Transcripts of the Attorney General's Initiative on DNA Laboratory Backlogs (AGID-LAB) Working Group
Monday, October 21, 2002
POSTCONVICTION DNA TESTING
MR. SCHMITT: Let's move now to the subject of postconviction DNA testing. By this - I think it's obvious, but I'll state it - we mean a situation where either through statute or through a state procedure mandated by the chief executive or someone else, perhaps the Attorney General, convicted offenders may petition to have evidence sampled for the presence of DNA material after a conviction as part of some process whereby they're trying to assert their actual innocence for the crime.
I would like to hear from those people who have a statute on the books in their state. If it has been recently enacted, which I assume actually most of them have been, what impact that has had on your analysis and especially in terms of timeliness, moving one thing in front of another, kind of where you see things going, and then just a general discussion about this subject.
MR. FERRARA: With respect to specific actions after enactment of a postconviction statute, which went into effect in July of 2001, nine cases have gone through the process in Virginia. Five of those cases have been completed. Four are pending. Of the five completed there were two inclusions, two inconclusives, and one exclusion that also resulted through a data bank hit of the real perpetrator.
MS. NARVESON: Arizona has a postconviction testing statute on the books. To date it has not resulted in a large number of cases coming forward, but we did have a case of an individual who had been convicted of first degree murder, sentenced to death. On retrial he was convicted once again, sentenced to life. On a court order to do the testing pursuant to a continued request for this type of testing he was eliminated as having any association with the victim. We ran the sample against the state database, and we were able to identify an individual who was going to be released from the state prison within 30 days of his being hit against. So that was I think the 100th person identified as being exonerated.
MS. HART: One of the questions that was asked of me and I didn't have this answer, but if you had to kind of do a range about what it cost to do postconviction DNA testing, what it would cost for let's say a rape case, an uncomplicated rape case compared to a much more difficult case with blood stains or whatever, does anybody have - if you could just give me a ballpark figure about what you would be talking about on an average per case from the uncomplicated to the more complicated.
MR. FERRARA: On a postconviction?
MS. HART: Yes.
MR. FERRARA: The analytical process on the postconviction cases, let's say on a rape case, weren't particularly more expensive analytically than a pre-prosecution case. What did take considerable more time in these postconvictions is conversations between the courts and the laboratory and collecting the evidence and figuring out exactly what pieces of evidence and what types of examinations are being asked. To put a dollar figure on it, therefore, I would guesstimate something in the order of about $5,000 for a single, relatively straightforward rape case.
MS. HART: Is that roughly about right?
MS. GUIDO: Would that include factoring in the cost of having the expert go testify in court about the results?
MR. FERRARA: Yes. I come up with those figures roughly based on looking at the number of examiners I have and the number of cases and dividing the total budget into that. So, yes, that would be incorporated into that estimate.
MS. GUIDO: The reason I wondered is because we have a brand new statute that I think the governor signed within the last month or two, so we don't know what the impact of that is going to be, but one of the things that came about during the negotiations with the legislature was they were arguing over who was going to pay for the postconviction testing, and, of course, the counties didn't want to pay for the testing. A lot of locals used the State Police, and so it was decided that the State Police were going to pay for it. This is what the legislature put on it.
Well, the State Police got upset about that because it might not even be our case; it might be a county case and it's going to be paid for by the State Police, and ultimately how that was worked out with the legislature was that the State Police have to pay for the test, but they can choose to do the test in their own labs or they can choose to contract it out.
The director of our lab was saying she thought that they might end up having to put a lot of them out there, contract them out because they just wouldn't have the time to go to court and do everything that's going to go along with that. So that was why I was wondering. That is something that's going to have to be factored in. In most postconviction proceedings I would think that there is a pretty good likelihood that you might have to have testimony about it.
MR. SCHMITT: I would like to ask Paul and Susan to tell us if the Virginia and Arizona statutes require that the offender assert his or her actual innocence for the crime in question, and then also to talk about whether in your case or in other states of which you're aware that have this if there is an evidence retention issue that has been a problem. They ask for the test. The evidence is just gone.
MR. FERRARA: In Virginia before that postconviction decision can be reached there has to be a finding that the evidence is in fact in existence somewhere. Otherwise it doesn't even reach that stage. There probably would have been a lot more postconviction cases in Virginia, for example, had the evidence not been destroyed many, many years ago.
What was the first part of that question? Actually in fact the statute is called a writ of actual innocence.
MR. SCHMITT: Susan, do you know from Arizona?
MS. NARVESON: I'm not intimately familiar with the legislation, but since Arizona is the home of Ron Reinstein, who sat on the commission that put together the booklet, I'm sure that Ron had a very important role to play in that. I would say, just like Paul said before, that most of the analytical work did not take any more than a regular case coming into the laboratory, but finding where the evidence was, was it in the clerk's office, was it in our property management bureau, and then finding out what had been done before, going back and pulling the case files, looking with some degree of horror as to what the state of the art was back in 1980 whatever it was, and to see how little we could do then, and in some cases we didn't even do that well.
So trying to put all the pieces together, trying to walk that fine line between recognizing we were there as an entity that could resolve this and dealing with defense counsel and prosecuting counsel, the investigators who invested so much in this, and especially the prosecutors who were still around who had prosecuted that case, that took more of our time and dealing with the political issues than the actual analytical time spent.
MS. GUIDO: I was just going to say with our new statute that just came in, they do have to make a show of actual innocence, but, for example, in capital cases the actual innocence could be the actual innocent of either the aggravating or the mitigating factors. So that if the aggravating factor was that they had a significant history of prior felony convictions and the person had three burglaries before and now thinks if you went back and did the DNA on the prints that were found at the scene, that it would show that he really wasn't the person, then that's something that potentially could have this kind of testing.
On the mitigating factors, only one juror has to find those, but the defense attorneys were just adamant about having that there. One of our mitigating factors in Pennsylvania has to do with whether or not you played a minor role in the commission of the crime. So if you had said, yes, I was involved in the murder of this woman; I murdered her, but I didn't rape her, then that might be your mitigating factor, and you could go have DNA testing.
So even though there is actual innocence, in capital cases it's quite a bit broader than that and it can go back in time to these prior convictions, which are not capital cases.
MS. HART: I have some familiarity with Pennsylvania, having come from there. What I thought was remarkable about the Pennsylvania statute, which is really quite complex, was the fact that this was a statute that was agreed to both by the prosecutions organization as well as the ACLU. They came to terms jointly and jointly supported this particular statute.
MS. GUIDO: There was some give and take of it and it was what can we live with. From the prosecution standpoint I know the attorneys in Philadelphia, their biggest concern was that we had no DNA statute. So although they wanted to have a statute that they could live with, right now in Pennsylvania the Third Circuit overturns all of our death penalty statutes every time they get up there. So far something like 30 cases have gone to the Third Circuit, and all of them have been overturned for different technical reasons, all of which have to do with the instructions that were given to the jury, but nothing to do with the DNA testing, but the prosecutors still felt that if they had a DNA statute in place, that this would give them some more credibility as a state with the Third Circuit that we do in fact care about innocent people.
MS. HART: I might have misheard it. Did you say the Third Circuit reversed all the DNA statutes or the death penalty cases?
MS. GUIDO: What I'm saying is it's interesting because the prosecutors wanted a DNA statute because of all the Third Circuit reversals of their capital convictions, but the capital convictions that were being reversed, the reversal had nothing to do with DNA. In fact, of the 250-some people we have on death row, I had one of my attorneys do an analysis of it, and we have very few of those cases where DNA would really play a major role in the crime, although now with DNA going to fingerprints and everything else, that might change, but your basic DNA evidence played little role in that.
Still because we had so many of these convictions, the prosecutors, especially from Philadelphia, were very concerned that the message it was sending to the public and us not having a DNA statute and we have the defense attorneys out there harping about it constantly was that we were just a state that didn't care about defendants. So that's the main reason that the prosecutors were urging - actually it was the prosecutors that were calling me regularly saying when is the governor going to sign that bill and not the defense attorneys. The prosecutors felt that the defense attorneys didn't really want the bill. They felt the defense attorneys were in a better position to be able to come in and say we have no bill. We have all of these people on death row that are innocent. If we just had a DNA bill that would get them tested - so the prosecutors wanted to be able to say we have a bill. All they have to do is go file the application with the court.
MR. CLARKE: The update from the left-hand coast, California, is we have had a statute in effect since January 1 of last year, and the latest number I heard is several months old, that we had had I believe approximately 40 formal motions filed in the entire state. I may be wrong on the number, but it's a tiny fraction obviously of the number of people in custody in California.
Our state I don't believe requires that they swear under penalty of perjury that they're innocent, but I'm not sure it's relevant anyway because they're going to do that even if they have committed the crime, frankly, but we did adopt a standard. It was by compromise between members of the ACLU and prosecutors groups who ended up deciding on the best language possible using the commission's recommendations.
Also I would be remiss, many of you know about the in-house project we have in the San Diego District Attorney's Office where we proactively examine every case of an inmate who is still in prison for a crime for which they were committed to prison in 1992 or before. There are 765 of those inmates. We are now done with 700. Out of that group of 700 two things are I think are important. One, 70% of the time inmates admit to being the person who committed the crime, but they allege some other defense such as lack of intent, self-defense, consensual sexual intercourse, and so forth. That was a shocking number to us. Most people were sentenced to a very lengthy prison term.
The second part is out of the 700 cases that we have now completed four cases were approved for DNA testing by our office. In the first it turned out there was no biological evidence - the evidence has not been destroyed, but there was no biological evidence on the physical evidence. In the second case the inmate declined our invitation for testing. In the third instance there was DNA. It turned out to be nonprobative evidence consistent with the victim's husband. In the fourth case there is no exculpatory information possible, but we believe testing might be able to link the second unidentified murder in a particular case.
Our experience with evidence destruction has been, although we don't have hard statistics on this, roughly consistent with what the innocence projects around the county have discovered; that is, evidence in cases that otherwise we believe would be appropriate for testing has been destroyed about 75% of the time.
So we're not having good luck. We've found the courts have a better chance of still having the evidence than law enforcement does, and our statute in effect again since the first of last year does require maintenance of all biological evidence in any case until the person is no longer incarcerated. Obviously that doesn't help the people that predated January 1 of 2001. So that's our situation. I think Dean might have another comment.
MR. GIALAMAS: If we have time, I was going to throw in some information about the effects on the crime lab with postconviction in L.A. Like Woody has mentioned, most of the evidence that we have found that has been requested to be examined for postconviction, in greater than 90% of the cases we found out that evidence was destroyed or dispositioned. So this goes back to the topic we addressed earlier. So there is really no chance for doing any further work.
We had four official requests where we have been ordered by the court to conduct testing in our laboratory. It has affected our operation to a very small extent, but with the court order we were directed to do the tests and we were directed to do it within a time frame, so it kind of played in how do we do regular casework with other ongoing work. In one of those cases we got into a legal battle with the courts because we were directed in the court order to proceed with our testing in a specific manner, and, in fact, our client at the time was the public defender's office, and we were requested to do overamplification of a vaginal aspirate sample in hopes of finding this other DNA sample. We got into some ugly issues in the courtroom explaining that.
The bottom line was that our philosophy was whether we are ordered or not, we were not going to conduct the test. The judge ordered us to do it, and I just basically said you can't order me to do something that is unscientific. If I can't validate that procedure, you won't accept it. So don't ask me to do something that you won't accept. The compromise was we sent it to a private laboratory, who once it left our hands, our liability, we were no longer interested, but just to let you know we have had some funny things, of course, happen in L.A.
MR. SCHMITT: Any other comments on this?
MR. SELAVKA: Our state finds itself - we have had eight postconviction cases. Five of those we ended up having testing done by a laboratory that's not accredited, and it was a California based laboratory with which you're well familiar, but the interesting dichotomy is that you find that the sample - and in the three of these five were exhaustive tests - if you should find that you have an exoneration, you're looking at a profile that can't be used in CODIS. So it would seem that if nothing else, a recommendation from somebody some day. We have been taking it to judges, but they couldn't get it that laboratories that do testing especially when it's publicly funded for postconviction relief should be done by laboratories that meet the standards of DAB, and therefore it's a really minor point, but it may be important in one or two cases sometimes, and it would be a shame if we couldn't solve the case because of that technical tree.
MS. CROUSE: Is Barry going to be here tomorrow? That's not my comment. The reason I'm asking is because the State of Florida, their statute was enacted in 2001, and there was a time limit on it, if I'm correct, of two years, and as of the last crime lab directors meeting my crime lab director said that no one had applied, and I find out that last week that one person had applied, a judge in Miami had ordered postconviction relief, and the defense called me and said county labs are to do the work or their designee, and in this particular case the defense attorney called and was extremely frustrated. He had just spoken with Barry Scheck and said that the reason that there is not more in Florida is because they just are hitting brick walls and they can't seem to get these pumped through to the court systems and a comment was made about the two-year limit, trying to get to that two-year limit. So I really wish Barry were here to address that because that is hearsay through the defense attorney.
MR. CLARKE: Is there any update that anyone has on the Innocence Protection Act?
MR. SCHMITT: I'll brief you after we're done.
In the interest of time any other comments on this? I promised to invite a very brief public comment on this point if there is anyone who wanted to comment on anything we discussed on the postconviction aspect. So I'll turn to the public now.
MR. STOLOROW: Mark Stolorow. I'm director of Orchid Cellmark in Germantown, Maryland, a private laboratory. One of the questions was the cost for postconviction testing, and generally the simplest - I believe the question that was posed is what is the simplest, least expensive, and generally speaking that would be an evidence swab and a reference standard from the defendant, and on average that's about $2,000 regardless of which private laboratory you go to.
More complicated ones - the example that I gave on one of my little notes is one recently from Chicago. There was a woman who was raped and murdered in 1984 named Laura Rosetti, and four people were convicted and sentenced to long terms in Illinois. As it turns out, there were over 40 items of evidence that revealed 22 previously unidentified semen stains, and of those 22 stains, none of them came from these four convicted. Two mixed male profiles were recently identified with two suspects who will now be tried for this crime. The cost of those 40 items is about $50,000. So that's what I say again is on the high side.
The other thing I wanted to comment on was the cost of testimony for outside expert testimony. The fees usually average from about $1,200 a day to $2,000 a day, but it is exceedingly rare that on a postconviction case there would ever be expert testimony. If the outcome is a match, there is no need to testify. If the outcome is an exoneration, there would be no testimony for those defendants, but there may be testimony later if there are new defendants who are brought to trial. Thanks.
MR. SCHMITT: Is there any other public comment? Any more comments on this topic from AGID-LAB members? We'll turn it over to Sarah for closing remarks here in a moment. I'll ask you to note we'll be here tomorrow. I ask that you review the discussion topics. We have three topic areas tomorrow to discuss, and I also ask that you review the executive summary document that I mentioned earlier today that we have not discussed and we will not be discussing formally on the agenda. Please review it and make sure that we have that summarized correctly from the March meeting. I'll turn it over now to Sarah Hart.
