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

Tuesday, October 22, 2002

FEDERAL FUNDING FOR DNA ANALYSIS--ISSUES AND PRIORITIES

MR. SCHMITT: There are a few topics that I want you all to still discuss very briefly before we adjourn for the day, and the first area has to do with federal funding streams for DNA analysis. As you know, at the moment the federal funding is into two large categories, one for convicted offender backlogs and one for crime scene analysis or actually no suspect casework analysis.

I would like to know from you all whether you are comfortable with receiving kind of two streams of money or whether at some point you would like the streams to be merged into one pot that you would then use in the way that you see fit for DNA analysis.

MR. FERRARA: I understand the rationale for trying to push on the no suspect cases. I mean it's a shame that we should have to, but I would love to see federal money flow simply for the reduction of the backlog of DNA cases regardless of whether there is a suspect or not. And then, of course, if you collapse the convicted offender as well as casework, offhand I don't see any harm in that either and probably some advantages, but I would like to at least get us away from this focus on just no suspect cases. All of us in this room know that no suspect cases become suspect cases or suspect cases become no suspect cases. So that's my two cents.

MS. HART: If I could just say, in other words, if they made you the genie of the legislation, you would not have the designation of no suspect. It might be casework or it could just be DNA samples, both offender and casework.

MR. FERRARA: That's right. I would suspect, one, it would make the grant process simpler and the solicitations and the laboratories collecting or taking advantage of those grants less work in terms of bean counting, is this a suspect case, because at any point during the process it may have changed several times.

MS. HART: Would this allow you, if you have that greater flexibility, to make better decisions about public safety questions? In other words, you would be able to prioritize the testing in a way that you think would better protect the public than with the current designations?

MR. FERRARA: Well, to be honest, I think we're doing that right now. From our standpoint we want to do unsub. Cases and we have the capabilities of doing unsub. Cases. Now, I realize that there are a lot of states, a lot of laboratories, a lot of localities who aren't touching on unsub. Cases, and if they're not doing that, what is the point of having a database?

MS. HART: Hypothetically let's suppose that you had a bunch of samples that came in and you got funding to do convicted offender backlog, and let's suppose all of those convicted offenders were all people who were going to be in prison for the next 20 years. One might make the judgment that you could get better public safety benefit by focusing on, for example, people who might come out of prison or somebody who is a probationer or that you were going to try and solve some of your burglary cases. In other words, would having greater flexibility allow you to make better judgments about public safety benefits compared to how we prioritize between convicted offender and casework samples?

MR. FERRARA: I think I would have to answer that yes clearly.

MR. GIALAMAS: I wanted to give you some anecdotal information so you have some real life cases to put this on. In California what we experienced with the cold hit grant program is that because agencies were so backlogged, that investigators decided, well, the only way the crime lab is going to work on my case is if I make up a suspect. So even though the victim may have known someone that really wasn't a suspect in the case, it got written as a suspect case.

I have to be careful because I'm going on the record here, but the reality of what ended up happening is those cases now because there was an assigned suspect on them instantly became ineligible for a no suspect case.

In California that has been modified. We've reworked that so that we term the wording that all investigative leads have been exhausted as opposed to calling it a no suspect case.

MS. FORMAN: If you look at what the NIJ solicitation defined as a no suspect case, no suspect was a case in which there was insufficient probable cause to obtain a known sample from that person, so even though there might be a name in the box that says who the suspect is, if there wasn't sufficient probable cause to compel a sample, you still could count that as a no suspect case.

MR. GIALAMAS: I realize that. I don't want to imply that I was ignorant on NIJ's requirements, but sometimes when the term "no suspect" comes out, people just assume one version over the other.

MR. SCHMITT: Am I safe in assuming that you would not be comfortable with further specification of the funding stream, say that we would now have within the no suspect category a certain amount of that money set aside only for no suspect cases that were rape cases and a certain part of the money that were set aside for no suspect cases that were sexual assault cases, but not involving rape? I assume that you would prefer not to go in that direction. You actually want to go in the other. I see a general consensus that I'm correct in that assumption.

David, did you want to comment on this general topic?

MR. COFFMAN: I agree with Paul that some of us just need to get out from under the backlog, and that backlog does include cases with suspects, but on the other side I can see that some people handle their backlog by restricting what they accept from local law enforcement. So what you want to do is get cases that are unsolved because those victims have every bit a right to have their case looked at as a case that has a suspect.

I don't have the answer because it's going to be innovative and I don't have that, but maybe some sort of formula that you can allow 30 or 40 percent no suspect to 60% - you know, require a minimum number of no suspect cases in solicitation, but allow people to do cases with suspects as well.

MR. SCHMITT: Let me ask if you can predict or would care to guesstimate at the point at which federal funding to do offender backlogs would no longer be necessary, that you will have eliminated the backlog, you will have enough institutional capacity in place perhaps through federal money such that even with the changes in statutes, you will be able to do offender samples on your own without a federal shield of money.

MR. COFFMAN: Because we're caught up, I didn't apply for this year's, but does the convicted offender program allow a building of infrastructure like it did with casework now?

MR. SCHMITT: It does not.

MS. FORMAN: The convicted offender program allows states to do in-house analysis of their convicted offenders if they can do them to a certain degree of high throughput and within reasonable costs similar to that of the vendor. How you choose to spend that money is -

MR. SCHMITT: That's an analysis issue, whether you do it or somebody else does it, but the notion of using that pot of money to actually build capacity for the future you may do with the no suspect money; you may not do with the convicted offender money.

MR. COFFMAN: Then I would make a proposition to you that until a state can build its infrastructure on the convicted offender side - and I'm not talking all states. Some states, even if they went with all felon, they're a small enough state the crime issue is not like it is in Florida or other of the larger states, but I think there needs to be infrastructure building for the convicted offender program so they can take advantage of these wonderful automated procedures that not only help them work a lot of samples with no increase in personnel - and, by the way, I lowered my scientific staff two people since 1996 due to automation even though we've increased 500% in the number of samples we're receiving.

So automation needs to be plugged into the formula or the backlog is going to come right back unless the state gets money, and, frankly, with automation and with the salaries we offer in Florida we're cheaper than most private vendors for the whole process.

MR. SCHMITT: Do I take it, though, as it currently stands you are unable to predict the point at which you would be self-sustaining with respect to offender samples, whether that be five years, seven years? You just don't know yet.

MR. COFFMAN: We're self-sufficient now. I'm talking about the whole country. I think unless they get automation in place, I don't think anyone is going to be able to handle the all felon move or even possibly arrestee move. Right now with the automation we have in place we can perform 80,000 analyses a year. We're not getting that much, but we can perform 80,000 analyses a year, and we can bump that up by buying another robotic or another sequencer. So it's all modular at this point.

MR. SCHMITT: Do you have the ability to take samples from other states on a reimbursable basis pursuant to a memorandum of agreement to do that analysis since you have capacity that's not being used? Let the record show that he indicated a response in a manner of shaking his head. I won't specify which direction.

MR. COFFMAN: We could do that, but I'm also worried that if we made that jump and said we would take samples from other states, which we could, then someone is just going to say why don't you just do all arrestees, and there is a space issue involved just by housing all of those samples that we're not prepared to undertake.

MR. SCHMITT: Other comments on this notion of when the federal trough dries up?

MR. GIALAMAS: I just was going to throw in remember that the backlog situation really depends on the statutes currently enacted in each state, so you may have a state situation where they're very comfortable in where they are, and just because new legislation is introduced, all of a sudden there are ready and willing applicants to NIJ for federal funding to help reduce their backlog when they didn't have one the year before.

MS. NARVESON: I think one of the things that we may not have thought of that I was discussing during the break, and that is states may be able to gear up for high throughput for all convicted felons, but I think we might see a shift of responsibility when we go to all arrestees. I can see the day when the State of Arizona says to Phoenix, you arrest more than two-thirds of all the arrestees in the state; you do the samples because the state doesn't have enough money to do those initial samples. So you may see this burden shifting, and then once again you're going to have to have the ability to develop some type of infrastructure for high throughput or outsourcing.

MR. SCHMITT: Sarah, I think you wanted to revisit a point from earlier.

MS. HART: One of the things that Glenn had mentioned was the question of what people's views were on having legislation that might recommend that, for example, only rape kits be tested or that there be funding for rape kits and whether that was a good idea to specify that specifically. What I was a little concerned about is that I know we have had a number of discussions and I have had discussions with people here about this that I'm not sure that the record here really kind of captures the fullness of those discussions, and so in the sake of moving ahead, how about if I kind of summarize what I've heard from a number of you outside of this, and correct me if I'm wrong here.

I think most people would agree that rape kits on sexual assaults are some of the most serious crimes that you face, and they certainly get high priorities in your labs; however, there are very serious crimes that may not involve a rape kit. If, for example, you talk about Chandra Levy, here you have what appears to be a sexual assault. It's a murder, but there would not be a rape kit in that case. So that if one had legislation that required you to do that, it would exclude a case like Chandra Levy.

So that there may be very, very serious cases that you would want the latitude to be able to test those, too, and not just be restricted to rape cases, but that everybody realizes that rapes usually are the most serious ones that you face. Did I capture that correctly? Does anybody want to add to that?

MR. GIALAMAS: I would just add the comment that you could craft your language so that it addresses sexual assault crimes as opposed to sexual assault kits because, as you mentioned, there may be crime categories that perhaps even the sexual assault evidence isn't the important evidence in the case. It may be something else.

So it may not be the kit that we're going after, but some other kind of evidence. So when you look at your language, if you can consider the crime category as opposed to the evidence category, that might give that latitude and freedom for laboratories to pursue the appropriate evidence.

MS. HART: What about the situation, for example, where you know you have got a kidnapping and you think maybe it's going to be a sexual assault, but you don't know that? I presume there are kidnapping cases that everybody would also say are of equal significance, certainly homicides.

Is it best to say that you want to be able to prioritize with the most important cases, the ones that have the greatest impact on the public and the public safety, but not have to specify the exact kind of crime that that would be? I'm seeing lot of nodding. Does anybody else want to add to that?

MR. FERRARA: I think one of the most difficult problems our DNA laboratories face is the issue of prioritization of casework. Not having crystal balls, there are all kinds of difficulty. By nature any violent crime is higher on a priority list than lesser crimes such as auto theft, breaking and entering. I think the laboratories need to have that latitude to prioritize samples as dictated by their own management or their own experiences.

In Virginia the highest priority goes to those cases that are going to trial. That has to be first, and then, of course, the most violent, the most violent crimes, serial rapes and serial murders. Having said that, the reality is that while an examiner may be working a particular 100 item murder-rape case, that same examiner can knock off 20 breaking and entering cases real quickly, and so we'll have B & E cases that are done, as it turns out, in a shorter time frame than maybe a more serious crime, but it's an informed decision as to what is the best utilization of personnel and what types of crimes need the proper attention.

I feel like only recently did I have to draw a line, and I did so with the input of prosecutors, that they would agree with my decision, our recommendation that we would not accept misdemeanor cases that didn't involve some sexual offense.

The converse is the same. We do every kind of case. Our police are swabbing steering wheels on stolen cars all the time, and we are making hits on those cases. Of course, these are the same individuals who later are committing the more violent crimes.

At some point you have to draw the line, and I drew the line when they asked us to do DNA on a business end of a marijuana joint for a misdemeanor case. But the more types of cases you're doing of that nature, the more difficulties in prioritization.

My remarks and concerns about the no suspect, I would like to clarify that that is well intentioned because you're forcing laboratories who might otherwise only do cases that are going to trial and are cases where there are suspects and never do a no suspect case, but that can be addressed by an increase in the capacity of that laboratory, and I think that's where we all have to get to.

We need to get to the point where we can run samples on investigations of all different types of crimes even if they are misdemeanor cases, but they involve a sexual assault. So I don't even draw the line at misdemeanors.

MS. HART: I have to tell you that having had my car stolen in Philadelphia back in April, it broke my heart seeing this stripped Suburban and looking at it and thinking, man, they could get all of this stuff from it and knowing full well if I called anybody to say get a fingerprint, I would just be laughed at. We all look forward to the day when we use this to its full potential and recognize that there are going to be very hard choices as we get there. I think the people in this room have made some real good work and can help guide other people about some of the things they ought to be thinking about in prioritizing things until we get to where we need to be.

MR. FERRARA: That's why I think the more we try to point people or specify, it makes it more difficult for the laboratories because each laboratory's circumstances and situations are different, and the greater latitude that we have in how we use the money, I think the more effective that money will be used.

MS. HART: Would it be too much of a burden to with federal funding request that part of the grant application have a plan of prioritization that maximizes the public safety benefit? Is that an extremely burdensome thing or something that requires people to think about those questions?

Lisa was mentioning we do have this plan on the no suspect, but I'm talking generally if you have a broader flexibility still requiring that and requiring public safety emphasis and fair administration of justice, which I think covers trial of cases and also making sure that you're solving cases with rape victims.

MR. FERRARA: I don't see how it would be burdensome. I think it's something we're all dealing with right now day in and day out. So I just don't see where it would be that much more problematic. How you quantify that I don't know.

MS. HART: I wouldn't see asking people to do that, but just making clear that that kind of thought is going forward so that you don't have somebody just saying I can do two cases here and there are 20 marijuana joints, so my stats will look good because I did 20 cases. We really don't want to encourage that.

MR. FERRARA: That's right.