DR. CROW: Well, there's one of our members that was typographically challenged, Paul Ferrara, and we have a chance to --

DR. FERRARA: Do you want me to do that?

DR. CROW: I am inviting you, urging you, right now.

DR. FERRARA: Very quickly, 10 days ago, the laboratory funding working group met for the first time this year.

As you know, last year, we concentrated on the issue of the costs associated with reducing the crime -- the convicted felon sample backlogs, and we came up with a fairly useful report.

This year, we -- our intention is to turn our attention to the very difficult problem that we've touched on already, and that is what's it going to cost, what is it going to take in order to eliminate the backlog of actual crime scene material, and as we've indicated, this is a major, major difficulty.

In the -- quickly, in the course of our deliberations, we sort of got sidetracked, if you will, on a third form of a backlog which we spent a little time, quite a bit of time talking about, and it goes back to the backlog of owed convicted felon samples and all of the difficulties associated with the collection of samples from various populations that should be taken that are not being taken.

In that particular respect, we developed some recommendations for education and training of -- and coordination of sample collection activities, coordination on a state-wide basis and the need for that, and some recommendations are being developed to suggest even grant funding may be available for education of that particular type.

Getting back to the issue of crime scene samples, as we've all heard today, we have a wide and very broad spectrum of work that we don't even have yet in the laboratory but that we need to look at.

On one hand, we have old cases, old unsolved cases.

We've been kicking around numbers, but we know that there are just those cases, whether they have suspects or not, that are sitting in property rooms and laboratories, with evidence amenable to DNA analysis, probative DNA analysis, that cannot be run.

There is the issue of the cold or unsolved cases. We've been dealing in Virginia with law enforcement agencies who need and want to have these capabilities to look at old, unsolved cases.

To the lesser problem just by sheer number but not to be overlooked are the post-conviction samples, and we have a considerable amount of efforts involved with those kinds of work.

So, the committee talked about some of the very things we talked about earlier in terms of how do we get a statistical handle on what's out there today and what's going to be out there in the future and what tools or instruments are available at our disposal to get some handle on that.

The American Society of Crime Laboratory Directors does a annual laboratory workload summary, and every year, that gets a little bit better refined, a little bit more useful.

We mentioned the BJS study, but the results and compilation of that study are not available to us, and we also anticipate that, even when that report becomes available to us, issues such as how does all of these numbers translate into real work, be established, we know that is going to be -- at best, the best we're going to be able to do is come up with a very approximate estimate of what it's going to take.

Now, we talked about -- in just today's discussion, we talked about plant and animal DNA, mitochondrial DNA.

What's clear -- it was clear to me, I think, and I think to most of in this room, is once we realize that the technology is there and what the technology can use, it's very difficult to decline to use that technology regardless of how minor the crime is.

That was the lecture I got from a judge in a marijuana cigarette case.

So, in dealing with prosecutors, asking them, look, we just want to run this most probative sample, a vaginal swab as opposed to the bed clothing, education with -- of prosecutors and the judiciary with respect to value added for additional samples to be analyzed in the same case, we're finding more and more that -- where we're being required to run every biological material and every blood stain.

A violent crime occurs, there's blood all over the place, the victim was stabbed, there's no evidence that the suspect may have stabbed themselves, the issue is how much of that blood all over do you sample looking for and perhaps finding a foreign profile that may be of probative value?

Without belaboring these points any longer, I'd just like to acknowledge that myself and Cecelia Crouch, Steven Deboda, Barry Fisher, and Woody Clarke -- Lisa and Chris joined us, and Dick, and we spent the better part of eight hours wrestling with some of these issues.

We're going to come up with our best guess as to what it's going to take.

Clearly, the measure of the work -- and Barry touched on it earlier, and he's exactly right -- a case is not a case is not a case.

We know that it's the grossest level of quantitative measurement that we can get our hands on, but clearly, what's going to be more important as we refine this is to look at numbers of items analyzed.

As the technology becomes more standardized in the U.S., we'll be able to develop a little bit better feel for the costs.

Clearly, right now, my examiners are capable of running only about eight cases per month per examiner. Most of the time, I'd say a couple days of that's the DNA and the rest of it is the pre-case analysis, the working with investigators, responding to affidavits, court motions, discovery orders, sitting around in jury rooms for days at a time while -- because the prosecutors perhaps don't have their case ready or just don't care about the situation, of wasting the examiner's time.

There's lot of problems, but we've got to figure a capability of eight to 10 per month per examiner is probably the best guesstimate right now we know that we'll reach, with a steady state, using this fairly standard technology that we have available.

Jan, would you agree that's a ballpark?

MS. BASHINSKI: I'd say that was a really high productivity.

DR. FERRARA: Probably high, yes, and actually, we're striving to get to that eight on a regular basis.

MR. SMITH: But then that suggests that it's not the volume of cases or samples per se but the efficiency of the use being made of your people. That's the problem.

DR. FERRARA: Well, that's a large part of it, Mike. I mean, clearly, if you don't use what limited capabilities you have to their, you know, maximum capacity, then you're losing on something, but yes, we are subject to outside forces.

I mean we can't -- what we tried to do is just continue to build up the capacity, and I think we have to do that nationally, to build up a capacity, so that persons don't go wanting for want of -- for lack of sufficient laboratory capabilities.

This instance with this case in Virginia Beach that I mentioned, I talked to the chief prosecutor and the chief of police in that agency, and we both -- we all agreed that, in effect, the primary cause of that was the backlog issue.

None of the other circumstances would have had any bearing if the laboratory -- a forensic science laboratory anywhere in this country has the capability of picking up a piece of evidence that's delivered to the laboratory from a crime scene within -- there's no reason, within 24, 48 hours, an examination cannot be conducted, a search made of a database or a comparison done to suspect samples, and that information reported back to the investigating officer. That's what the technology -- the capability is there. The capacity needs to get there.

DR. CROW: We have two people wanting to say something.

Judge?

JUDGE REINSTEIN: If you have a law enforcement request or a prosecution request, can labs just say no, we just don't have the capability?

If you can, then the issue is a court order, and you know, you talked before about judicial education, and Chris, I think that you have to get to like the Conference of Chief Justices and to the Metropolitan Judges Conference, which has most of the presiding judges, and the word has to go out by training, you know, and education of those people that you just can't have judges ordering, you know, a DNA test on a joint of marijuana.

I mean you can do that in -- you know, in metropolitan courts.

For example, I can tell our judges, you're not going to do that, because these people have way too many other things to do.

Now, you're going to have an individual judge -- if Barry is representing or Jeff's representing a guy charged with, you know, marijuana possession, says, well, this is exculpatory evidence of my client, I mean at some point in time somebody's got to draw the line, because otherwise you'll never get the work done.

The thing that bothers me the most, though, and Mike talked about it the last time we met and just now again, is what happens -- and I guess we're going to hear this tomorrow maybe from Commissioner Safir -- if a state goes to requiring, like you guys do, a DNA profile on every person who is convicted of a felony, or something people want of every arrestee, and on the owed samples on probationers and parolees, what happens if you actually do that? What impact is that on the labs?

I mean it's a tremendous negative impact, because I would like to be able to order my chief probation officer to pull in every single probationer, 30,000 people -- I probably could have them do it in a period of a couple months, because we can contact ours in our jurisdiction, just because of the ratio of probation officer to probationer, but it would -- I mean it would kill the lab.

DR. FERRARA: But see, as judges are -- as our report sort of indicates, and previous discussions, when it comes to those convicted felon samples, they can be -- because you're running a high volume of samples, you're developing a profile, but you're not doing all of the pre -- the case approach or the evidence examination, isolation, extraction, work on the front end, and all of the analysis, developing the report, the statistics on the back end, those convicted felon samples don't impact my backlog on crime scene material. Mine are out the door in a private laboratory.

It's the crime scene samples that I think really represent the intractable -- an intractable problem in terms of their volume and the complexity of them and how to deal with them. We can't -- well, it would be difficult to contract out, contract that work out in any volume.

JUDGE REINSTEIN: That was why the recommendation for out-sourcing all the convicted --

DR. FERRARA: -- the convicted felons. So, we could spend more time, but that may not always work in any particular jurisdiction.

I guess my point is that, regardless of what your database laws are, the problem with crime scene evidence is going to continue grow, and of course, as we do develop these databases on a statewide national level, the value and need to run those crime scene samples becomes all the more worthwhile and valuable.

MS. BASHINSKI: Paul, I would agree with you for sure that the evidence is a less tractable problem, but I wouldn't triviliaze the impact of the type of volume increase you're talking about if you were to be taking samples from every arrested person, because that's orders of magnitude greater than even what you're facing or we're facing now with our data bank laws, and even with out-sourcing, I think that would stress the existing system quite a bit.

DR. CROW: Barry's been trying to speak for quite a while.

MR. SCHECK: Please make sure to tell my police commissioner tomorrow what you're saying, not that he hasn't heard.

Paul, what about gathering data from the private laboratories with respect to how they function in terms of cases?

DR. FERRARA: Particularly in terms of cost per case?

MR. SCHECK: Cost per sample. They have to have good data, because they charge now by sample.

DR. FERRARA: That's right. You're exactly right.

I've talked to a couple of private laboratories for that particular reason. I said how do you go about doing this, and of course, one of the things they said is, when you're charging per sample, that regulates the amount of work you get done.

You find the requests all of the sudden getting pared down voluntarily, typically I think it's 500 to 800 dollars per sample, and then, when they're charging the prosecution per day for testimony while the examiner sits in the witness room for four days or so before he or she gets on the stand, they find that they're very careful on that.

Nonetheless, what they estimate is, on average, approximately $5,000 just for an average single DNA case that goes to trial and requires testimony.

MR. SCHECK: One of the things that I would suggest in this regard in terms of case-weighting numbers, that we should look at the private labs and see if we can do a survey from them, you know, maybe anonymous, whatever, talking about -- because they have to have these numbers, they're businesses, how many cases they do, per case, how many samples they do per case, how much time is devoted to testifying, and you can begin to look at differentiation of labor, how many people actually go do testifying versus how many actually run the cases, and I think they may be a valuable source, because I think one very important thing that did come out of your committee, looking at ASCLAD, gathering data from the private labs, is coming up with an instrument, a budgeting instrument that, you know, would assist in -- give this to all the public laboratories in terms of how they break out, you know, their costs, the kinds of cases sent, because obviously crime scene cases are going to take more time.

Also, I think it would be very helpful to see what they say about mitochondrial DNA testing, for example, because we know that some of the private labs are doing that now with some frequency, and we know that's the next generation of testing that's going to be required, so it would be good to see what the numbers are on that. Actually, they're offering it fairly cheaply.

So, I would even suggest, Chris, that you bring in somebody who's had experience in doing these kinds of -- NIJ, you have these case-weighting specialists, these time and motion people, you know, who have looked at the judicial things, to look at this.

Second point in this regard, to help devise these instruments and gather these numbers, because it's indispensable to do it now and to do it using a common nomenclature across the country.

The Federal Government is spending all this money in support of state and local laboratories, and we're developing a national CODIS system.

I mean this is actually something where we can implement real good instruments in terms of work that we get -- you know, we would get real numbers if we do it early, and this is still early, because you know, frankly, so little has been done.

The other model that would prevent a lot of these abuses in terms of the judges and the police departments -- I mean I don't think it's out of bounds or thinking out of the box for a second.

Remember, in Great Britain, one of the things that's fascinating to me is that the forensic science service is a public laboratory that contracts out with police agencies, and the police department has to give them money for things that the police department deems to be useful and helpful to them.

So, if it comes out of the police budget, you're not going to see anybody -- or the court budget, right? -- you're not going to see people asking for marijuana cigarettes to be, you know, typed on a high-priority like that, and I still don't understand that example, the defendant should have paid for it, and it's fascinating to look at, you know, how that model is expanded.

Remember, first of all, in the new cases coming in in Great Britain, they found that, unless they got the turn-around time down for certain specific crime categories, it was worthless, because they would do these burglary cases, and if their turn-around time was two months, 70 percent of the cases they were looking at were solved by other means.

Now, you don't know which 70 percent that's going to be and you don't know which guy who commits that burglary is going to go out and commit your next rape-homicide, right, but they had to get the turn-around times low enough for certain crime categories for it to make a difference to their customers, who are the police agencies.

Secondly, take these homicides.

The lady from Great Britain told me on Thursday -- no, on Wednesday -- that, for example, they had a homicide case they turned around within 24 hours, and that became instrumental in catching, you know, the suspect, and those are the kinds of things that, you know, you sort of have to build into the system, and I think that these, frankly, are not lab decisions, these are police and prosecutorial decisions, and it's kind of silly ways, we should make this recommendation, to be talking to ourselves about this.

I mean it is really the prosecutorial and police agencies within the state that have to begin to set these priorities in conjunction with the lab. The lab is the victim, and they're talking a lot of nonsense about -- a lot of demagogy about crime and what can be done, and not a lot of it is smart, and you know, it's really our place to set them right on what's a smart investment and a smart way to prioritize this technology and silly ones.

MR. CLARKE: Part of that problem, though, is, unlike some of the other models in other countries, we have laboratories in this country run by different people. There's the police laboratories that exist, there's prosecuting agencies' laboratories that exist, there's the independent laboratories that are not part of law enforcement or of a prosecution agency, so we don't have the benefit of that homogenous situation that's in Great Britain and so on. It's much more streamlined in terms of how you deal with it.

We have 50 states. I don't know how many counties we have in this country, but obviously, it's enormous. So, it's a much more multi-jurisdictional situation than it is in some of the other models, unfortunately.

MR. SMITH: We don't have the market, though, to use for rationalizing the distribution of effort towards the objective.

It seems to me -- maybe I'm wrong, but this might be an area in which an ongoing program of research is entirely appropriate, because otherwise, how the hell are agencies like this one, this body, or anybody else going to start trying to make policy about the proper allocation of that effort?

We can't leave it to the political process, right, where one guys gets it, the other guy doesn't, because of the political trades you make, and it sounds to me, from what you're saying, that there isn't a common practice that's sufficiently efficient so that you could identify the units of analysis in cases or homicides or anything else.

There has to be a program of research here, I think.

MR. ASPLEN: It's also a fundamental nature of the relative infancy of the technology and it's utilization that we just don't have the numbers to crunch, and we've talked a lot about looking at the U.K. and what we could learn from that, and I think, at our last meeting, we discussed a proposal to analyze what they've done, but the difficulty to really, you know, apply it to the United States is something I don't think we can get past at this stage.

Now, one way to do it is to look at a couple jurisdictions in the United States, particularly in Florida, where you know, their success rate is so substantial, that we could begin to look at -- really, what we're talking about is the effect of the database on the investigative process and what is the -- what's the cost-benefit analysis of doing what DNA tests in what crimes when.

MR. SANDERS: The more that people understand the capabilities of DNA, they more they demand from us, especially in the small agencies, they more they expect it, and the marijuana cigarette may not be nothing in Chicago, but in a little town in Illinois, it's a major damn case.

You can't lose track of that, and you can't discount it, and you can try to make all the business decisions you want to.

A burglary that happens in my community is the same as a homicide to those people that are victimized, and it's just one of those things.

How you deal with it or how you try to prioritize -- I believe you can't just dismiss this human interest, because I'm telling you, especially in smaller communities, where they have access to me, and they demand -- and they more they know of the capabilities, then they want to know why we're not doing that.

So, I guess all I'm saying is just makes me nervous to hear you guys saying you're going to prioritize and discount this.

I mean it's a business decision, I understand that, but it's also a political decision in that people expect -- and the people of my community expect us to provide every service that we can.

MR. ASPLEN: That's really why we had Dr. Colwell come in, to talk about the rural issue, to talk about the disparity of protection of society by nature of training and resources, etcetera, etcetera.

There is no reason why, in the United States, somebody who lives in a rural jurisdiction should be less protected by the power of the technology than somebody who happens to live in New York, Chicago, whatever. That just shouldn't be that way.

Let me say that David Kaufman has specifically told me that he is more than happy and more than willing to do whatever he can to help us kind of analyze his numbers and to take a look at what they're doing there. He is very eager for us to do that.

So, we'll talk to him about that possibility, again, to get an idea of, you know, what the cost-benefit analysis looks like.

JUDGE REINSTEIN: At one of our meetings, when David Ware was giving a presentation on -- that their biggest clearance rate is on burglaries and car thefts, when you solve a burglary case with the use of DNA, then you get a hit on crime scene on a rape or a murder or whatnot, because that's the precursor.

MR. SCHECK: But you see, let's put aside the question of what your return is on investing in the databases in which kinds of cases.

I was talking about something completely different in terms of the British model, and it's putting the marketplace into this, and it goes to what I guess Mr. Sanders was talking about, and that is, in a state where you have, let's say, one big state-wide laboratory that does a certain amount of DNA testing, well, the rural community has a certain crime budget, and if the way that you do the testing is that that jurisdiction has X amount of money to spend on whatever testing it wants to do, well, it's going to test that burglary, all right, and it's going to have the money to pay for that in the laboratory, and if it wants to get more of it, then it will just put more money into it. That's the way the British operate it.

And other jurisdictions who have budgets of a certain size based on populations of a certain size can pay for others.

MR. ASPLEN: I don't think we're talking about different things, because when I talk about how it changes the investigative process, what we're looking at is how law enforcement allocates its funding.

So, if the cost-benefit analysis works out that it is more financial efficient for me to do the DNA testing first and run against the database than to have my officer go out and spend, you know, 12 hours of overtime working this case when I could get a hit first, that plays into that marketplace.

So, I think we're talking about two components of the same idea.

MR. SMITH: This is pretty familiar, in a way, in the criminal justice system. We just don't recognize this DNA problem as similar to the other ones.

There isn't a judge in the country that doesn't want to demand for the department of corrections a drug-screening program for the offender being sentenced to death, but in almost every state there are 10 to 60 times more drug offenders sent to the department of corrections than they have drug treatment slots.

So, the idea that need would determine the allocation of those slots, for lots of reasons, doesn't make sense.

Now, it seems to me it's a little bit like that. You know, it may be the market is a central mechanism for allocating resources. In the absence of a market, I don't see any alternative but a combination of knowledge development and political process around the allocation.

But we've got to do something -- somebody's got to do something like that.

DR. CROW: It's six o'clock, so we'll declare the meeting adjourned, and we'll meet again tomorrow morning.

[Whereupon, at 6:00 p.m., the meeting was recessed, to reconvene Monday, March 1, 1999.]

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