DNA exposes the truth

 

PROFESSOR SCHECK: Very few. Very few people have replied who were guilty pleas. Very few.  They are all people that have been convicted after trial and what is interesting is that while there have been inclusions, right, the percentage -- the number of cases that finally get to the laboratory for testing, the number of exonerations far outnumbers the number of inclusions.

Well, isn't this little paragraph interesting?  What Barry Scheck is saying is that a larger percentage of the men (whose DNA was tested after but not before they were convicted) did NOT match the crime scene evidence than did match it.

In other words, the RATE of false convictions which had previously been estimated at a mere one third actually "far outnumbers" a fifty percent conviction rate.

The following is very dry reading--but it is an excellent illustration of the lengths to which our legal beagles are going to go do deny and and all culpability for what must be the most heinous violation of civil rights in human history--up to 1.9 million innocent men in prison based on women who LIED.

Is there any question about why American men are a third of the men in the world behind bars?

 

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Original report

http://www.ojp.usdoj.gov/nij/dnamtgtrans/trans-h.html

National Commission on the Future of DNA Evidence

P R O C E E D I N G S

Postconviction Issues Working Group Report,
Prof. Margaret Berger, Brooklyn Law School

PROFESSOR BERGER: I thank you very much, Chief Justice Abrahamson and Members of the Commission for this opportunity to appear before you to advise you about what the postconviction issues working group has been doing.

Since there is no opportunity to tell you about who was on that working group, I thought perhaps I should start off by telling you a little about that. Three Members of the Commission are on the group. As you heard, Judge Reinstein is on it, as is Barry Scheck, and as is Catherine Turman. In addition, not only do we have a member of the judiciary, a defense counsel, a victim's advocate, and of course Barry also is a law professor, but we also have representatives from the prosecution end. We have someone from Cellmark who is on the working group as well, and so we really have a very balanced group, I would say.

The working group certainly realizes the urgency of its task. It simply is not tolerable for persons to be incarcerated when evidence exists that can exonerate them. As Barry Scheck mentioned this morning, to date there have been at least 53 cases in which convictions have been vacated on the basis of DNA testing. About half of these convictions were vacated after 1996.

The technological innovations that have occurred in DNA testing now make it possible to obtain conclusive results in cases where previous testing had simply yielded inconclusive results, which means that in the future there will not only be requests for testing in cases in which DNA testing was never done, but also requests for retesting using these new technologies.

Certainly the innocent persons who are presently incarcerated need assistance. You've heard about the backlogs of cases needing testing. That impacts on this as well. And I'll describe some of the problems that the working group has been dealing with that illustrate how difficult it is to handle some of these cases. The working group is doing its best to rationalize and accelerate the process that leads to the exoneration of a wrongly convicted inmate.

The working group has already met for two full days, and we're meeting again on Friday of next week.

At our meetings to date, the group has identified numerous issues that will have to be addressed in the final report, and has begun drafting guidelines to assist prosecutors, defense counsel, victim advocates and judges.

The objective is to publish these guidelines in brochures that would be widely distributed. The working group realizes, however, that some of the more troublesome problems posed by post-conviction DNA testing are not amenable to solution through guidelines. Accordingly, the group is also considering at least two other mechanisms, model legislation that could be adopted by the states and the possibility of perhaps using federal funding, as was said by Chief Justice Abrahamson this morning, as either as a carrot or a stick to get cooperation with the states in adopting some of this model legislation.

We expect to present all our recommendations to the Commission by the end of the summer. These recommendations will encompass an enormous range and variety of issues. Legal, financial, practical and educational. The complexity of the problems and how the group is progressing can perhaps be seem most clearly if we look at how requests for post-conviction DNA testing proceed. So I am going to work my way through some of the problems that develop when someone requests DNA testing an inmate or someone on behalf of the inmate.

Barry Scheck has been talking about his Innocence Project and we know that many requests for testing are initially received by the Innocence Project. We also know, however, that many others are approached. Inmates, their family and friends contact prosecutors, defense counsel, courts, elected officials, and even law professors for help and information and, undoubtedly, others as well. For instance, NIJ staff told us that their receptionist sometimes gets telephone inquiries about what to do.

The guidelines will provide information about appropriate organizations to contact for assistance and advise persons who are contacted about these organizations such as the Innocence Project or a public defender's officer to which inquiries should be forwarded. It may be possible to set up some kind of a national registry of organizations and individuals that have the capacity to screen requests for testing.

The guidelines will also explain to inmates or requestors on their behalf how to proceed with a request for testing. Many inmates seeking relief will probably not be represented by counsel. Sample forms in the guidelines will set forth the information that an inmate must provide in order for a request for testing to be evaluated. And a good deal of information is needed in order to begin the screening process.

Obviously, one needs to know where and when the offense and trial took place, what the sentence was, who the attorneys were, both the prosecutor and defense counsel, at all stages of the case. In terms of what is being asked for, one needs to know what scientific evidence was collected and what biological evidence was introduced at trial. What testing, if any, was conducted? What the defense was at the trial, and what material the inmate has available, such as transcripts, police reports, laboratory reports, Appellate briefs and post-conviction briefs.

Funneling a request to an appropriate person or organization who will obtain information from the inmate is but the tip of the problem. Obviously, post-conviction testing is possible only if crime scene biological samples have been saved. When an inquiry is received, it is imperative for the person handling the request to immediately contact all persons who might have samples to ask them to preserve any remaining evidence. The samples may be in the courthouse, the police department, the prosecutor's office, or the crime laboratory.

Barry Scheck told us that in approximately 70 percent of the cases, he estimates that the original response is that there is no biological evidence. With considerable probing and persistence, and a refusal to take no for an answer, evidence samples are eventually located in some of these cases. The samples not infrequently turn up in places other than in the official files, like desk drawers and car trunks.

If the sample was properly dried and kept in a cool, dry atmosphere, the lack of refrigeration may not matter, although refrigeration is strongly recommended.

The working group views as one of the most important components of its work, and the commission's work, recommendations about evidence gathering and preservation. We heard about some of these issues this morning. But, certainly, if you look at this issue from the standpoint of the post-conviction process, you can see how imperative it is. An innocent person may not be able to prove his innocence if evidence has been destroyed, and that destruction may have been done in perfectly good faith, it simply has been done because there is no real procedure out there for making sure that samples are retained.

Recommendations about preserving evidence can be incorporated into model legislation. And, certainly, in terms of some of the comments this morning, this is an area where there working group on post-conviction remedies could well profit by some interchange with some of the other working groups that will be dealing with the same issue from different vantage points.

Finding a sample that is testable is essential, but far from all that has to be done in screening a request. An extensive investigation needs to be carried out before it can be determined whether DNA testing could lead to a successful outcome in a post-conviction proceeding. Even when a biological sample is available, test results may be incapable of resolving the issues that are posed by the inmates defense.

The transcript of the trial is needed in order to determine the impact DNA testing could have in light of the evidence in the case and the defense asserted. For instance, if the inmate claimed consent in a rape case, or self-defense in a murder case, DNA test results will simply be irrelevant.

The working group has discussed whether DNA testing should be provided only when the usual legal standard for vacating a conviction on the basis of newly discovered evidence is met. That standard is -- Does a reasonable probability exist that, had the results been admitted at the inmate's trial, the verdict would have been more favorable to the defendant?

Or should one use a more liberal standard and say that access to testing should also be available in non- frivolous cases in which favorable test results would not justify vacating the conviction, but would, for instance, support a request for executive clemency?

One possible solution might be to allow testing, even though the legal standard for vacating convictions is not satisfied, if the inmate or the person requesting the testing bears the administrative costs of searching for and producing the evidence as well as the costs of testing.

Another issue that we have talked about is whether testing should be available for a person no longer in custody who may perhaps be precluded by that conviction from obtaining a job. Certainly, the circumstances under which a state would pay for testing if the inmate is indigent need to be set out in model legislation.

It may also become apparent to the person evaluating the inmate's file that testing the crime scene samples will be useless unless they can be compared with other samples that cannot be found or that were never taken. For instance, in a rape case, a sample from the victim, from third party consensual sex partners of the victim, or from co-defendants might be needed for comparison with the crime scene DNA sample. An application for testing will founder if the results can not be meaningful in the absence of samples from these third parties.

Troublesome issues arise about the extent to which third parties should be urged to cooperate and about a court's power to order the testing of third parties.

Another extremely serious obstacle to DNA post- conviction testing is that many states have statutes of limitation that greatly restrict post-conviction relief. Only six states have no time limits on post-conviction relief based on the discovery of new evidence.

Obviously, in light of the work that has to be done in screening a request for testing that I have just talked about, it is very possible for the time in which the petition for post-conviction relief must be commenced to run before it is possible to find the evidence, review the transcript and evaluate the impact of DNA testing on the inmate's defense.

If the commission proposes model legislation, a recommendation should be included about post-conviction DNA motions being allowed even if a state otherwise puts time limits on when newly discovered evidence of innocence motions can be filed.

The guidelines will also contain separate sections on the appropriate roles of prosecutors, defense counsel, and the courts at various stages of processing an inmate's request. Different scenarios are possible. For instance, testing may occur without any court involvement if it is ordered by the prosecution on its own, which does happen, when the prosecution is contacted and agrees that this is an appropriate case for retesting, in which case, however, the prosecution should notify the defense, certainly, if the sample will be consumed in testing, so that a defense expert or a neutral expert can be present.

Sometimes testing occurs in accordance with agreements between the prosecution and defense and the results will dictate what happens after that. Sometimes the testing starts out being an issue for the court because an inmate files a habeas corpus application and the court will be involved from the outside in the investigation of the viability of DNA testing.

What we are trying to do in the guidelines is to provide a blueprint for all these different situations should be handled in terms of the different kinds of problems that can be arise -- that can arise.

Now, this very brief overview of some of the issues that have to be considered in conjunction with an inmate's request for DNA testing has omitted some other extremely important subjects with which guidelines must deal.

One delicate issue is designing appropriate procedures for dealing with victims and surviving family members. Even when no sample is needed from the victim, it may be extremely traumatic for a victim to learn that the person convicted for a crime against the victim is now seeking post-conviction relief. It is very important to provide crime victims and surviving family members with information and to approach them with great sensitivity. This is especially critical when the conviction was based primarily upon eyewitness identification testimony by the victim who thinks that she made an accurate identification.

Numerous issues arise in these cases, ranging from when to notify the victim that the inmate is seeking post- conviction relief -- certainly, the last thing we want to happen is for the victim to discover this through the media -- and to how should do the notifying, preferable victims advocates or prosecutors.

Notification, however, may not always be desirable. If DNA turns out not to be possible, or appropriate, or turns out to incriminate rather than exonerate the inmate, which we know happens in quite a few cases, then there would be reason to disturb victims or their families. But in other cases, victims and survivors will have to be provided with a simple but thorough explanation of how DNA testing may be used in their case, the process and procedures used, and the potential outcomes of testing.

Victims and survivors need to be advised about the status of the inmate's DNA testing request in cases where notification has taken place, and reminded about issues such as their right to refuse media interviews. Steps also need to be taken to ensure that information about the location of victims and survivors remains confidential.

If the testing is carried out, the victim may need a great deal of support and reassurance, and if the testing results in vacating the conviction, the victim needs to be assured that the expanding data bases that we have been hearing about will increase the likelihood that the true perpetrator will be identified.

The guidelines will also detail the information that must be furnished inmates who request DNA testing. It is vital that they understand enough about DNA analysis to comprehend that DNA testing will confirm their identify as the true perpetrator if they are guilty. This is not a game to enter lightly by a defendant. Furthermore, DNA testing may identify the inmate as a perpetrator in other crimes if the results are placed in a statewide or nationwide DNA data bank.

The Innocence Project requires its clients to sign waivers that the results of any testing will be available to all. Another issue that has to be dealt with by the working group and ultimately the commission.

DNA testing that confirms an inmate's guilt may have an adverse effect on a parole board if the inmate has been consistently denying his guilt, and may preclude executive clemency sought on other grounds.

Yet another set of issues arises about the consequences of a test that seemingly exonerates the inmate. What has to be done about expunging a record? Should compensation be available to the inmate? These are matters that are dealt with in some state statues and, again, may be an appropriate subject for model legislation.

Finally, the working group has been exploring the desirability of establishing a commission that might serve a number of different functions, a permanent commission. For instance, one function of such a commission might be to study the cases in which convictions are vacated after DNA testing, to report on what went wrong at trial, to make recommendations that would avoid such results in the future and, if nothing else, produce statistics on error rates in our system that are presently unobtainable.

We think that such a commission might have an enormous effect not just on the issue of cases and DNA evidence, but on justice in general. Canada and Great Britain already have such commissions, and the working group plans to review their experience.

Another important role for a commission would be to furnish assistance in troublesome cases. For instance, there are cases in which there is no consensus on whether DNA testing would be sufficient to justify vacating a conviction. It might be possible for such a commission to assist courts by setting up panels comprised of neutral experts, a mediator or a judge, and disinterested prosecutors and defense attorneys who will evaluate the case.

A commission could also assist judges in finding neutral experts who could then testify as court appointed experts in evaluating DNA test results at trial. Obviously, numerous important issues with regard to such a commission need further thought and clarification but it is an idea which we are discussing.

As you can see from this overview of the issues which the working group has been discussing, we have a great deal on our plates. At this point, we are making progress. First drafts have been completed of guidelines for defense counsel, prosecutors, victims advocates and judges. We also have some tentative drafts of sections that could be incorporated into a model statute.

We welcome this opportunity to tell you about what we are doing and we would be extremely grateful for any comments, suggestions or questions. Thank you.

[Applause.]

CHIEF JUSTICE ABRAHAMSON: You have set a hard and fast pace for the rest of the working groups. Jim?

DR. CROW: Could you or Barry give any kind of an estimate or guess as to how many possible people there are out there that would benefit by such an agreement if you didn't have personnel and budgetary limitations?

PROFESSOR BERGER: Certainly Barry is the one to answer that.

PROFESSOR SCHECK: Well, I think that there are lots of different ways of looking at the question.

How many cases are there which have been typed, that have come through the system where DNA testing could be dispositive on the issue of guilt or innocence?

Many eyewitness identification, sexual assault cases or rape/homicides are usually the ones in question because those are usually, you know, the ones that are done in casework because identity is usually the dispositive issue.

There are many jurisdictions I am sure in this country where there just hasn't been a lot of DNA testing. What we have to recognize as well is that even when there was testing in the era of RFLP technology there were many, many cases where there was inconclusive results.

Quite a number of the recent exonerations, since this study in June of 1996, have been instances of persistent people who first had RFLP testing done. The results were inconclusive and then followed up with PCR- based testing. I dare to say that if mitochondrial becomes prevalent, there might well be some additional advances there as the sensitivity of the techniques increase.

We know -- we are very -- we are a shoestring operation. One of the things that I think came across in the working group is that everybody saw all our guidelines, our screening processes and they saw how much information we have to gather from the inmates.

We have to get the transcripts, and establish whether the DNA testing would make a difference, and there is no money for testing. There is no money for investigation and it is very, very hard to find the evidence because of the problems we have in the systems across the country where people literally can't find the evidence.

I mean they don't know whether it is in the lab, the police department, et cetera, so I would estimate that there have to be thousands, and it's a simple issue that as a statistician you know much better than I.

I mean no matter what kind of error rate you posit for this system, given the thousands or the hundreds of thousands of convictions, if it is only, you know, one-half of one percent, that would be a gigantic number, wouldn't it?

We just have some reason to believe from looking at these exonerations based on eyewitness identification evidence, based on convictions that seem to come about from hair identification alone or close to alone, certain kinds of cases are just becoming very, very troubling, so there's probably thousands of cases out there and the real limit is access. The real limit is getting to those cases and performing the testing before the evidence literally disappears.

PROFESSOR BERGER: Well, I mean I guess one bit of information that we have is we do somewhere have an estimate by I guess the FBI that in 30 percent of the cases where they now do DNA testing there is an exclusion, and the question is before there was DNA testing how many of those cases would have gone to trial with the suspect.

Maybe some of the prosecutors here have some sense that they are sort of seeing cases that in the past would have continued on in the trial process, but now simply you never see -- they disappear because one doesn't go ahead with them.

DIRECTOR GAINER: What you are raising for me -- I am bit confused on this -- it seems in just giving a flip through the research on the convicted by juries, exonerated by evidence, I am aware of a couple of the Illinois cases.

I am confused as to whether you are talking about cases in which there has been minimal genetic markers or prosecutorial or police misconduct or incidence of error rates. You used the term "troublesome cases" -- Barry used, I think it was used, said looking at the transcripts and whether it would make a difference.

Are we talking about cases where we think there's a problem or is this the preliminary step to go into cases notwithstanding what the particular state's law may be on opening postconvictions, to say let's go back and test and use DNA wherever biological evidence exists and it simply wasn't used either because we weren't testing that or it wasn't raised?

PROFESSOR SCHECK: No, I think that the notion is -- the notion is simply if an inmate makes a request to have testing done, we all, I think, had -- there was a strong consensus that if it is the kind of case where everybody could agree that if the biological evidence were tested and the results were favorable that it would be dispositive of the issue of guilt or innocence then we all felt very strongly that the testing should be done.

The problem of course that we all recognized is that in some cases, and not an inconsiderable number of cases, reasonable people could differ about whether it would be outcome dispositive.

I mean a simple example that will arise more and more -- it's one thing to talk about a sexual assault case where you have sperm on a vaginal swab. It's quite another thing to talk about a homicide case where you are pulling -- you are doing fingernail scrapings and you may find some flesh or hair under a fingernail and the question is if that is excluded does that mean that the convicted individual isn't the attacker in certain instances?

You can begin to see how there would be various cases where it would be useful evidence for a postconviction challenge, but not necessarily in and of itself dispositive.

I think we spent more of our time discussing those cases, whereas the experienced prosecutors and defense lawyers felt pretty clearly that there is one class of cases where we all know that this evidence is going to be close to outcome determinative, barring sample handling error, contamination, and other things that can lead to false exclusions.

DIRECTOR GAINER: I guess the problem I am having is trying to -- I am trying to envision if there aren't cases where from an ethics point of view we shouldn't have to trouble ourselves. I am going out on a defense limb here -- have to trouble ourselves with whether again there was -- whether it was dispositive or not, whether there was error or not, whether the identification was good or not, the eyewitness identification -- just simply that I know in my career the scores of homicide cases I worked on there was biological material that was never examined because we weren't using those processes then.

And do inquiring minds want to know whether we should go back in and say let's take a look at that?

PROFESSOR BERGER: Yes. I think that certainly the working group has not gotten to the point where it is making recommendations, but certainly many people at our discussions felt that, yes, if that biological material exists that was never tested, and it would be dispositive under the facts of the case, then there might be good reason for doing so.

Now one of the other questions, of course, that arises is what other evidence was there in the case? Are we talking about a case with simply an eyewitness identification or are we talking about a case in which there was fingerprint evidence, there was all kinds of other evidence, or it may be that those need to be handled differently.

DIRECTOR GAINER: One more. I guess what I am wondering is how you have separated in your mind the need to have a persistent convicted offender versus someone's obligation to just say I am going to do something on behalf of this ignorant person who was not persistent and just went away to do his time, not knowing that he, he or she, had these other alternatives.

MR. ASPLEN: I think that the issue that you are talking about I think we loosely refer to as floodgate concerns occasionally, and how do we keep this from becoming an issue that the entire prison population says, hey, here's a way to spend a couple days in court, at least, if nothing else.

We have spent and we will continue to spend a lot of time and attention on ways to weed out of the system those cases that don't belong in that posture for the reasons that we spoke about.

The first thing you do is you look at the trial transcript and if it was self-defense or it was consent it is not an issue, but one way that we may handle that is by way of if a defense attorney is representing an individual and takes it to court to have the matter reopened, they may have to allege certain things, and the work will be on them to say that we believe that in this particular case this biological sample does exist or this evidence is amenable to testing.

So that the point that you bring up is one that we well recognize and that we are looking for ways to avoid the scenario where this just becomes kind of defense du jour and clogs the system rather than something that effectively deals with those cases that should.

As Barry said, there are going to be cases where we all reach agreement and there are other cases where we don't reach agreement because what Barry believes is a strong case one way or the other may not necessarily be what I believe to be a strong case one way or the other, and those matters will have to be addressed, but the idea here, generally speaking, is to limit those areas of disagreement where we can and where it is appropriate and to let the adversarial process take place where it has to, but to look at it.

The key to that is really education --

DIRECTOR GAINER: Chris, I'd guess I'd say it may be just not only a cost benefit but a fundamental fairness issue, and if it takes time and effort to have an incarcerated individual raise the issue, get a hold of an attorney, research the material, decide whether I've got an appeal -- it might be easier to say, hey, run the friggin' test -- it will cost you, you know, a buck, $2.49, and that will kind of decide us whether we are going to spend any more time in this area or not.

PROFESSOR SCHECK: That is one of the reasons we are developing these protocols.

MR. ASPLEN: Right.

PROFESSOR SCHECK: There are these anomalies that exist. The State of Virginia is a state where you only have 21 days from the time of final judgment to bring on a postconviction motion for newly discovered evidence of innocence, so in other others it's virtually impossible.

Nonetheless, in the State of Virginia, even though there isn't legislation that says save the evidence for any considerable period of time, by local legal culture they just happen to save it in rural courthouses in ways that we can access it and find it.

We also have Hall in the State of Virginia and we have now reached a point because we have had, what, five pardons -- and it doesn't matter who the Governor is -- could be Governor Allen, Governor Wilder, different sides, ends of the political spectrum -- they will pardon the people.

Right now in Virginia, we pick up the phone and the prosecutor says you're right -- we use it to convict people. This is an appropriate case. Let's call Paul and he said that's right, let's call Paul -- we don't need a private laboratory, we trust him. We have been through this. And it's just done and we save a lot of time and effort, but I thought you were actually getting to another point.

I think these cases, particularly as we enter into the era of the databases, I think a lot of focus -- what I am trying to get the New York State Police to do and the New York City Police is to find these samples because there are old unsolved cases.

So many of these cases, and increasingly this is true, we not only exonerate somebody who is wrongfully convicted but we find the real perpetrator. The classic prototypical case is the Kevin Greene case in Orange County, California, which was a guy that went to jail for 17 years for the assault of his wife, and when the lab investigators when out and started resurrecting evidence from the old -- what they called the "Bedroom Basher" case which were I think five unsolved rape/homicides, they did the typing. They found one common DNA profile. They realized it was a single individual and they got a hit in their sex offender databank. They went to that individual and he confessed to the Kevin Greene case, although frankly there was actually some suspicion on the lab that they were looking at Kevin Greene before they interrogated this inmate, and they said this really does look like a Bedroom Basher case, and for awhile they thought in the initial investigation it was a Bedroom Basher case, and then they moved on and they convicted him.

So I mean I really see these things as part of a continuum. What I thought you were saying before is that there may be a whole class of cases that law enforcement itself says maybe you want to go look at these again.

DIRECTOR GAINER: Actually, both.

PROFESSOR SCHECK: Yes.

DIRECTOR GAINER: It's just causing me to wonder whether in addition to all the cases we're working or the nonsuspect cases that there's a whole other classification that we should be saying, gee, I ought to go back and look at those -- I shouldn't have to wait for a defense attorney or defendant to raise the issue to me.

PROFESSOR SCHECK: There is one that I have read about but I haven't been able to verify yet, that in the State of Florida there was DNA databank hit and they basically -- they connected somebody in Florida to a crime that a mentally retarded fellow had pled guilty to in North Carolina and had done 35 years, but nobody had ever heard from him protesting his innocence, so I think it will work this way.

PROFESSOR BERGER: It may also be of course that when one does the testing, one discovers that the person was not only guilty of that crime but of a series of other unsolved crimes.

MR. ASPLEN: And I think one of the things that we discover is that really what wastes the most time and the most resources is a lack of understanding of the issues and a lack of understanding what you need to spend time on and what you don't.

A prosecutor who doesn't understand the issues could spend a tremendous amount of time with the case, objecting to this, that, and the other thing, and responding to motions, where if he understood the scientific issues he would look at them and say, yes, this would resolve the issue pretty quickly -- let's do it -- exactly what you said.

So one of the key components necessarily has to be the education the prosecutors, defense attorneys and the judiciary.

MR. CLARKE: It may be stating the obvious. I think we do have to remember though that this is dealing with something of a limited subset, for lack of a better term. Obviously, by far the majority of people in state prison are there because they stood up and admitted they did it in open court, so we are dealing with something of a limited subset.

I know I can give you the experience in a county of over 3 million. We have had two requests ever. One of them actually has written a book and it's described. The second resulted in results that at least invaded reasonable doubt and so we dismissed on that basis, so Barry obviously has more experience than I in this area -- thousands -- though I am a little concerned about. I think it may not amount to that, but this has been repeated before -- any number is significant and obviously have to be dealt with.

MR. GAHN: I might add you can look at the front end of this too, and I have used it in Milwaukee County, I have oftentimes been somewhat troubled on the case where we have the sexual assault victim who has no idea who her assailant was, and the police will ask her to come down and go through the BFI and go through these hundreds of pages of photos and photos and photos.

All of a sudden she says oh, there he is -- he looks just like the guy. They'll go out, round him up, do a lineup and pick him out.

I've always been a little troubled with those cases, whether she picked him out because of seeing the photo -- was that actually the one? -- and I've had two of those recently and did the DNA testing before any charging, and both were excluded, so I think in cases like that, I am looking at the front-end of it too, but having not had DNA I have a lineup ID -- may have charged him.

PROFESSOR BERGER: I think, if I may add, I think that is very important in terms of what we need to know about the reliability of the eyewitness testimony in the sense that in the past the experiments that were done about the reliability of eyewitness tests may have been based on simulations and then people would say, oh, but that's a simulated situation, you know -- it's some psychologist who is running a test.

Now we really are beginning to get some real statistics on how often a lineup identification and a DNA match don't -- and then there is no DNA match so that one simply throws the case out.

I think it would be valuable to gather some of that information.

PROFESSOR SMITH: One of the things that I don't understand, talking about this, is that if one needs to -- that is, if you don't take your view and one feels the need to examine the other evidence to see whether or not the DNA would be dispositive, I should think that an awful lot of these cases would have been resolved by a plea of guilty because of an assessment made that there wasn't any way of gauging reasonable doubt in the face of an ID.

If that were so, there isn't going to be a whole lot of other evidence to review, you know, to see whether or not the DNA typing would be dispositive, which inclines me a little bit towards your view. I mean if the evidence exists, you know, look for somebody to come forward and claim innocence, if all you have got is a guilty plea.

PROFESSOR SCHECK: I wish I could agree with you. Experience teaches that there are so many of these cases where, you know, you will have codefendants. It becomes multiple assailant situations are very complicated because what you really have to do to get a clean exoneration is you have to get a gene type of all the different possible contributors.

It is not enough simply to exclude somebody who, even if the witness testified at the time of trial was an assailant who ejaculated, the point can be fairly made, well, when the evidence was collected you didn't necessarily get the sample from that particular defendant. It came from somebody else, so a lot of these situations are, you know, getting increasingly complicated and it is not always so simple on the face of the record to say, you know, this is a clear exoneration.

There are many, many cases that fall into this nether area. I mean one of the things that does happen, frankly, is that you look at -- a judge looks at the record or someone looks at the record and says, well, maybe this is one where the favorable results would be an exoneration, maybe not.

On the other hand, if you get access to the evidence, you do the tests, and you get an exclusion, all of a sudden other pieces of evidence in the case that seemed so good are not so good anymore, and everybody takes a much more serious look at the case, so there are -- it is a serious issue we are struggling with.

I guess the one distinction that Margaret mentioned that we have come up with at this point in terms of the floodgates problem is that on the one hand there will be cases where you can look at the cold record and say a DNA test could be outcome determinative, but, you know, let's just get this done right away, you know, it's going to waste everybody's time and effort. The state should do it, pay for it, get it done.

There will be another class of cases where people may disagree, at which point you put the burden of paying for it, paying for the search of the evidence, paying for the testing on the inmate, because it becomes a legal question about access to the evidence, particularly if you want to get executive clemency, and so those are the tentative distinctions --

MR. WOOLEY: Let me ask you a follow-up to what Professor Smith said.

How many cases do you have in your system -- that weren't guilty pleas?

PROFESSOR SCHECK: Oh, how many -- what is our percentage?

MR. WOOLEY: Yes. I mean do you have people that walked into court, said I did it in front of a judge who said there is a factual basis for the plea.

PROFESSOR SCHECK: Very few. Very few people have replied who were guilty pleas. Very few.

They are all people that have been convicted after trial and what is interesting is that while there have been inclusions, right, the percentage -- the number of cases that finally get to the laboratory for testing, the number of exonerations far outnumbers the number of inclusions.

I mean I am not saying that is going to remain true over time but it may be some kind of self-selection in the sample that the most persistent people at the beginning tended to have the most valid claims, and then after awhile and everybody gets to hear it, they'll say I'll take a chance.

I don't doubt that. We have even had people write us letters and say withdraw him after a year. It's one I showed Chris, one of our favorite letters saying you took this so seriously -- I don't want to waste your resources. I really did it. I withdraw my letter.

But, you know, we are pretty backlogged and we really need to reach out and get other law schools' and other institutions' help.

MR. WOOLEY: Is one of your criteria about whether they pled guilty? Acceptance?

PROFESSOR SCHECK: No, I have one criteria. We don't -- the guilty people -- guilty plea people simply aren't soliciting us, but our one and only criteria, the one that we recommend in these protocols is what the biological evidence, if tested, would make a difference, you know, be outcome determinative.

That is the only standard.

MS. BASHINSKI: I have a question that I don't know the answer to, and maybe Paul or maybe someone here from the FBI can tell me.

The 25 and 30 percent exclusion rates, we have certainly experienced the same thing but I have always wondered what proportion of those -- are those that would have normally been eliminated, in other words, they aren't necessarily the prime suspect or who might not necessarily have proceeded with prosecution which routinely will come with several names, knowing obviously that only one of them could be the perpetrator.

Do we have any feel of that 25 to 30 percent what proportion would have gone on to be charged and prosecuted?

PROFESSOR SCHECK: No, I don't think we do.

As a matter of fact, one of the things that we don't know that would be useful to find out is when we look at those, I think the exact number is 26 percent in the FBI database. Primary suspects are excluded prospectively, you know, and obviously some of those people would have been acquitted after trial if there hadn't been DNA testing.

I like to think at a higher rate than the average acquittal rate because after all they are presumptively innocent and should be acquitted but we don't even know very much about what happened to the cases that the FBI did.

In other words, how many of these inclusions led to quick guilty pleas or even led to convictions at trial, and then what percentages of the inclusions that the FBI did, and out of the 26 percent that were exclusions, how many resulted in prosecutions being dropped and how quickly?

I mean I think that is useful data to know.

MS. BASHINSKI: Yes. I don't even know if it is available to be had.

DR. ADAMS: I certainly don't have those type of data available, other than to say clearly less than 5 percent of the inclusions do we get called out into a trial, and it might be less than that.

As far as the 25 to 30 percent exclusions, that is a pretty good number, but it is not exact, and let me give you some examples as to why it is not exact.

We may have a case like the Central Park Jogger case with 15 defendants. All 15 are excluded as a semen contributor. That is one exclusion in the way we count it but we have really excluded 15 individuals.

Another case may --

PROFESSOR SCHECK: That is actually an under-estimate then?

DR. ADAMS: Yes, that's exactly right. Another case may include a consensual partner and a suspect and others, so just keep in mind that when we use that 25 to 30 percent, it is a good estimation. It is not an exact figure.

DR. FERRARA: Some law enforcement agencies, particularly in high-profile cases, with all due respect, tend to use what we call a shotgun approach to suspects, so you will get over the course of a year 10, 15 suspects' samples being submitted to compare against the crime-scene material, and you eliminate them one at a time. But it's hard to extrapolate from that point and say well, what would have happened if you wouldn't have excluded them? It's real tough.

VOICE: We also need to remember that when you talk about these exclusions, don't you -- the 25, 26 percent doesn't always translate -- you don't know if that means the person was innocent. You have no idea. Right? I mean, the Central Park rape case, those people -- a majority of them that were excluded pleaded guilty and in pleas admitted that they'd held her arm or held her down or punched her or whatever. So that --

DR. ADAMS: You're exactly right. And that's kind of why I brought that one particular case up, because it showed an exclusion, but there are certainly other factors out there that are very important to consider.

CHIEF JUSTICE ABRAHAMSON: That's the exclusion versus the exoneration issue.

I'm going to close this for the moment. We will come back to it. I'm going to call a break now, but I would like everybody back in their seats by about 3:12, because the Attorney General will be here at about 3:15. So I would really hope everybody would be polite and be in their seats. Okay? So we'll break from now to about 3:12.
[Recess.]