Post Conviction 2009 : Case Indentification

[ Music ]
>> My name is Ted Hunt, I am Chief Trial Attorney
at the Jackson County Prosecutor's Office in Kansas City and have been involved
in DNA related issues since the early 1990's.
This panel is gonna discuss various topics of postconviction practice.
Primarily, we're gonna focus on issues of access to evidence and also perspectives on case review
and procedures and policies as it relates to case review.
We're gonna go in order of the layout in the manual.
We have three panelists here today: Huy Dao of the Innocence Project in New York;
David Rudovsky, an attorney and Professor of Pennsylvania, is that correct?
And Mike Ware of the Dallas District Attorney's Office.
They're going to talk about their perspectives on postconviction DNA access to evidence
and case review and without further ado, Huy, the mic is yours.
[ Applause ]
>> Good morning.
My name is Huy Dao and I'm the case director at the Innocence Project and I've been ask to speak
about our case evaluation process which I hope will be useful to those of you who have
to create or as in our case generate a process of-- to handle claims of innocence.
Since 1997, I have and now a department of mine has been evaluating innocence claims
of defendants who write to us to see if postconviction DNA testing can prove innocence.
And while the mandate as written is very simple, it's become much more complicated in practice
by many factors of-- some of which I'll discuss in the next couple of moments.
Briefly about the Innocence Project, because we are solely focused on cases
of postconviction DNA testing on innocence, we can work nationally
and because we do work nationally and because we started this work before many of the statutes
that were discussed earlier today were created, we don't have a statute specific outlook
in the evaluation process to determine who our clients will be although
that approach more applicable to those of you who are working in-- within geographical bounds.
And so, the assumptions that we make during the evaluation process are
that there might not be a statute that applies it all and secondly,
if the evidence in the case was collected in the first place, we assume that it may still exist.
And that is we can't make the defendants prove
that the evidence still exists before accepting their cases that, in fact,
informs a lot of the litigation that goes
on after a case is accepted at the Innocence Project.
Briefly, we in the evaluation department employ a three-step process
to evaluate innocence claims.
The first is the claim that is presented by the defendant or by their advocates
and that is simply the letter that comes in or the package of documents that comes
in where someone says, "I'm innocent,
DNA testing can prove it," and we take it from there.
We have designed and refined a questionnaire and most innocence projects that you'll talk
to have their own version of it, which asks more specific questions about the facts
of the case mainly and specific claims, procedure history,
and other factors that go into evaluation.
And the final step is to actually collect the documents and the records
or ask the hard questions of the defendants that will either backup their claim or not.
At any one of these stages, defendants cases are either passed on to the next stage or rejected.
And finally, after a case and every case that gets to that third stage is worked up.
We have everything in writing and cited, and then that goes to a case meeting
where the Innocence Project attorneys and the evaluators all get in the same room
and by a consensus model figure out A, if the case meets the mandate and B,
if the claim of innocence is viable.
Now again, all of that sounds pretty simple on paper
but many factors present many challenges to case evaluation.
The first which is not often discussed is the actual human resources element
of looking at these cases.
Over the last 15 years, we, as a project evaluator over 30,000 cases
and that means you have to find people who are willingly taking jobs where they are--
your job is to spend all day reading about crime, about victims, about rapes, murders,
putting yourself in all of the respective positions in a case.
And so, you know, training is one, burnout is another.
And with specific regard to postconviction DNA testing, very many desperate knowledge basis
that the evaluators have to have, that is you have to know enough about the science,
you do have to know enough about the law and the untrainable things like how do you deal
with people, for example, who can't communicate because they are illiterate,
what do you do with the claim of innocence if it's in another language, the relative lucidity
of the people writing in, many mental illness-- mental illnesses to deal with.
And so, all of these things cloud the simple issue of innocence or guilt and whether
or not postconviction DNA can prove that.
There are also many procedural challenges to doing case work,
most stemming from the ages of the cases.
Obviously, most of our cases defendants writing in are writing
in because they were convicted before DNA testing was even an option at the trial level
and every jurisdiction has their own rules about how records are kept, how long they're kept,
when they can be destroyed, and then you also have just procedural problems.
Overall, there is no real record on the facts in many cases when someone pleads guilty.
So ferreting out those claims and backing them up to the point
where you're gonna represent somebody on a claim of innocence and present
that in court is actually a pretty complicated matter and quite often takes years just to get
that information to back up the, you know, initial claim which is just a letter
that says, "I'm innocent, please help me."
And because we don't have the answers to those questions or because the solutions
that we have implemented have been less than perfect, there is now at least
with us an issue of backlogs in case evaluation.
If DNA testing remained where it was in 1997, when I started our jobs would be a lot easier.
But with every new exoneration, we have had to learn new lessons that then applied
to the evaluation process as well.
And the ones I wanna highlight today are the expanding possibilities of DNA testing itself
and what we've learned from the cases that are outside the obvious cases,
what I mean by obvious cases are it was no coincidence
that first many exonerations all had an element of sexual assault in them
because it just happens to be the crime where it's most likely
that prohibited biological evidence is left behind by a perpetrator.
However, new developments in technology, in the DNA technology have meant new possibilities
for testing and getting useful results which means that not only do we have
to review new claims now, we also have to review cases that we have rejected in the past.
And it also means for my department in evaluation that there are fewer and fewer cases
that we can reject just by type, that is what class of crime it is and likelihood of--
judging likelihood of biological evidence being left behind by a perpetrator or carried away
by the perpetrator is a consideration that has become much more complicated.
For example, in the past, certain types of results were not available to us
and did not become part of the formulation of evaluation, things like habitual wearer testing
for clothing that is collected, touch DNA on that same kind of evidence.
You know, car jacking, used to be pretty much a case we couldn't take but at this day and age,
if you're swabbing the steering wheel not only for fingerprints but also for sweat
or skin cells left behind by perpetrator, all these--
all of these things complicate what kind of cases we take
and we now have to look at everything.
The advent of new technologies in DNA as well mean that you now have an arsenal of tests
that could prove either individually or combined with each other many different results and so,
you have to weigh, well, what would mitochondrial testing do in this case?
Is there a possibility to use Y-STR to shed more light on fingernail scrapings for example.
And so, the new possibilities for testing mean that we now have many new applications
for the results and the ones I would like to highlight are--
and what we have to consider now in every case is redundancy and by that I mean cases
where the results on any individual piece of evidence may not exonerate by itself
but in combination would paint a pretty clear picture of what happened factually.
>> For example if you have a case in which a hat was allegedly left behind by a perpetrator
but you're in a public setting, the profile of that hat may not be enough to exonerate
but if the profile on the hat also matches the profile of the perp--
of a person underneath victim's fingernails and on to the knife handle that was left behind
and determined to be a murder weapon,
certainly now you have a much clearer picture of what happened.
The-- and so, redundancy is a huge factor now in evaluating cases.
The advent or the use of DNA databases has also complicated the evaluation process
because now we have to ask also, okay, if an exclusion is not enough,
what about identifying the actual perpetrator if there's just not just an exclusion to deal with,
either by testing alternate suspects or by running the profile
through a database, or any combination of the two.
And so, good things like exonerations and new DNA testing technologies have actually,
on the evaluation end, led to many factors that complicate my job.
So again to review, there are very few now automatic rejections that we have by case type
or crime type given everything that's getting swabbed these days
and there are very few automatic rejections by factors of conviction.
What the DNA exonerations have taught us is that, well, we do have to look at cases
where there are confessions, where there are multiple ID's and especially now of concern
to me are cases that where either closed or rejected in the past
because the technology did not exist at the time.
And just briefly, as I said before, in our 15-year history we've looked at now
over 30,000 cases and people are always interested in our number and I don't know
that they're that indicative because we do work on a national scale.
They're not maybe useful for those of you who don't.
There are very few organizations that do.
But we currently have over 8,000 cases in evaluation in one of the first three stages
that I talked about but we have rejected over 22,000 cases already.
Again, that's over a 15-year span.
And when I started in 1997, I thought, "Well science, it's gonna develop,
it's gonna be integrated into the criminal justice system and I'll be out of a job
in 10 years," but our numbers have belied that and in fact, in 2005 the average number
of new requests that we're receiving on a month-to-month basis was 181.
Last year's average monthly intake was over 267 cases every month and we are dedicated
to looking at every one of those claims at some level.
And so, there's a large task before us.
But we already know that innocent people are in prison
and that first select few science can right those wrongs and that's why I'm here today
and that's why you're here today.
The Innocence Project evaluate on the potential of results to clarify that situation,
though obviously there are a few guarantees and what happens
after the case starts being litigated and the test results come
in is a question I'm not gonna address here but obviously, complicate the landscape.
So how do we find these cases when we've learned that the measure of innocence in this cases,
that is the DNA testing and the science reveals the fallibility of the very social factors
that go-- that lead into the conviction in the first place?
I wish there was a better answer
but so far we've got our hands full hoping that those people will find us.
Thanks.
[ Applause ]
>> Good morning and thanks for the invitation to talk.
I'm gonna speak about a separate issue.
We've heard so far through the stories this morning and the panel discussions the ways
in which DNA testing may perceive postconviction, the Cotton case,
apparently a case where the prosecutor and the police agreed upon the request
to defense council Mr. Cotton to have the DNA tested postconviction.
There are, as you've heard, statutes now in some 46 states which allow for postconviction testing
under certain circumstances and those statutes vary under the conditions that the defendant has
to meet and what the defendant may have to prove to get access to the DNA postconviction.
What I had focused in some of my work and writing and litigation is on the problem
when there is no statute, when there is no agreement by the prosecutor or police to test
or with the statute of may not permit testing under the particular facts
of the case and that presents the question.
Currently now before the Supreme Court of the United States, they have taken certuary
on a case from the Nine Circuit a case called Osborne currently being briefed.
Some of the litigants lawyers are here today,
I think both from Alaska and from the Innocence Project.
We're litigating that case that presents squarely the questions
to the Supreme Court whether there was a constitutional right
to postconviction DNA testing, putting aside statutes, putting aside agreement.
If we don't have that, does the defendant who's been convicted at trial now discovers
that there's biological evidence that could prove innocence,
does that person have a constitutional right to access to that evidence postconviction?
My introduction to that problem came about 10 years ago in connection
with the Innocence Project, I got a call from Innocence Project.
I practice in Philadelphia.
They had a request from a young man in prison in Pennsylvania, a man named Bruce Godschalk
who had been convicted of two rapes in 1987 in the suburban county outside of Philadelphia,
had gotten a 10 to 20 years sentence.
He had found out after the trial and in fact, there was introduction
of evidence at trial of biological evidence.
There was no DNA testing at that time.
It was blood typing but there was a biological evidence from both rapes
and the theory was the same person committed both rapes, everybody agreed on that.
This was a serial rapist and in fact,
there have been four sexual assaults over a short period of time.
Godschalk had maintained his innocence, notwithstanding the fact
that the police had a taped confession from him.
They had identification witnesses from both cases.
They had a composite sketch that looked very much like him, and they had testimony
from a jail house informer who said that he confessed while in jail awaiting trial.
On the other hand, there was this biological evidence sitting there we thought
that we'd like to test.
I read the transcript.
I said to myself probably guilty.
Confession in which he gave details of the crime that only the police and the victim would know,
identification testimony as I said, said jail has testimony
and a composite that looked like him.
So the first step was to contact the district attorney of the county and contrary
to what you've heard so far today where it seems like there's often agreement on testing,
we had one of these conversations which was like between Venus and Mars.
I said, "Would you allow us to test that evidence?"
"So would you test it?
We'll pay for it.
Through the Innocence Project, that we can select laboratories,
we can split the evidence anyway you wanna do it."
"No, we won't."
Do you have the evidence?"
"Yes, we do.
We have both biological evidence from both cases."
"Why won't you test it?"
A jury found him guilty.
He confessed we're not gonna test.
That conversation went on for a few months.
We couldn't reach agreement and so, from our side we were stuck.
Godschalk had already been to state court to seek access to the evidence.
There was some common law developments in Pennsylvania that allowed access but only
in cases where the evidence was not overwhelming.
This was a case where at least plausibly you could say the evidence was overwhelming.
So he had been denied, relieved in the state courts and the only other possibility would be
to go to federal court to seek relief.
Habeas corpus, which is one possibility, was out of the for a variety of procedural reasons,
time limitations, the fact that we had no proof
that there was a constitutional violation, we had a step to fill in.
Sure, he might be innocent but we couldn't prove it without the DNA and there was no theory
under Habeas corpus jurisprudence where we could go to federal court and seek relief.
And so, we devised on a method-- on a theory that we first presented.
It was the first case in which this was fully briefed and litigated
under the civil rights statute to go in civilly to sue under Section 1983
which is the major federal civil rights statute asserting that there was a constitutional right
to access to evidence postconviction.
Now when you think about it, for those of you who've not necessarily practiced in 1983 area
but think about the principles of criminal procedure that might give you a theory there.
The one that struck is probably the strongest was the whole line
of Brady cases' access to exculpatory evidence.
>> The problem was Brady seemed to be limited
or at least arguably was limited to the trial stage.
Defendant before trial is entitled to exculpatory evidence
or possibly exculpatory evidence.
Biological evidence might fit that but no court had
yet addressed the question postconviction does that kinda broad Brady principle apply.
Another theory was simply access to the courts.
There's a body of constitutionally law that enables prisoners particularly to get access
to the courts that state can't arbitrarily prevent access to the courts.
That was another theory.
And so, we put together a number of theories to argue that Mr. Godschalk was entitled
to postconviction access to the DNA evidence.
That was briefed, that was argued before a federal district judge in the Philadelphia
and in 2001, that judge agreed with us under a broad due process principle
and allowed us to get access to the evidence.
We then agreed with the district attorney that we would divide,
literally physically divide the evidence.
They would send it to their lab, we send it to our lab.
That was done and I still remember the day,
a couple of months later when Peter Neufeld called me.
He said, "You're sitting down?"
I said I'm sitting down.
He said, "Godschalk is innocent."
The DNA was the same from both rapes and he was 100 percent excluded from being guilty.
So that was obviously a fairly remarkable result.
Other people will talk probably over the couple of days of this question of why did he confess.
They had a full confession with details of the crime.
As it turned out, he confessed because the detectives who were quite sure of his guilt
by the time they interrogated him convinced him it was in his best interest to confess,
fed him the details, the camera and the audio wasn't on at that time.
Finally during the formal confession he was able to parrot back the details of the various rapes.
It turns out there were problems with the eyewitness identification also
because following the exoneration, there was actually civil litigation for damages
which was successful against the detectives in the county that was involved.
But the critical point was whether this principle, this constitutional principle
which was recognized at least by the federal district judge in Philadelphia
in 2001 would be applied across the country and as you might guess, there was a division
in the courts over the past now eight or nine years on that question.
In several jurisdictions, there are decisions out of the Fifth Circuit,
out of the Eleventh Circuit, out of a number of circuit including the Ninth now on the question
of whether or not the constitution actually provides that right.
When a defendants says, "This evidence which I don't have access
to could prove my innocence," could prove factual innocence.
Is there a constitutional obligation on the police or the district attorney,
whoever may have evidence to actually disclose it?
That issue has split the lower courts.
It gets complicated not only on the substantive question that I present this whole question
of whether due process permits a defendant to get that evidence.
There are procedural obstacles for plaintiffs who try to do it.
1983 litigation is very complicated by procedural bars.
A number of cases and in fact the case before the Supreme Court involves an issue aside
from the merits of the case, whether you're entitled whether
or not procedurally 1983 is even an avenue that a plaintiff can use to try to get this evidence.
It's whole-- this whole intersection between constitutional doctrine civil rights law
and habeas corpus jurisprudence that makes this very difficult.
The court could actually duck this issue and say that he's simply not entitled to go to court
in the first place putting aside whether he has the constitutional right.
My guess is the court will reach the substantive issue.
As I've said, that's gonna be argued.
This term will have a decision by the end of June
and it has very broad implications obviously for the criminal justice system
as to how the court rules in this case.
A lot of avenues they-- the court can take because the field, well,
it's become occupied now as you've heard this morning by statutes we've had, you know,
statutes now in the 46 states over the last 15 years or so.
A number of those statutes don't permit or don't mandate testing on certain circumstances.
For example in Pennsylvania which has a statute that was passed in the last eight or nine years
for postconviction DNA testing, there is a provision that testing is only permitted
in cases in which the testing will actually prove innocence.
That provision has been interpreted by the courts of Pennsylvania to date to mean
that someone who has confessed or pled guilty isn't entitled to postconviction DNA testing.
Under that statute, Bruce Godschalk wouldn't have gotten into court
because the police had a full taped confession to the crime.
So the back up, the constitutional back up, if there is one, is very significant,
it will fill in the gap where the statutes don't cover and it was also important obviously
in those few states including the last four--
three or four states now that are left that don't have statutes
that permit postconviction testing.
So all those are obviously very, very important issues of concern to the court and Alaska argues
and amicus support from the United States and some states but not all states,
is that this will expand due process beyond what it was intended to do,
that due process protections are really only applicable during the trial process
to ensure the integrity of the trial.
Once there's a conviction, there's very limited due process review that should be permitted.
Obviously, the petitionist's argument is different.
That if Brady means anything, if we've got a gold standard in terms of determining guilt
or innocence which DNA evidence seems to be and with the DNA and in fact,
as in this case can actually prove guilt or innocence then the question of due process ought
to incorporate-- or the notion of due process ought to include
and incorporate the right to post DNA testing.
We'll see, you'll be able to access the briefs and other material that'll be presented
to the court that will be argued I think in probably March or April,
and we'll have a decision by the end of June.
We'll see what happens with that.
Thanks.
[ Applause ]
>> Good morning.
It's really an honor to be asked to be a part of this panel.
My name's Mike Ware, I'm with the Dallas County District Attorney's Office.
And I know we're running a little bit short of time
so I'm gonna cut it short a little bi, and open it up to questions.
But I'll be around until tomorrow afternoon so if anybody has any questions they wanna talk
to me one-on-one about, I'll be around and glad to answer.
I'm head of the Conviction Integrity Unit with the Dallas Country District Attorney's Office
which is kind of a new term and I think it was coined
by the first assistant we had in Dallas County Terri Moore.
And just to-- by the way, a little bit of background briefly.
The way that came about was that in 2006, November of 2006,
Craig Watkins was elected district attorney of Dallas County.
He was a kind of an outsider in that he had never been
in the District Attorney's Office before, never served as a prosecutor and was running
against a defacto incumbent who had outspent in 10 to 1 and he ran on platform
of some fresh ideas, some of them kind of different for a district attorney to run on.
He ran on being smart on crime.
He ran on a number of things other than simply lock 'em up and throw away the key.
Although Mr. Watkins is very strong on law enforcement,
that was not the only message he was trying to send in his campaign,
in any event he was elected and took office the first of January, 2007 and with his fresh ideas,
one of the things he started looking at was that at that point, at the time he took office,
Dallas County had nine DNA exonerations.
Those were nine exonerations that nobody disputed the wrong person had been convicted
of a crime that had been committed by someone else and he started looking at that
and he took that situation very seriously.
He thought it ought to be addressed and the way he addressed it or one way he addressed it is
to approach the Dallas County Commissioners which is a very contentious political group
and engaged them in a contentious discussion about funding for positions
that would become the Conviction Integrity Unit to among other things look
into what Dallas County had been doing and to try to correct some of the problems of the past.
Eventually-- well, at the time that he approached them, which was in the spring
of 2007, the DNA exonerations were up to 12.
>> But what was perhaps more interesting than that is
that since the DNA postconviction statute was enacted in 2001, Dallas County had had,
by anybody's count, well over 400 applications for postconviction DNA testing.
Dallas County at that point had taken a pretty traditional approach towards that
and resisted DNA testing if the statute could somehow be interpreted
in a way that would deny it.
And for the most part, the trial courts, the courts of convictions, and the courts of appeals
for the most part went along with that.
So of the more than 400 applications, 35 had actually received test
by at least on paper, by trial judges.
And of those 35, 12 had come back confirmed guilty, 12 had come back exonerated
and the rest were inconclusive or another categories.
That being the case, once-- or the proposal and what has become our biggest task,
biggest single task with the Conviction Integrity Unit is to go back through the
over 400 cases where the inmate had asked for a test, declared their innocence
in some shape form or fashion, sometimes
in a very informal fashion, but yet had been denied a test.
To go back through those in a collaborative effort and I think this is unprecedented
with the Innocence Project of Texas and with some of the other Innocence Projects
around the state and with Michelle Moore
with the Public Defender's Office to go back through those cases.
With the free labor of students and with-- now with grant funds and determine if whether
or not among those cases were some instances where the inmate asked for a test
and up on further examination, they really should have gotten the test.
One of the things that inspired that is of the--
well at the time we approached the Commission's 12 exonerees,
most of the time the DA's office had opposed even giving them a test
at some point along the line.
There was one case at that point a guy named Billy Smith
that the DA's office had successfully opposed giving him a test all the way
up to the Court of Criminal Appeals.
The Court of Criminal Appeals turned it around and said this guy should at least have a test.
The Court of Criminal Appeals is a court of digressionary review, so it's--
that case easily could have not even been reviewed by the Court of Criminal Appeals.
But they reviewed this when they said he at least gets a test.
He came back around.
He got his test.
He was exonerated by everybody's agreement once he got the test.
So in collaboration with the Innocence Project,
our biggest single task is going back through these cases.
Reviewing the transcripts, reviewing the police reports,
the students are very much involved in this.
And then meeting and reaching a consensus as to which ones
of these individuals really should have at least gotten a test.
And in fact, in the year and a half since I've been there,
we've had three individuals who've been exonerated through DNA,
who are rejected the first time around.
Once we agreed to test and they got their test.
In addition, our unit has in the appropriate case has expedited the testing process.
We have agreed, for example with the Innocence Project that--
oh, one thing I wanted to add in those three cases that we went back and looked
and gave the guys test and they were exonerated,
in two of those cases we identified the actual perpetrators through CODIS and otherwise.
Unfortunately, any chance to statute limitations had run and it was too late to prosecute them.
But we've also expedited the process in new claims.
Our new-- we have new claims of innocence where the inmate is asking for DNA test and one case
with the New York Innocence Project, again in Thomas McGowan.
New York approached us with looking into his case, I guess in September of '07.
And it looked like a good one for testing.
He had not made a previous request for a test but it was for a case
from way back in the '80s as most of them are.
And so we did not require them to file a formal Chapter 64 motion
which is the postconviction DNA statute.
We-- and with all the delays, et cetera that that usually entails but agreed to testing
through a written agreement with all the disclaimers.
And a long story short from September of '07 until-- well he was exonerated in August of '07.
So I guess in about 7 months.
So a process that usually takes years and years through an agreement with the Innocence Project
and through cooperation we're able to exonerate an innocent person in 7 months.
And Thomas McGowan was serving two life sentences
that had been stacked for a single offense.
A single offense, it was a home invasion.
It was a horrible offense, home invasion, sexual assault.
He went to trial twice, pled not guilty twice.
Was convicted by two different juries on basically the same evidence twice
and received two stack life sentences.
He walked out in April of '07.
By May of '07 through CODIS we had identified the actual perpetrator.
And he was in prison for having committed a very similar brutal sexual assault after the time
that Mr. McGowan had been falsely convicted of his.
Our investigator and an investigator from the Richardson Police Department
as a matter of fact I think he's here.
Detective Corley, right?
Went out and interviewed the individual whose DNA CODIS said it belonged to--
and like I said he was in prison for a very similar brutal aggravated sexual assault.
He'd actually pled to that one.
He got a 30-year sentence.
And is actually paroled out at one point, got sent back for bank robbery.
Anyway, Detective Corley and Jim Hammond for office went out and interviewed him in prison
and got eventually-- got a confession on tape with details that only he would know.
And I think that that went a long way toward relieving some
of the concerns of the victim in that case.
Would you say so, detective?
So that's what we're doing.
My attitude towards testing is if the test might possibly exonerate
or would exonerate the defendant, if it comes back excluding him then obviously we'll agree
to testing.
But more than that, if there's a possibility
that a test will identify additional perpetrators in a multiple perpetrator crime
where only one perpetrator was ever actually identified, I have no problem with testing.
And really I have no problem testing if at worst what it will do you is confirm the convicted
person's guilt.
I think that all goes to the integrity of the system.
In going through all these cases, all these old cases that were originally rejected for testing,
I think the value of getting people like Michelle Moore with the Public Defender's Office
and organizations like the Innocence Project of Texas involved
in that decision-making process is if we reach the consensus
that a particular case is not meritorious and does not deserve testing.
And that's really most of them.
I mean these have all been gone through once and most of them even
on a second look we all agree don't merit testing.
But if we reach that consensus with the Public Defender's Office and the Innocence Project,
then I consider that case properly vetted much more so than
if it was just strictly an Internal District Attorney's Office audit of those cases.
So that's what we're doing.
I don't think there's any other place in the country that's' doing anything exactly like that
and I'll be around until tomorrow afternoon if anybody has any further questions,
I guess I'll be around for another few minutes.
>> Yeah, David.
>> Let me just start the discussion on that just in short response.
>> You're right.
You've put your finger on what maybe the most difficult issue and that is
where the test results may not prove actual innocence.
I hope we can put aside the questions.
First of all technology, we now got the technology to test all kinds
of things we couldn't test before, sweat, hair,
so on and so forth, so it's a much more open field.
One would hope we could put aside this argument that-- well the evidence was so overwhelming
and there was a confession, there was a guilty plea, there's no reason to test.
We've learned so much by the exonerations that in over 20 percent
of the cases in fact they were confessions.
And we had innocent people who confess.
So I hope we're not put off by the fact that or the argument that it's the case was so strong.
The point I think you're trying to raise here is can there be another explanation
for the exclusion?
Maybe someone else's semen was there and maybe this was someone who is a co-conspirator.
I guess my response to that is in large part if we would test pretrial,
if a prosecutor police department would say, "We've got some relevant evidence here,"
maybe it doesn't prove guilt, maybe it doesn't prove innocence.
But in combination with other things it might.
And if we do that pretrial, I don't see a real good reason for not doing a post-trial.
If it doesn't prove innocence that you can debate in court.
But just to get access to what maybe the defining evidence I think we ought to lean
on the side of more access where they're less.
>> My name is Jules Epstein.
I'll be one of the presenters tomorrow and I hear your question but I suggest it's a question
that comes up at two different phrase-- phases and I'm following up on what David said.
The question Mr. Hunt, I suggest should not be asked at the point of the decision to test.
The harder question is let's test and I think let's test smartly which is: A,
is it this defendant's DNA; B, if it's not let's do an-- and index check and see whose it is.
Then when we have those two pieces of datum,
then ask the tougher question, "Big picture what does it mean?"
I think right now when we put those--
all those questions at the front end we're denying reasonable investigations that could
when we take a step back say maybe in a particular case it doesn't mean deadly.
Maybe in a Ronald Cotton case besides a fact that's easy, it's single source.
But it also led us to a Bobby Poole who had a record of doing acts.
It causes further reexamination.
So I hear your question, I think analytically it's a two-stage-one not a one-stage-one.
>> Yeah, and that is actually in the Osborn Opinion the Ninth Circuit talks
about the different approaches the circuits have taken,
someone who conflate the two steps in the process.
The Osborn Court chose to separate them
to let the appellant developer record based upon the testing and then go to step 2 saying
that the prosecutor jump the gun by wanting to conflate the two issues, put them together
and say before we test is it gonna make a difference anyway.
So I understand what you're saying.
Again, I'm not necessarily talking about those easy cases but when we get into issues
of epithelial cells and hairs given the sensitivity of the evidence
and the realistic possibility transferability which we hear about on cross examination
from the defense attorney's at trial, then we're in a position to say, "Later, you know,
these are real possibilities in the postconviction process."
Yes?
>> I'm Ronda Saunders from the Los Angeles District Attorney's Office
and I have a question for Mr. Dao.
You mentioned during your review process that 30,000 cases have come across your desk
and out of those 8,000 have actually been taken on or do you wanna clarify
that because the question that I have is of those cases that you've taken on with
that number, how many of those cases did the court agree that there should be testing.
And out of those cases, that were tested,
how many of those cases were exonerated or not exonerated?
>> I'm sorry if I wasn't clear with the numbers.
Over 30,000 cases have come through our office.
The 8,000 number cases that are still in some sort of evaluation,
as far as how many clients we've actually represented that's just over 1,100 and even some
of those weren't really represented,
they just were considered clients before we actually got to a litigation phase.
As far as our numbers-- hold on, I think I have them here.
We've done an internal study on cases over the last 5 years.
These are these clients that were closed between 2004 and 2008, 97 of them went to testing
and 41 exclusions, 41 inclusions and a little
over 14 percent either had results that were in probative.
For example, matched a consensual partner for example, or got no results at all
because there was not enough material there to test.
[ Inaudible Remark ]
>> Larry.
>> I'm Larry Fisher I'm the County Sheriff.
I love to hear what you're saying because it's the crime lab full employment act.
[ Laughter ]
>> Can I-- it would be truly wonderful if we could test everything.
There are some technologies out there that are simply exquisite, there's touch DNA,
there's Low Copy Number DNA, the Brits are really pushing the envelop.
In the United States there are a few labs that are also doing this.
Most labs are struggling just to stay on top of the cases that are coming in the door the very--
the high "what" cases if you will.
Some labs who manage backlogs are arbitrarily saying, "We're only gonna test two samples,
three samples, four samples in a rape or murder case".
So if there is a desire and a demand to do all of this additional testing,
somebody has to figure out a way of paying for this testing.
Another issue is that in some of these newer technologies
if we are presenting this kind of evidence in a trial.
I can assure you that the defense bar is gonna be jumping up and down arguing Delbert
or Fry [phonetic] that this stuff really isn't-- hasn't reached prime time.
If that's the case, you can't turn it around and start introducing this kind
of technology and postconviction testing.
So there's got to be a lot more dialogue and discussion about how far we can actually go
and we don't wanna get ahead of ourselves and trying and expecting more
than the public laboratories are able to give without funding them at a level to do it.
[ Pause ]
[ Applause ]
>> Did I address that issue-- I guess that was addressed to me?
Almost all of the testing that we are doing through and really all the testing we're doing
through the review process is being done
by our private laboratories being funded by grant money.
>> I'm John [inaudible] with the Arizona Attorney General's Office
and my question is to Mr. Ware.
How come with these 400 applications, you didn't just go ahead and test them all?
And why did the McGowan case takes 7 months to get through the system?
>> You mean as oppose to years and years or as oppose to 7 weeks or what [laughter]?
>> I mean as oppose to 7 weeks or 2 months, in other words I'm asking, you know,
what are the reasons for not testing the 400 and what is the delay in the Texas process for,
you know, if there's person actually innocent in prison we want them out as soon as possible.
>> You know, first off on the McGowan case,
I mean the first time we heard the name was in September.
So we had to locate the evidence, I mean the case-- the conviction was back in the 1980s.
So we had to locate the evidence.
We had to transfer the evidence.
We had to satisfy ourselves from the record and otherwise that this was
in fact an appropriate case for testing.
And then we had to get the test results.
And then we had to get into court and get it done.
In contrast, the first exoneration
after Mr. Watkins took office was January the 11th of 2007.
An individual named Fuller, that was an exoneration ultimately an agreed exoneration,
but he applied for testing back in 2001.
So that was a 6-year process.
As far as why we don't test all 400 or actually it's closer to 500 cases,
well the answer is Salem is easy.
In Salem there's nothing there to test either it-- maybe it was a drive by shooting,
you know, and it's just a frivolous claim.
They want us to DNA test the bullets.
You get some of those.
We get a lot of jail mail.
So there's some where there's just nothing there to test.
>> There are some that are patently frivolous.
So there are a number of reasons why.
And once again that's why we brought the Innocence Project in.
One reason we brought the Innocence Project in on this aside form the fact
that they performed valuable work, when they agree with us that it is a case
that doesn't merit testing then we believe that it has been properly vetted.
>> Okay, last question or comment.
>> Yes, I'm Elliot Kollman, Director of the Maine State Police Crime Laboratory.
And from an analyst viewpoint, if it's a visible biological stain, there generally is no concern.
In the case of trace DNA, touch DNA, you're looking at something
that to actually tie it to a crime is very difficult.
All DNA actually does is put someone at a scene.
However, in this whole room if a crime were committed virtually everyone's DNA would
be present.
Would that be enough then for an exoneration for postconviction?
And even if you can find that DNA, as one gentleman brought up,
why isn't it tested to find out whose DNA is it?
Well even then you're only looking at a convicted offender database which is totally,
you know, is not completely filled as it is.
But what about people who aren't currently convicted?
Suddenly now you have to approach the idea of testing every person
within the United States which becomes another problem.
So looking at DNA as the end-all for postconviction testing is really kind
of a short-sided view of this-- of the science.
>> And I would just agree with you.
I think you have to take a number of factors [applause].
And to account, prosecutors will relate to this.
We have to take DNA as one item of evidence in the context of the entirety
of the case and does it fit or not.
And I think we have to do that.
I know in the media if you hear about an exclusion automatically,
it's assumed to be an exoneration.
We who work with this stuff on a daily basis given the sensitivity, the technology,
and all that's not true, it's a very difficult issue and I just don't want to broad-brush this
as a very easy issue and I don't think anyone here believes that
but I know that that is a perception.
So that's something that I'm terribly interested in as evidentiary context and the value arise
or fall depending on many factors and circumstances and every case has
to be exhaustively analyzed to make sure
that we get the right result which we all in the end want.
So our time is up, thanks for your participation.
We'll move on to the lunch program.
[ Applause ]