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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 Leahy 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 respond.

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 DNA testing.

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.

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er, excuse me!

Are you saying that, after the justice system proved to itself that it made a serious error in the "Kevin Bird (phonetic) case", and after it realized that it had convicted an innocent man, that destroying the evidence that others are possibly innocent "is lawful"??

If so, Mr Scheck, then what in your opinion is "unlawful"??



National Commission on the Future of DNA Evidence

Sunday, July 9, 2000

Postconviction Issues Report
Postconviction DNA Case Review, Commissioner George W. Clarke
Pending Federal Legislation Update

COMMISSIONER ASPLEN: We will move on to Mr. Clarke's presentation on the post-conviction program in San Diego.

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 doing.

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 rapidly.

Slide 1

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 genesis.

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, the largest.

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 Leahy 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.

Slide 2

Senator Leahy'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 standard.

Slide 3

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.

Slide 4

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 itself.

Slide 5

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 arbitrarily.

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.

Slide 6

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.

Slide 7

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 point.

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 view.

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.

Slide 8

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.

Slide 9

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 evidence cases.

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 life.

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.

Slide 10

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.

Slide 11

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.

Slide 12

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 through counsel.

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 laboratory.

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.

Slide 13

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 look at.

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 it?

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.

Slide 14



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 the evidence?


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 there.

MR. CLARKE: Pardon?

MR. THOMA: The one I just gave you isn't.

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 stuff?

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 discussion phase.

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 homicides.

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 case.

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 goal.

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 percentage?

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 works.

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 case.

MR. CLARKE: Is it?


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 God.

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 think.

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 slides.

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 home.

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 guilty.

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 which?

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 the total.

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 them back.

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 evidence.

Now, that is not to say they are not in there because they could very well, but it is just a little better than speculation.

MR. SHECK: How are you dealing with the hairs? Are you looking for cases that are turning on the hairs in particular?

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 numbers.

MS. BASHINSKI: You are using quite a tight standard for selecting the cases.


MS. BASHINSKI: You are saying it would really have to be dispositive.


MR. SHECK: What is the standard?

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 looking for.

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 way.

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 community?

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?


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 this.

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 too.

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 know.

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 problem.

MR. CLARKE: I was going to say, and in that vein, I should mention the fact, those of you unfamiliar, the Leahy 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 Leahy 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 respond.

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 DNA testing.

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.


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 those.

MR. SHECK: One day, the Justice Department will take a position.


MR. SCHECK: One day, the Justice Department will take a position.



If we could now turn to the victim advocacy --

MR. SCHECK: I thought we were the policy-making --

COMMISSIONER ASPLEN: No, not at all, no.

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 department.

If we could turn to the Victim Advocacy Bulletin --

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 started.

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