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

Monday, October 21, 2002

MITOCHONDRIAL DNA ANALYSIS

MR. SCHMITT: In the way of expectation setting, we will stay until 5:30.

I would like to move us now to the next section of the agenda, which would be additional areas, and I would like to start of with mitochondrial DNA analysis. In particular, I would like to have a discussion begin with some folks sharing what they use mitochondrial for, how often, what percentage of your actual workload is mito work, and talk about perhaps the pressures on the outside and people who want it. Is it rightly put or not, and where you see that fitting into the panoply here going forward. As you can see from this list, we'll also move in a little bit to a discussion of using mitochondrial DNA analysis for identifying human remains.

Let's start with Joe.

MR. DIZINNO: Maybe I can give you some baseline numbers to start working with. In the past three years we have had between five and six mitochondrial DNA examiners qualified, each working with at least one biologist, sometimes two, and they've put out between 200 and 240 cases per year, so it's an average of about 30 to 35 cases per year per examination team, which can consist of a minimum of two and possibly three people. Of those cases, about 75% of the cases involved hairs and about 25% of them involved unidentified remains.

As far as assessing what the needs are to be met for mitochondrial DNA, I think that's a very difficult thing to do. I know NIJ in the past has tried to identify how many rape kits are out there. This is almost like trying to identify how many rape kits are out there with hairs present or how many hairs that are in clothing that haven't been processed. It's almost an impossible task.

I can say that you really I don't think can perform mitochondrial DNA analysis without also an expertise in hair microscopy within your laboratory, and there are fewer and fewer numbers of laboratories performing hair microscopy that I doubt if anyone in this room who has a lab would want to start tackling mitochondrial DNA without a hair microscopist. So they're kind of joined at the hip, those two areas of expertise.

On the other hand, I would say that I think it has a tremendous potential if the hair evidence out there alone were exploited to its fullest extent, but again that would require hair microscopy expertise as well as mitochondrial DNA expertise.

MS. CROUSE: Last year we sent out eight cases because we don't do mitochondrial DNA analysis. We sent out eight cases. We had approximately 650 cases total come into the laboratory, but only eight of them went out. Two were bones and six were hair.

MR. FERRARA: Virginia's experience has been that the demand and the need for the mitochondrial DNA analysis, as Joe has previously stated and I echo his remarks, has got to grow. I get very concerned when I see any forensic laboratory reporting out a microscopic hair comparison one way or another without the benefit of a mitochondrial DNA, and I think that's a direction that we need to go, which is going to presumably further increase the demand for mitochondrial capabilities.

We're trying to establish it in Virginia. We've held off as long as we can, but I think it's inevitable. The resources available right now are very limited. The Bureau has got their hands full. Private laboratories, the analysis is extremely expensive, and I know a lot of prosecutors who I have had to - I have had to agree to pay for the DNA testing because the prosecutor was going to take a case to court without mitochondrial because they didn't want to pay $4,500 for a single hair and a reference blood sample.

I don't think we should tolerate that kind of condition. So clearly there needs to be some enhancement in the area of mito work.

MR. SCHMITT: Do you ever see cases where there is pressure brought by the detectives or someone else to do mitochondrial analysis when you also have sufficient material to do regular nuclear analysis?

MR. FERRARA: No.

MR. SCHMITT: In other words, a wasting of efforts is what I'm getting at.

MR. FERRARA: No. That's the first thing we look for and try to screen that out. Obviously my remarks deal with the situations where all attempts to develop an STR profile fail and the only evidence available is a hair. Then subsequent to a screening by a hair microscopist not just for comparison purposes I might add, but also for ascertaining if you're dealing with body hair, racial origin, and such, but once that is complete mito is the only result.

MR. SIGEL: Was that also a case you had no other way to do DNA analysis by using mito?

MS. CROUSE: Even if it looks shabby, I'll still go for it, but our state attorneys will not pay for it.

MS. NARVESON: As part of a feasibility study we actually tried to get our hands around what would be the possible demand for services in the State of Arizona. We were surprised looking at cases that couldn't be solved with nuclear DNA looking at unidentified remains that are just laying, no one has any identification material. We came up with about 150 cases right off the top of the study, and my feeling is it's just like, you know, you build it and they will come. Right now it's a cost factor. In fact, we are meeting a great demand for service with nuclear DNA, but I think if it's there and it's reasonable, you will see the demand increase.

MR. SELAVKA: Just very quickly, we have a couple of cases, relatively high profile, where there were nuclear DNA results that have exonerated a suspect, and there was a hair in the gut of a victim, and that hair, we were forced to do mitochondrial on it. It didn't make any difference, but it was one of those cases. So it's not always just in the absence of nuclear DNA. Sometimes it's a force by the investigators or by the DA.

MR. SCHMITT: You mean it's forced even over the objection of the lab who says this is not necessary?

MR. SELAVKA: Yes.

MS. NARVESON: Usually we see that with nuclear DNA where it's the sleep over and the stepfather of the hosting young girl is accused of molesting someone, and, of course, everybody has brought the sleeping bags from somewhere else and they want all the hairs and they want nuclear DNA done on it. Those are potentially mito cases.

MR. SCHMITT: Susan, you made the comment if you build it, they will come. Is that also a caution that if you build it, you're going to get lots and lots of requests for it, and there needs to be some sort of either gatekeeper function or education function that happens on this?

Let me pose a question for the chief. You can answer now or as we go forward here. Are your detectives amenable to being educated, if you will, by the lab guys on this or on the detective's side does this seem as kind of a silver bullet: Hey, we can now analyze anything you can find, and so make these lab boys do their jobs and use mito on everything?

MR. CLINE: In Chicago we got rid of our lab about seven years ago. We're using the state lab now. The state lab has set up training for detectives where detective go to the state lab, sit down with the analysts, and talk, and that has been a tremendous boost for us because it's understanding on both sides.

The other thing is we try on our high profile cases to get our detectives over to the lab, sit down, and take a look at the evidence with the analyst and say what can we work on here. Let's say it's a high profile sexual assault case. Let's first do the swabs before we worry about clothing or bedding or anything like that. It has been a success, but it's definitely an education process.

MR. SCHMITT: Joe, at the Bureau who has final say on what kind of analysis is run? Is it the lab?

MR. DIZINNO: Usually the lab personnel work with the investigators and try to determine what is probative and what isn't, so it's really a joint effort.

MR. SCHMITT: So it sounds like you and the chief would agree that either working together or a communication function is crucial here to appropriately place the laboratory resources in the most efficient manner.

MR. DIZINNO: That's correct.

MR. CLARKE: I was just going to say as an end consumer, I feel like I'm at my first Alcoholics Anonymous meeting. I confess I'm a mitochondrial DNA addict now. Having just been involved in the trial of that rash of children kidnap, murders and so on, we turned to mitochondrial DNA testing, and we really had, for lack of a better term, a free shot at it because there were hairs totally associated with our defendant. The Bureau stepped in immediately because of the nature of the crime and obtained an important mitochondrial DNA match from one location, but ultimately we had - I hate to say it - another 25 hairs typed at a private laboratory, and a little multiplication will tell you the pain of that, but nonetheless it turned out to be excruciatingly important, telling the tale of where our victim had been, in our defendant's home, in his bed, in his motor home, in a series of locations.

Can we do that in a routine case? Of course not. Some day we may be able to hopefully, but that turned out to be an extremely important technology used in a case where at our original laboratory they could only screen these hairs. That's the best they could do. Everyone was blonde practically that was involved or potentially involved in the case, and hair microscopists know that that gives them less opportunity to be distinguishing in terms of features and so forth. But here ultimately by spending a lot of money, which is okay in cases like this, we ended up being able to tell the jury the full story of what happened. In a capital case in particular that can be extremely important because the capital juries, death penalty qualified juries, expect more and want us to go down that route.

MR. SCHMITT: But there you had a theory of the case and a litigation strategy that you wanted to achieve using this type of analysis. It wasn't let's analyze everything and make sure that we've got the right guy. You had a theory that you wanted to lay out that you could only lay out through this type of analysis.

MR. CLARKE: Exactly, and the fact that an exclusion - out of the 25 hairs there were probably ten exclusions in that batch - exclusions did not defeat what we believe happened. The inclusions became extremely important.

So there are many varieties of that. There can be much testing of hair. As Joe knows perhaps more than any of us, the hair is just not probative regardless of the result. You go back to the original case in Tennessee. That's a number of years ago. Now I believe a pubic hair in a young girl's throat, that's probative. So it's measuring that along the spectrum.

MR. SCHMITT: What is the best way to meet the needs that you have? CC has eight cases in her county in a year. Does it make sense for her to have that kind of capability in her lab? Paul, how many cases would you have in the state?

MR. FERRARA: We've determined that we have enough demand even currently to have one team performing mitochondrial in house, but that's for an entire state of 7-1/2 million people, but at least two.

MR. SCHMITT: Is this the sort of thing where there needs to be national, regional laboratories that do this sort of thing on a reimbursable basis? Is it that states can simply through memorandums of agreement partner with other states that have these capabilities that other states would have it, and that would meet the need? Is there a need to have private labs to handle this? If the answer to that is yes, might we not fund - allow our money to be used for developing these capabilities in the state and local labs?

MR. CLARKE: I think right now the private laboratories are filling that need because Joe and his resources, they took extra steps to perform typing on I think it was two samples, extraordinary extra steps. The private laboratories I think are better equipped to do that, particularly when, as in this case, a defendant refused to waive time. He demanded a speedy trial within 60 days.

MR. SCHMITT: You didn't have any chain of custody issues having gone to the private lab?

MR. CLARKE: No, none.

MS. CROUSE: One of the things I'm still confused about with regard to mitochondrial, and maybe I didn't understand the impetus for the production of the mitochondrial strips, the nylon strips, it was my understanding that originally years ago those were going to be developed for labs like ours that were small labs that wanted maybe to pump out presumptive identity by mitochondrial analysis and then it can go on for a full sequencing. Is that part of the schematic anymore or do you have any idea what is -

MR. DIZINNO: That was being developed by a private company. They asked for our input into that. I still think it would be worthwhile as a screening tool, but you would have to perform the full sequence once you go to court. We haven't put any resources into developing sort of those screening mechanisms for mitochondrial.

MS. CROUSE: Because we would have considered that. We are also looking into mitochondrial snips as well. I'm just not sure where the technology is going for the small labs like ours. We're not going to be a full-fledged sequencing laboratory ever. We just won't have a need for it.

MR. SCHMITT: Other thoughts?

MS. SAMPLES: We had planned to have our mitochondrial DNA up a year ago, but we got derailed. We are planning to have it up soon, we hope, and our goal is to be a regional resource for the laboratories certainly within our state and hopefully for a fee, but all of those particular details still have to be worked out. I feel like Susan feels, and that is if we open it, we're going to be swamped with requests for analysis. We don't really have a good idea of what our case load is going to be. We just assume it's going to be too much.

MR. SCHMITT: And then you would do what?

MS. SAMPLES: Develop a backlog.

MS. HERD: It also seems to me that there is just a real unevenness across the country in terms of prosecutor awareness of mitochondrial DNA technology and what it can and cannot do and the willingness to pay for it. As CC noted in your situation versus Woody's situation where it was a very high profile case and the DA was pretty much willing to spend whatever needed to be spent to solve the case, and, you know, you were in a position where you could get the samples analyzed, but I think a lot of prosecutors aren't aware of the power and the need for mitochondrial DNA perhaps or that the FBI is a resource and maybe their backlog isn't as bad or that they have hired more analysts and have them on line. Am I correct in my perception of that, that there is an unevenness in the awareness of prosecutors?

MR. DILLINGHAM: Kim, you know better than I there is. One of the things that I think Sarah started out with earlier was the need for training in a variety of areas, but certainly there is no greater need than in the prosecution community. So I just reiterate your identification of that need.

Also I don't want to jump back too far, but you and Woody hit it perfectly on a previous discussion about the issue, and I know you're going to be grappling with it, of standards and prosecutors. Standards is something that are used to beat up on prosecutors, and to the extent that we focus on guidelines, best practices, I think we're in a much better position. So in this area as well the training - I think that the best practices in the prosecution community will only become reality with some attention and resources devoted to it.

MS. HERD: Also in these types of situations establishing a regional lab or that whole debate really prosecutors can kind of drive whether that happens or Attorneys General. So even if at the lab level it's identified as a problem, it really needs to get out there to those policymakers and to the end users, who are then able to go to advocate for it, and a lot of times that gap is very, very wide obviously, as you well know.

MR. SCHMITT: Paul, do you think that the policymakers in Virginia would allow your lab to do mitochondrial work for other states on a reimbursable basis assuming Virginia didn't lose any money, maybe even made money in the deal? Has that been discussed if you're at liberty to say?

MR. FERRARA: Our Attorney General has been a real advocate and keeps telling me, Paul, I'm going to get you money to set up mitochondrial. He's a former prosecutor, and he realizes the necessity. Currently by statute we're allowed to provide forensic laboratory services to any law enforcement agency working a criminal investigation in Virginia or any federal agency requesting it.

I am quite sure that with respect to mitochondrial DNA, they would modify the statute to allow us to provide as capacity allows to do work on a fee basis for another jurisdiction, yes.

MS. GUIDO: I was just going to say on the issue of prosecutor awareness, I'm sure that is an issue, too, but it seems to me that the budgets of the various district attorneys are just as crucial to that, because, for example, in our state, Pennsylvania, we have a lot of - in our 67 counties we've got Philadelphia, which is larger, and then we have some places that have a part-time DA, one guy. We have one guy up in Monroe County, for example, who his county commissioners would not even authorize any funds whatsoever for the office, no paper, no pens. He was running the District Attorney's Office out of his own private law office.

If they had a high profile case, they're not going to be able to send it out. It doesn't matter how big the case is to that county. They can't send it out. I can't think of the state right offhand, but some of you may remember. It was in the news not long ago where the local judge determined that the prosecutor was not allowed to seek the death penalty because he felt it was going to bankrupt the county budget if they did that.

So how that funding is going to happen is a crucial issue, whether it's going to go to a central location or whatever, just so it's available to some of these smaller areas that they just wouldn't have the budget to even move money from one case to the other. They just couldn't do it.

MR. SCHMITT: As I told you earlier, I invited the manufacturer folks who are here today to pass me notes. This is in response to I think CC's comment or question. The note I received is that mitochondrial DNA snips are being developed with a kit which would permit small labs to screen for mitochondrial and also Y chromosomes on a ABI 310.

I want to ask Joe to tell us a little bit, if he can or to the extent he can, the FBI's plans to use its CODIS or a file of CODIS to help identify human remains and then ask those of you from other states whether your states are developing or planning to use DNA analysis in that similar way even within your own state's database or uploading into the FBI's database.

MR. DIZINNO: CODIS has in it another file for missing persons, and it actually is a file with two subfiles, a missing persons file and a missing persons reference file. Currently that will - or originally that will contain mitochondrial DNA profiles only; however, it will be set up so that it can contain the profiles of STRs for mitochondrial DNA. Our initiative initially is for mitochondrial DNA on human remains because generally we're not able to obtain nuclear DNA results from most of the human remains that we receive.

MR. SCHMITT: Is anyone else doing similar work in their state? John, do you want to start off and tell us what you're doing?

MR. KRESBACH: Currently we're doing nothing; however, I just testified before a legislative committee last Thursday to this very issue. When our original CODIS bill, if you will, was passed in 1997, for ease of getting it passed through our legislature it specifically had stripped out any references to unidentified human remains, missing persons, relatives of those people, and the like.

After September 11 and other similar types of things have gone on around the world where they have needed to identify large numbers of people or just even the individual person who has been badly decomposed it's now in the forefront, and we're actually pursuing legislation to specifically allow us to utilize CODIS and any of the other resources that may or may not be either through private vendors of the Federal Government or whoever to be able to have this as a resource that we can offer the citizens of New Mexico.

Currently our medical investigator, our Office of Medical Investigation, which is a statewide office - if you die in New Mexico under unusual or unknown circumstances, you're going to get shipped to Albuquerque. They perform the autopsies, collect specimens, and then you go back for burial if you're identified.

We have currently between six and ten people per year that are not identifiable by any means. They're not necessarily decomposed. We just have a very transient population in New Mexico. For all we know, they could be Mexican nationals, they could be people from other states who have been off the radar screen of their respective families for a significant period of time, and if they've not had dental work or if they have not had fingerprints taken because they're not a criminal, you have this perfectly suitable body for doing nuclear DNA, but regardless you still can't figure out who they are.

So we're in process of putting those pieces together in order to take advantage of whatever the Federal Government is going to have as far as CODIS. So once it's up and running and regardless of whether we have to pay for the mitochondrial DNA if it's necessary or the family members of the missing person might want to, you know, invest in that type of thing, which our proposed statute would allow for to minimize the burden on any small jurisdictions, we're ready to take advantage of whatever is out there or we will be in February.

MS. HART: Dean, I know that California passed a statute a couple of years ago requiring the testing of remains, and I was wondering how that has worked in California. Most states do not appear to have that type of a statute.

MR. GIALAMAS: Well, I can't speak too well because I don't work for the state, but at last count I think they had ten samples in the database.

MS. HART: Ten unidentified dead or basically that's not a priority of testing?

MR. GIALAMAS: Ten unidentified remains in the database that some day we could upload and compare to, but the program is just getting off the ground. The state, as I think Marie had mentioned earlier, is pretty much a training center, regionalized training center for most laboratories. They bring people in, train them to do DNA, and they're usually lost to another agency. So I think that has greatly affected their ability to keep up on their programs. We do have a mitochondrial program that is being started in the state for this very reason, but I don't think it's up and running at this point in time to any significant degree.

MR. COFFMAN: I was just going to say we have utilized CODIS to have a missing person index in Florida for about a year and a half, but we are using it for STR. CODIS doesn't allow you to do mitochondrial at this time, and so we are just inputting STR profiles on unidentified human remains, and we have had our first successful identification to a convicted offender that was collected eight years ago.

MR. SCHMITT: Is it just locally? You're not uploading anything yet to the national database?

MR. COFFMAN: No.

MR. SCHMITT: But the reason you're using STRs is because that allows you to use the CODIS software that you have in your local database.

MR. COFFMAN: I don't think our agency right now has any plans to move to mitochondrial.

MR. SCHMITT: The hit that you got was with a convicted offender?

MR. COFFMAN: Yes. It was an unidentified human remains found in a wooded area, and they were able to get STR for it, and we searched the offenders and matched an offender.

MR. SCHMITT: Joe, what the Bureau is going to do here is search the reference subfiles, but you will also search the convicted offender file?

MR. DIZINNO: That's correct.

MR. SCHMITT: The federal statute that deals with us today, the Federal Budget Commission's Act, requires that we make time for public comment on what we're doing here today, and, of course, we believe that it's important in and of itself. The reason I bring it up at this time in this somewhat awkward way is the statute requires me to do this at 5:00 p.m. regardless of where we are in the discussion. So a marker that we will come back to postconviction DNA testing as a subject in just a few minutes.