National Commission on the Future of
P R O C E E D I N G
Sunday, July 9, 2000
Postconviction Issues Report
Postconviction DNA Case Review,
Commissioner George W. Clarke
Pending Federal Legislation
COMMISSIONER ASPLEN: We will move on to
Mr. Clarke's presentation on the post-conviction program in San
We are next going to hear from Woody
Clarke about what they are doing in San Diego, and Woody, correct me if I
am wrong, I don't think any other DA's office is doing what you are
I know there are a few that are
contemplating a certain approach to this, but as far as I know, the San
Diego's DA's office is the office that is proactively looking at cases in
a post-conviction context. Woody has kindly agreed to talk to us about
what it is they are doing in San Diego in that regard.
MR. CLARKE: Yes, Chris.
To my knowledge, we are the only office
that has taken quite this proactive an approach, and I have got about a
dozen slides I am going to show you and go through this fairly
I would encourage, particularly from,
obviously, the commission, any questions. Stop me at any time because this
is a bit of an unusual project. I thought I would tell you first about its
Frankly, its genesis was about three
months ago when I was updating our administration. We are an office of
three hundred prosecutors in a county of three million people, so I would
call us one of the larger metropolitan areas, but by no means, obviously,
I was updating our division chiefs, our
policymakers, about not only legislation at the Federal level, but as you
will see in a moment -- and I am only going to touch on these very briefly
-- legislation at the State of California level as well that would apply
or grant to inmates in prison a right to seek DNA testing under different
circumstances; and the pieces of legislation are different, although they
are similar in many respects as well.
Well, in the mist of that discussion, the
chief of our felony trial division that I actually sit in immediately said
well, why don't we do this testing right out of the chute; why are we
waiting for an application from an inmate.
There was a little silence for a little
while. I was one of the silent people as you can imagine,particularly
since this was in the midst of our discussions a few months ago about our
model statute and so on. So, I kept waiting for somebody amongst the group
of very experienced trial prosecutors to say something, and there still
was not much said.
So, we moved on to another topic, and then
we took a break. Then the District Attorney of my county came into the
room, and he said I just heard about what you were discussing -- he
actually was not part of the meeting -- and he said I think that is an
excellent idea, and we are going institute that program.
So, I was silent again for a while. Then
finally, over the course of the next several weeks, our District Attorney
said this is what we are going to do, you work out the details to myself
and another prosecutor in our office.
Well, the details, you are going to see in
a moment, but I thought what I would do first is just indicate -- and I
don't think we want to get into a discussion about the relative merits of
any of these bills -- but just to give you very briefly what I think is a
summary, in essence, of some of the competing statutes.
At the Federal level, there is the initial
bill introduced by Senator Lahey and others, Senate bill 2073, that would
grant to Federal inmates; and then basically by potential institution and
individual states, both monetarily and, I think, by application of the
14th Amendment, basically seek states to pass similar legislation that
would grant to inmates a right to seek DNA testing in their cases when --
and this is common to all the technology that is sought to be used was not
available at the time of trial -- but the actual wording of when that
testing would be available varies between the statutes.
Senator Lahey's bill provides, as you can
see here, that in that case, testing, if it proved to be exclusionary,
would constitute exculpatory evidence relevant to the claim by the
applicant that he or she was wrongly convicted or sentenced. That is one
The alternative legislation introduced by
Senator Hatch is worded a little differently. As you can see, there is
some similar language about the potential to produce new non-cumulative
exculpatory evidence, but the further requirement exists under the Hatch
version that it would actually establish the defendant's innocence. So,
you can see some differences between those two.
Then lastly, the bill out in California
that I mentioned is sort of a hybrid between the two and, I think, more
closely mirrors, frankly, the versions in place in, certainly, Illinois,
New York, and I think -- I can't remember if there is another one. Barry?
New York and Illinois.
MR. SCHECK: Arizona.
MR. CLARKE: Arizona is different. It is
the model statute version basically, but in any event, our version in
California that I discussed with our administration provides, again,
similar language, but a little bit different -- material and relevant, but
not necessarily demonstrating actual innocence based on the test
So then, we turn to our own project and
the guidelines that we established in place had a certain series of goals.
The first was to only deal with inmates currently in prison. These are
inmates who are serving their original term of imprisonment; in other
words, still in prison and serving their original term for crimes for
which they were committed to prison prior to 1992. We selected that date
The arbitrariness of the date, well, it
was not totally arbitrary; it was somewhat arbitrary, is the fact that,
that year, our San Diego Police Department began DNA case work. So, it was
a selection based on that, although as you will see, if I forget to
mention it, we are certainly not exclusive in that regard. We will take
requests from any inmate and look at their cases the same way as we are
looking at the cases that we are dealing with.
Through the cooperation of our California
Department of Corrections and an actual life inmate unit that we have in
our office that very actively follows all of our lifer inmates, the ones
who are entitled to parole hearings, not entitled to release necessarily,
but they are entitled to parole hearings.
They keep a very close watch on all of
those lifer inmates in our county, but also by lists obtained from the
California Department of Corrections, we determined that there are 560
inmates in our state prison system committed from San Diego County still
serving terms for which they were committed to prison prior to 1992. That
is the basic criteria.
We have in place two law students who have
just recently begun a review of those cases. They sit in a little cubicle
that is getting, as you can imagine, quite full of boxes from cases. In
fact, they started giving me a little bit of their inclination that
perhaps I should review these cases a little more quickly since they no
longer have room to sit in that cubicle.
In any event, they are requesting case
files which, as you can imagine, are most often off-site because they are
older crimes. We have, fortunately, a good procedure to obtain those case
files. They are reviewing these cases on the very scientific basis of
starting with the "A"s. Then they will be moving to the "Z"s at some
We have, however, let through not only
media coverage, but also by meetings with our public defender, what we
call our chief alternate public defender, the bar association, and other
sources basically trying to get out the information that we will also
accept cases by request, and they are not limited to 1991 or before. We
will look at any case on request.
The two law students literally open up our
case files that, so far, have been in very good condition. We have even
found a case, believe it or not, from 1914; but that defendant is no
longer alive, so we are not as concerned, obviously, about that case. I
want to see that 1914 case, by the way.
The law students fill out a check list.
They provide information, identifying information largely, and they are to
attach certain court documents like a change of plea form or a probation
report -- which is a report, like many jurisdictions, prepared by a
probation officer who looks at the case, summarizes the facts, interviews
the defendant, perhaps most importantly for our purposes, and then
provides a sentence recommendation to The Court -- and other documents
such as any appeals, the disposition of those appeals by either our court
of appeal or our California Supreme Court.
We are finding some documents hard to
find, but thus far, none of the early cases that we have reviewed has the
failure to find those documents been anywhere near fatal in my
The procedure is those two law students
then prepare those short, perhaps two-page documents -- this check list,
basically, that they fill out -- and then the cases are reviewed, each and
every case reviewed by two deputy district attorneys.
One initial review is by a collaborator
with myself who works in our administration who is about a 10 to 12 year
deputy in our office that has tried a number of serious homicide cases,
and then myself. I look at them last. Then we basically either indicate on
that case that yes, this is a case we should look further at or this is a
case that we can set aside.
What are goals are in determining whether
or not to proceed further with these cases are has there been a continuous
claim of innocence starting from the police, although we are not
eliminating cases because a defendant may have said something to the
police indicating complicity in the crime, we are not eliminating cases
based on that, but what we are looking for is generally, again, a
maintenance that I am not the person who committed that crime.
We look at several things: Was there a
trial? What was the defendant's testimony at the trial? Was there a change
of plea form if it was a plea case, which the majority of our cases,
again, in these early stages, are.
What were the statements made to the
probation officer that I mentioned earlier? Then lastly, I have mentioned
the parole board exception. We, frankly, don't plan on holding it against
an inmate that they may have expressed remorse for the crime and otherwise
conceded committingit because some of those, as we have learned, may not
be totally sincere.
So again, we are not eliminating a case
because a defendant is expressing remorse to the parole board or otherwise
making comments to the effect that yes, I committed the crime. I saw "The
Shawshank Redemption." That is why I have that goal.
Most importantly, the cases that are not
included, and this, I think, is a surprise to some, in California, we have
a three strikes and you are out statute, but that statute did not go into
effect until 1994.
We have thousands -- well, in San Diego,
California, I am not sure how many, but I think it is safe to say now
hundreds of inmates serving life terms for three strikes cases. They have
nothing to do with our inquiry -- unless, again, an inmate wishes to seek
that kind of inquiry -- because these cases are generally not biological
You can go to prison in California now for
25 to life for possessing small amounts of drugs, committing petty thefts
out of markets and so forth; and more in the biological evidence arena are
one-strike sex cases that you can also receive a term of 25 to
Again, it did not begin until 1994. So,
they are not in our umbrella of 560 inmates, so I think that helps us to
narrow it to not only a more manageable level, but more importantly, the
kinds of crimes that DNA can be helpful in.
What we are looking for, obviously, is
dispositive physical evidence. If it is a case where a defendant has
maintained, again, his or her innocence, is there physical evidence that
can truly dispose, if DNA is used, if there are exclusionary results that
can dispose of that claim of innocence and establish whether or not that
person committed that crime?
In the evidence preservation realm, again,
we are still very early in this process, but what we have noticed in two
cases so far is that when they were simply sex cases, not homicide cases,
but sex crimes only, the police department appears to have destroyed the
evidence pursuant to a policy they had -- this is our major city police
department in this instance -- of waiting until all appeals have been
exhausted and then evidence destruction occurs.
We are finding just the opposite with
homicide cases. Homicide case evidence seems to be intact. Again, this is
only out of the barest minimum of cases where we are seeking to determine
the presence of that evidence.
Our goal is, if we find an appropriate
case, we will then present it to our, what we call our major case review
panel. It is a series of about ten, again, highly experienced lawyers who
are convened normally to advise the district attorney in capital eligible
crimes whether to seek the deathpenalty or not. So, that is our plan to
use those resources when necessary.
Just as an aside, what is guiding us in
much of this process, and I know is assisting the other lawyer and myself,
is the fact that one of the 26 cases described in the NIJ report in 1996
was a San Diego case involving a defendant named Frederick Rene Day, who
was convicted of a kidnap and rape case based on not only eyewitness
identification of the victim, but also eyewitness identification by a
nearly independent third party. There was some corroborative serology
evidence in this trial back in 1985.
He was convicted and sentenced to prison.
Ten years after that commitment to prison, he was, in fact, excluded. He
was clearly not the attacker, and those exclusionary results actually
inculpated another man who an accomplice said was the person who actually
committed the crime.
So, I give you that example because that
helps us understand that because we have eyewitness identification
testimony, that doesn't mean that person did not commit that crime. So, I
think it is an important factor that we need to bear in mind in any
review, obviously not only in our office, but elsewhere.
Our plan, rather, is if we find an
appropriate case where there has been a continuous claim or relatively
continuous claim of innocence, that it is the type of case where it was
not a change of plea where the defendant admitted committing the crime --
and before I forget, in our change of plea procedures, and I think Jim
Wooley described a similar procedure in the Federal Government -- a
defendant can admit guilt, plead guilty to a crime, and yet not admit
having committed that crime; that is, provide a factual basis.
We have a procedure in California where a
defendant can do that, and if, in our review, we see those cases, the fact
that there was a change of plea, obviously will not render that case
ineligible for further review.
Our plan is, if there is dispositive
physical evidence left over that can establish innocence and our major
case review panel agrees that we should offer that testing, we plan to
offer that to the inmate through counsel, either counsel, if he or she
still exists, representing that defendant or through our public defender's
office or we have appellate lawyers in San Diego who conduct most of the
post-conviction appeals in our state and county that we will offer it
The testing will be done in either a
government or private laboratory. If we are talking about one or two
cases, I may be able to twist the arms of one of our two local crime
laboratories to conduct the typing.
If they are able to do that within the
confines of their case work and the inmate agrees, then we will do it that
way, or if not, then we will seek testing from a private
We do plan to give them I have called it a
CODIS evidence advisal of our intention that if we are going to type the
evidence, not the inmate's known type -- obviously, that is going to
happen -- but our plan is if we type the evidence, then we may very well
want to compare that evidence to other evidence cases in our own county
and perhaps at the state level as well. Again, this would be a
case-to-case comparison, not a case the inmate or inmate to convicted
offender case comparison as well.
So far, and again, these are very
preliminary as you can see, as of Friday, our law students had looked at
80 cases; that is, 80 inmates. What is interesting to me is 73 of them
were murder cases, either first or second degree murder as we use that
term in California.
Only seven of them were non-homicide
cases, which was very interesting. I mean that is good in the sense that
the evidence should still be in existence, in theory anyway.
We have, the other lawyer and myself,
reviewed 14 of them at this point, and all 14 of them are what I would
call clear non-DNA cases. They are generally shootings where the inmate
has admitted to being the shooter or aiding and abetting the shooter,
claims of self defense and the like and so forth. Now, again, these are
obviously at 14, a mere fraction of the number of cases that we have to
I am going to estimate I think it is going
to take our law students -- and they will have successors because they
will be going back to law school within the next two months -- I think it
is going to take us about nine months roughly for the law students to go
through their review; and then we are trying to keep up with that so that
hopefully, our review will be done in under a year.
Of course, testing, if it is, in fact,
offered -- and I expect it will be; I don't think we are going to go
through 560 cases and not find an appropriate case -- then obviously, that
will take longer as well, but that is our San Diego plan.
PARTICIPANT: How did you fund
MR. CLARKE: At this point, with the law
students, that is a fairly minimal request at this point at this time, and
we are doing that within our own budget at this time, although we will
seek funding as well for the work not completed. I forgot one.
MR. CLARKE: Yes?
PARTICIPANT: One other thing: When you had
73 homicides and seven others and you said you were surprised, I mean
there were not more rape cases, or was that because of the destructionof
MR. CLARKE: Yes.
The reason is sentence-based.
PARTICIPANT: Lisa is giving her expert
advice that rapists are only after the letter "J."
MR. CLARKE: That is right; they are only
of a particular letter.
With our change in law in California,
although as of 1991 and before, the only way you could get to a sentence
long enough for somebody to still be in prison -- these are inmates from
1991 and before, so they have been in prison nine years -- they would have
to have been sentenced to at least 18 years in prison because those
inmates all got half off basically for good behavior. So as long as they
had an 18 year sentence, they could still be in the mix.
As a practical matter, that requires --
and I am just talking about sex crimes at the moment -- as a practical
matter, that requires them to have committed multiple forcible sex crimes
and have had a judge decide we are going to stack these sentences on top
of each other.
While there are a number of those, they
are somewhat limited compared to the homicide cases. So, I think -- again,
this is a poor sampling, but not bad at 80 cases -- that we are going to
see clearly the majority are murder cases.
MR. THOMA: There is one that is not
MR. CLARKE: Pardon?
MR. THOMA: The one I just gave you
PARTICIPANT: Woody, how detailed is the
check off list? I am just wondering what the interns look for, their
knowledge base for looking at a case. Is it pretty simple
MR. CLARKE: Yes, pretty straight-forward:
Identifying information; a summary of what the defendant said to the
police, but we kind of back that up by looking at the probation report so
that we can get a good feel for what have the statements been over the
course of the legal system's involvement.
Generally, we are seeing there can be, not
denials, but either denials to police or assertions of a privilege not to
incriminate; but then we start seeing the statements by way of either a
plea or testimony at trial.
Then they tend to be backed up by the
statements to the probation officer, so that at least in this small number
of cases, they appear to be consistent from either a plea or testimony at
trial through the probation report.
MR. THOMA: What was the philosophy and
discussion you went through to begin this project?
MR. CLARKE: In what sense?
As I mentioned, the chief of our felony
trial division, who none would consider a supporter of criminal
defendants, just immediately reacted, saying why aren't we doing this.
Again, that created a little silence for a little while, and there was a
I had another prosecutor come down from
Northern California to discuss our project and also to compare -- that was
Rock Harmon -- what he is doing with basically no resources.
I think we have more resources in our
county in looking at older cases and so on and presenting an alternative
or at least a simultaneous let's use law students to open up old cases and
look at them as well, and we are going to do that as well.
We are actually going to devote attorney
resources to looking at our older cases that are sitting over at our
police department and our sheriff's department although, like many law
enforcement agencies, with a decline in -- if I don't get this correct,
correct me -- with a decline in homicide rates, homicide detectives have
been able to devote at least some more time to older cases, and in San
Diego, they are doing that as well.
MR. SHECK: Woody, how does this relate to
what Mike Jacobs is doing in Orange County, looking at the old unsolved
homicides? Do you link up with him at all?
MR. CLARKE: Well, this different. This is
looking at it from a different, obviously, a different pool of cases,
certainly; although, I know --
MR. SCHECK: It looks like a lot of
MR. CLARKE: Yes; although I know in our
state there are at least two to three prosecutor's offices that are
beginning to solicit -- well, solicit is a bad word; write letters to
inmates directly to allow them if, upon request, they would like, then the
prosecutor's offices in those counties will then conduct a review similar
to ours, although this is an umbrella review, looking at all of them that
we can identify.
We have received a few requests from
inmates, having read on the news or in the newspaper, please look at my
PARTICIPANT: How many have you received,
requests from inmates?
MR. CLARKE: From inmates, three at this
point; not very many.
So, it is aggressive, and I think we are
going to learn a great deal statistically, frankly, about evidence
preservation; about the percentage of cases that go to trial versus plea
in a fairly defined group of inmates -- obviously, life inmates in large
part; and hopefully, information about, mostimportantly, any innocent
individuals that are still in prison. That is our first and primary
MR. HILLARD: Woody, in the criminal sexual
assault case, did you mention earlier that you thought the police
department had gotten rid of some of them? What is the
MR. CLARKE: Well, at this point, I don't
know. We have only seen it in a couple of sexual assault cases where they
have a policy that after -- and I think it is a retention for seven years,
but destruction only upon an approval by the primary investigative
detective, and in theory, we are not sure exactly how this works, in
theory, a sign-off, for lack of a better term, by our office, although we
are having to track that down to see exactly how that process
Our office is, and I am in the division
that receives these requests, although I do not review them, generally, we
will only agree to destruction if an inmate has either served the term or
is close to completing the term.
Now, if they have done 15 years out of 16
years, we will probably go along with destruction, but again, until we
really narrow this down with more cases, I don't think I have an exact
answer to that.
In both of those cases, we went to the
court exhibit room, and they still had all the evidence in both of those
cases that was introduced at trial and were made exhibits at the trial.
So, that is good as well.
In fact, in one of them, I went down to
the exhibit room, and fingernail scrapings from a 1989 case, sure enough,
had been marked. Barry can obviously provide much more information about
that area than I can, but The Court appears, in our jurisdiction, to be
hanging on to the evidence pretty reliably.
MR. SCHECK: That is generally the
MR. CLARKE: Is it?
MR. SCHECK: Yes.
When a serologist would have testified in
California, would they introduce the rape kit itself or just offer the
testimony of the serologist?
MR. CLARKE: Well, it varies.
In general, I think the rape kit doesn't
make it to the courtroom in general.
MR. SHECK: They do in Virginia, thank
The only other thing I could suggest to
you -- I don't mean to mean to make more work -- is I think that what you
are doing is fantastic, and we will learn a tremendous amount from it. I
amnot surprised by the numbers. I mean I think that it is 75 percent. In
75 percent of the cases, the evidence will be lost or destroyed, I
MR. CLARKE: Well, I remember your giving
us that number, and I am anxious to see.
MR. SHECK: That is our number. I mean
although, obviously, in homicides, that is different. Ordinarily, we are
sexual assault cases; you know, with a smaller percentage of homicides.
You know, you seem to, because of the number of years people serve, you
are looking at a class of cases that are more homicides. So, you will find
more evidence preservation, but many of them will be inappropriate, but I
would still imagine that 75 percent of the time, people won't even in
theory be, you know, they either won't be eligible or there won't be any
evidence at least.
The one thing that you might look at in
these sexual assault cases that we found that hospitals, when they do the
rape kits, save slides, and we have had a lot of success going back to the
hospitals after the rape kits are destroyed and finding the slides under
the names of the victims in those cases, and we can get the DNA off those
MR. CLARKE: I will bear that in mind. That
is a good point, Barry. That is a very good point.
I would have had 20 more cases to give you
numbers on, but I was interrupted last night reviewing them by the Mets
and the Yankees games. So, I will have to do them on the way
MR. THOMA: If you work through the next
protocol, if you find a case that fits the bill that needs re-testing,
what the lab is going to do and whether you are going to do it on all your
own court motions or get a defense attorney for the arrestee involved,
just kind of here is what the next step on a find is.
MR. CLARKE: Right; that will be if we find
an appropriate case, then we will deal with the inmate through counsel,
either an existing counsel or an appointed counsel, and deal with it that
way. I expect, again, the numbers may be very low that, that ultimately
occurs with, that some inmates may say no; I don't know. They may say yes;
they may say no because, again, they do run a risk of losing that claim of
innocence if there is further evidence established, and that could impact
parole decisions, or they may be concerned about a CODIS search; but I
would think most of them would agree to it.
MR. SCHECK: You know, it is interesting
because we have been thinking a lot about the people that lie to us lately
because, you know, we get -- it runs in funny numbers.
I mean last year, I think it was something
on the order of seven out of ten of the people that we tested, the results
were favorable. This year, it is three out of ten, and I guess there is an
11th case working. We don't know what is going to happen in Virginia. You
know, so far, three out of ten have been innocent and seven have been
So, it is a small sample, so I cannot give
you a, you know, it fluctuates. It used to be thattwo-thirds of the people
we tested, the results were favorable. That does not mean they are all
exonerated, but you know, because sometimes, they don't let them out; but
now, it is a little bit more than 50 percent, you know.
So, there is a high percentage, and I have
often wondered what it is. So, one of the criteria that I think is really
terrific that you are using is the continued insistence on innocence
because that is always so remarkable to me, that these people are refusing
parole. You know, that always impresses me.
Those people have to be -- on the other
hand, a lot of, and among the people that lie to us, a, they are, you
know, psychopaths, right; otherwise, you know, why am I surprised that
somebody that is convicted of a terrible crime is lying to me, you know,
but you do get surprised about that in wasting our resources.
I also think that the CODIS advisory is a
very good idea because we require that. As you all know from our work on
the post-conviction, we just had a case recently of a guy that I was able
to persuade the prosecutor to do the test because there were 17 unsolved
cases that they always suspected he was related to, and then he said no.
Even though I didn't tell him, the statute of limitations might have run
out -- I don't know -- on a number of them.
So, I think that those were, you know, I
think you have all right things in place.
MR. CLARKE: The over 50 percent, Barry, is
MR. SHECK: Over 50 percent of the time
once we do the test, it comes out favorable.
I mean, I don't know how that is going to
run because it is such a small data set. You know, we are only, you know,
we are under a hundred cases going to the lab, or something like that is
So, that is not, you know, you can't
really identify gigantic trends from that because if we get a run of seven
in a row that turn out to be guilty, it swings the numbers very
drastically. If we get seven in a row that are good, you know, it swings
I mean as far this goes, I mean if by the
time you do the testing, if 20 percent or 30 percent of the people that
actually you get the test for turn out to be innocent, then the other 70
are, they are definitively guilty, it is a major success. So, it is
MR. CLARKE: Just instinctively, I have
been around our office long enough to have kind of a feel for cases, and
-- Chris obviously would as well -- we have not had very many thin
who-done-it cases, for lack of a better term, where a case has rested on
microscopic hair comparison or very fleeting identification
Now, that is not to say they are not in
there because they could very well, but it is just a little better than
MR. SHECK: How are you dealing with the
hairs? Are you looking for cases that are turning on the hairs in
MR. CLARKE: I have not gotten that far
yet. We just have not found a case that fits anywhere near the profile
that we are looking for, but again, this is very limited
MS. BASHINSKI: You are using quite a tight
standard for selecting the cases.
MR. CLARKE: Yes.
MS. BASHINSKI: You are saying it would
really have to be dispositive.
MR. CLARKE: Yes.
MR. SHECK: What is the
MR. CLARKE: Well, is there, if it is a
case, again, that fits the remainder of the criteria, is there biological
evidence that still exists that, if tested and exclusionary, would
establish innocence -- a Fred Day case, for instance.
MR. SHECK: Is the commission's standard a
reasonable probability that he would not be convicted?
MR. CLARKE: Well, I think it is. I think
Jan is right. I think it is a little tighter than that. Would it establish
innocence if it is exclusionary? In other words, in Fred Day's case, that
would be the case.
What surprises us about the Fred Day case
is, of course, the other evidence pointing to guilt was fairly strong --
two eyewitness identifications and so on -- but fortunately, the semen
stains on the jeans of the victim could have come from no other incident
than this attack in the facts of that case. So, that is what we are
Now, reasonable minds might differ, and
that is why we are adding this additional layering process of review about
what constitutes exculpatory evidence or not --
MR. SHECK: I mean in some ways, I don't
consider it tighter. I think that the, it sounds like the same criteria we
use because you are applying it sensibly. In other words, what you find
sometimes, people go, oh, there was a confession, right; or oh, there were
five eyewitnesses; or oh, we thought the evidence was very strong; or
there were two or three or, you know, five eyewitnesses or whatever; and
then if, but if, in theory, a DNA is on, if the evidence itself is so
potentially probative, right, then it is innocence.
MR. CLARKE: Yes; in that sense, you are
absolutely right, yes.
MR. SHECK: So, that is what is hard for
people to, it is hard for people to apply that in asensible
MR. CLARKE: Well, and it is what the
post-conviction group has struggled with early on, obviously, was how
significant is the evidence; categorization of cases and so forth -- is
this a vaginal swab with semen from a two year old victim or is this a
semen stain on a hotel bedspread where a rape occurred?
I mean those, to some extent, represent
the extremes. The difficulty, of course, is categorizing them in between,
and that will be our biggest struggle, I am sure.
PARTICIPANT: Hey, Woody, have you had any
response from the victim community or victim advocacy
MR. CLARKE: I had one telephone call from
an individual who is active in our community expressing concern, but by
the time I had phoned her back, her concerns had been allayed by someone
else, so no, other than that. Again, we plan to deal with -- again,
assuming we find an appropriate case or more -- the very recommendations
that are contained in that wonderful volume produced by the
post-conviction review committee.
PARTICIPANT: Chris, one of the things we
discovered in Arizona this year when we were going through the legislative
process, we did have victim representatives at the hearings, and they and
law enforcement testified on behalf of the bill, which I think contributed
to the way it was passed unanimously both through the House and the Senate
and ultimately signed by the Governor, and they took an active role in it.
They looked carefully at the bill, and it kind of sailed through because
of law enforcement, the labs, and victims' agreement with it.
COMMISSIONER ABRAHAMSON: Is anyone else
doing this that you know of?
MR. CLARKE: No.
I have mentioned a few offices are
directing letters to inmates; in other words, identifying their county's
inmates in prison offering them this, not our resource, but offering the
review of their cases by those offices, but not a proactive version like
Actually, the collaborator, another deputy
in our office that is reviewing the cases with me, will be describing this
program at the law enforcement summit as well with better numbers by then
MR. SHECK: You know, what it is really
important to emphasize about what you are doing is just think how
breath-taking this is; that for a comparatively small amount of money in
terms of expenditures, you are efficiently going through, in nine months
if you meet your projections, what it would take in terms of litigation
and requests and everything, you know, probably a decade to take to do in
your county. So, it is, you know, it is extremely efficient.
MR. CLARKE: Well, and I am trying to
remember since about 1985, to my knowledge, we haveonly received about
three letters from inmates ever about I am innocent; do this; there is a
way to show this; and so forth. Now, that may not be uncommon -- I don't
know -- but it gives me a little sense of confidence that we are not
talking about many cases.
MR. SHECK: I have been insisting for three
years now, you know, when you say many, you know, if nationwide, if they
passed one of the versions of this bill, if there is, you know, two
hundred cases that go to lab within one year -- assuming every state would
pass this -- I would be surprised. Now, I could be wrong, you
By the time you find, go through all the
criteria and find the evidence, and I mean out of those two hundred, you
may get a lot of exonerations, which would be very interesting and
instructive for the system, but I don't think it is a big number, you
know, total I mean just because of the evidence destruction
MR. CLARKE: I was going to say, and in
that vein, I should mention the fact, those of you unfamiliar, the Lahey
bill and even our California statute would mandate maintenance
preservation of evidence. There are important provisions that law
enforcement should be familiar with and attuned to.
Now, in Los Angeles, as we heard -- I
don't know, was it about a year ago -- they collect and save everything.
That is certainly one approach that may be appropriate, although I think
their power bill is going up dramatically; but those aspects of these
bills will impact law enforcement dramatically.
MR. SHECK: You know, I should mention
because Clay is here, and if he did not know it, it is not generally a
known fact, and that is, you know, the evidence provision preservation
proposal in the Lahey bill is that the evidence be preserved for anyone
that is incarcerated. However, law enforcement can move to destroy it and
give 90 days for the, you know, upon notice to the inmate, 90 days to
There may be some problems with how that
would happen, but some provision like that seems, to me, a sensible
solution to this. I am troubled by -- the Hatch bill says you only have to
preserve it once the motion is made, you know, which, frankly, I would
imagine would have been the law anyhow. You make a motion to preserve
something, then they go out and destroy it.
The thing that people should know, and
this was very troubling to us, is that when a guy named Kevin Bird
(phonetic) was pardoned in the State of Texas in Harris County, which is
the county that, if it were a state, would have the third highest number
of executions in the United States next to Texas and Virginia -- that is
the Houston area -- Bird was exonerated and pardoned by Governor Bush with
Right after that happened -- and it is
lawful; I am not saying they did it illegally -- 50 rape kits were
destroyed in the Harris County courthouse and then a contract was entered
into with a waste disposal firm to get rid of more.
I can just regale you, and a number of
them are in our book with story after story of how these samples are
destroyed, you know, just bureaucratically. Some of the people that were
exonerated, you know, they were exonerated by chance.
You know, Calvin Johnson in Atlanta,
Georgia, they had a whole shopping cart throwing away the evidence, and
some noise had been made about his case, and somebody just pulled it out
and decided to save it. You know, it is just luck until somebody does what
you are doing.
COMMISSIONER ABRAHAMSON: Thank you,
MR. CLARKE: You are welcome.
COMMISSIONER ASPLEN: Aside from what Woody
already mentioned regarding the pending Federal legislation, I don't want
to get into that too much other than to acknowledge that Barry, Woody, and
Jim all testified before the Senate Judiciary Committee regarding those
particular bills, and they are still up in the air. I don't think anybody
has an idea, a very good idea of what ultimately will happen with
MR. SHECK: One day, the Justice Department
will take a position.
COMMISSIONER ASPLEN: I'm sorry
MR. SCHECK: One day, the Justice
Department will take a position.
COMMISSIONER ABRAHAMSON: Not
COMMISSIONER ASPLEN: Right.
If we could now turn to the victim
MR. SCHECK: I thought we were the
COMMISSIONER ASPLEN: No, not at all,
Let me be very clear about that. This
commission is not in any way, shape, or form, the policy-making body for
the Department of Justice. We make recommendations on certain issues, but
we have absolutely no authority to make policy for the
If we could turn to the Victim Advocacy
COMMISSIONER ABRAHAMSON: Which is in your
papers too. It is labeled Understanding DNA Evidence, A Guide for Victim
Advocates. I think it is your second or third down.
COMMISSIONER ASPLEN: This is a joint
effort between the commission, the commission staff, and the Office of
Victims of Crime; and as such, we should turn it over to Kathryn Turmanfor
a few minutes to kind of talk about how all of this got