joseph R.
Biden, Jr. (Chairman of the Subcommittee) presiding.
Present: Senators Biden, Cantwell, Schumer, and Clinton (ex
officio).
OPENING STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR
FROM THE STATE OF DELWARE
Chairman Biden. The hearing will come to order. I thank my
colleague from Washington for being here this morning and for
her leadership in this area and for keeping our eye on the
ball. I guess I have been here so long, it is strange to say,
but you are an incredibly welcome addition. I know you are an
old-timer now. You have been here for more than a year, but it
is great to have you here.
I want to point out that 99.9 percent--that number, I want
everybody to sort of keep in mind as we go through this hearing
today, 99.9 percent--99.9 percent, that is how accurate DNA
evidence is. One in 30 billion are likely to be wrong--one in
30 billion. Those are the odds that someone else committed a
crime and the suspect's DNA matches evidence at the crime
scene. Twenty or 30 years, as long as 30 years, depending on
how it is kept and stored, is how long DNA evidence from a
crime scene can last and be accurate. The FBI tells us since
1998, the national DNA data base has helped put away violent
criminals in 4,179 investigations in 32 States.
I might add, by the way, the focus of today's hearing and
some of the witnesses were back in the old days with me with
the Violence Against Women Act when we started raising these
issues and funding these so-called rape kits and trying to get
people to pay more attention to violence against women. One of
the things that we should point out, today, we are going to
focus, and I say this for the press here, on catching the bad
guy. But I want to make it clear to you--and that is the total
focus of today's hearing and how we do that and how we better
equip law enforcement to do that accurately.
But just those of you who think this is something about
civil liberties and we are somehow doing something that is
going to raise people's concerns, I want to point out to you
that DNA is a two-way street. Senator Specter and I also have a
bill relating to DNA that can free convicted people who are not
guilty of crime. DNA evidence is a two-way street. DNA evidence
can go out there and see to it that people wrongly convicted of
a crime, which happens not infrequently in our system, wrongly
convicted of crime go free. So this is not a one-way tool, it
is a two-way tool. But today, I want to focus on it one way.
When we started this process back in 1986 when I wrote the
Violence Against Women Act, in trying to figure out how could
we use the tools available to us through science and forensic
sciences in particular to see to it that we cut down on the
violence against women and captured those who perpetrated that
violence in the case where it is a stranger, which is about 30
percent of the time in rape.
We funded through the Violence Against Women Act an awful
lot of programs, one of which was we found that when at a crime
scene, particularly for rape, law enforcement officers were not
as fastidious in paying attention to gathering evidence, when a
woman who is a victim of rape or assault went to a hospital,
there was not nearly as much attention paid by nurses and/or
doctors to whether or not the woman was a victim of an assault,
and when it was clear that a woman had alleged that she had
been raped, there was not nearly enough attention paid to the
collection of the important data and evidence that would be
available and convincing in a trial when, in fact, and if, in
fact, a defendant was arrested for that case.
As a matter of fact--I am going to be parochial for a
minute--one of our witnesses I will introduce later in the
second panel is a nurse from Delaware. We had spent some time
after we passed that Act, my going back to my little State--it
is small enough to be able to do this--and gathering up,
literally, all the doctors--not all the doctors, but all the
doctors who headed the emergency rooms in my entire State. We
got them all together and said, hey, look, under this law now
we have passed, this Violence Against Women Act, there is a lot
of money available out there that we can get you, but we expect
you to do some things.
And we got volunteers to come in and sit in front of and
outside of emergency rooms so when a woman came in who said,
``No, I ran into a door,'' or was raped but did not want
anybody to know she was raped, there was someone to walk in and
hold her hand and say, ``Look, do not worry. We can not only
get you medical help here, but we can get you a police officer
to show up here in 10 minutes. We can get a judge to get you a
stay-away order. We can make sure,'' and so on and so forth,
very practical things, very practical, basic things.
And the irony is, we have come a long way and we have done
a lot, but we have not connected the last dot. We now have, as
one of the witnesses from Delaware will point out, a nurse who
heads up an organization called SANE, which makes sure we
fastidiously collect this data, we find out that an awful lot
of the data is just sitting around. We are not connecting the
dots. We are not connecting the data base we have of a criminal
convicted population with the data base we have of women who
have been the victims of rape and other crimes, because it is
not just rape. DNA deals with other crimes, as well. So how do
we do that?
For instance, in Florida, Kelly Green was brutally attacked
and raped in the laundry room of her apartment complex. Because
of the lack of funds for a rape kit, it sat on the shelf for 3
years until a persistent detective had it analyzed. The
evidence matched the profile of a man already incarcerated for
beating and raping a woman 6 weeks before Kelly. He was charged
and convicted in Kelly's assault. That is not important just
because of Kelly, just getting the bad guy. This is a guy who,
once he was released, could be out there doing the same thing
again. This is a guy who would do the same thing again.
In light of the past successes and the future potential for
DNA evidence, reports about the backlog of untested rape kits
and other crime scenes waiting on shelves in police warehouses
is simply unacceptable.
I have called this hearing today to hear firsthand how DNA
evidence is shelved and how it could solve so-called cold
cases. Today, I am introducing legislation, the DNA Sexual
Assault Justice Act of 2002, to connect the final dot between
the Violence Against Women Act and this, to strengthen the
existing Federal DNA regime as an effective crime-fighting
tool, and I hope to use today's hearings to get answers to five
basic questions.
First, exactly how bad is the backlog of untested rape kits
nationwide? In 1999, government reports found that over 180,000
rape kits were sitting untested on the storage shelves of
police departments and laboratories all across the country,
while recent press reports estimate that number today is
approaching 500,000 untested rape kits. Now, do you get this,
500,000 untested rape kits. That is 500,000 women who have
alleged they have been raped. Let us get the proportion of this
crime, 500,000, not a year, but 500,000. I am told there is no
current accurate number of what the backlog is. Behind every
single one of those rape kits is a victim who deserves
recognition and justice.
Accordingly, my legislation would require the Attorney
General to survey every single law enforcement agency in the
country to assess the backlog of rape kits waiting to undergo
DNA testing. It sounds like a big job, and we did that in a
number of areas in the Violence Against Women Act. It is not
that hard to do.
Second, how can existing Federal laws be strengthened to
make sure that State crime labs have the funds for the critical
DNA analysis needed to solve sexual assault cases? To fight
crime most effectively, we must both test rape kits and enter
convicted offenders' DNA samples into DNA data bases.
My bill would, one, increase current funding levels to both
test rape kits and to process and upload offender samples and
allow local governments to apply directly to the Justice
Department for these grants, just like they do on the Biden
crime bill for cops.
Third, what assistance does the FBI need to keep up with
the crushing number of DNA samples which need to be tested or
stored in a national data base? I am told that the current
national data base, known as the Combined DNA Index, CODIS, is
nearing capacity of convicted offenders whose DNA samples are
stored.
My bill would provide funds to the FBI, one, to upgrade the
national DNA computer data base to handle the huge projections
of samples, and two, to process and upload convicted offenders'
DNA samples into the data base.
Fourthly, the bill would provide additional tools--I want
to determine what additional tools are needed to treat victims
of sexual assault. One group that understands the importance of
gathering credible DNA evidence are forensic Sexual Assault
Nurse Examiners who are sensitive to the trauma of this
horrible crime and make sure that patients are not re-
victimized in the aftermath. Likewise, we have to ensure that
law enforcement officials are well trained in how to collect
and preserve DNA from the crime scene.
Thus, my bill creates a new grant program, one, to carry
out sexual assault examiner programs and training; two, to
acquire or improve forensic equipment; three, to train law
enforcement personnel in the handling of sexual assault cases
and the collection and use of DNA samples for use as forensic
evidence. This is not reinventing the wheel. We have done this
in the Violence Against Women Act and the crime bill in other
areas. This is all doable.
Fifth, what can be done to ensure that sexual assault
offenders who cannot be identified by their victim are
nevertheless brought to justice? Profound injustice is done to
rape victims when delayed DNA testing leads to a cold hit after
the statute of limitations has expired. Do you know what I mean
by a cold hit? That means after the statute of limitations is
expired for the rape, it finds out there is a connection. We
hit that data base and there is a connection. The DNA from the
rape kit acquired at the scene of the crime matches with a
defendant who is in the data base, or a convicted felon, I
should say--they are the only ones in the data base--and it is
too late. The statute of limitations has run.
For example, Jeri Elster was brutally raped in her
California home, and for years, the police were unable to solve
the crime. Seven years later, DNA from the rape matched the man
in jail for an unrelated crime. Yet, the rapist was never
charged, convicted, or sentenced because the California statute
of limitations had expired the previous year.
My bill would change the current law to authorize Federal
John Doe DNA indictments. Let me explain what that means. This
will permit Federal prosecutors to issue an indictment
identifying an unknown defendant by his DNA profile within the
5-year statute of limitations, which is the Federal statute.
Once outstanding, the DNA indictment would permit prosecution
at any time once there was a DNA cold hit through the national
DNA data base.
I want to make it clear now. We do not control State law.
There are very few Federal rape cases. This is not going to
solve the problem, but I want to set a standard, a national
standard to which States may consider to repair, and that is by
allowing for there to be the statute not tolling once the
indictment is brought against the DNA identified base.
So let us take a look at all of these issues this morning,
faster DNA testing, better treatment for rape victims, more
creative uses of sexual assault indictments, and how to make
sure that the State crime labs are participating in the
national DNA data base. The technology exists to bring solace
to countless victims and to make our streets safer in the
process. Our panel of experts will help explain the proper
role, and I look forward to hearing their testimony.
Senator Cantwell is here, and although it is usually our
practice to go to Republicans, they are probably voting right
now. Why don't I yield to the Senator in the last few minutes
if she would like to make an opening comment. Then we are going
to recess for a minute, go vote, because all those buzzers you
hear means there are about 3 minutes left in the vote, and we
will come back, and if Senator Grassley is here, he will make a
statement, and then we will go to the witnesses.
STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM THE STATE
OF WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. I appreciate
being recognized. You have certainly been a leader on the issue
of violence against women and I applaud you for that leadership
and also for having a hearing today and introducing
legislation. I look forward to working with you on this issue.
I want to also thank you for inviting Debbie Smith to
testify. She will be on the second panel. As you know, she has
been active in testifying on this issue both in the House and
making this issue known around our country. The Debbie Smith
Act will pay for DNA testing of 20,000 rape kits that are
currently gathering dust in police offices and labs all around
the country and will help us get more rapists caught and
convicted.
In my own State of Washington, DNA testing was used and
matched against a data base against the convicted I-5 rapist,
Jeffrey Paul McKechesnie, and that was critical for us in our
State. Washington State recently passed a law requiring that
all felons provide DNA samples, but like many other States, we
need to have the funding to make sure that those samples are
then checked against a data base.
So, Mr. Chairman, Senator Clinton, who I believe is going
to be here a little bit later, has also introduced legislation
and is strongly committed to seeing that the current lack of
funding of DNA testing is addressed. She is also a cosponsor of
the Debbie Smith Act and I have agreed to work with her on
combining these bills to best address this issue.
I want to thank her for being here and for her steadfast
vigilance in making sure that this issue gets national
attention, and I also want to thank her husband, who is a
detective with the Williamsburg Police Department for his
steadfastness in supporting his wife on this issue. Debbie
Smith's experience is really testimony to the power of DNA
evidence. It would have been impossible to solve a ``no
suspect'' case like Debbie's without the use of DNA evidence.
It took 6 years for the forensic evidence sample taken at the
time of her rape case to be cross-checked against the Virginia
data base of convicted felons, but when the comparison was
made, her attacker was found and he was sentenced to two life
terms plus 25 years.
Debbie Smith has put her own experience with DNA testing to
good use and having the courage to share her story has helped
us realize that the next sexual assault victim could be our
sister, our daughter, our wife, or our mother.
I believe this is legislation that we need to get passed
this year. According to the Department of Justice, a woman is
raped every 2 minutes. One in three women will be sexually
assaulted in her lifetime. In my home State of Washington, the
number of sexual assault cases is even higher. According to the
Washington State Office of Crime Victim Advocates, 38 percent
of women in my State have been sexually assaulted.
If women have the courage to come forward and report a
sexual assault and submit to the physical examination and
evidence gathering, we owe them the absolute guarantee that
that information, at a minimum, will be analyzed and checked
against a data base of known sexual offenders and violent
offenders. That is what Debbie Smith and every woman who is
sexually assaulted deserves to have done, and that is what I am
determined to see accomplished this year.
In order to do this, we need to provide funding that allows
States to build a data base of convicted felons and provides
for DNA testing in ``no suspect'' rape cases.
Women who are raped also deserve to receive respectful
treatment by people trained to collect and preserve this
forensic information. That is what the Sexual Assault Nurse
Examiner program, or SANE program, does. SANE nurses can make
the difference to women. In 1995, a young woman in Olympia,
Washington, was raped at gunpoint. She said that the SANE nurse
who collected the DNA evidence after the assault made her feel
at ease and more confident and comfortable. That was related to
the case that I mentioned earlier. The data was entered into a
data base and matched that of the convicted serial rapist, the
I-5 rapist and this resulted in an additional conviction
against him.
Today, we will be hearing from one of our witnesses about
the SANE program and its 200 operations nationwide, and because
the SANE program largely operates without Federal funding, its
expansion has been limited. Mr. Chairman, as you were pointing
out, this is something that needs to be addressed in the
legislation.
So I look forward to working with you on this legislation
and your commitment to see that the Debbie Smith legislation
and people like Debbie Smith will have their day and making
sure that more rape kits are tested and more rapists are put in
jail. I thank you, Mr. Chairman, for allowing me an opening
statement.
[The prepared statement of Senator Cantwell appears as a
submission for the record.]
Chairman Biden. Thank you. I can say to you, Senator, both
you and Senator Clinton and others who have similar
legislation, I am confident we can have an amalgam of the
legislation. I just want the broadest, most comprehensive bill.
I do not want to keep coming back and keep doing this. I want
to have something comprehensive enough that we answer all of
the issues here that are able to be answered and we find the
best single way to do this. I might make it clear, it is going
to cost money, but it is money well spent.
The time is out on the vote so we have got to take off for
a moment. We will recess for 10 minutes. Our first panel when
we come back will be Dr. Dwight E. Adams, Assistant Director of
the Laboratory Division at the FBI in Washington, D.C., and the
Honorable Sarah V. Hart, Director of the National Institute of
Justice, Department of Justice here in Washington, D.C., and we
will begin with them upon our return.
We will now recess for approximately 10 minutes.
[Recess.]
Chairman Biden. The hearing will come to order.
As you know, we have a tradition in the Senate where
members of the committee are the ones that participate in the
hearings, but we also have another tradition that has been long
honored, that if there is a Senator who is not on the committee
who has a keen interest in the subject matter, they are often
by the chair invited to participate. The way it works is, we go
through the regular committee order first and then move to that
Senator who is not a member of the committee.
The Senator who has joined us has an overwhelming interest
in this issue. When, I might add, she was in her former
incarnation, she--it is presumptuous of me to say this--along
with her husband were overwhelming supporters of the Violence
Against Women Act and it made my job a lot easier here to get
that passed. Also, I might add that she has a particular
interest since at least one of her cities has 16,000 of these
rape kits sitting on a shelf in Queens.
So I thank her for her leadership and I see her colleague
from New York is also here, the Senator who is a member of the
committee and has worked very hard on all of these issues, as
well, relating to violence against women, in this case, the
issue before us. I welcome them both.
This is the last bit of explanation I will give. The trade
bill is on the floor. Senator Grassley is a member of the
Finance Committee, as a matter of fact, the ranking member of
that committee, and so he is required to be there, as are
several others, but I am sure we will have people coming in and
out. Please do not, for those of you who are new to this
committee, it is not a sign of disrespect. It is a sign of the
fact that we are all on two or more committees, but this is
extremely important.
We will begin now with Dr. Adams. Excuse me. This is not
usually the way we do it, but the Senator from New York has an
opening statement he would like to make and he is welcome to do
it.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. I appreciate it, Senator, and I appreciate
your hard work on this issue, my colleague, Senator Clinton's.
I apologize to the witnesses. We have two or three hearings
going on this morning, so I appreciate the opportunity to make
an opening statement.
I want to salute the Chairman of the Crime Subcommittee for
the great work he has done. We have worked together on these
kinds of issues for a very, very long time, the Violence
Against Women Act which he carried and really led the charge in
the Senate and I carried in the House, and I want to thank him
for being here.
I want to thank my colleague, Senator Clinton, for her
strong interest in this issue, which long preceded her being in
the Senate, and now she is here in the Senate, able to help
join in the fight to deal with this sorry issue.
I also want to thank you, particularly. Dr. Adams, thanks
for your work, but I want to thank Ms. Smith for being here
today and for your courage, as well.
There are many challenges facing us in bringing justice to
sexual assault victims and many of them can seem very daunting.
From my time in the Senate and in the House, we have seen
progress. In the 106th Congress, I introduced legislation with
some others to help reduce the backlog of casework files
awaiting DNA analysis, and later in the session, and I know,
Joe, you were helpful in this, too, Congress authorized $50
million over 5 years to help States pay for DNA testing of rape
kits which hold the biological evidence collected from rape
victims after the attack. I was even happier when President
Clinton signed our law that authorized $125 million in new
Federal funding over 4 years to test thousands of rape kits.
In New York, we, of course, have known the problem of
having the rape kits sitting on the shelves. Well, imagine if
the police apprehended a suspect, took fingerprints, and then
threw the prints in a drawer, never to see the light of day. We
would be appalled. And that is exactly what was happening and
still is, so we need all the help we can get to continue the
funding to make sure that these rape kits are used.
For years now, rape victims arrived at hospitals after
being assaulted, then undergone the further trauma of physical
exams. The exams almost always result in the collection of
biological evidence subject to DNA testing, and then comparing
it to local and national DNA data bases in order to identify
the attackers. But despite the fact that women have endured
invasive physical exams after going through the trauma of rape
itself, and despite our ability to use the evidence to catch
rapists, which is just a blessing, there has not been enough
money to conduct the testing.
So thousands of rape kits, we know, languish in police
storage facilities across America without being tested, and
that is a scandal. Every one of those rape kits stands for a
person whose life has been turned inside out by a horrendous
and violent crime. Every one of those kits represents a rapist
who still might be walking the streets, and we know with rape,
recidivism is extremely high, as it is with all sexual
predation.
The new Federal money that has enabled States to start
clearing the rape kit backlog and begin giving these cases the
attention they so desperately need has to continue. Victims may
be able to rest a little easier at night. Rapists will not,
knowing that we are finally using the best tools.
Now, I would just like to bring to the attention--I know
you are aware of this, Senator Biden. I know you are putting
together comprehensive legislation, so one other issue. Last
fall, along with Senator DeWine, I introduced the SAFE Act,
otherwise known as the Sexual Assault Forensic Examiners Act.
Our bill aims to vastly improve the care of victims of sexual
assault and help to see that their attackers end up behind
bars.
Over 300,000 women are sexually assaulted each year, and
unlike all other violent crimes, rape is not declining in
frequency. So we owe it to her to do everything in our power to
put the assailants behind bars, and we also owe her prompt and
caring treatment when she has the courage to report a crime. We
all know the problem--we have worked on this long and hard--to
get victims to come forward. Yet, all too often, we fail in
these basic obligations.
Most rape victims who seek treatment go to hospital
emergency rooms. They often wait for hours in public waiting
rooms. Many leave the hospital altogether rather than endure
extended delay, decreasing the likelihood that the offense will
ever be reported or prosecuted. And once victims are finally
attended to, most of them are treated by a series of naturally
rushed emergency nurses, doctors, and lab technicians, given
the shortages we face in health care, and they lack specialized
training in the particular physical and psychological care rape
victims need.
Emergency room nurses and doctors all too often have little
training in collecting, correctly handling, and preserving
forensic evidence from rape victims, and moreover, many
hospitals lack the latest forensic tools, such as the dye that
reveals microscopic scratches, and colposcopes, which detect
and photograph otherwise invisible pelvic injuries. Finally,
emergency room personnel are sometimes reluctant to cooperate
with police and prosecutors in sexual assault cases, knowing
that this involves time consuming and difficult interviews,
witness preparation, et cetera.
Well, the SAFE program has solved all of this, and SAFE
programs dramatically improve the situation. SAFE examiners are
specially trained in the latest techniques of forensic evidence
gathering and cooperate fully with police and prosecutors, and
their specialized training and experience makes them better
witnesses in court. So when defendants claim consent and
physical evidence of force, which can be difficult to uncover,
the SAFE program helps make sure that is preserved.
I know that you are concerned about this, because our
staffs have talked, and I know you are considering a broad-
based bill, and I would just hope that a SAFE program, such as
the one that Senator DeWine and I have--I know you are eager to
put this in, but I hope it goes into the bill, as well.
I want to thank you, Senator, for your hard work on this,
again, my colleague for an issue that concerns us very much in
New York, and the witnesses for their work in this area, and I
apologize.
Chairman Biden. No, no, no, there is no need to apologize.
The objective here is to have the most comprehensive and
thorough piece of legislation we can.
Since we have done this, I yield to Senator Clinton if she
wants to make an opening statement.
STATEMENT OF HON. HILLARY RODHAM CLINTON, A U.S. SENATOR FROM
THE STATE OF NEW YORK
Senator Clinton. Mr. Chairman, I want to thank you for your
leadership, which goes back so many years. We have made so many
steps forward in fighting crime because of you and your
commitment and your passion.
I also want to thank all of the witnesses who are here
today, especially Debbie Smith. I thank you for coming forward
and being part of this effort to, once and for all, make clear
that sexual assault is going to be given every possible
resource we need in order to combat it.
I will also acknowledge my friend and a witness today,
Linda Fairstein, who has really pioneered the work against sex
crimes, as the former Chief of the Sex Crimes Prosecution Unit
in New York County, Manhattan. Linda has really, I think,
opened the door to the prosecution of these terrible crimes and
I thank her for being here, as well.
Mr. Chairman, I would just reinforce the need for a
comprehensive bill. I know that our colleague, Senator
Cantwell, has been working very diligently on what we are
calling the Debbie Smith Act, I think very well named, to train
Sexual Assault Nurse Examiners, law enforcement personnel, and
first responders in handling sexual assault cases and for
setting minimum standards for forensic evidence collection.
That is something that Senator Schumer pointed out in his
opening comments and it is so important, because once we do
have a woman who comes forward and is willing to speak out
against her rapist, we need to make sure that the evidence that
she brings to that event in a police station, an emergency
room, wherever it might be, is collected appropriately so that
it can be used.
And then, of course, we have got to clear this rape kit
backlog, I mean, not only in order to bring to justice those
rapists and sexual assault predators who can be captured,
prosecuted, convicted, and imprisoned because of this evidence,
but to prevent them from striking again. We can prevent crimes
if we really get to work on this backlog. We have made some
progress, but not nearly enough. It is, like Senator Schumer
said, to have this kind of evidence available and not examine
it and use it for prosecutions is like setting up a crime tip
hotline and not have anybody answer the phone. It makes
absolutely no sense. This is one area where we know what it
takes to not only prosecute the guilty, but prevent them from
ever striking again.
I look forward to working with you and I thank you so much
for your long-time work and for this hearing, Mr. Chairman.
Chairman Biden. Well, thank you. You are not going to like
what I am going to say, Senator Clinton, but the fact that you
have taken on this issue has given it a vitality that, quite
frankly, it would not otherwise have, because of your
involvement. Because of your national and international stature
on women's issues, it is a big deal, and for that, I thank you.
I mean, you could have picked a lot of other things to focus
on, and quite frankly, as they say, those who are baseball
fans, you put some pace on the ball for us here and I thank
you.
Senator Clinton. Let us bring it home.
Chairman Biden. By the way, we talk about rape kits. Just
so, when we are talking about it, the audience wonders what it
is. There is an actual kit that looks like this. This is the
kit. On the outside, it has all the data. It has the victim's
name, it has the hospital, the clinic, it has the date it is
received, the laboratory numbers, and all the rest. So when we
talk about a rape kit, that is what we are talking about, in
case anybody wonders. We have been doing this so long, we get
kind of caught up in the jargon and people wonder, what are we
talking about?
Our first two witnesses we have today are designed to give
us some hard nuts and bolts information here. They share our
view there is a need to do something, but let us find out from
Dr. Adams and from Ms. Hart what we are talking about here and
the value and the science behind some of this.
Let me begin with you, Dr. Adams, if I may, and then go to
you, Ms. Hart. The floor is yours.
STATEMENT OF DWIGHT E. ADAMS, ASSISTANT DIRECTOR, LABORATORY
DIVISION, FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, D.C.
Mr. Adams. Thank you. Mr. Chairman and members of the
Subcommittee, thank you for the opportunity to share our
experiences with DNA and the FBI's Combined DNA Index System,
otherwise known as CODIS.
To date, CODIS has assisted in identifying a suspect or
linking serial crimes in nearly 5,000 investigations. Each of
you have probably read stories of CODIS hits happening in your
local jurisdictions. One recent hit at the national level
solved seven rapes committed over a 5-year period in three
States, ranging from the West Coast to the East Coast. A 1998
rape in California was initially linked to a 1995 rape
committed in Phoenix, Arizona. The 1995 rape also was linked to
three other rapes in Arizona. The California and the Arizona
rapes were later linked to a rape in Florida by the National
DNA Index System. Ultimately, it was linked to a convicted
offender included in Florida's DNA data base.
The interesting point about many of these hits is the
information they provide about the offending population. First,
they confirm that criminals are mobile. But they also provide
us with insights that allow us to link seemingly different
crimes.
For example, in New York, one rape involved an elderly
woman, the other, the rape of a 7-year-old, and yet DNA linked
these two crimes together, linked two crimes that likely would
not have been seen to have been committed by the same
individual, according to investigators.
We are here today to discuss issues that some could
characterize as arising from being a victim of our own success.
First, let me make it clear that the success of CODIS is
largely attributable to the cooperative efforts of the criminal
justice community, law enforcement, victims, Sexual Assault
Nurse Examiners, prosecutors, and, of course, the crime
laboratory personnel, Federal, State, and local crime
laboratories.
Second, I think that the success of CODIS is calling our
attention to other areas that we need to address in order to
make the most of DNA technology. One area highlighted by our
early surveys of crime laboratories was the growing backlogs of
convicted offender samples that had been collected by the
States but were never analyzed. The Commission on the Future of
DNA Evidence addressed the backlog issue immediately and
recommended to the Attorney General that Federal funding be
made available to assist the States in reducing their backlogs.
The Attorney General requested funding for the analysis of
these convicted offender samples and Congress responded
favorably to these requests with the DNA Analysis Backlog
Elimination Act of 2000.
While the convicted offender backlog may be easier to
quantify, it is also a moving target given the heightened
legislative activity. Over the past couple of years, there have
been hundreds of proposals introduced in States to expand the
offenses covered by State DNA data bases. They begin with an
incremental approach by phasing in the coverage of certain
felony offenses. They then go to covering all felony offenses,
and finally, to include persons arrested or at least indicted
for certain offenses.
While just a few years ago a handful of States covered all
felony offenders, there are now 19 States with laws that
authorize the collection of a DNA sample from all felons. Given
this level of legislative activity, the reality----
Chairman Biden. Doctor, State law authorizes this?
Mr. Adams. Yes, that is right. Given this level of
legislative activity, the reality is that new offender backlogs
will continue to be created as States expand their existing
data base laws.
Hand-in-hand with the convicted offender backlog is the
need to analyze all cases having DNA evidence, whether or not a
suspect has been identified. This relates specifically to rape
kits that laboratories have received, and more commonly, kits
that law enforcement agencies have collected and stored but
have never identified a suspect and have not submitted them to
crime laboratories.
We know that having data of convicted offenders alone in
the national data base will not solve crimes, and we cannot
ignore cases that have no suspects, typically sexual assault
cases. We are particularly concerned about these types of
cases, those without suspects, since these are precisely the
cases that CODIS was originally designed to address and,
hopefully, solve.
Unlike the convicted offender samples, which are
inventoried by crime laboratories, you cannot obtain the true
scope of the rape kit backlog by going to crime laboratories
alone. That number would only represent a small fraction of the
total, since most of those rape kits are stored in evidence
rooms or freezers of local police departments around the
country.
What we do know is that there are cases, ones for which law
enforcement have no suspects and no leads, that can potentially
be solved by CODIS. We also know that the forensic index in
CODIS containing the crime scene evidence is complementary to
the convicted offender index. We need to populate both of these
indices in order to have a successful CODIS program.
Our annual surveys of CODIS laboratories around the country
seek to track the number of samples being collected and
analyzed to ensure sufficient capacity for our CODIS program. A
few years ago, we began to realize that the success of these
DNA data bases translated in the need for greater capacity
within CODIS. With the approval and support of Director Mueller
and the Attorney General, the FBI is undertaking the redesign
of CODIS to enhance the system's storage and searching
capacities and to improve more immediate access to national
searches.
Efforts began several years ago to develop new matching
algorithms, allowing these searches to be done in less than a
second, allowing them to be done in real time, and that is
paying off. We are now planning the integration of this new
search engine into CODIS even now. The redesign will size CODIS
to accommodate the estimated 50 million DNA profiles and permit
searching of the national index as soon as the data are
uploaded.
Hardware and software maintenance costs in the 153
laboratories around the country will also be reduced because of
the redesign of CODIS. As laboratories work to increase their
capacities and eliminate their convicted offender and casework
backlogs and the FBI redesigns CODIS for these larger
capacities, we must publicize the benefits of this technology
to eliminate as well as incriminate suspects. Efforts to train
law enforcement personnel in the proper procedures for
collection and storage of DNA evidence must continue.
As I mentioned in the beginning, the cooperative efforts of
the criminal justice community are responsible for the success
of CODIS. The issues that have arisen out of these successes,
such as backlogs, lack of capacity, lack of personnel, these
can all be resolved. To quote from a recent article by Anna
Quinlan of Newsweek, she said the solution is more money and
more people for DNA testing. She went on to say that DNA was
more reliable than other forms of evidence. She said that the
genetic fingerprint we humans leave everywhere in our wake is
the best witness the criminal justice system has ever had.
Mr. Chairman, I have a friend and his name is Bill
Showalter. Bill Showalter lost his two granddaughters a few
years ago. They were simply on their way home from school, but
they were a victim of an abductor, of a rapist, and a murderer.
Every time I see Bill Showalter, I am reminded that we have not
solved that crime yet, and I ask myself a question each time I
see Mr. Showalter. Are we doing everything we can to answer the
question of who committed this crime? Quite frankly, the 153
laboratories across this country that are doing DNA testing now
are doing all they can with what they have, but we could do so
much more, and these backlogs are an example of what more could
be done with a larger capacity.
In closing, Mr. Chairman, I would like to commend you for
addressing these important issues. Your spearheading this act
is commendable and, we believe, will enable the criminal
justice system to use this new forensic tool to its fullest
extent. Thank you very much.
Chairman Biden. Thank you.
[The prepared statement of Mr. Adams appears as a
submission for the record.]
Chairman Biden. Ms. Hart?
STATEMENT OF SARAH V. HART, DIRECTOR, NATIONAL INSTITUTE OF
JUSTICE, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Ms. Hart. Thank you. Thank you, Mr. Chairman, and thank
you, members of the Subcommittee. As Director of the National
Institute of Justice, I am very pleased to come here today and
testify about this very, very important issue and I must echo
many of the remarks that were said by my colleague, Dr. Adams,
here today.
With the strong support of Congress, the Department of
Justice, through NIJ, has served as a leader in the national
effort to maximize the benefits of DNA evidence. Over the past
5 years, we have seen a national explosion in forensic DNA
collection. All 50 States and the Federal Government now have
laws requiring DNA collections from convicted offenders, and
advances in DNA technology have led to more DNA tests in crime
scene evidence.
More DNA collected, however, means more DNA analyses.
Today, there are literally hundreds of thousands of samples
from crime scenes and from offenders that are awaiting
analysis. The longer this evidence goes unanalyzed, the longer
crimes go unsolved. And for the victims of crime, especially
victims of the most violent crimes, justice delayed is truly
justice denied.
Use of DNA evidence holds great promise for the criminal
justice system. It ensures prompt, reliable verdicts and often
leads to guilty pleas. Those guilty pleas can spare fragile
sexual assault victims and child victims the trauma of trial
and save taxpayer dollars. Using DNA evidence promotes
fairness, confidence, and certainty in the administration of
our nation's laws.
For this reason, this administration is fully committed to
continuing efforts to enhance the use of DNA evidence. Attorney
General Ashcroft personally authorized the transfer of $25
million in asset forfeiture funds to NIJ for DNA backlog
reduction. At the Attorney General's direction, the National
Institute of Justice has convened a working group of over 25
national DNA experts. These experts are making recommendations,
both short-term and long-term, about how to get the greatest
public safety benefit from this very, very promising
technology.
This strong support complements Congress's funding in this
area. In fiscal years 2000 and 2001, approximately $37 million
per year was made available to the States for DNA and other
forensic support. In fiscal year 2002, approximately $80
million was made available, in addition to the $25 million in
asset forfeiture funds.
NIJ has also sought to maximize the benefits of DNA
evidence through a variety of programs. NIJ negotiated
favorable testing rates for States through private vendors to
increase the number of tests that could be performed with
Federal dollars. NIJ also required States to analyze ``no
suspect'' cases as part of a matching contribution requirement
for Federal DNA funds.
As a result, over 400,000 convicted offender samples and
11,000 crime scene samples have been tested. So far, and
although we are awaiting further information on this, we know
of 900 hits based on this program.
NIJ is also leading research to make DNA technology faster,
cheaper, and better. One project which is currently in the
prototype stage, and I am going to hold something up here and
try not to cut myself with this, this is a DNA chip. It is a
prototype. You cannot really see it here, but there are very,
very narrow little lines on this. This is part of our effort to
miniaturize today's instruments, to speed the analysis of DNA
and alleviate the overcrowding in the public crime labs. What
it means, if we can make these smaller, faster, better, we can
do more DNA analysis with the limited funds we have available.
NIJ also developed standard reference materials, which are
kind of the gold standard of the DNA industry. These are used
to test machines and make sure that we have integrity in the
DNA analysis that is performed out in the field.
In addition, we have worked very hard to make sure that
information has gotten out to the field. We have a number of
publications here today, but let me just hold up one for you.
This is, ``What Every Law Enforcement Officer Should Know About
DNA Evidence.'' This is the CD-ROM. We have a pamphlet. This is
our most popular hit on our website. We also provide pamphlets
to crime victims and people dealing with--and also for
identification of victims of the World Trade Center so the
victims' families understand how DNA technology can be used to
identify those victims.
Despite these remarkable advances, there are, however, some
impediments to our ability to maximize the use of DNA evidence.
There is, as Dr. Adams noted, a very serious backlog consisting
of both convicted offender samples and crime scene samples. The
backlog of crime scene samples is effectively increasing as
States go back and reexamine old cases to see whether they can
use DNA evidence to solve these old crimes.
At the same time, we are having an increase in convicted
offender samples. We have not only the large number of samples
that have been collected but not yet tested, we have a lot of
samples that are owed, samples that are required to be
collected from convicted offenders by State laws where the
samples have not yet been taken.
In addition, States are continuing to amend their DNA
collection statutes. For example, in Florida, when Florida
added only one additional non-violent offense to its collection
statute, this resulted in 40,000 additional samples in just 1
year.
In order to maximize the use of DNA evidence, we, frankly,
need a very balanced approach. We need to be expanding our DNA
data base first. Second, we need to have competent collection
of crime scene evidence. And third, we need to have timely
testing of that evidence that is collected. If any of those
elements are missing, crimes that could be solved will not be
solved.
But there are also other issues that Congress may want to
consider, and I know, Chairman Biden, that many of these are
also contained in what you have just introduced and we look
forward to working with you on these issues.
Congress could consider encouraging States to expand their
DNA collection statutes, and there are two particular ways that
that could be done. Many States have DNA collection statutes
that only apply to offenders convicted after a certain date.
The problem with this is, Federal dollars may be being used to
test convicted offenders as they are coming in the door of the
prison. They may be there for a long period of time. But we are
not testing the convicted offenders who are going out the back
door because they were convicted prior to the effective date.
Those are the first people we want in that----
Chairman Biden. They are the ones we should be testing.
Ms. Hart. Absolutely, Chairman. In addition, Congress may
want to consider encouraging States to expand the offenses that
are covered. The current trend is to move to an all-felons
statute, and that is what a number of States are doing.
Congress may also want to consider whether to permit DNA
profiles that are lawfully collected under State law to be
placed in the Federal data bank. If States, for example,
authorize the collection of DNA samples from juveniles,
adjudicated delinquents, of rape, or arrestees, Congress should
consider whether to allow those profiles to be used to solve
these very, very serious crimes.
And finally, Congress should also consider, as you have
suggested, Chairman Biden, extending the statute of limitations
to permit prosecutions of sex offenders identified through DNA
testing.
This administration strongly supports increasing this
nation's capacity to use DNA evidence. This technology holds
such promise for solving and preventing some of our most
serious crimes. Maximizing the use of DNA evidence, especially
with crimes involving women, will continue to be a priority of
this administration and we very much look forward to working
with the committee on these very, very important issues. Thank
you.
Chairman Biden. I thank you very much.
[The prepared statement of Ms. Hart appears as a submission
for the record.]
Chairman Biden. I worked for years with the Attorney
General when he was here in the Senate. Although we had
disagreements on some matters of philosophy, we worked very
closely on this issue. I am confident that we will get strong
support from the administration.
I might add, by the way, what we have done is a side-by-
side comparison I would like the Justice Department to take a
look at of the various major pieces of legislation relating to
DNA, including the comprehensive bill that you referenced that
I am introducing today. But Senator Cantwell has a very good
act, Senator Clinton, Senator Torricelli, Senator Schumer. I
think you will see that what we did is we basically
incorporated all the elements that you have asked into it, but
we would very much like to invite your constructive criticism,
and I mean it sincerely. The Justice Department and
particularly your outfit, Ms. Hart, have been an incredible
resource to me for the past 20 years, so I mean it sincerely.
Your constructive criticism would be very much appreciated.
I hope to have another hearing if we get down to the
details here as to exactly what the final legislation should
look like, because I have no pride of authorship. I just want
to have the pride that whatever we pass is all encompassing.
Ms. Hart. We very much look forward to working with you.
Chairman Biden. Now, what I did not do, and I want to take
the time to do now, just to take a second, because I went to
additional opening statements, I am going to give our audience
a sense of who is before us.
Dr. Adams, who has already testified, was recently
appointed to head the FBI's Laboratory Division, whose career
at the FBI makes him particularly well suited to walk us
through, as he did, the process of collecting and analyzing DNA
evidence. From 1987 to 1993, he served as a chief in the FBI's
DNA Assault Unit and was the first FBI agent to ever testify in
court on DNA evidence. Previously, he served on the research
team that developed and validated DNA testing procedures that
would withstand judicial scrutiny. In 1997, he became the
Section Chief of the Forensic Science Research and Training
Center, and then the Chief of the Scientific Analysis Section.
Dr. Adams has served as a member of the national board for
the Journal of Forensic Scientists, as editor of the Forensic
Science Communications, and as a member of the DNA Advisory
Board established by the DNA Identification Act of 1994, which
was part of the larger legislation. He also served on Attorney
General Reno's National Commission for the Future of DNA
Evidence.
Also, I want to mention a little bit about Ms. Hart. She is
the Director of the National Institute of Justice at the Office
of Justice Programs in the Department of Justice. From 1995 to
2001, Ms. Hart served as chief counsel to the Pennsylvania
Department of Corrections. Prior to that, she spent 16 years in
the Philadelphia District Attorney's Office, where, I might
add, there are more felonies prosecuted in 1 year in that
office than the entire Federal system, do you hear me, in the
entire Federal system in an entire year.
Ms. Hart is a graduate of Rutgers Law School, but much more
importantly, she received her Bachelor of Science degree in
criminal justice from the University of Delaware.
[Laughter.]
Chairman Biden. She also went to Concord High School, which
is in my neighborhood.
[Laughter.]
Chairman Biden. But at any rate, it is a pleasure to have
you both here, and I think it is just important that people
understand that we are not just having a little political
discussion here. We have two bona fide experts before us.
I would like to, if I may, start with you, and I will yield
then to Senator Clinton. I suggest to Senator Clinton, since we
are the only two here, do not hesitate to jump in--I mean it
sincerely--if you want to expand on or move off of anything I
add.
Dr. Adams, I want to ask you about the two data bases for
comparing DNA because I think it is important. We have got to
have the pieces to know how to put this puzzle together.
First of all, various States collect DNA evidence for
varying crimes. There is not a standardized system out there
where every State in the union for the same number of
particular crimes attempt to collect DNA evidence, is that
correct?
Mr. Adams. If you are talking about convicted offenders----
Chairman Biden. Convicted offenders.
Mr. Adams. Yes, sir, that is correct. Right now, there are
19 States which collect DNA samples from all felons, and there
are approximately between ten and 15 States that are looking at
legislation to increase it to all felons.
Chairman Biden. Let me be more specific. In terms of the
data bases for comparing DNA, the first is the combined DNA
identification system, which I will call CODIS. C-O-D-I-S is
the acronym, that we call it CODIS, correct?
Mr. Adams. Yes, sir.
Chairman Biden. I understand that 153 crime labs in 49
States participate in this CODIS system.
Mr. Adams. That is correct.
Chairman Biden. A subset of those labs in those States then
also participate in another system, the National DNA
Identification System known as NDIS, correct?
Mr. Adams. Yes, sir.
Chairman Biden. Now, specifically, I am told that 127
laboratories in 41 States participate in NDIS.
Mr. Adams. That is right.
Chairman Biden. I know you know all this. This is more for
me because I am sort of pedantic about this. You have in CODIS
153 labs in 49 States. Participating in NDIS, you have 127
laboratories in 41 States, right?
Mr. Adams. It is actually 40 States and one Federal
laboratory, yes.
Chairman Biden. And one Federal laboratory, OK. Now, it is
my understanding that these two data bases, the State system of
CODIS and the national system, NDIS, are not always connected
to each other. It is similar to how the stand-alone computer in
my home, just to show you how we are here in the Senate--the
stand-alone computer in my home is not connected to the
computers in my office, all of which are hooked into the same
network such that they can talk to each other, but not my home
computer. But my Senate computer is connected to the system
where they can all talk to one another, but my home computer is
not connected to that system.
Under this analogy, a State crime lab which belongs to
CODIS may or may not be able to talk to NDIS, the National DNA
Data base, is that correct?
Mr. Adams. Yes, sir. I think the end goal is to have all
laboratories in all States a part of the national system. That
is the end goal. Right now, there are 40 States that are a part
of that national system.
Chairman Biden. But again, to make sure we set this up to
know what we are dealing with now so we know what we have to
fix--we have got to know what is broken before we know what to
fix. It is my understanding that the State laboratory is not
part of NDIS. It can only use the CODIS software to compare DNA
samples taken from a particular State.
For example, if State A belongs to CODIS but not to NDIS,
State A may check only the DNA samples from a rape kit against
convicted felons in State A, not against the national data
base, correct?
Mr. Adams. That is correct.
Chairman Biden. All right. Now, although I am told there
are some exigent circumstance type exceptions which would
permit non-NDIS States to avail themselves of the national data
base, we will leave that aside for a moment.
As mentioned above, the laboratories in 40 States
contributed DNA profiles to the national, the NDIS system,
correct?
Mr. Adams. Yes, sir.
Chairman Biden. Now, what is required for a State lab which
is already a member of CODIS to become a member of NDIS, of the
national DNA data base? And the reason that is important, I
want to make it clear, the recently nailed, up in Philadelphia,
the Rittenhouse rapist who raped a whole lot of people,
murdered young woman, it turns out he was military. He got
transferred, ended up out in San Diego, got arrested for
similar activities out there. It turns out the DNA matched.
Now, he has not been convicted, but the DNA matched.
If the State were only part of CODIS, they would have never
gotten themselves into this national data base, or maybe they
found it out some other way, but they would not be able to. The
Pennsylvania folks, if they were not part of NDIS, when they
ran that DNA match through CODIS would not have picked up the
California arrest, assuming California was in NDIS, correct?
Mr. Adams. Yes, sir.
Chairman Biden. Now, explain to me, if you would, how a
State that is a member of CODIS becomes a member of NDIS.
Mr. Adams. Yes, sir. There are currently ten States that
are not a part of the national system yet. Eight of those
States are well along the way to becoming a part of the
national system. In fact, Delaware is scheduled for
incorporation into the national system on May 20.
The system is quite easy. First of all, the State sends the
FBI a letter requesting to be a part of the national system.
That State enters into a memorandum of understanding with the
FBI and they agree to abide by the DNA Identification Act of
1994, which involves recordkeeping procedures as well as
quality control procedures. They follow a national DNA index
system procedures manual and they undergo proficiency testing
as well as audits in their laboratory and then agree to the
reporting and confirmation of hits as a part of the manual.
Once all of that is completed, then they are a part of the
national system.
Chairman Biden. So the bottom line is, if they want to get
into the national system, they have to standardize the
procedure consistent with what the Federal guidelines are
relating to how and what and when all this data--how the data
is collected, et cetera, so you are dealing from the same deck,
everybody is dealing with the same national standard, is that
correct?
Mr. Adams. That is correct, yes, sir.
Chairman Biden. And we do not mandate that to them. We say,
you are just not in if you do not do it, right?
Mr. Adams. Right. Yes, sir.
Chairman Biden. Now, one of the things that--I am going to
shift to you, Ms. Hart, if I may--you mentioned a number of
things that we have to be aware of. One is the assessment,
first of all, of the backlog, and we have all kinds of talk
about how big the backlog is. As I said in my opening
statement, some estimates are as much as 500,000. I have no
idea whether that is correct or not, but do you think that in
our legislation, the legislation I have introduced here, is it
a doable goal to be able to assess each jurisdiction and get
the number of backlogged cases? If we passed this law and it
dropped onto your lap, what does it mean to you?
Ms. Hart. I think at this point, it would be extremely
difficult because the business of law enforcement in this
country is very fragmented, and in order to get a true picture
of this, you need to understand what crime scene samples are
out there and what are awaiting testing. We have over 17,000
different police departments in this country, and you can have
evidence sitting on a shelf that the State lab has no idea that
is out there.
At this point, we know we have a major problem. We know we
have a major backlog. The Attorney General has convened
national experts to make recommendations about how best to
address it. But to go out and count it would be an
extraordinary expenditure that I, frankly, do not think would
inform public policy the way it would need to.
Senator Clinton. Could I ask, Mr. Chairman, Ms. Hart, then
what would be the most effective means in your judgment to
begin to tackle this backlog? We were making great progress in
New York City, as you know. There was a concerted effort at the
city level to put funds into clearing up the backlog, and then,
of course, with September 11, that work had to stop. How would
you best advise us to get at the backlog issue?
Ms. Hart. I think there are a number of different
approaches. I think that it requires a comprehensive approach
that increases the capacity of the State and local governments
to collect the evidence, to test it timely, and to match it,
because, obviously, it requires both. If you just test the
sample and you do not test the convicted offender, you do not
match it. You have got to have testing on both ends of it.
I think there are some things that Congress could do to
increase the flexibility of the funding. One of the things that
could be done, for example, is to permit us to provide the
funding for ``no suspect'' cases not just to the States, but
also to local governments.
Senator Clinton. I love hearing that.
Ms. Hart. One of the more troubling statistics that I heard
was that Los Angeles had 3,000 unsolved homicides with physical
evidence collected but not yet tested. How can we possibly not
try to address that kind of serious crime, and we do not have
that flexibility now.
Senator Clinton. That would be----
Chairman Biden. Our bill does do that. We provide you that
flexibility.
But let me ask you this question, because we should both
keep doing this. The question that Senator Clinton asked you
related to how to deal with the backlog. Maybe I have been
doing this too long, but one of the things in order--for
example, to put this into perspective, and this will be the
headline in my paper, but my bill costs almost $1 billion. That
is how much it costs. I will go through it in a minute, but
that is the total cost for a 4-year period, almost $1 billion.
It goes far beyond just testing these existing kits.
But my point is this. In order for us to attach a number to
what we are going to ask the appropriators to appropriate, we
have to have a relatively sound judgment as to what the extent
of the backlog is. For example, if the backlog is, nationwide,
1,000 cases, that is one thing, because we are talking $500 to
$1,500--I want to get back to this in a minute--$500 to $1,500,
and I want to talk about the discrepancy, to test one of these
rape kits, for example, to get it in the data base. So that is
a lot of money.
So if we are talking about only 1,000 of these sitting on
the shelf, that is one thing. If we are talking about 500,000
of these sitting on a shelf, that is another thing, and I
realize we are talking about a lot more than just a rape kit.
We are talking about physical evidence that goes beyond what
would be in this rape kit.
So what I want to try to get a handle on and need some
advice on, or we need some advice on, is how do we get a
relatively accurate assessment, or do we just make an educated
guess as to how much backlogged evidence there is sitting out
there for us to get tested and put into the computer?
Mr. Adams. Mr. Chairman, I would have to agree with Ms.
Hart in her assessment that it is a difficult number to grab
hold of, and the reason is it is a moving target. If we leave
the sexual assault kits aside and look just at the convicted
offender samples, we know right now that there are at least
600,000 samples that have not been analyzed yet. However,
States are ever increasing their offenses that they want to
include. And so you may have a State like Virginia, which has
already enacted legislation for 2003 which will begin to take
samples from arrestees. What will that do to those numbers,
then, of the backlogs?
So when we are talking about the numbers of States that are
increasing the offenses, we are talking about a moving target.
We already know where it is right now, but we know it is going
to be greater even next year.
Chairman Biden. And I think that is a really important
point to make here. It seems to me that although we hope we are
going to be able to spearhead a major effort on this, it seems
to me there is some State responsibility. When States pass
these laws to collect this evidence, I find it interesting.
Some of my most conservative friends love to pass these laws,
but then when it comes to paying for it, as to how it is going
to do anything other than just sit there in a hole, never
tested, I mean, there is not much value if we do not have it
tested, if we do not have it in the data base.
Senator Clinton. And, you know, the irony, Joe, is that the
New York City medical examiner tells us that the costs for
testing the rape kits come down the larger numbers that you
test. It becomes, like many other things, an economy of scale,
that you get some good cost-effective results because you have
got an operation going that has qualified people who know how
to keep quality control measures and the economics work out
better. So it is kind of a chicken-and-an-egg issue. We need to
get enough capacity out there to be able to do this job, and
the more capacity we have, the cheaper it will become to
actually process the evidence.
Mr. Adams. Mr. Chairman, I would like to point out one
thing that I found very interesting. Last week, I attended an
advisory board committee for the Royal Canadian Mounted Police.
They are experiencing the very same difficulties with backlogs
and they are looking at passing on those expenses to the
provinces. But what the provinces are doing, they are taking
those cases and only sending a few forward because of the
expense. It is in their responsibility, not at the Federal
level. So those very cases which CODIS would go to solve are
being held back by the provinces because they do not want to
pay for that expense.
Chairman Biden. I am going to submit the entire legislation
to both of you, if I may, and ask for your critical analysis,
if you would. There is no urgency in terms of days, but within
the next several weeks, if you get a chance to look at it. I
have great respect for both of you and I truly, truly would
like your input. We are making it available to the Justice
Department, to the Attorney General, as well, but any input you
have would be very, very much appreciated.
Ms. Hart. I know that in my discussions with people at the
Justice Department, there is a shared commitment to this.
Chairman Biden. I agree.
Ms. Hart. This is something that people truly care deeply
about and the Justice Department, I know, is looking forward to
working with you on this.
Chairman Biden. If past is prologue, I drafted a crime bill
back in 1985 and it took until 1994 to get it passed. The one
thing that no one wanted to do, and I, as they say in the
jargon, got beaten up constantly for it was--thank God, the
cops helped me--was it cost a lot of money. It was $30 billion.
The Biden Crime Act, which became the Clinton legislation that
was finally signed by the President cost $30 billion over 5
years. No one wanted to hear those numbers.
But I think there is a little thing called truth in
legislating, truth in legislating. For years and years, State
legislature and the Federal Government decided to get tough on
crime by upping the penalties but building no prisons. They
decided they are going to get tough and add all these new
crimes, but built no prisons, did not add any new cops. So I
think we should just have a little bit of truth in advertising
here. This is going to cost, to do anything effective over the
next 4 years, a minimum, a minimum of a half-a-billion dollars,
and probably close to $1 billion.
So if we mean what we say, if we really care about this,
then we will make the investment, just as we did in the Crime
Control Act, which worked. With your help, we will make this
even better legislation.
I thank you both very, very much for being here. As you
know from experience, we will be asking you to come back again
as we refine this. But in the meantime, thank you for being
here and thank you for your expertise and your commitment. Do
either of you want to make a closing comment?
Mr. Adams. No.
Ms. Hart. No.
Chairman Biden. Again, thank you both.
We will now move to our second panel, and I would ask them
to come forward as they are called. Our first witness will be
Debbie Smith, a victim of sexual assault whose crime was solved
through the use of DNA analysis. In 1989, Debbie was abducted
from her home in Williamsburg, Virginia, and raped in the woods
behind her house. For years afterwards, investigators were left
without any clue as to the identity of her attacker, but after
six-and-a-half years, a cold hit in the Richmond, Virginia DNA
lab revealed his identity. After a lengthy trial, he was
convicted and sentenced to life without parole. Since then,
Debbie and her husband, Robert, a 23-year veteran of the
Williamsburg Police Department, have worked tirelessly to
educate the public on the use of DNA in sexual assaults.
Debbie, I have been doing this for 29 years and I realize
how difficult, no matter how many times you do this, I realize
how difficult it is, and remember our deal. If any of us wander
into any area you do not even want to talk about, you just nod,
and I promise you, although I am reluctant to tell any Senator
to be quiet, I will even do that to my two colleagues.
Ms. Smith. Thank you.
Chairman Biden. So the rules are set by you here, all
right?
Ms. Smith. OK.
Chairman Biden. Our second witness will be an old friend
who was deeply involved in the Violence Against Women Act and
national legislation and we have been calling on Linda
Fairstein. She spent 30 years in the Office of the New York
County District Attorney, where she was the chief of the Sex
Crimes Prosecution Unit. It is good to have you back, Linda.
You have been a phenomenal resource for this committee over the
years. In that position, she supervised the investigation and
trial of every Manhattan case involving sexual assault,
domestic violence, child abuse, and homicides arising from sex
crimes.
I am pleased to say, as I said, this is not the first time
she has been here and given us her expertise, and as the old
joke goes, she has forgotten more about this subject than most
of us are going to learn. She is, without a doubt, the expert
in the area of DNA evidence in sexual assault crimes. When we
were in the process of drafting the Violence Against Women Act,
she testified before the committee in 1990--she remembers how
long it took this to happen--about violent crimes against
women. Welcome back.
Debra Holbrook is a registered nurse in the emergency room
at the Nanticoke Hospital in Seaford, Delaware. She founded and
now coordinates both the Sexual Assault Nurse Examiners program
and the Domestic Violence and Forensic Nursing program, both of
which serve as models for the State of Delaware. In addition to
creating policies and procedures for medical forensic
evaluation, she is directly responsible for staffing and
training all sexual assault examiners. Ms. Holbrook travels
around the country teaching other communities how to develop
similar programs.
Ms. Holbrook trained as a radiologist technician at Johns
Hopkins and is an alumni of the Union Memorial Hospital of
Nursing in Baltimore, Maryland. She serves on the National
Panel of Experts for the Office of Victims' Crime. She was
honored in 1999 as Woman of the Year in Delaware for her
service to victims in our State, and I want to thank her for
her service to me and keeping me straight on a lot of this and
helping me.
Our next witness is Susan D. Narveson. She is administrator
of the Laboratory Services Bureau for the Phoenix Police
Department. She also served as the President of the American
Society for Crime Laboratory Directors and the vice chair of a
consortium of forensic science organizations. She received her
bachelor of science degree in chemistry in 1975 from Arizona
State University and began her career in forensics with the
Phoenix Police Department in 1979.
In 1981, Ms. Narveson accepted a position with the Arizona
Department of Public Safety, where she has worked for 17 years.
In 1998, she accepted her current position at the Phoenix
Police Department. Ms. Narveson has worked on several DNA
projects, including the FBI Scientific Working Group on DNA
Analysis Methods, the College of American Pathologists Forensic
Identity Committee, and the FBI DNA Advisory Board.
Last but not least is J. Tom Morgan. He is Vice President
of the National District Attorneys Association and has been
District Attorney for DeKalb County in Georgia since 1992. He
joined that office in 1983 and a year later became the first
prosecutor in Georgia to specialize in the prosecution of
crimes against children. He has since become nationally
renowned and a nationally renowned expert and has appeared on
such programs as the ``Oprah Show,'' the ``Today'' show, CBS
TV's ``48 Hours,'' CNN's ``Talkback Live,'' and last week, the
State of Georgia eliminated the statute of limitations in cases
where DNA evidence is used to identify an attacker and Mr.
Morgan will be particularly well suited to speak to that issue
and others we have today.
With that, why do I not begin in the order that you have
been called. Debbie, the floor is yours, and again, it is up to
you.
STATEMENT OF DEBBIE SMITH, WILLIAMSBURG, VIRGINIA
Ms. Smith. Zero-three-zero-three-eighty nine. Ninety-three-
forty-two dash 00 through 9342-05. Numbers of identification,
8905010, C89-1989. Human identification, 180907, 89-85-00-0234.
Written and spoken without a particular face impressed on the
mind, 228-15-3839, VA654195. Cold, impersonal, necessary number
of human identification revealing personal information about a
faceless individual. There had never been so many ways to
identify me, and yet I had never felt so lost. I resented being
referred to as a number. The numbers made it seem as I did not
exist as a person. They were mechanical and unreal. But little
did I know that it would be numbers, matching numbers, that
would breathe air into my lungs and would allow me to truly
live again.
There is no way for you to understand how what is done in
the DNA labs can mean the difference between life and death
without taking you back to March 3, 1989. It is around 1 on a
Friday afternoon. I am in my home in a nice neighborhood in the
city of Williamsburg, Virginia, which, by the way, happens to
be one of the safest cities in our country. My husband, a
police lieutenant, is upstairs asleep after having been up for
over 30 hours. How could I have possibly been any safer?
In the midst of cleaning house and doing laundry, I
realized that my clothes dryer was not working properly, so I
stepped outside to check the dryer vent. When I returned, I
decided to leave the back door unlocked, a door that always
remains locked. I left it unlocked just enough for me to go in,
retrieve the trash, and come back out. But before I could
return, within moments, a stranger entered that door and nearly
destroyed and definitely changed my life forever.
This masked stranger forcibly took me out of my home in the
middle of the afternoon to some woods behind my home, where he
blindfolded, robbed, and repeatedly raped me. The sound of his
voice still rings in my ears at times. ``Remember, I know where
you live and I will return and I will kill you if you tell
anyone.''
As soon as I was set free, I ran upstairs to my sleeping
husband, waking him with the words, ``He got me, Rob. He got
me.'' I begged him not to call the police. I pleaded with him
because I feared this man would keep his promise to return and
kill me. But the police officer and my husband knew that we
could not allow this crime to go unreported. He also convinced
me of the importance of going to the hospital because he knew
that we may need the evidence that would be collected with the
rape kit. All I wanted to do is to take a shower. I wanted to
try to wash it all away.
For the first time in my life, I could not find a reason to
want to live. The love of my family and friends were not enough
anymore because they could not erase the memories and they
could not take away the pain. Even my faith in God seemed to be
failing me.
There is no escaping the pain. There was no escaping the
fear. Fear will not be satisfied until it has taken over your
mind and body, just as a cancerous tumor does. It cripples like
arthritis, making every movement unbearable until finally it is
just no longer worth the pain. You become paralyzed, feeling
helpless and trapped. It was always there. It was there in my
waking hours as well as in my dreams. On many occasions, my
husband would be awakened in the middle of the night to the
sound of the blood-curdling screams from my nightmares.
It was at this point that I began to realize that I could
not and I absolutely would not live this way. Death seemed to
be the only alternative, the only answer that I could come up
with that would end the horrible nightmare that I was living.
In death, there would be peace and there would be quiet. I
would no longer have to hear his voice in my ears or feel his
arm around my neck or see his face before my eyes. My mind
could rest.
Over and over, I planned this suicide in my head. But there
was one problem that had no solution, and that was my family,
my husband and my two children. Who would find me? Would they
live in guilt, feeling that they somehow had failed me? What
would this do to them? I thank God still today that my love for
them was stronger than my need to rid myself of this constant
torment. I finally grabbed onto this one thread and it became
my reason to live.
One of the most frequent comments that I heard after I was
attacked was, ``At least you are alive,'' but I can tell you
still today that while I was alive physically, inside, I had
died. I cursed my attacker for leaving me alive, to live with
the pain. I did not know that relief from my pain sat on a
shelf just waiting for the manpower and the funds to test my
attacker's DNA sample and place it in the data bank.
Although this intruder never laid a physical hand on anyone
else in my family, he left each one of us a victim when he left
that day. He touched emotions in us that we had never known. We
saw the rage in the eyes of my son and fear kept my daughter
from going from our own porch to the driveway after dark, and
each of us, especially my husband, felt the awful pain of
guilt. Our home, which was always filled with love and
laughter, had now just become a house full of bitterness,
anger, fear, and guilt. But yet, our answers still sat on that
shelf, waiting to be processed.
Every person that touched my life or my family's life felt
the effect of this crime. They, too, felt invaded and
vulnerable. I could see the pain in their eyes because I was a
constant reminder that rape can truly happen to anyone,
anywhere. They were angry for me, and yet they felt helpless
because there was nothing they could do. Our minds and bodies
ached for understanding, and yet there was none to be found.
I waited daily to hear the news that they had found this
man who had changed our lives so drastically, hearing his words
over and over again in my head, ``I know where you live and I
will come back and I will kill you.'' Our help remained on the
shelf, still in a box, locked in a room with thousands of
offender DNA samples. It sat, just waiting.
I craved peace of mind and I did everything I could think
of to attain it. An alarm system was installed in our home,
including panic buttons throughout the house, as well as one
that I could wear around my neck. A privacy fence was put
around our backyard and motion detectors were installed. At one
point, I even took to carrying a gun. My peace of mind still
sat on the shelf, not enough money, not enough time.
There just did not seem any way to attain this peace and
rest that my mind and body craved for so long. I would suffer
daily with the memory of a man who was in my life for such a
short span of time and he may never have to pay for his crime,
but I was going to have to pay for it forever. I can tell you
that it is only by the grace of God that I am here today,
because for six-and-a-half years, I simply existed, trying to
go on and live a normal life.
VA122015Y, 01-14-91, more numbers, 91-17682, 07-24-95. But
these numbers bring with them a life-giving force and a renewed
hope, 4183, 07-26-95. As George Li sat at his computer in the
Virginia Division of Forensic Science on July 24, 1995, on what
probably seemed to him just another normal day at the lab, he
had no way of knowing what effect his work that day would have
on my life and the lives of those around me.
On this day, Mr. Li entered a prisoner's blood sample into
the computer and it automatically began its cross check against
previously entered samples. To his joy and surprise, he
received a cold hit, something fairly rare at that time. This
information was passed on to the Williamsburg Police
Department. They, in turn, passed the information on to the
shift lieutenant working that day, who happened to be my
husband.
On that day, July 26, 1995, my husband walked into our
living room and handed me the composite that he had carried
with him ever since the incident and he told me we were not
going to need it anymore, that we could throw it away. Not only
had they identified my rapist, but he was already in prison for
another crime and he was put there 6 months after he had
attacked me. Finally, they had unpacked the box that contained
my release from fear. My freedom had been delivered.
For the first time in six-and-a-half years, I could feel
myself breathe. I felt validated. There was a real name and a
real face to go with the nightmare that I was living. Everyone
would know that I was telling the truth, that it was real.
Finally, I could quit looking over my shoulder. No longer did I
have to drive around in circles hoping that a neighbor would
drive by so that I could get the courage to get out of my car
to go into my own front door if no one else was home.
Unfamiliar noises no longer left me panic-stricken. I no longer
had to scan the faces in the crowd to see if he was following
me, and suicide was no longer a consideration. Finally, my
husband is grateful that I do not wake him up quite as often in
the middle of the night with the ear-piercing screams. Within
myself, the healing had begun and peace had come at last.
Norman Jimmerson is off the streets for good. The jury gave
Norman Jimmerson two life sentences plus 25 years with no
chance of parole.
In the few minutes that I have been talking to you, at
least five women have been raped. Could we have prevented it? I
believe we could have. Millions of dollars are spent every day
for research on problem solving. Our research is done. We have
the answers before us. We have no idea where Osama bin Laden is
hiding, but we have within our grasp the means to find the
terrorists that live among us today.
There are literally thousands of inmate DNA samples waiting
to be tested and entered into the data bank. Answers to the
questions of a rape victim, her freedom and peace could be
sitting on a shelf, and it breaks my heart when I go into labs
and I see shelf after shelf filled with old, untested rape
kits. Each kit represents a life in turmoil. We could have the
answers to the questions that haunt her mind day and night, and
yet they still sit and wait.
And even with all of the rape kits that are sitting on
those shelves, there really should be many more. But because
the evidence collection is so devastating and humiliating,
victims will not report this horrific crime. But we have the
answer. Sexual Assault Nurse Examiners are trained to give one-
on-one care to rape victims, making her more willing to allow
the evidence collection.
With this bill, you can provide the solution for rape
victims past, present, and future. By eliminating the backlog
of untested rape kits and offender samples, we could be saving
the life of a victim who can no longer hold onto that thread of
hope that keeps her alive. We can offer hope to the rape victim
that walks into that ER today. The average rapist commits eight
to 12 rapes before he is caught. Identifying him now and making
him pay for his crimes can prevent many from becoming victims.
This bill can protect your wives, your daughters, and your
sisters. How can we do any less?
On behalf of myself and other rape victims past, present,
and future, I thank you for caring enough to bring up a subject
that not too many people want to talk about, and I thank you
for allowing me to share my heart with you today.
Chairman Biden. Debbie, or Ms. Smith, thank you for your
courage in being here. I particularly thank you for pointing
out the side of this tragedy that most people do not want to
listen to. That is the underlying tragedy that goes along, as
providers know, with all the victims of sexual abuse, and that
is every single psychiatrist and psychologist who has testified
in the years and years and years I have been holding hearings
on this indicates that the only serious help available to
victims is closure, of being able to close that chapter in
their life.
And the only way that occurs is with the identification,
because you said something that you should never have had to
say, but I hope everybody heard you say it. You said when your
husband came in and said, we will not need this composite, to
paraphrase you, you said that no one had to wonder anymore
whether I had been telling the truth. That is an incredibly,
incredibly, incredibly important thing for everybody to
understand.
And, by the way, for every one of you who come forward, two
people never come forward, and the reason they do not is they
do not want the stigma and they are fearful that the person
will never be caught and they will, they will, they will be the
ones thought to have made this up, and they get re-victimized
and re-victimized and re-victimized and re-victimized.
So your testimony today is more important than even you
understand, I think, in how you revealed to this assembly and
these cameras and to all our colleagues who will listen to this
why this is so very, very, very important. I admire you. I
admire your courage, and thank God you had a spouse who said,
we are going to go be tested. We are going to have this
degrading undertaking go a little further.
[The prepared statement of Ms. Smith appears as a
submission for the record.]
Chairman Biden. I know Senator Clinton has another
commitment, and maybe Senator Cantwell, I do not know. I am
here for the duration, but I would be happy to yield to either
of you.
Senator Clinton. Mr. Chairman, I do. I have got to go to a
meeting with the families of our police and Port Authority
police who were lost on 9/11 and I apologize that I have to
leave, but I want to thank Ms. Smith and I want to thank her
husband, as well, for being here. I think it is really some of
the most significant testimony I have heard in my time here so
far and it will make a huge difference in the lives of so many
other women.
I thank you very much, Debbie, for being willing to come
forward and share this and I apologize to the rest of the
witnesses. I will look forward to reading your testimony.
Thank you, Mr. Chairman.
Chairman Biden. Thank you. While we are going to Linda, and
she can confirm this better than anybody, you know, what
happened to you, Debbie, is the rule, not the exception--during
the day, in a nice neighborhood, in your home. Most people
think it is somebody named ``habeas corpus'' crouching behind a
garbage can in an alley of a big city ready to jump out and
rape a woman. It is either somebody you know or it is in your
own home, your own neighborhood, and is during the daytime. I
am so glad you have been set free by this and I appreciate you
being here.
But now, we will go down the line here for the rest of the
testimony, and then with the permission of the witnesses, the
Senator from Washington and I will ask you some questions.
Linda, welcome again.
STATEMENT OF LINDA A. FAIRSTEIN, FORMER CHIEF, SEX CRIMES
PROSECUTION UNIT, NEW YORK COUNTY DISTRICT ATTORNEY'S OFFICE,
NEW YORK, NEW YORK
Ms. Fairstein. Thank you. You hardly need me after what you
just heard, which really says it all.
I thank you, Mr. Chairman. It is a pleasure to be back. You
put this on the table, these issues on the table for the first
time when you introduced violence against women legislation,
and only by your efforts to keep it on the table have we made
the progress we have. I looked at the young men and women
behind you as Ms. Smith spoke this morning and not many people
their age remember that for at least the first two decades of
my involvement in this work, we could not get women with the
courage to put their names and faces to this issue, your
intelligent, beautiful face and your husband behind you, to
come forward and let America know that it is our families and
our friends who are the victims of these crimes, and that means
the world to all of us who have worked on this.
When I came to the practice of law, many States, including
my own in New York, still mandated that the testimony of a rape
victim be deemed incompetent as a matter of law unless
corroborated by three specific forms of independent evidence.
We fought to change that archaic impediment that prevented
thousands of victims, even like you, Ms. Smith, from stepping
foot in a courtroom for centuries, no matter how credible they
had been, to create rape shield legislation, to eliminate the
absurd requirement of earnest resistance which existed, and to
lobby for predicate felony treatment for serial rapists whose
recidivist tendencies account for the staggering volume of
victimization all across America.
For more than half my prosecutorial career, we devoted
extraordinary human resources to encouraging survivors to trust
the criminal justice system, which had excluded them for so
long, and help them to triumph in courtrooms against great odds
for the very first time.
During my first 15 years in that position, I never dreamed
there would be a time when science could relieve victims of the
burden of identifying their assailants. I never imagined that
what are now my three favorite letters of the alphabet, DNA,
would be sequenced in such stunning fashion and accepted
finally as a reliable scientific technique in every courtroom
in America.
DNA technology was first presented to me in 1986. It was
deemed inadmissible in a high-profile homicide case I
prosecuted and it has now completely revolutionized the
criminal justice system. No prosecutor in America, indeed, no
detective or police officer should investigate a sexual assault
or homicide without using or considering the use of DNA
evidence. The science, the methodology of DNA continues to
evolve and to make more crime solutions possible.
When first introduced as a forensic technique in the mid-
1980's, the RFLP process required evidentiary materials or
stains that were at least the size of a quarter. The FBI was
the only forensic lab in the country performing DNA tests. The
turn-around time for a preliminary result was at least 6
months. The cost was $5,000 per sample. That last fact meant
that in gang rapes or cases with multiple victims and
offenders, the cost was frequently greater than $50,000 per
case.
Now, with the use of the far more reliable and sturdy PCR
technology, it is possible to achieve identifiable results in
cases with samples too small to view with the naked eye. Some
labs can test for nannograms of fluid. There are 1,500
nannograms, may I remind you, in a single drop of blood. They
can test for two nannograms. The cost is much lower, and my
colleagues in the Manhattan DA's office get restless if they do
not have a preliminary result within 24 to 48 hours of the time
we submit the evidence for analysis.
As Senator Biden said in his beginning statement, DNA's
uses are twofold, to identify predators with certainty in cases
in which identifications have been frequently impossible, but
just as critically, if you worked for and learned from a
prosecutor with the integrity of Bob Morgenthau, as I did, to
exonerate suspects falsely accused.
Chairman Biden. And, by the way, he has more integrity in
his little finger than most people have in their whole body.
Ms. Fairstein. No question about it.
Chairman Biden. He is absolutely an incredible guy.
Ms. Fairstein. He is. It is inconceivable to me that there
are prosecutors or police anywhere in this country not properly
trained to understand the potential of this science to solve
crime. This bill and the Debbie Smith legislation mark superb
efforts to use 21st century technology, DNA data banking, to
solve 20th century crimes, to bring dusty, long-forgotten
evidence out of the dark ages and into our growing data banks.
We need the Federal resources, the money to do this work,
and let me give you a punch list of reasons why. Under VAWA, we
began to get funds from the Federal Government to train police
and prosecutors. We are grateful for that money, but we need
far greater amounts. The subject of evidence collection is
indeed the heart of this matter, a topic of huge concern and
way too simplistic, as you have mentioned, to think we are only
talking about rape kits, as I will explain.
Evidence collection begins with the training of law
enforcement personnel to collect evidence at the actual crime
scene. Most of us, and probably many of you in the room today,
thought that meant looking for the obvious, blood, semen,
saliva. I do not know how many of you realize that we can get
DNA from the collar of every shirt or blouse we are wearing in
this room, from the computer mouse that we hold in our offices,
even from the doorknob that we turn to enter the room. Science
has advanced so rapidly that even sloughed-off skin cells will
yield genetic fingerprints, but cops need to know where and how
to find that evidence.
The collection process continues in the hospital emergency
room. The single word that comes to mind when I talk about the
treatment of rape survivors in emergency rooms across this
country is uneven. There are no two hospitals in any city in
this country which respond to these patients in exactly the
same way. Evidence collection continues at police and medical
examiners' labs.
The training of serologists to do this work is expensive
and time consuming. It changes with the methodology and with
the machinery several times a year. There are not enough
trained scientists to do the work that is waiting to be done
and that will continue to be the case as techniques become even
more refined and sophisticated. We have not even talked about
mitochondrial DNA, a more sophisticated process, a much more
difficult, time consuming one that is only now being accepted
in courtrooms across this country.
I would like to talk about some of the good news. There are
communities and offices and labs that have made these issues
work. Bob Morgenthau's unit, founded with two lawyers in 1974,
now strong with 40 lawyers devoted to giving survivors a day in
court, has done exceptional work.
Three years ago, we started an experiment. We were tired of
waiting for these cases to be taken off the police shelves. We
assigned our two most senior lawyers to what we called and
designated the Cold Case Unit. They literally went to the
police department to look through files to find cases that were
approaching the 5-year statute of limitations, when we would no
longer be able to work with them, cases that had been unsolved
but had the potential to be reexamined for the presence of
genetic material.
Our point was that from among the many thousands of cases
sitting on police evidence shelves, we needed to prioritize
those which could be prosecuted if DNA was successful in
solving them. Senator Biden mentioned earlier at least 70
percent of reported rapes occur between acquaintances. The 30
percent or less that occur between people not known to each
other, stranger rape cases, not that they are more important
than acquaintance rape or domestic violence, but in these
cases, the sole issue of identification is what is critical and
DNA only can solve these cases.
While New York City outsourced 1,600 untested rape cases in
a stunning effort to eliminate the backlog that exists, as it
does in so many cities and States across America, we did not
want to wait for those results, so we picked the most difficult
serial rapist and recidivist cases, some of the most life-
threatening criminals.
One of the unsolved cases occurred in a lawyer's office on
42nd Street, right in midtown Manhattan. The assailant tied up
the lawyer and raped the cleaning lady who happened upon the
scene, inserting the butt of his gun into her vagina, as well.
All of her efforts and an intensive police manhunt failed to
find him.
Our cold case team pulled this case four-and-a-half years
after it had been put on a police shelf and as the paperwork
was thrown into a green trash bag to be discarded by the NYPD
because of the statute of limitations. The DNA was developed,
matched to a career criminal, rapist, and robber who was
convicted again of this crime just 2 months ago. Imagine the
reaction, if you can, when the detectives knocked on this
woman's door and told her that her case had been solved and
that science would confirm that fact whether or not she could
ever recall her attacker's description.
The trial court in this case, People v. Wendell Belle, held
recently that the statute of limitations had been tolled and
that we would be able to prosecute cases like Belle that were
cold hits and go beyond our 5 years, add an additional 5 years
to our statute of limitations simply because of DNA data
banking.
Another critical point that I have not seen mentioned
before this bill is the fact that the evidence that will solve
these rapes and murders is not sitting simply in the so-called
evidence collection kits. Our task is not just taking these
boxes off the shelves. We must look at everything from bed
linens to victim and suspect clothing or abandoned property
from a crime scene. We need to train investigators to identify
and organize those items.
We had a rapist last year operating in New York City. His
name is Fred Monroe, recently released from State prison as a
predicate felon. He committed two sexual assaults in New York
City in one evening, the first in Queens and the second an hour
later in Manhattan, the second time following a business woman,
an out-of-State woman into her hotel room. He did not
ejaculate, but he did put his mouth on her breast after
subduing her at knifepoint. The hospital did not even bother to
swab her breast, but at the laboratory, the serologist
discovered a dried secretion on her bra, which was the saliva
that had transferred there when she dressed after the assault.
The rape evidence collection kit was negative, but the tiny
amount of salivary secretion on her bra matched the DNA of
convicted offender Fred Monrow.
In addition, a brilliant police lieutenant in New York,
Jimmy West, had kept his eye on an unsolved series of robberies
in Greenwich Village. All of the victims were young women, and
in each case, the robber had tried to follow the women inside
their apartments. None were raped, no evidence collection kits.
But West made his men pick up beer bottles and cigarette butts
outside the crime scenes. The result, more matches to Fred
Monroe and convictions on all the cases, including that of a
young schoolteacher who had been beaten so badly she now has a
metal plate in her head. A great investigator and a solid chain
of evidence. This work requires thinking outside the box,
frequently, beyond the normal scope of a crime scene run, and
it requires the money to support that work.
Another need for funding at the labs, many of the profiles
developed two, three, 5 years ago were based on what was called
a six-loci match, six points within the gene. That standard is
now obsolete. The Brits have had two unrelated human beings
matching at six loci, and so we have moved to more demanding
matches, and Dr. Adams, I am sure, can speak to this, but we
found that when we went to upload some of our old cases into
CODIS, they were not accepted because they were done as six-
loci matches, and so all of the testing had to be redone, and
that is true of many cases, many of these cases sitting around
the country, even ones that have been developed.
I feel it is essential to add, the brilliant work of the
Office of the Chief Medical Examiner of New York City, its
pathologists, and serologists, with all deserved respect to the
NYPD, Fire Department, and EMS, the men and women of the New
York City morgue have just done outstanding work surrounded by
the millions of pieces of human remains of 9/11. They have
worked around the clock to give answers and provide solace to
the families of 9/11 victims. Throughout this time, they
continued to handle the incoming load of rapes and homicides
that we presented to them.
The role of sexual assault forensic examiners, which you
will hear more about, is the linchpin of what happens to a
victim in the process. Physicians who work in emergency rooms
will tell you they do not want to treat rape victims. Sadly but
true, emergency room physicians will tell you they are there to
save lives and rape victims are triaged after heart attacks,
strokes, car accidents, gunshot wounds, and stabbing victims.
Their injuries often when they present are no longer life
threatening. They have survived the attack. The medical,
emotional, and legal needs of the rape victim are often not
felt to be the concern of emergency room physicians and yet
they are the concern of the victim if the rapist is to be
caught and convicted, that frequent four- to 6-hour stay in the
hospital emergency room, with the internal exam, the head-to-
toe physical, evidence collection, including swabbing orifices,
clipping nails, combing pubic hair, STD prophylaxis, and AIDS
information. The reality is, the collection is not done
properly if it is not complete, if it is not done by a forensic
examiner.
We have had cases in New York, for example, one of the
cases I tried, the victim was examined by an oral surgeon who
had never before seen a vaginal vault. He was the person on
call and he was unable to testify as an expert at the trial. So
no one suffers more in this regard than the victim.
Statutes of limitations, many States have eliminated them.
We have them in New York. One solution has been John Doe DNA
indictments. They work very well in certain circumstances. They
have helped us to toll the statute on someone like the East
Side rapist, who attacked more than 18 women and is still at
large. We would have lost those cases if not indicted. It is
not an answer in every case. There are problems with doing John
Doe DNA indictments. It is a very good technique under the
circumstances, but will not work every time.
Finally, these lead to the importance of the Federal
resources and your commitment to these issues. These
devastating crimes, as you know, Senator Biden, are a national
problem and a tragedy for a variety of obvious reasons. Dr.
Adams talked about the mobility. I want to give you three
examples of data banking and its uses.
We had recently an unsolved rape of a teenage girl in East
Harlem. Last fall, our crime scene evidence data bank in
Manhattan matched that case to two unsolved cases in New
Jersey. Both of those cases occurred inside the Newark, New
Jersey library. It is still unsolved, but this lead gives both
teams of investigators new life for both cases. They have
opened the files to each other and they have entirely new leads
that we assume will bring us to a suspect. So it is a
tremendous use for these data banks even when the assailant is
unknown.
The second example, the first phone call I received from
the police on January 1 of 2001 was to tell me that a young
British tourist had been raped and beaten in a Manhattan hotel
room. She worked long and hard with detectives before returning
home, but the case dead-ended. Later in the year, the DNA
matched the unidentified offender in a rape/kidnapping which
occurred in Las Vegas, Nevada. The story finally ended in the
summer of last year when a man killed a security guard in a
casino heist in Atlantic City, New Jersey. Federal agents
followed the suspect to New York City, where he was killed in a
shoot-out with the Feds in a crowded Manhattan hotel lobby. His
DNA profile post-mortem solved the two rape cases and ended his
cross-country crime spree. That security guard did not have to
die.
The last example is dramatically current and you have just
referred to it. Three weeks ago, all our major papers carried
stories of a 29-year-old Air Force employee who was arrested in
Fort Collins, Colorado. He was charged there because of DNA
matches to more than seven burglaries and rapes of young women
who had been attacked in their homes, most of whom were
Colorado State University students. Within days, DNA data banks
also matched him to a series of unsolved cases in Philadelphia,
the rampages you described of the Center City rapist. That
involved at least five women who had been raped, finally a Penn
student who was raped and murdered in her apartment. Police are
now reopening the files of closed cases everywhere from New
Hampshire to Texas to South Carolina to New Mexico, where the
offender is known to have spent time.
Serial rapists are rarely dormant. They do not retire and
they do not quit. The best we can do is identify them, put them
out of the business of destroying innocent lives, and see that
they never walk among us again if they are, in fact, guilty of
these devastating crimes. DNA technology and data banking is
our only hope of achieving these goals.
I thank you for letting me join you today and I hope you
will call me back to work with you in the future.
Chairman Biden. Linda, I guarantee we will call you back.
One of the things that surprises me as to why we have so much
trouble getting focus on this. You and I both know that career
criminals make about 6 percent of the criminal population but
commit half of the crimes. Why the heck would the same not be
the case for rapists? I mean, our ability to have a gigantic
impact is amazing. Career criminals, violent criminals,
separate and apart, in addition, including rapists, commit the
majority of the crimes committed. So if you just could find
those 6 percent and did nothing else, you would reduce crime
dramatically. This is a real prospect.
[The prepared statement of Ms. Fairstein appears as a
submission for the record.]
Chairman Biden. Debra, welcome and thanks for all you do in
Delaware.
STATEMENT OF DEBRA S. HOLBROOK, NURSE AND CERTIFIED SEXUAL
ASSAULT NURSE EXAMINER, NANTICOKE MEMORIAL HOSPITAL, SEAFORD,
DELAWARE
Ms. Holbrook. Thank you. Good morning, Senator Biden and
members of the committee. Thank you for asking me to be here
today.
Senator Biden, I want to start by thanking you for being
first on the issues of violent crimes against women with VAWA
from the start. Since 1994, you passed the law and you made it
work. In Delaware and across this country, you authorized us to
put in place these efforts that VAWA mandated, and because of
your leadership, we are the model in the Nation now. DNA has
become the final dot-to-dot, but we do so much more as forensic
nurses, and please know that we owe you a debt of gratitude.
Chairman Biden. We owe it to you.
Ms. Holbrook. As a registered nurse and Sexual Assault
Nurse Examiner, which I will call SANE from here on out, in the
emergency department at Nanticoke Memorial Hospital in Seaford,
Delaware, I coordinate a team of forensic nurses who are
specially trained to care for sexual assault and violence
victims of all ages. We are on call at all times, 24 hours a
day, 365 days, to collect DNA, trace and photographic evidence,
assure advocacy, and testify in court, to name just a few.
Forensic nurses are the only specialty that answered health
care's call to care for victims of sexual assault in this
country. We provide a vital link in the Sexual Assault Response
Team, or SORT, between health care and law enforcement.
For years, nurses across the country have witnessed
patients being re-victimized when they come to ERs, waiting for
hours half-dressed in crowded public waiting areas, telling
their stories countless times to people who did not need to
know the statistics, and being traumatized by judgmental
practitioners with no forensic training, such as most doctors
in this country, that ruin vital DNA. Shockingly enough, this
is still the level of care that eight out of ten victims--eight
out of ten victims--will receive at any given time in the
United States at this moment.
Senator Biden and Delaware House Representative Tina Fallon
in our State have been instrumental in helping our program at
Nanticoke become a model in Delaware and throughout the
country, but we share the same problems as the rest of the
nation. Kits sit on shelves for years where perpetrators rape
again and again. Running these kits and entering them in CODIS
data banks would undoubtedly link perpetrators to many unsolved
sex crimes, and we cannot give that assurance to our patients
at any time when they come in to us.
We are in need of gas chromatic mass spectrometer machines
to be made available in every State to analyze specimens for
victims of drug-facilitated rape, and we also need colposcope
equipment that stores images and communicates to other teams
for second opinion if they are lucky enough to have the
colposcopes in their programs now.
We need Federal mandates that victims of all ages be taken
to trained International Association of Forensic Nursing
trained and regulated SANE teams with a team approach and
funding for salaries and education to keep these programs
viable. Many of them get startup, but they do not stay open
very long because they have no funding to sustain them.
Forensics in this country is mandated for dead victims, but not
required for those who we treat who are very, very much alive.
The International Association of Forensic Nursing gives us
a clearinghouse and international resource for SANEs all over
the world. IAFN sets standards of care in nursing practice,
provides training and education, and through its Forensic Nurse
Certification Board, tests and certifies practicing SANEs for
competencies.
SANE teams across the country are in jeopardy of closing
due to lack of both funding and cooperation from law
enforcement. If they do not buy in, we do not get the patients
many times. Many prosecutors do not understand how crucial we
are in pulling together cases that yield convictions. Melanie
Withers, who is the Deputy Attorney General in Georgetown,
Delaware, said that ``SANE programs are the best thing I have
seen to benefit victims since I have been a prosecutor.''
Delaware Attorney General Jane Brady stated, ``The expertise
they possess enables them to treat victims with sensitivity and
properly collect and document evidence for a criminal case.''
I wish each of you could be on call with me as I come to
the emergency room multiple times each week at 2 in the morning
and hear the testimony such as Debbie gave today, and witness
the bravery that is shown by my patients when they come to me
for care, and hear the terror in their voices as they share the
details of their crimes, especially the children, and know that
we are the only program right now in our State that even treats
children of these crimes.
How do I tell a mother of a 3-year-old that because she
initially took her child to an ER that did not have a SANE team
or one that treated pediatric patients that it is too late to
collect the forensic evidence that we need? Or a 20-year-old
that was given Ecstasy without her knowledge that we cannot
test for it in our State and there is no money left in the
police budget to send it to a State who can? How do we tell
countless rape victims that their kits are useless because
untrained personnel allowed wet swabs to mold, or that the kits
were not even bothered to be opened?
This legislation has the power to forever change the
scenario for the victims in our State and throughout this
country. By mandating that the Sexual Assault Response Team
approach be utilized with IAFN-trained SANEs providing the
forensic health care, victims will never have to fear playing
hit-or-miss with their judicial outcomes. Increased numbers of
perpetrators will be convicted. States will have
standardization in equipment, funding, and accountability, and
I emphasize accountability, across this country, and properly
collected DNA evidence will be analyzed, logged, and shared via
national data banks.
On behalf of the millions who are raped in this country
annually, only of which a percentage report, I thank you for
your consideration and hard work on this legislation.
Chairman Biden. Thank you, Debra.
[The prepared statement of Ms. Holbrook appears as a
submission for the record.]
Chairman Biden. Ms. Narveson, welcome.
Ms. Narveson. Thank you, Chairman Biden.
Chairman Biden. Thanks for the long trip. I think you have
come the longest distance.
STATEMENT OF SUSAN NARVESON, PRESIDENT, AMERICAN SOCIETY OF
CRIME LABORATORY DIRECTORS, PHOENIX, ARIZONA
Ms. Narveson. And happily so, sir. Good afternoon, Chairman
and members of the committee. I appreciate the opportunity to
sit before you today and testify on behalf of the forensics
community.
My name is Susan Narveson. I am the Administrator of the
Phoenix Police Department Laboratory Services Bureau and
responsible for managing the operation of a full-service
laboratory. In addition to my duties as Crime Laboratory
Director, I am also the President of the American Society of
Crime Laboratory Directors and I also serve as the Vice Chair
of the Consortium of Forensic Science Organizations. I am
honored to be present and to be asked to speak in regard to the
Debbie Smith Act and its impact on crime laboratories
nationwide.
Crime laboratories and forensic scientists play a critical
role in the criminal justice system by ensuring the proper
collection, preservation, and scientific analysis of crime
scene evidence. The successful investigation and prosecution of
crimes is contingent on providing the quality forensic service
in a timely manner. DNA analysis, however, is not the only
service we provide. Crime laboratories also provide scientific
analysis service in areas such as controlled substances, crime
scene investigation, firearms, latent prints, question
documents, serology, toxicology, and trace evidence. Each of
these are part of a powerful arsenal of forensic tools that
include DNA technology and are complementary to DNA technology.
It is estimated that these additional service areas
comprise more than 90 percent of the crime laboratories' annual
caseload, and each of these cases carries with it a victim,
just like these sexual assault case victims, who have
expectations of having their cases worked and some kind of
investigative leads developed and their cases solved.
The American Society of Crime Laboratory Directors is a
spokes-agency for crime laboratories and crime laboratory
directors throughout the United States and abroad. ASCLD has
taken an active role in ensuring the quality and integrity and
credibility of forensic laboratories. By advocating for the
needs and interests of forensic laboratories, developing
guidelines for forensic science education and training,
establishing an accreditation program for forensic science
education programs, supporting the delivery of quality forensic
service by mentoring laboratories seeking accreditation by the
American Society of Crime Laboratory Directors/Laboratory
Accreditation Board, and by partnering with other forensic
science organizations through the Consortium of Forensic
Science Organizations in order to speak with one voice on
legislative issues of mutual importance.
While ASCLD strongly supports any legislation aimed at
providing resources to support the work of public crime
laboratories and increase their capacity to process cases, it
must be noted that we are severely hampered by a lack of
funding and a significant backlog in areas of forensic science,
not just DNA. As you know, DNA offers a powerful investigative
and identification tool to solve many sexual assault cases and
it needs to be applied to the maximum number of cases possible.
However, this is also true of the other areas of forensic
services provided by crime laboratories.
Unfortunately, crime laboratories are facing great
difficulties in their attempts to find the resources to analyze
DNA and other cases. With national estimates for unanalyzed
sexual assault kits ranging as high as 500,000 cases, it has
certainly become an issue of critical importance that deserves
further consideration and attention.
ASCLD gratefully acknowledges the concern of this committee
for the victims of sexual assault and appreciates the
recognition that crime laboratories are facing overwhelming
backlogs of sexual assault cases. It should be noted, however,
that sexual assault cases comprise only five to 10 percent of
the total backlog of cases confronting crime laboratory
directors nationwide.
In addition to sexual assault cases, DNA is also essential
to the investigation and prosecution of other violent crimes
and property crimes. Data from States that have the resources
to conduct DNA analysis on biological evidence associated with
drug cases, burglaries, and home invasions are finding a very
high hit rate against CODIS, the national DNA data base of
convicted offenders. In many cases, the likelihood of
developing an investigative lead in a sexual assault case may
be just as high by analyzing evidence from burglaries as by
analyzing evidence from other sexual assault cases.
DNA has been used to identify investigative leads in a wide
variety of cases in addition to sexual assault. DNA profiles
have been obtained from the grip of a handgun used in a
homicide, from the seal of an envelope containing a threatening
note associated with a series of multi-million-dollar arson
fires, and even from gum, biological material, or latent prints
left at burglary scenes.
Although no data is currently available for the total
number of backlogged cases for all forensic service areas, it
is reasonable to expect that the numbers are staggering. ASCLD
has partnered with the University of Illinois-Chicago on a
grant proposal to conduct a 2002 Census of Public Crime
Laboratories in order to determine the current status of
forensic laboratories and their backlogs.
Crime laboratories are faced with a crisis of enormous
proportions, with insufficient personnel, facilities,
equipment, training, and funding to meet the service needs and
expectations of investigators, courts, and citizens. Forensic
science technology has become an increasingly critical
component of the successful investigation and prosecution of
criminal cases. However, the timely disposition of felony cases
has been adversely impacted by a lack of funding to support the
staffing, equipment, training, and facility needs of forensic
laboratories nationwide.
Having said this, I would like to specifically address some
of the provisions of the Debbie Smith Act. ASCLD strongly
supports the timely analysis of all forensic cases. However,
the provisions of the Debbie Smith Act that call for the 10-day
turnaround time for the DNA analysis of sexual assault kits
sets an unrealistic time requirement for completion of these
cases.
Taking into consideration the current DNA backlogs, the
time requirements for collection and submission of the evidence
to the laboratory, the DNA analysis requirements, and the
quality assurance measures that must be conducted to ensure the
integrity of the data, completion of DNA analysis of all sexual
assault cases within 10 days of the incident is impossible. The
capacity of laboratories to handle the increasing number of
requests for service and backlogged cases must be dramatically
increased before a noticeable decrease in the turnaround time
will be realized. At that point, a more reasonable and
realistic turnaround time would be 30 days.
ASCLD strongly supports efforts to ensure the quality and
integrity of evidence collected for forensic analysis purposes.
ASCLD also supports the establishment of quality assurance
standards by the relevant scientific community, such as the FBI
or the American Society of Crime Laboratory Directors/
Laboratory Accreditation Board for the collection and
processing of evidence.
ASCLD also strongly supports efforts to improve the quality
of training provided to individuals charged with the collection
of evidence for forensic analysis purposes. ASCLD supports the
development of these training programs by individuals with the
requisite forensic experience in order to ensure that all
critical parameters of the collection and preservation of
evidence from sexual assault cases are addressed.
ASCLD will continue to support Federal funding legislation
that focuses on the necessity to increase the capacity of
forensic laboratories to process all forensic cases, including
sexual assaults, in a timely, accurate, and reliable manner.
Forensic laboratories throughout the country need and
appreciate your support of their efforts to apply the best
science to the best evidence in every case.
Mr. Chairman, I would like to thank you personally for the
opportunity to provide my testimony in regard to this issue and
also to thank you for the impact that you have made in the
state of Arizona and to inform you that the information that
Dr. Adams presented to you in regard to the national CODIS
hits, those particular identifications were made through a
collaborative effort that our laboratory had that was funded by
Violence Against Women Act grant moneys, and for that, I thank
you. We actually obtained a team, a cold case investigator, a
victims' advocate, and a criminalist for working those cases.
They screened over 600 cases and submitted almost 200 cases for
DNA analysis, and I thank you for that and the victims of those
crimes also thank you.
I would ask that you continue to support this effort and to
recognize that laboratories want to process these cases in a
timely manner, that we really require additional staffing in
order to be able to do that and would appreciate your support.
Thank you so much for the opportunity to testify today.
Chairman Biden. Thank you very much for making the trip.
[The prepared statement of Ms. Narveson appears as a
submission for the record.]
Chairman Biden. Last but not least, Mr. Morgan.
STATEMENT OF J. TOM MORGAN, DISTRICT ATTORNEY, STONE MOUNTAIN
JUDICIAL CIRCUIT, DEKALB COUNTY, GEORGIA AND VICE PRESIDENT,
NATIONAL DISTRICT ATTORNEYS ASSOCIATION, DECATUR, GEORGIA
Mr. Morgan. Thank you, Mr. Chairman. I guess it is my job
here to bat cleanup, and since all the witnesses have hit such
home runs, it is going to be difficult. But if I could, I would
like to share with you the perspective from the nation's
prosecutors.
My name is J. Tom Morgan. My first name is J. Tom. I grew
up in the deep South where double names like Billy Bob and
Mandy Sue are common and my parents named me J. Tom.
Chairman Biden. That is what I know you as, then.
Mr. Morgan. Thank you, sir. I am Vice President of the
National District Attorneys Association and I am the elected
District Attorney for DeKalb County, Georgia. DeKalb County is
one of the metropolitan Atlanta counties. I represent a
jurisdiction of about 600,000 people. I have been a
prosecutor--I am a career prosecutor--for 18 years. Prior to
being elected District Attorney in 1992, I headed up our Crimes
Against Children Unit, where I prosecuted sexual assaults
against children and child homicides. I have an office of 41
assistant district attorneys. We only prosecute felony crimes.
We prosecute about 7,000 felony crimes a year.
Mr. Chairman, let me tell you, I am very excited. Mr.
MacBride gave me this morning a synopsis of your proposed
legislation. I look forward to this----
Chairman Biden. You are saying that just because he was a
Federal prosecutor. You prosecutors stick together, I know
that.
Mr. Morgan. As you know, we have a love/hate relationship
with Federal prosecutors. We usually love to hate them because
they have so many resources above what we do.
Chairman Biden. That is what my son said. My son is a
Federal prosecutor and I told him, I said, I do not want to
hear about your conviction rate. I want to know about when you
were a public defender, which I was, we have a little different
assets available to us. But you know these Federal guys, but go
ahead.
[Laughter.]
Mr. Morgan. Thank you, Senator. I do. This weekend, I am
meeting with colleagues from around the country back here in
D.C. and I am so looking forward to share your proposed
legislation with them. Please know that you have an open
invitation to come to the National District Attorneys
Association any time. You have been a big supporter of us, a
big supporter of legislation that is of such import to our
nation's prosecutors, and on behalf of them, I want to thank
you for that.
The best way I can illustrate the three points I would like
to make this afternoon is to tell you about a real case. In
1992, a young woman was leaving the Atlanta/Fulton County
Stadium after watching a Braves game. It was late at night. She
was kidnapped and severely brutalized, sexually assaulted. She
was unable to give us an identification of her attacker or even
a good description. As I said, it was late at night and she was
attacked from the back.
This year, we were able to get a hit because a defendant
was arrested on a drug case. Under Georgia law, all convicted
felons are required to give a DNA sample. Because of that, we
got a hit from a case that was 10 years old and is now solved
and the perpetrator of a very violent crime will be brought to
justice.
I use this to illustrate three important points. The first
is that DNA is the most powerful forensic tool in the last 100
years. A hundred years ago, we started using fingerprinting.
DNA is just another form of fingerprinting. I would submit that
a book that is very exciting is The Blooding written by Joseph
Wambaugh, which was the first DNA case in the world which took
place in Great Britain. I had the pleasure of meeting the
solicitor, or the barrister who prosecuted that case, and Great
Britain is light years ahead of us in this country in DNA
testing and requirements in DNA samples.
The good news, Senator, is that in Georgia, we do not have
a backlog. We are one of three States in this country, there is
no backlog, and we test every offender who has been convicted
of any type of felony. The reason is that 3 years ago, the
elected district attorneys of Georgia got together with our
crime lab and said the most important issue facing the criminal
justice system today is testing in DNA cases, more so than
additional prosecutors, more so than additional cops on the
streets. We will make this our top priority, and our
legislature funded the personnel necessary.
The reason is that we have seen these cases now come to
light. We have gotten 114 hits in the last 2 years. Of those
114 hits, most of them have been sex offenses. But the
important part is that in these sex offenses, most of them were
not being tested for a sex offense. We know that offenders who
commit property crimes many times escalate to sex offenses or
that perpetrators who commit sex offenses then go back and
commit property crimes.
Chairman Biden. That is a really important point, and I see
Ms. Narveson nodding her head.
Mr. Morgan. And so our position is and the NDAA position is
that not only all convicted felons should be tested, but every
arrestee. You know, we already fingerprint everybody who is
arrested and their fingerprints are sent up here to D.C. in
AFIS. DNA is nothing more than a different type of
fingerprinting. There is no constitutional prohibition. There
is no legal prohibition against testing everyone. The only
reason we do not is for lack of funds.
The second point I would like to make, Senator, is what you
have already addressed in your legislation and that is we must
do away with the statute of limitations. Governor Barnes, the
Governor of Georgia, on Friday signed a bill that abolishes
statute of limitations for all violent crimes in Georgia where
there has been newly discovered forensic evidence that can
identify the perpetrator. We already had an exception to our
statute of limitations. The Governor was just concerned. He did
not want any cases overturned on appeal.
Usually, the NDAA does not become involved in Federal
issues, but you are absolutely right, the Feds need to do the
exact same thing and abolish the statute of limitations, or
John Doe warrants as Ms. Fairstein was saying. I think there
are some legal problems there that Mr. MacBride and NDAA, we
need to talk about some of the various ways. But the cleanest
way to do it is to abolish the statute of limitations in these
types of violent crimes.
The third thing, Senator, is we do need funding for
training of prosecutors and law enforcement personnel. Many of
us went to law school because we did not do a great job in
Chemistry 101, so we could not go to medical school.
Chairman Biden. I can associate with that.
[Laughter.]
Mr. Morgan. I have not had a chemistry class, and I did not
do well in the first one. We would encourage that our nation's
Congress put in funds that would train us. If we do not
understand the technology that we are putting up in court, we
are not going to convince juries of the worth of this
technology. I believe Ms. Fairstein will agree on this. We
encourage that Congress do fund the training necessary. Once
all these kits are put into place and they have been tested, we
have got to have competent law enforcement personnel. That has
been testified to, that they need to be trained on how to
gather the evidence and our nation's prosecutors must be
trained on how to put this evidence before a jury.
I cannot thank you enough for this legislation. I think it
will have the most powerful impact on our criminal justice
system since the VAWA legislation.
Chairman Biden. Thank you very much.
[The prepared statement and attachment of Mr. Morgan
appears as a submission for the record.]
Chairman Biden. Some of you know me. I could keep you
here--as Senator Clinton said, my colleagues sometimes, they do
not make fun of me, but they remark on how passionate I am
about this subject. Everybody always asks me, am I so
passionate about it because my wife or my mother or anyone else
was victimized, and the answer is, no, thank God, but--so I am
going to try to keep the whole group only another 15 minutes,
OK, so I do not trespass on your time too much.
Mr. Morgan. Senator, I forgot to say, could I ask that the
National District Attorneys Association policy on DNA be put in
the record?
Chairman Biden. It will be, without objection.
I want to also suggest to you that I am going to submit a
few questions to you in writing in order to keep the commitment
of not keeping you beyond the time. I want to make a point
here. The reason why the legislation that I have written is so
broad, broad in the sense that it covers a lot of things beyond
just dealing with the backlog, is that, as Linda knows, after
long experience in trying to put together that Violence Against
Women Act, Linda will tell you we thought we solved a lot of
these problems in the Violence Against Women Act, and we did.
For example, Debbie's program is funded by VAWA, your program
was funded by VAWA, and so on. But it was not nearly enough.
So I want to remind everybody of the component parts. One
is the assessment of the backlog, which I may have to
reconsider in light of the testimony. Maybe it is not worth the
effort to try to assess the extent of the backlog.
Two is funds for backlog elimination.
Three is funds for offender sample testing. Three are funds
available directly to State crime labs.
Four is dealing with the national DNA data base, half-a-
billion dollars.
Again, there is another part, support for a Sexual Assault
Examiner programs----
Ms. Holbrook. Nurse Examiner programs.
Chairman Biden.--Nurse Examiner programs. Well, we may even
train a few doctors before it is over.
Ms. Holbrook. Well, there is an addendum that Mr. Schumer
has which is a SAFE Grant Act that states doctors. These tests
take an average of three to 4 hours for an excellent forensic
exam.
Chairman Biden. I understand, Debra. We just have to
pretend doctors are important once in a while. That is a joke.
That was a joke.
[Laughter.]
Chairman Biden. The other is training law enforcement on
collection, training funds to direct local governments and
universities, DNA standards, and statute of limitations.
Now, the reason it is that broad is my experience has been,
in fact, too long, but my experience has been that in every
stage of this effort to deal with violence against women
generically, we have had to train people. In the Violence
Against Women Act, I remember you telling me, Linda, we had to
train judges, and I remember sitting here thinking to myself,
what do you mean, train judges? Well, we fund programs to train
judges.
We fund programs, as J. Tom knows, to train prosecutors to
do simple little things. Stand between the victim and the
accused when you are questioning the victim so the accused
cannot be staring at the victim with a threatening stare. It is
a thousand little things, a thousand little things that make a
difference in protecting women, a thousand little things, and
that leads to my first question, Debbie. Excuse me for calling
you Debbie. Ms. Smith.
Ms. Smith. Debbie is fine.
Chairman Biden. If, in fact, you had known, if it were
general knowledge when that God-awful rape took place and you
walked back into your home, if you knew that there was an
extensive system in the United States that was going to enable
you, if you gave access to your body to determine what the DNA
evidence was available, if you knew there was this extensive
evidence that was connected to all 50 States and would lead the
likelihood of catching the guy who did that to you, would you
have been more or less reluctant to go along with what was
obviously a difficult, invasive process?
Ms. Smith. Much more, not just for my own protection but
for other victims' protection, as well.
Chairman Biden. As the prosecutors here will tell you, one
of the reasons why victims are afraid to go forward is they are
afraid they will never prove it. They are afraid it will never
happen and they will be the ones.
Remember, Linda, that young woman whose face got scarred,
what was her----
Ms. Fairstein. Marla Hanson.
Chairman Biden. Yes, and I remember her testimony so
chillingly. I said, ``What was the reaction of people?'' and
she said, ``Well, all the women that I told it to blamed me.
They said, well, why did you go there or what did you do? What
were you wearing?'' I remember you educating me to that.
The point here I want to drive home and home and home and
home again, we can take care of two lives here. We can take
care of the life of the woman who's already been victimized by
putting it back together a little bit for her, and we may very
well prevent another woman from being a victim. We do not
emphasize the first piece enough, in my view.
The second question I have, Linda, as you know,
pharmacology has kept up with the bad side, the dark side of
man, as well. One of the things you and I have talked about and
I am sure J. Tom has dealt with a lot and Debra made reference
to it, there are date rape drugs now that literally induce
amnesia so that the woman knows these horrible things happened
to her, but is not very useful on the stand because she cannot
remember what color the room was, whether the person was
wearing A, B, or C, and so on and so forth, and it has been
crippling.
This seems to me to be, ironically, more need it now, that
is, access to be able to have all this DNA integrated in a way,
even more important now as we are faced with these new threats
to women, not just women, but particularly women. Would you
agree with that?
Ms. Fairstein. Oh, absolutely. This whole area, and I think
Debra is the only one who brought it up, of drug-facilitated
rapes is shocking in, again, its recidivist quality. We have
had so many of these cases in New York and, of course, all
across the country. Most hospitals do not have the facility to
test for these drugs. The problems, because the victims
frequently do not get themselves to medical care in prompt
fashion because they have been drugged and then are hung over
after the effects of the drug. The testing costs are
extraordinary.
We have had several convictions in the last couple of
years, but they are extraordinarily hard to make and we rely on
our friends at the FBI who have a great deal of expertise in
this area and their lab to help us with the testing, but these
victims are among the worst treated every step of the way
because they come in not able to tell a story about what
happened after they have involuntarily ingested whatever the
substance is.
So identifying those substances through testing, and again,
unless you have got a SANE or SAFE examiner and somebody who
knows what the symptoms are, what they are looking for, these
are substances that get out of the bloodstream with great
alacrity, unfortunately, and after 24 hours, you frequently
cannot find traces of them. It is an enormous aspect of the
problem for which funding pools are needed.
Chairman Biden. Again, the human toll side. I will say this
and then I will yield to my colleague so we can get you out of
here at 1:30.
The human toll here, the woman who has been raped knows
what has happened to her, has the side effects, physical and
psychological, is scarred forever and ever, ever and ever,
according to the psychologists and psychiatrists who have
testified before me, if, in fact, she is unable to articulate
what happened to her with any degree of clarity because no one
will believe her.
I ask all the men in the audience, just think of how you
felt as a kid or as a man when something happened to you and
you told people. You told about the guy who took your wallet or
the bully who got you in the schoolyard and nobody believed
you. Nobody believed you. This is incredibly debilitating.
Let me yield to my colleague from Washington.
Senator Cantwell. Thank you, Mr. Chairman.
Mr. Morgan, as the law enforcement personnel here on the
panel, I am interested in your analysis of the resources
allocated for checking of crime scene DNA eviderce and
convicted felon samples in these various bills as far as a
return on investment. It seems to me that it would be hard to
think of a better investment of dollars to actually solve a
crime. You could come up with a list of hiring more prosecutors
or hiring more police officers or a variety of other things,
but that probably wouldn't be as effective a use of resources.
So what is your assessment of the return on investment of these
dollars?
Mr. Morgan. Madam Senator, you are exactly right. When our
State prosecutors got together 3 years ago and said the most
important expenditure of funds is not more prosecutors, not
more cops on the streets, but to fund our lab so that we can
get these crimes solved, if it protects another child from
being sexually abused, another woman from being raped or
another homicide, that is an investment, a wise investment of
American dollars.
Senator Cantwell. But it seems from the analysis that it is
almost about closing the case in some instances because all the
work has been done and all the information is there, correct?
Mr. Morgan. That is exactly right, but we have got to have
the resources to be able to close that case, and many times,
Senator Cantwell, what we find in Georgia is that the person is
arrested and convicted of a minor felony but has perpetrated
these horrendous violent crimes before, and if we can get him
on the minor felony, get him tested, we know if he gets out he
will do it again. So if we can get him tested, get him
convicted on these prior ones, we have saved lives and saved
the devastation that Ms. Smith has testified to earlier.
Senator Cantwell. In your testimony, you talk about that
investment of resources specifically for training on DNA
testing and the expertise that has to be behind the prosecutors
on that. Could you elaborate on where that gap is?
Mr. Morgan. Yes, ma'am, and Ms. Fairstein elaborated on
that, as well. We see too often our law enforcement personnel
on the local, State, and Federal level have not been trained on
the adequate collection of these samples. And then, as I said,
those of us who went to law school in the 1970's and 1980's, we
are not prepared to put up this kind of technology before a
jury unless we have expert training in this area. It is not
something that I can bone up on the night before and then put
up a DNA expert.
Senator Cantwell. So do you think that we are losing cases
because of that now?
Mr. Morgan. Yes, ma'am, and I will admit that we have lost
cases in my own office because we have not been able to
convince the jury. Once we are educated, I think we can do a
better job of educating jurors. There is still a reluctance of
jurors to believe this evidence in our country and we have to
be better prosecutors to educate the jurors here.
Chairman Biden. Senator, Linda has prosecuted thousands of
these cases and wanted to chime in here.
Ms. Fairstein. I just wanted to add, another reason, as Mr.
Morgan has mentioned, the science, we have to keep in mind that
this science continues to evolve and change. It is changing. We
bring experts from the FBI and from our serology lab more than
four times a year in to our prosecutors to teach and train
them. You cannot pick up, as we hand out at all these
conferences, direct examination of a serologist and use the one
from 6 months ago because we are talking about a different kind
of DNA technology. We are talking about a different population
genetics study and results. We are talking about statistics
that are entirely different than they were a year ago.
So the training is not only ongoing, it is sort of what Dr.
Adams said about continuing with the old things but the new are
coming in at a great rate. It will continue to evolve, and that
is part of what is so exciting and revolutionary about it.
Mitochondrial DNA, there are only a handful of States in which
that has been accepted in evidence, and this now means hair,
bone, things that have not had a cell nucleus before that we
can deal with.
So it is trying to keep current, and it is enormously
expensive to do that. We have got 600 prosecutors in a DA's
office like Manhattan, again as many in Brooklyn and other
counties, and we have got to teach all of those people and an
entire police force how to find this evidence with cutting-edge
technology and then how to teach it to juries.
I urge you to come to New York. Ours watch much more
television than yours. They really believe in DNA.
Senator Cantwell. Well, I think your point about
exoneration, as well, that it can work both ways, and the----
Ms. Fairstein. It must.
Senator Cantwell [continuing]. The basis of the technology
is that it is accurate and can prove either side of the
equation, I think is probably something that we have to work
on.
I know, Mr. Chairman, you are trying to adjourn, but I have
one last question for I do not care who on the panel----
Chairman Biden. No, please, go ahead.
Senator Cantwell [continuing]. Can address it, but it seems
to me, just given the anecdotal information that we have about
the results of matches in Debbie Smith's case and some of the
others, I know in our situation with the I-5 rapist in
Washington State, that it seems to me that we are going to find
a very interesting statistical match once we test these 20,000
DNA eviderce kits, so any estimates or guesstimates about what
we might find as far as convictions or number of people out of
those 20,000 kits?
Mr. Morgan. As Senator Biden said earlier, there is a small
population of criminals that commit most of the crimes and I
think we will see over and over again, once we test these kits,
that there are people in custody that have had prior
convictions or at least prior arrests.
Ms. Fairstein. We are getting back in New York City, among
the almost 16,000 kits that were outsourced by the city a year
and a half ago, they are coming back at the rate of about 500
to 800 a month now and we get city-wide, in the five counties,
more than 40 hits each time a load comes back. So I think the
numbers are just going to be staggering. This is the population
we want to get, small crimes and, of course, these most
devastating sexual assaults and homicides, and the numbers--we
are going to put a lot of people out of business if you give us
the money to do it.
Senator Cantwell. I think that is the point. I do not think
that we are talking about--it does not sound like, from the
anecdotal information, that we are going to end up seeing a one
or 2 percent statistic here, and the fact that it is not people
who are convicted and behind bars, it is people who have been
convicted of crimes, are back out on the street because it was
a minor offense, but obviously, their involvement in criminal
activity is much greater than the small crime that they have
committed, and that is why this is so critically important for
which to get the resources.
Mr. Morgan. That is a very key point, Senator.
Ms. Narveson. I think there are some statistics out there
that you can look to. Based on the experiences of laboratories
that are involved in this, the hit rate can run anywhere from
10 percent, which is a good number, all the way up to 48
percent, and a lot of it is contingent on a data base of
convicted felons reaching what I call critical mass, and also
of being able to process the non-suspect cases and the other
cases, such as burglaries, home invasions, and drug offenses.
I think right now, the State of Virginia has a 48 percent
hit rate because they have an all-felons statute and they are
aggressively analyzing all of the evidence and have the
resources and the personnel to do it.
Senator Cantwell. We in Washington have passed that, and so
we would encourage other States----
Ms. Narveson. That is good.
Senator Cantwell [continuing]. To do that, as well, and
that is why we were successful.
Again, I just want to thank everybody for being here, and
Debbie, again, thank you for your testimony and your
involvement. I think that you have all made clear to us that
the nationalization of this issue really will lead to more
women coming forward, and hopefully, passage of funding will
lead to more convictions, so thank you very much.
Chairman Biden. This will also, if we fund it and are not
cheap about it, if we actually step up to the ball here, this
will convict a lot of people and free a lot of people. I do not
want to, not just because she is a Delawarean, but I do not
want to undercut what Ms. Holbrook is talking about. We need
trained personnel to know what to collect, how to collect it,
and who to send it off to, and that is all part of this.
I cannot thank you all enough. I warn you, as Linda knows
from experience and Debbie knows, I may be back to you, ask you
to come again, because this is just sort of the opening salvo
here.
Debbie, thank you so much for your testimony. It was
riveting, compelling, and it is going to help change some
attitudes.
J. Tom, I would like very much to come and speak to your
group, I have many times, because you have been a great ally in
this effort.
Ms. Narveson, we are going to try very hard to see to it we
can get some leverage, some moneys for the labs. The reason I
say that is I have found when the Federal Government steps in
and begins to do this, it puts significant pressure on States
to respond.
Again, thank you all very, very much. This is an important
hearing.
I would like to include the statement of Senator Grassley,
who was required to be on the floor of the Senate with the
trade bill, in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Biden. The hearing is adjourned.
[Submissions for the record follow.]
[Additional information is being retained in the Committee
files.]
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