18 MR. FERRARA: On December 6 of last year the
19 Laboratory Funding Working Group had its most recent
20 meeting. Yours truly, after having set up the meeting,
21 didn't make the meeting. It turned out that the dedication
22 ceremony of our newest new laboratory in Norfolk was set at
23 that same time.
24 I then asked one of our members, Dr. Cecelia
25 Crouse with the West Palm Beach laboratory, to take over for
1 me. She chaired the meeting and drafted the report that you
2 have in front of you, and I think it would be most
3 appropriate if I turn the mike over to Cecelia and she can
4 describe the report.
5 MS. CROUSE: Thank you very much.
6 The purpose of our meeting on December 6 was to
7 try to get some kind of a handle on violent acts in the
8 laboratory. I'm a case working analyst. So this was very
9 cathartic for me. As a matter of fact, this was a 28-page
10 report and it was the cheapest therapy I've ever had.
11 [Laughter.]
12 MS. CROUSE: We finally narrowed it down to about
13 11 pages of things that may be of import.
14 The very first discussion had to do with the $15
15 million appropriation to reduce the national CODIS convicted
16 offender database backlog. I will let Lisa actually expand
17 on that.
18 There have been several surveys in the past two or
19 three years. I love to get these surveys, because I really
20 think something is going to be done with them. This was an
21 instance where something was done with them, where we were
22 able to sit down as a group, have someone explain the
23 results of the survey, and try to figure out what in the
24 world they really mean and how they are going to help us.
25 Before we can really do that, we have to
1 understand what our needs are in the laboratory. So we
2 divided the process up first.
3 The process begins on page 5. This was actually
4 the easy part. The easy part was identifying where does DNA
5 begin and where does DNA end in a laboratory.
6 It begins with crime scene evidence collection and
7 training, and it ends hopefully with some kind of judicial
8 conclusion.
9 In between there is included submission of the
10 evidence to the custodian;
11 Submission of evidence to the DNA analyst;
12 Screening of the evidence;
13 Submission of individual standards for comparison.
14 You may think that is actually a part of step 4, but trust
15 me, it is not.
16 DNA typing technical protocols;
17 DNA profile review and interpretation;
18 Writing, reviewing and distributing the report;
19 And then having pretrial conferences and
20 depositions. We're a deposition state. That's a huge, huge
21 amount of time for us. Expert testimony, discovery issues
22 and appeals.
23 I'm not going to read this to you. I'm just going
24 to hopefully give you some ideas as to where we need your
25 help.
1 The crime scene evidence and collection and
2 training. We ordered 2,500 of those pamphlets and we are
3 distributing them. Whether they like it or not, it's going
4 in their pockets.
5 We also finally got our sheriff to agree that
6 every single solitary law enforcement officer will have at
7 minimum two hours of training every year in DNA, which adds
8 up to about 3,000 law enforcement officers in our county
9 alone.
10 A lot of that was because of this pamphlet, where
11 we could show them that there was a need for this.
12 He only gave us 45 minutes, but we'll take it.
13 It turns out that one of the surveys that we
14 commissioned from the police forum asked a very simple
15 question to several departments based on their size. The
16 great majority of departments all over the nation were
17 surveyed for this particular question: Do you know when you
18 go to a crime scene what is possibly good for DNA evidence?
19 Without exception, all of them had heard the word
20 "DNA," and they knew kind of what it did. That was good.
21 But in the smaller departments, approximately 57 percent
22 knew or felt comfortable with what to collect at a crime
23 scene. To me that was an extraordinary number, because we
24 have 31 small departments just in our county alone. So what
25 in the world are these 31 other departments doing when they
1 go to a crime scene? This was an eye-opener for me.
2 In the larger departments, almost 87 percent. Our
3 lab funding group pretty much felt that a lot of that was
4 training. It is just knowing what to do.
5 The submission of the evidence. If you don't know
6 what to take at the crime scene, you are sure as heck not
7 going to know what to submit. So that's an issue as well.
8 The biggest issue in the survey was, well, heck,
9 they're not going to do it anyway; why should we submit it?
10 They only do it if there are standards. They only do it if
11 it's a high profile case.
12 On a selfish viewpoint, in the laboratory, if we
13 don't see the case, then we don't do the case. But we need
14 to see the case. We need to have these cases submitted to
15 our laboratory, to all of our laboratories. So that was an
16 issue.
17 The question was asked of 42 departments, how many
18 sexual assault kits do you have in storage right now? I
19 don't care what year they came in. How many do you have?
20 The answer was 8,487.
21 Then they said, how many sexual assaults with kits
22 did you get in 1997? It was one third of all the kits they
23 have in storage. That's terrible. We have got to have
24 those kits. I'm not saying that they all have biological
25 evidence. I'm not saying that they all need to even be
1 screened, but certainly out of the 3,133 kits that were
2 reported there is information in there that we have to get
3 out with or without a suspect.
4 So we've made a commitment to notify agencies:
5 bring your stuff in. I just sent something out a couple
6 months ago that said we want your sexual assault kits
7 regardless; we want them out of the drawers of your desk, or
8 wherever you are storing them, and we want them into our
9 laboratory so we can get those preserved and ready to go.
10 That was a big step for us. We had numerous phone
11 calls of people saying, when do you want them and how do we
12 get them in there? So this ends up being a good thing. I
13 think it is something all laboratories should start to make
14 an effort to do. Get your stuff into us. We will start to
15 prioritize these.
16 When a DNA analyst gets the evidence we prioritize
17 according to court date. We're the same as 80 percent of
18 all laboratories out there. If it's going to court, if it's
19 going to grand jury, that case gets priority.
20 There is a huge difference between the amount of
21 evidence you get before you go to grand jury and the amount
22 of evidence you have before you go to court. We don't have
23 the DNA done necessarily before grand jury. We tell them
24 there is semen or we tell them there is blood or whatever.
25 I think that is true in many laboratories. One of the big
1 bottleneck issues with this evidence is we'll get to a point
2 where they will add more evidence on us.
3 I think the worst thing we ever did was we told
4 prosecutors we've got this great technology called PCI and,
5 man, is it fast. Boy, was that a mistake. I hear it all
6 the time. Why don't you do that quicker than you guys do?
7 I mention it in here. These are real issues in
8 many laboratories. I've done my own survey. I have about
9 four or five burglaries from one detective with broken glass
10 and possible blood. That was last year. Now I am getting
11 gloves, I am getting masks, I am getting clothes. I am
12 getting all this stuff now. The average number of samples
13 went from 7 in 1997 per case. We are now doing 15 samples a
14 case because we can do this fast stuff.
15 The issue is here on step 3. It's screening that
16 evidence. That's a lot of work. You don't just grab it and
17 take the underwear and roll it in a ball and put it in a
18 machine and out comes a DNA type. You've got to find that
19 stain, you've got to verify it, and you've got to run it
20 through the process.
21 It's more of a recommendation for laboratories to
22 sit down and know what evidence is associated with a case
23 and figure out what to be worked and work it. Just work it.
24 That leads us to step 4, the actual screening of
25 the crime scene evidence. There has been a dramatic
1 increase in the total number of samples that are coming into
2 the laboratories, and it is probably one of the most lengthy
3 parts of the process. It increases our workload. And you
4 know something? We don't mind. If this really, honestly,
5 truly helps, we don't mind.
6 What we do mind is, well, just in case the defense
7 wants to know if we asked you to do it. I'm not so sure
8 what that means sometimes. We get some very unusual
9 requests. I cannot think of one time we have told someone
10 no, we're not going to do that; it doesn't make sense to us.
11 We always do it. I'm not sure what role we should play in
12 having that make sense as a DNA analyst.
13 The submission of individual standards is the most
14 frustrating part of our job. When you logically think about
15 why we are doing what we are doing, it's to compare DNA
16 profiles. "Just see if there is DNA there." That is one
17 point that we will refuse, especially if they have got the
18 guy in jail. Sometimes I'm tempted to say, I'm going to go
19 get a swab and I'll go get it myself. Which of course I
20 can't do, but I'm certainly tempted.
21 We have protocols like every laboratory in the
22 United States that says this is how you do it, this is how
23 you handle evidence; this is how you handle standards versus
24 evidence; this is where you put them; this is how you work
25 with them on a technical level. So we know what we are
1 doing. Get us the standards, and we promise quality
2 results.
3 You end up waiting. I have 32 cases on my desk.
4 Seventeen of them are in my "waiting for standards." I
5 don't understand that. So I think this is an issue that the
6 prosecutors can help us with, because I think they need to
7 do something legal to get the standard. That's all we're
8 asking. It would greatly enhance the way that we do case
9 work evidence if we could get the standards in that one
10 single simple thing. I told you this would be cathartic.
11 The DNA typing protocol itself is extremely well
12 defined. If I have 32 samples, I can tell you how long it
13 is going to take me to get a DNA profile. However, the
14 interpretation of that profile and the analysis of that
15 profile is a whole different story.
16 You've now got that information in your computer,
17 and now you go through and you have to go through the
18 technical gyrations to first get the profile, and then in
19 our laboratory -- this is not uncommon -- we have to make
20 visual reads which we compare to computer reads. Then we
21 compile this tome of data, and we pass it on to a secondary
22 person, another analyst, who has to do the exact same thing.
23 It's not as though that secondary person is
24 following me around the lab and I say, okay, here's the
25 handoff. It goes on their desk. We have to wait until they
1 have an opportunity to take a look at it. When they do have
2 an opportunity to take a look at it, depending on where they
3 are in their system, then we have to wait for them to
4 finish. Then we get a note by e-mail: I'm ready to discuss
5 case blah-blah-blah. So then we get together. If there are
6 any corrections or additions or subtractions, we do that
7 then. And now we can write a report. That is an incredibly
8 timely process.
9 Dr. Mark Perlin from a company called
10 Cybergenetics presented a proposal for the impact of a
11 software program called True Allele. This is a program that
12 would allow another software program above and beyond what
13 comes with the instrument to do a computerized analysis of
14 the data, compare it to your original data, and highlight
15 those areas that are different, or if there aren't any areas
16 that are different, say this software program got the same
17 DNA profile as your software program. Plus we would still
18 write them down visually.
19 That would take away that second analyst until we
20 got to the final review process of the entire case file, and
21 then another analyst would come into the picture. But that
22 secondary review happens immediately. Now you take your raw
23 data and let that go one direction on one software program
24 and you go in your direction on your software program, and
25 then the twain meet. Now you have got this great

76
1 comparison. And you're not waiting for an analyst to
2 hopefully pull it off their desk and read it.
3 We are taking a look at this. But then I like new
4 things. We'll have to see how that goes, but we are taking
5 a strong look at it. We have sent off some gels, and not
6 our best gels. We've sent a set of gels with skewed bands
7 just to see what their program does and if they come up with
8 the same results we do. I think that is something that is
9 really positive.
10 The writing, reviewing and distributing. We
11 finally got a LIMS program, laboratory information
12 management system. I would like to sum up that program by
13 saying we're still working on it. It has been three and a
14 half years. It's just not helping us the way we wish it
15 could. We need better software for that program. I don't
16 know if anybody else has experience with that, but the
17 software programs have got to be more user friendly.
18 They're just not.
19 I had already mentioned the pretrial conferences,
20 depositions, expert testimony, and discovery issues. I
21 don't know how we are going to ever cut that down, because
22 it's a very important part. It helps us out actually. The
23 pretrials are instrumental in being able to coordinate law
24 enforcement, the judicial system and the laboratory. It's
25 very, very important. I don't have any issues with the time
1 it takes to do that.
2 The discovery issues are tough. Just when we
3 think we have got the pile together we get discovery issues
4 that the RFLP has been scratched off and PCR put in there.
5 So they want autobanding and they want the films. We don't
6 do that. So that has got to go back. Hopefully that is
7 coming to closure, but these things are very important.
8 We have had three admissibility hearings in the
9 last year. In all three of them the population issues came
10 up.
11 That is where we are with the bottlenecks in the
12 process, the main one being screening of the evidence and
13 interpretation of DNA profiles.
14 There was a very nice discussion -- this is part 3
15 on page 11 -- about measuring the impact of federal DNA
16 enhancement programs. I'm on the 14th floor here, so I
17 think I have elevator lag. I read this several times, and I
18 think more data is needed to make that particular report.
19 That's my opinion -- Lisa may have another -- about what
20 this impact really is.
21 Has it made an impact? Absolutely. I'm not
22 concerned about that. I'm not concerned that the monies
23 went out and did what they are supposed to do. My concern
24 is when the money is not there anymore, when we don't have
25 that DNA Identification Act money or the state
1 identification system's money. I'm wondering how many labs
2 are going to be able to keep up the budget pace that it
3 takes to keep these labs going.
4 It was a full day. In my opinion, it was one of
5 the most productive days. I think we actually started
6 getting to the meat of things.
7 I do have this as an editorial. We had discussed
8 in great detail about the collection of the DNA samples. I
9 know you guys may not even connect that way anymore because
10 you've discussed it so much, but we need a prototype program
11 for our sheriffs offices. We are not just a state system.
12 We have state and county and local. Somehow we have to
13 coordinate these efforts to get everybody. We need a
14 prototype solicitation so that maybe we can have a template
15 for other areas in the country to say this kind of
16 collection process works for these old samples or these
17 uncollected samples.
18 That was my editorial part. But that was the gist
19 of our December 6 meeting.
20 MR. FERRARA: Thank you. Any questions?
21 CHIEF JUSTICE ABRAHAMSON: Should we hear from
22 Dr. Forman?
23 MS. BASHINSKI: Would it be awkward to ask a
24 question about the software program?
25 CHIEF JUSTICE ABRAHAMSON: Go ahead, Jan.
1 MS. BASHINSKI: Is that something that you use in
2 your lab or test in your lab, or do you know anyone that is
3 using it?
4 MS. CROUSE: It's my understanding that Forensic
5 Science Service has purchased it or is at least in the
6 developmental stage. The one issue, which is a big issue
7 with publicly funded laboratories, is, when you ask the
8 question how much does it cost, the answer is, well, we
9 don't want to discuss that. When do you anticipate figuring
10 out when you can tell us how much it's going to cost?
11 This was the answer to that: The software program
12 will be tailored for your laboratory. Which I like, because
13 everybody has a little different technology in the
14 laboratory.
15 What they are looking at right now is every time
16 the software makes an allele call, we have to pay for that.
17 My question is, we run a gel and the gel goes through some
18 blips and you end up with skewed results, so you rerun it.
19 With the software program you have to pay for that double
20 run of your sample.
21 MS. FORMAN: Let's just say that the pricing
22 structure has not yet been decided and there is room for
23 discussion.
24 MS. CROUSE: Exactly. That is kind of where we
25 are right now.
1 MS. BASHINSKI: Is this the only one that is
2 commercially available?
3 MS. CROUSE: Yes.
4 CHIEF JUSTICE ABRAHAMSON: Norm.
5 MR. GAHN: Dr. Crouse, you sort of asked a
6 rhetorical question when you were talking about step 4,
7 screening of crime scene evidence, on what your role is as
8 an analyst and where it fits in. I think it's probably
9 greater than most analysts realize. I understood that more
10 in Milwaukee County.
11 I think there is a genetic predisposition of
12 police officers to pick up everything on the scene, and
13 there is also a predisposition for prosecutors to say test
14 everything. It was explained well to me by a crime analyst
15 that there is a pecking order to the evidence that comes in.
16 I'm in a sexual assault unit, and you have the vaginal
17 swabs, the cervical swabs, the underwear, the bed sheets,
18 the comforter, all that stuff. But once you get a profile
19 off a vaginal swab, aren't you done? Don't you stop?
20 MS. CROUSE: No.
21 MR. GAHN: That's where I think you have to sit
22 down with your people. As far as I'm concerned as a
23 prosecutor, stop; you're all done. I don't want anything
24 else.
25 MS. CROUSE: You want to work in West Palm Beach?
1 [Laughter.]
2 MR. GAHN: Oftentimes, especially with PCR, I
3 don't want the comforters tested. Just leave that stuff
4 alone. We sit down with our crime people, the prosecutors
5 and the sexual assault people from the Milwaukee Police
6 Department, and as the analyst said, we know what we are
7 doing here. We don't just look at your cases. We see
8 Kenosha County or Racine County. We see this every day.
9 This is all we do. We can make a call. And I believe them.
10 They can make a call probably better than I can on what they
11 should test.
12 So I think your role is greater. Don't get too
13 worried about the prosecutor's knee-jerk reaction of test
14 everything. I think you can talk to them.
15 MS. CROUSE: I agree, Mr. Gahn. It's not as
16 though we just do everything that comes in the lab. We
17 demand pretrial conferences and we do narrow the evidence
18 down. I wish we did have more to say about it. That's
19 really all I can say .
20 MR. FERRARA: I think one of the important points
21 in this discussion is this is a very time-consuming stage in
22 the process. A lot of work and time is spent and should be
23 spent with the laboratory personnel discussing with the law
24 enforcement agency, with the prosecutors, which is the most
25 probative evidence, and how should we approach this in a
1 most efficient manner?
2 The reality, of course, from a laboratory
3 standpoint is that -- I second Cecelia's invitation, Norm.
4 Please come to Virginia as well -- not only do we have
5 difficulty with the prosecutor saying, look, I prosecute the
6 cases, you do the analytical work. You don't tell me how to
7 practice law and how to put a case on; I won't tell you how
8 to do examinations.
9 The reality is a cooperative working effort.
10 Sometimes you are successful, sometimes you are not, but if
11 you are successful, you spend a lot of time discussing
12 these. Then, even if the prosecutor agrees, the defense
13 comes along, files a motion and wants everything tested.
14 So the fact of the matter is, in furtherance of
15 the statistics that Cecelia reported, the number of items of
16 evidence being tested per case is increasing explosively.
17 In many respects that is a good thing. Where I have
18 problems is when a prosecutor says, well, I want a
19 microscopic hair comparison done after we have got
20 biological evidence and trying to talk them out of that.
21 The realities are it's a very complex process.
22 The working group's recommendations and predictions
23 regarding automation of the analytical technology is true,
24 but quite frankly, in real forensic physical evidence that
25 ain't going to happen. Convicted felon samples and such
1 obviously are amenable to it, but every case -- I'm
2 averaging 30 items per case right now -- is being examined
3 scrupulously and individually and by itself with no other
4 cases being opened.
5 So on one hand, how can we increase throughput of
6 forensic science laboratories? That's what the working
7 group is really trying to do. Where are the bottlenecks?
8 What is it going to cost? Will money help, and how should
9 that money be spent?
10 There are a lot of different things. A private
11 laboratory can run, and is doing it now routinely, 10,000
12 convicted felon samples per month based on considerable
13 experience. With 35 DNA examiners, they are capable of
14 running approximately 8 to 10 cases per month.
15 MS. CROUSE: I want to make one quick point.
16 Barry, I saw your eyebrows come together when I said
17 sometimes we run samples that don't work. The samples that
18 don't work are all documented and put in our file folders.
19 MR. SCHECK: What strikes me is that this is the
20 right bottleneck, because this is really where the rubber
21 meets the road, being able to screen the samples in an
22 intelligent way. The onus of this really just can't fall on
23 the lab people.
24 What we might want to recommend or what I think
25 really needs to be done in this area is that we have to do
1 training to develop the expertise among the detectives, the
2 police officers and the prosecutors. Because this is really
3 the training.
4 In other words, we know the answers ahead of time.
5 It's in all the other recommendations that NIJ has put out.
6 You want a team approach. You have to have information
7 about what is relevant and what is not relevant. You have
8 to have the personnel there that are going to say, okay, in
9 this case a vaginal swab is all you need, but in other cases
10 it may very well not be. But you need to have a process in
11 place where this kind of information is done.
12 One of the things we had discussed at the project
13 that Bob Genslin (phonetic) and Jim Peterson were doing was
14 the blind proficiency test. What I had been advocating and
15 I know Bob Genslin somewhat supported is that the kind of
16 testing that has to be done -- and it's not just for
17 laboratory personnel -- is the ability to read and
18 understand and screen the samples.
19 In other words, you don't have to do all these
20 samples, but you have to learn how to decide which things to
21 test and which things not to test in order, and that is
22 something that should be proficiency tested. Enough of this
23 nonsense where you are just giving people easy exemplar
24 samples. You have to be able to test them and promote the
25 skills that are necessary to break these bottlenecks and

1 make the process work efficiently.
2 This is the kind of thing that probably ought to
3 be done in modules. In other words, the government ought to
4 fund pilot programs in various different jurisdictions to
5 build teams and to show how you could do it on an effective
6 basis rather than trying to come out right away with one all
7 purpose, lowest common denominator kind of process. I'm not
8 sure we really know the answers to it yet. That might be a
9 good proposal for some of this money.
10 Finally, the big disconnect in trying to justify
11 the budgets and allocate the money is that the prosecutors
12 and the police never tell the lab people what happened to
13 the case. This is inexcusable.
14 In other words, if you want to justify the budget
15 allocation, some of this money has got to come from the
16 state and local authorities. It just can't come from the
17 federal government every time in these laboratory
18 improvements acts. We're never going to get the money
19 necessary.
20 The only way to figure this out is once the typing
21 is done and the lab submits it to the court system, you have
22 to have a computerized system program in place that tells
23 you what happened to the case, how many days it took for
24 that case to be resolved as opposed to other cases so you
25 can justify this as cost effective.
1 There are plenty of case management systems that
2 have been put in place in court systems, but they should be
3 extended to the labs. I know from our experience in New
4 York City that we are going to try to put this in place, but
5 we don't have the numbers yet.
6 The FBI has been doing this for ten years. One of
7 the big problems is that nobody knows what happened to all
8 the cases, the ones that were hits and the ones that were
9 exclusions. That is a ridiculous gap in knowledge that
10 ultimately makes justifying funding more difficult at this
11 point in time when it should be easier.
12 So I would like to see some of those kind of
13 recommendations in general terms in the report.
14 CHIEF JUSTICE ABRAHAMSON: Chris.
15 MR. ASPLEN: Just briefly, given the extent to
16 which we are hearing the role of the prosecutor here as
17 being substantially greater than I think a lot of people
18 thought, myself included. I used to be the director of the
19 DNA unit at APRI, which is the National Prosecutors
20 Educational Association. I can tell you that we didn't
21 really address that issue that much. At the time it was
22 more a matter of courtroom application.
23 We have the current director of APRI, Kim Herd,
24 here, who I am sure would love to be able to go back and say
25 that one of the recommendations that comes out of the
1 Commission is a reaffirmation that this is a prosecutor
2 issue and that there does need to be continued funding for
3 prosecutor issues, and making clear that while we may be at
4 another level in terms of a prosecutor's ability to present
5 this in the courtroom, and I think we are substantially
6 further than we were two or three years ago because we have
7 no less than Woody Clarke and Norm Gahn teaching these folks
8 this, there are other reasons, more important financial
9 reasons to keep that funding going from the Office of
10 Justice programs to the American Prosecutors Research
11 Institute and similar organizations doing the same kind of
12 work.

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