Post Conviction 2009 : Identifying and Overcoming Challenges

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[ Background Music ]
>> Okay. I want to welcome you to the last session of the day
which is to sum up all the regional breakouts
that we just had.
I'm Ron Reinstein retired or semiretired Judge from Arizona.
I just want to introduce you to the other facilitators here
from the various regions.
On my far left is Martha Bashford who is an Assistant DA
for the New York County District Attorney's Office in New York.
Next is Christine Cole who is the Executive Director
of the Program in Criminal Justice at Harvard University,
the Kennedy School of Government in Cambridge.
Next is Mary Lou Leary who you've already met,
the Executive Director of the National Center
for Victims of Crime in DC.
Cabell Cropper is here and Cabell came
in as a replacement for--
>> Nobody.
>> Nobody.
Oh, yeah we know we had to add him as well.
Woody Clarke who is a Judge, former prosecutor in San Diego
and now a Judge in San Diego County, California.
Ken Melson, Director of the Executive Office
for the United States Attorneys in DC.
Jules Epstein who you've already heard from who is a professor
at Widener in Delaware and Mark Smith
who is taking Carol Henderson's spot
who you already heard has the flu.
Mark is the Executive Director of the Center for American
and International Law in Plano, Texas, suburb of Dallas.
First of all, I understand
that there were some issues regarding the purposes
of the solicitation and I just want
to read you what NIJ is seeking applications
for from states wishing to receive funding
to help defray their cost associated
with the postconviction DNA testing of forcible rape,
murder, and non-negligent manslaughter cases.
So that's the field in which actually innocence might
be demonstrated.
And the funds can be used to review such postconviction cases
and to locate and analyze biological evidence that's
associated with those cases.
And the other thing is that the purposes
of the announcement have to do with the case review definition
as means to review a files or documentation
of postconviction cases of forcible rape, murder,
and non-negligent manslaughter by appropriate persons
such as prosecutors, public defenders,
law enforcement personnel, and medical examiners in order
to determine whether biological evidence may exist that might
through DNA analysis demonstrate actual innocence.
Another definition was locate evidence.
Now is really an issue in the group that I facilitated.
It means to locate following a case review biological evidence
that through DNA analysis might demonstrate actual innocence
through activity such as the searching of files,
storage facilities and evidence rooms.
And finally the definition of DNA analysis
of biological evidence includes the handling screening
and DNA analysis of biological evidence located
in connection with the case review.
And all analysis conducted using funding
from the program must be performed
by a laboratory that's either government owned or fee
for service that is accredited
and get currently undergoes external audits not less
than once every two years that demonstrate compliance
with the DNA quality assurance standards established
by the director of the FBI.
So with that, we're gonna have our reports out
and we're gonna start with Martha who had Region 1
which was the great states of Maine, Vermont, Massachusetts,
Rhode Island, and Connecticut.
And as we go through here, if there's any questions regarding
that came up regarding the solicitation,
the application process, and the like, we've got Robin Jones
and Chuck Heurich out here from NIJ who will serve
as resources for those issues.
Martha.
>> Okay.
[ Inaudible Remark ]
[ Laughter ]
>> I think all the rest of you were stuck indoors.
It was also interesting 'cause we had a large contingent
from Massachusetts which is one of the four states
without a postconviction DNA testing statute.
But as we compared experiences, it seemed that the states
that did have the statutes a lot of people sort of do an end run,
a cooperative phone call "let's look
into this case despite the existence of a statute".
And Massachusetts seems to be able to handle it
in a cooperative manner as well.
The one of the big big issues and it's been talked about here
over the past two days is evidence retention.
Who's gonna pay for it?
What is evidence?
Is it just the rape kid or is it the seat of the car
on which the rape occurred?
How long do you keep it?
As DNA custom becomes more prevalent with crimes
such as burglaries and depending on a person's record,
they can windup doing more time on some of these cases.
Then on a manslaughter, do you keep it for all cases?
We recognize only a small amount
of convicted offenders we'll ever ask for testing.
Is there some way of winnowing down what you keep and how long?
We didn't have any answers to it.
Some people thought perhaps in connection with the plea
that a plea could be final,
that you could wave preservation of evidence.
Funding, for every dollars spent on evidence retention
as a dollar not spent on healthcare
or some other thing from the state.
In general about-- about the conference in general,
people really enjoyed having a chance to speak with each other
at this breakout session.
Generally when you go to conferences with your--
I'm with prosecutors, defense attorneys
or with defense attorneys lab people, or with lab people
and it was very nice chance to sit and talk
about these problems in a multidisciplinary way.
And the thought was if they could do this again
in a regional basis, that the people from Maine--
what happens in California were not terribly pertinent to them.
But in a sort of a regional basis,
you can see how people close to you are dealing
with the same issues would be a very helpful.
>> And Chuck do you care whether we do it in order
or can we just go left to right here?
>> Christine, you had Region 5 which was the Midwestern states
of Illinois, Indiana, Kentucky which has one
of the grants, Ohio and Wisconsin.
>> That's right thanks.
I'd love for the group to stand up
and take a bow 'cause they did great work.
[ Laughter ]
>> No fights.
>> We had some good discussion but no punches were thrown
and no evidence collected.
[ Laughter ]
>> Our conversation, we had a great cross section
of the sectors I think was maybe a preponderance
from what I would say the prosecutors side
because they're investigators.
Some are from appeals and in assistant--
assistant attorney general, assistant district attorney.
I think our conversation came down into three main areas.
One was a lot about the solicitation.
As you mentioned Ron, Kentucky was in our group
so we use them as a resource.
We talked-- so we talked about the solicitation.
We had long conversations about evidence collections, storage,
preservation, and destruction.
And then the third area we talked about was some sort
of working together working as collaborators.
As we talked about the solicitation, there were lots
of questions around that purpose, the use of the money,
implementation, restrictions on spending, and such.
So thank you for your-- what you read
about what NIJ is seeking to fund.
Mike Sheppo visited our group and he left and come back
with some information to the past solicitation.
It's gonna be on the website.
So I think that that's important for people to know,
to use as a resource and also that some of the proposals
that were funded will end up on the website
for other people to look at.
So thanks to Mike for scurrying around and getting answers
for us that he didn't have at the top of his head.
The second area not unlike Region 1 is we talked
to a lot about evidence.
We talked about the importance of increasing the quality
of collection in the first instance.
That collecting something
and collecting good evidence is gonna be really important,
but as bad as destroying it before you need it.
We talked a lot about storage preservation that before trial
and then locating it and finding its condition
and its storage post trial,
and that the various locations it's gonna be in.
Clerks offices, courthouses, police departments, labs,
just being able to get your hand along, finding it what it is
and then the quality of it.
We talked a lot about who's supposed to do that,
you know who's role is it which got us talking about a desire
for requirements or standards or best practices
around retention and preservation.
And we heard that IACP had some models
and that there's the Scientific Working Group
that has some models and American Academy
of Forensic Science has models.
And we found that-- knowing that, though that's nice,
that wasn't really helpful to our group
because we wanted some, some suggestions for having it
in one place, pardon me, and ways that each aspect
or each sector of the criminal justice system is doing similar
kind of standards.
So we talked a little bit
about recommending our cross sector working group to review
and refine existing models and maybe make some recommendations
that takes into consideration all of the different ones.
>> We also talked about that there was a desire
for shared decision making by our local government,
law enforcement and the prosecutor with these offense
on retention and destruction.
And some would suggest it's worth trying
and some suggested it will never happen.
But the bottom line is there's a desire for equal access
to information as early as possible about what we have,
what's been collected, what's gonna be tested
so there can be shared decision making
around what's gonna be kept and what might be destroyed.
And then the really I think important point was made is
that we've got a separate past evidence from future evidence,
things that were used at trial and things
that might be used postconviction.
And then the third category, I've loosely lumped together
as working with each other or working with collaborators.
This is mostly from the lab folks, but how difficult it is
to manage current work and roles
with additional new requirements.
We talked about-- it's my phrase
but I said there are outliers positive
and negative in every sector.
Because we talked about how some people have had an epiphany
or an enlightenment based on good experiences
and some people are less interested in being part
of a collaborative work.
So we've got-- we got good and bad in every part
of the sector that we work in.
And then compensation.
How important it is to think about compensation
for the exonerees, that there's a difference
between mistakes made and malice, and just that, yeah,
either way for whatever reason we've got an exoneration
that there is a lack of public confidence
or it affects public confidence in the system,
and how important it is
to do community relations relative to that.
And finally, particularly notable
because of his absence today of Dwayne Dale
that the reentry methods and supports
for exonerees has really failed
and something needs to happen about that.
>> Thanks.
>> Thanks.
>> And Mary Lou went kind of west with the states of Alaska,
Washington, Oregon, and Nevada which was Region 7.
>> Is that you or me?
[Laughter] Sorry.
>> In our group we talked about some common--
some themes in common with the first two groups.
We've talked about collaboration,
screening a variety of issues around labs both public
and private labs, integrity and retention of evidence,
and resources, resources, resources.
On the issue of collaboration, there was a lot
of interesting back and forth.
We had a great group, very participatory.
And in-- everybody I think in principle agrees that some kind
of collaboration, some kind of collaborative approach
to these issues can be very helpful but you have
to identify your common ground, you know what would it take
to make the collaborations succeed.
Identify your common ground, get real,
acknowledge that we have different roles,
different interests, and that you know come
from different places in the system.
And those differences have to be acknowledged and you have
to have some hard conversations to get beyond the knee jerk--
oh, you slimy defense attorney, oh, you,
Nazi prosecutor kind of thing.
You just have to have some hard conversations
and just get it out there.
And sometimes you can-- it helps to be focused
on work outside a specific case where the, you know,
your adversarial instincts really come to play,
working more along the lines of policy and protocol.
People point out honesty and humility are really important
if you are going to be able to work together.
And again like Martha's group, Martha's group a lot
of informal cooperation goes on and folks talked
about for instance how they just will call the prosecutor
and lay things out and work something out completely quietly
and behind the scenes to get testing.
Legislative issues for our group sunset clause requirement
of trial before you can get DNA testing.
They were issues.
And the screening process, well,
something that people talked a lot about.
Because these can be so overwhelming
when you just get hundreds of cases
and you have to deal with them.
And some of the folks in my group--
the court basically if you sent, if you're in prison
and you sent the judge a letter and say I want
to get this evidence tested, we basically,
just stamps it and appoints counsel.
And so these lawyers, and they don't have an Innocence Project
are just overwhelmed with these cases and there's no mechanism
to kind of filter any of them out upfront.
And that-- so people talked about how you can set
up a successful screening process.
Issues with private labs and what are the requirements.
We were lucky we have two lab people
who are incredibly knowledgeable who knew all about it
and gave us all the scoop on what you have to have
to be certified or an acceptable lab.
Evidence integrity and evidence retention.
The integrity was kind of interesting
and there was some discussion about how evidence takes
on a life of its own from the time that it's produced.
And then it's collected and there's chain of custody
and then you go through the trial.
And by the time you get to postconviction,
this evidence is really been around the block a few times
and can oftentimes be compromised.
And so that's an issue to look out for.
And the last issue was resources that are required
for all of these things.
Evidence retention is just huge, absolutely huge.
And there are some talks about hopefully technologies changing
and so you won't necessarily have to keep every piece
of evidence you can keep samples and so on.
But it is a huge issue and it's gonna require a lot
of hard choices to be made and many resources.
And of course people are looking at NIJ to provide resources
for evidence retention as well.
>> Okay, thanks Mary Lou.
I forgot to mention for Cabell that he's the Executive Director
of the National Criminal Justice Association in DC
and he had the great states of Texas, Oklahoma, Louisiana,
and actually the best state, Arizona.
[ Laughter ]
>> What? Thank you.
Our group was very spirited.
We had a good discussion.
We spent most of our time talking about issues
around evidence retention
and destruction using the Arizona legislation really
as sort of a case study in that, in that regard.
Essentially the legislation was passed through a coalition
of people working together to get this legislation enacted.
And even though it provides some statewide parameters
and foundation, the-- I think the group was in agreement
that it doesn't solve all the problem
but it does provide a platform on which to work.
Some of the issues that came up during the passage
of the legislation and continues on is the time limit,
how long do you keep evidence, what kinds of statutes
and limitation, what kinds of cases and how long do you keep,
you know, the statute limitations
as it applies to the type of case.
I talked a lot about inconsistent retention policies
by local law enforcement that another statute request policies
from local law enforcement.
There is no kind of training or support in implementing
or even enforcing those policies, which comes down to
and also resource issue.
One of the issues that came
up in the discussion I thought was kind
of interesting 'cause I hadn't heard it before was the issue
of retaining evidence at the end of sentences.
That I think that some people think that at the end
of the one-- that once the sentence is served,
then evidence can be destroyed.
It's brought up in terms--
in case of sex offenders
where there's a registration requirement following the
completion of a sentence,
that that evidence can also be important in terms
of that offender being required to be on lifetime registration.
And a particular case was discussed in that regard.
The other issue that came up in terms of retention
of evidence was that there was a couple members of the group
that felt very strongly that evidence should not be destroyed
on a plea bargain because the underlying charge could become
important later.
The other issue that the group spent a lot of time
with an actually continue to talk about it
after the 2:30 termination of the session, with the access
and the use of the state local and CODIS databases.
It was evident that there was a lot of confusion or uncertainty
about who had access and what was--
what could you actually expect from a search on one
of these databases and what's the process
to get access to the database.
And that was-- and we gets an issue of clarifying policies
from jurisdiction or jurisdiction within a one state
as well as training for all those involved
in trying to get information.
But as I said, the discussion continued past the 2:30 cut
of time.
You know I think it was, for me, it was a very enlightening,
very valuable discussion.
>> And I had Region 3 which was Maryland, the District
of Columbia, West Virginia, and the Virginia.
And the first thing that we'd started talking
about which was one that we heard yesterday
from Betty Lane is to support us
with was it regarding the challenge in applying
for the grant as to the fact
that it's a cooperative agreement
versus a grant in itself.
And I really frankly didn't understand that and I think
that maybe either Chuck or Robin can just kinda give you a
resources to what to look to for that.
They thought that there are certain things
that their legislatures might have a problem with this as far
as federal, you know, strings
with federal dollars and the like.
And the other thing they talked about regarding problem
with that was the changes in their own jurisdictions
from administration to administration.
So I don't know Chuck if you want
to address this whole issue regarding cooperative agreement
versus grant as to where they can look to for a resource,
not to explain and go into it today.
[ Inaudible Remark ]
>> The best way is probably to look with the website
of the Office of the Justice Programs
and our financial guide.
It gives a very clear breakdown of what the difference is
between a grant and a cooperative agreement.
And in a nutshell, it's really just the level of involvement
that the government has
with whoever is getting the award money,
but that's the best resource for getting, you know,
caught up on what the differences are
between those two.
>> Okay, thanks.
The other thing that came up regarding
that was somebody expressed some issue regarding the difficulty
in getting specific memorandums of understanding
with other agencies or offices within the state
to facilitate their review process
and getting access to the information.
And as I mentioned that has not been a problem I know
in our state but eventually it is seen as a problem
in some other jurisdictions within a particular state.
We spend a lot of time talking about cataloguing storage
and preservation issues.
The problem regarding the Lab Information Management Systems,
they talked about the need for bar coding not going forward
but as to the old stuff that's in those warehouses that we saw
and some of them the pictures, and feel that--
most people thought that was a huge problem.
And some people felt that really that the grant
for postconviction missed the step because of the fact
of the storage issue and being able to go back
and this massive problem that they see particularly
in urban areas of going through warehouses,
property rooms, and the like.
And we talked about the need
for standardization within the states.
But then some people felt
that there should be standardization nationally
and that that's really important.
And then let-- leave enough flexibility
within the states to adopt.
But the national standards
or guidelines were really important regarding cataloging
and storage.
Some people felt that it might be helpful
to have a technical working group, a twig regarding
such issues on warehousing and standardization
for handling evidence.
The-- but the issue was the huge amount of old evidence
that there are used in this cases
and the storage is a major issue particularly
for law enforcement and the laboratories.
We also talked about the fact of the lack
of resources particularly in the major urban areas
for preservation and that resources
of course is gonna be an issue in a lot of these areas
but preservation was a huge issue for lack of resources.
We got into the issue regarding whether anybody had any problems
with CODIS or other databases
which have hindered postconviction investigation.
Most people didn't have a problem with that.
We got into the area about their opinion about defense access
to CODIS and granting request from the defense.
And the people in the laboratory seem to feel
that that was not significant issue,
that if their request was made and that if it was probative
that they would, you know,
be able to honor their request and make the entry.
Of course they've got the requirements that they'd have
to meet within this as well.
But then the other side of that is what's really probative.
You know when you've got an entire car
or when you've got an entire backseat of a car,
you've got an entire door, you've got a bed sheet.
And what, you know, what evidence do you--
are you gonna save,
what evidence you're gonna have tested just the same issues
that law enforcement has with laboratories
as to prioritization and any kind of limitation
of the evidence as being examined because there are only
so many resources that we have and so many scientists
and lab analysts to do the work.
We got in the issue about victim notification system.
That seems to be determined by the individual case.
We talked about the experience
of Jennifer Thompson-Canino had yesterday where she had a lot
of trust in the detective that worked on her case
and he was on it forever.
Well, you know he was probably the appropriate one
in that particular case.
Some jurisdictions, some victims will have more contact
with an advocate.
But everybody agreed that the thing
that really should happen is
that the law enforcement officers should be working
closely with the victim advocate's
or victim representatives within the particular jurisdiction
and that the worse things that could happen is that somebody
who reads something in the newspaper, hears about it on TV,
that a victim would get information that way.
But there should be a system in place
within particular jurisdiction.
We talked a little bit about compensation
and there was kind of a split in that.
Some people felt that there should be a uniform statute
nationally regarding compensation.
Other ones felt that should be left to the states.
There was I think maybe some disagreement as to whether
or not you're better off to in a lawsuit if possible.
But the 1983 actions are difficult in the federal courts
or whether they have compensation.
But that is not fair for somebody in one state to walk
out with nothing or 25,000 dollars total
for serving 15 years in prison
and in other states somebody gets 50,000 dollars a year
or whatever it is.
We heard about Dwayne Dale.
He got, I think, 20,000 dollars a year for each of the 18
or 19 years that he spent in prison.
We talked about a little bit about future issues
that could be addressed.
One thing that came up was the issue of statute limitations.
And one person felt that there really should be a national
standard to do away with statute limitations and homicide
and sex offenses in particular.
And I think that, you know, we all agreed
that that's something that's really down to state to state
but there could be some leadership in that area as well.
And I know a lot of the states don't have statute limitations
anymore on those types of offenses.
And we also talked about just what they learned
over arching you know as far as what could go forward
and that's more education regarding the reliability
or lack of reliability of confessions,
handling guilty pleas
where there's false confessions and the like.
So next we had Region 6 Woody Clarke.
And Woody had a compendia and a lot of-- a lot of popery of--
popery of states, [laughter] Iowa, Kansas, Minnesota,
Missouri, Michigan, Nebraska, South Dakota, Colorado, Idaho,
Montana, Utah, Wyoming, you know,
Robin and Chuck must have thought
that you know Woody is really he can handle them all.
>> Actually I thought it was a little bit unusual
for a San Diegan to be leading the discussion
in the coolest part of the United States,
but I finally figured out it was
because of a football connection.
We arranged from the winless Detroit Lions in Michigan
to the undefeated and perhaps--
top rank running youths of the University of Utah.
[Laughter] So that was clearly the connection.
I will mention that-- well, actually before I mention
that we talked about, you know, our group had two states Montana
and South Dakota that do not have a postconviction statute
but the rest of the states I believe do.
But I think one of our highlights was early on when one
of our members mentioned
that our first DNA case involved bear DNA.
And I had to ask her, I assume it was a grizzly case.
[ Laughter ]
>> Sorry. I'm gonna see if I can just hit the highlights
of what hasn't already been mentioned.
In particular--
[ Laughter ]
>> Or was that a mystic?
>> Oh, I think you said you did.
>> Oh, okay.
>> That was the highlight.
>> You may like my notes by the way.
I used the butcher block method that Ken Melson pointed
out as not particularly a green approach.
So I guess my carbon footprint needs to be improved.
One of the issues we brought up was related
to searching profiles.
And in some of the jurisdiction,
there is apparently an automatic search once that foreign profile
and a postconviction DNA case is obtained
that fairly automatically that's run
against the National Database System
versus other jurisdictions that we dealt with.
It appears to be sort of a digressionary act.
One of the most important areas was the standard
for obtaining postconviction relief.
And we've discussed, you know, is that question an answer
that the outset which under most statutes I think is correct
whether or not it fits within the particular standard
of that individual states postconviction method.
>> And we kinda talked about sort
of the two basic standards if you will.
Some states require-- showing
that if these results were exclusionary
or exculpatory helpful to the defense,
would it demonstrate actual innocence.
Or in some of the other statutes particularly those
that have followed the model of either Illinois
and New York originally in their original statutes
or from the model statute that was recommended
by the National Commission on the future of DNA evidence,
is there a reasonable probability
that the outcome would have been different.
And I think we recognize those are different standards,
at least legally worded they're different standards,
but I think we had a-- at least a sentiment
that perhaps the reasonable probability standard makes more
sense because it's an established standard.
That is the term reasonable probability is well rooted
in the legal system particularly in the area
of ineffective assistance of counsel
and the decisions whether
or not that's established in a particular case.
And perhaps that's a better standard to use
than the actual innocence standards.
So we spent a good deal of time talking about that.
Thank you, Vena [phonetic].
We talked about evidence preservation.
And perhaps it would be who've of all us
if a best practices standard
or best practices recommendations were made
whether from the National Institute of Justice
or I know there has been work as was mentioned, been mentioned
by IACP another law enforcement organizations regarding
that preservation.
But it's real obviously is critical.
We also discussed and as has already been mentioned the
absence today of one of our speakers is do people
who even been exonerated truly exonerated actually end
up wearing a scarlet letter as a result of that and it's impacts
on them personally as well as on our society as well.
So that was a very interesting discussion, I think.
As far as postconviction motions,
do someone given attorney immediately
if they file a written motion or a letter to the court,
letter to the District Attorney's Office,
asking for relief
and postconviction testing should they get a lawyer right
at the outset.
And I think that's a very good question.
If they get a lawyer, shouldn't it be someone qualified
with knowledge of the specific statute, knowledge of DNA,
and the possibilities or the likelihood of a technology,
a specific technology providing probative results.
And then a very good suggestion about the importance of training
in this area for attorneys who will--
not only attorneys dealing with these issues,
but judges as well, Ron, you and me.
Also, perhaps the systems could be developed to look at this
and examined these motions that aren't based just on attorneys
and judges, perhaps a multidisciplinary board
or a group of people to look at these motions
and perhaps make decisions about whether
or not testing is appropriate.
And it gets a more significant departure
from certainly the systems that we have in place.
But it was also recognized the need
for advocates for these inmates.
In other words, particularly in these cases
where individuals have been in prison for some extended period
of time and their still in prison,
they may have written a letter but do they need more than that.
That could perhaps be solved by attorneys being appointed
at the outset or by some other approaches as well.
And then lastly, we had a good discussion--
I fairly late in the process about officers--
training of officers which we do have resources
for obviously already so that these issues involving what
types of evidence to collect
and in particular preservation can be dealt
with that the outset with the view towards what's going
to happen in 20 or 30 years.
And perhaps our technologies will change
by that time as well.
But we have to anticipate those changes and make sure
that we do learn from the lessons of the past instead
of repeating the mistakes that we've learned
over the last period of decades.
Okay, thanks.
>> Ken, we had Region 2 which was New York, Pennsylvania,
New Jersey, and Jules' state of Delaware or adopted state.
>> Yes we did, and thank you.
I don't have any grizzly stories to tell you
but I hope you'll bear with me anyhow.
[ Laughter ]
>> As we go through this.
It's not bad, I'll get one too, okay.
Alright. I did have those four states
and although they're geographically very close
to each other, their processes and issues
and statutes were very diverse.
And we found that even though we went in finding
out that New York Innocence Project,
people came over to New Jersey to do some of those cases,
and New Jersey hired all the Pennsylvania forensic scientists
who were good because they could pay more than Pennsylvania,
I think we all come
out as friends nevertheless after our discussion.
The statutes we had a side by side comparison
of the four statutes that I put together for a minute.
It was interesting to show the differences
between the statutes.
New York which was passed originally
in 1994 is not very involved at all.
It says very little.
It doesn't give a lot of direction whereas if you look
at Pennsylvania and New Jersey which were both passed in 2002
and somewhat appeared to be model
on each other was much more--
they both were very much more involved and I would suggest
that they're both good statutes for the defense
and the prosecution to look
at because it almost provides a checklist for what should be
in a motion to answer a lot of the questions
that the judge may ask on one of these cases.
And for the defense-- and for the prosecution
when they're perhaps drafting the order for the court to sign
because it puts a lot of protections in that process.
So I thought those statutes were interesting.
The place where the various states were
in their Innocence Project-type of efforts varied a lot too.
Delaware was like a love fest.
Everybody was just getting along well with each other.
They had someone there from who was running the hospital,
evidence collection with that the same nurses.
They had the lab there.
They had the public defender there.
Everybody but the prosecution.
Apparently, they weren't interested in participating,
whereas Pennsylvania was just trying
to standup their Innocence Project efforts.
So we had someone on both sides of the spectrum with New York
of course with a lot of experience being the home
of the Innocence Project kind
of in the middle there still working on things.
One of the practical effects that the prosecutors brought
up was the stress on the resources of the prosecution not
because of the motions themselves
or the subsequent efforts to get exoneration
after the DNA has been tested
but because defense attorneys try
to stretch the DNA postconviction process
into a process of boot strapping up arguments
that were otherwise time barred under their other statutes.
So they would try to pull those other issues
in through the DNA testing and it caused a lot of extraneous
and excess litigation that should had been avoided.
Also the comment was that some
of the judges didn't necessarily follow the restriction
and the statutes with the feeling I guess
that it's better just to go ahead and grant it
and we'll figure it out after that,
whereas if you followed some of the restrictions that were put
in the statutes, a lot of these issues could be resolved ahead
of time and therefore save a lot of post-testing litigation.
One of the other things that was said with respect to the process
in getting our prosecution and lawyers
and other stakeholders involved was the respect
that you show for each other.
And it was very pointed that the representative
of the New York Sate Police Laboratory System was very
pointed in saying that their relationship
with the Innocence Project was just so tremendous
because when the Innocence Project in New York was
out of case, they went there to slap down the prosecutor.
They were there to work, to do justice, and therefore
that encouraged everybody in the system to work together.
So that was an example, I think,
of how if you work collaboratively and work
with each other showing mutual respect for each persons role
in the process, that a lot more can get done.
The number one issue as an issue
that has already been addressed a couple of times here
and that was the property rooms and the ability
to find property that's in those rooms and the storage
of the property in those rooms as well.
It was interesting because we had some of the IACP chiefs
in our breakout group and they observed
that it's not just an issue of money or an issue of standards
but you've got thousands and thousands
of the police departments ranging from two
or three men police departments who may keep evidence
in their desk drawer to huge departments
that are just completely overwhelmed.
So it's a very very huge project that they have to work on.
One of the things that we kind of went off on after
that was well what happens
with the property once it's introduced in the evidence.
Member of the jurisdictions, their practices
to get the evidence back right away from the court
which resolves the issue of how the court stores well or not
so well the evidence after conviction but gets us back
into the original problem when that evidence has returned
to the police department is probably worst
of than it was staying
in the clerk's desk drawer in the courthouse.
>> The other issue we talked about a little bit with respect
to properties whether the crime lab can keep the evidence
that is examined at least so that we know where it is
and we can reexamine it later.
New York City does that apparently
but now they've been overwhelmed with the number of samples
that they have and they can keep it so they have to turn it back
to the police department.
And they're back into the same real problem
with whether they can find the evidence or not.
There was a consensus at least in two other states
that the exoneration cases we're going to dry up.
It was interesting that Delaware had gone
through many of their cases.
In Pennsylvania after their statute was passed,
got a lot of petitions but they'd been
through all those petitions now and there was somewhat of a view
that these types of cases wouldn't exist
for very many more years.
Despite some commentators and law reviews that suggest
for other reasons, they will continue even after we get
through the backlog of previous cases.
And there is one article out there that I have
if you're interested that does talk about that.
But one of the things that was pointed out in addition
to that is maybe if this is the case and they are drying up,
we shouldn't put our money into postconviction,
we ought to put it into pretrial testing of our DNA because it
that particular state, they are losing employees.
They can't retain them because New Jersey hires them all
the time.
And so they need money for pretrial testing.
It you get it tested ahead of time,
then you're not gonna have perhaps the issues afterwards.
So that's where the money should go perhaps.
One of the issues we talked about was the requirement in one
of the state statutes that all the testing
on postconviction cases has to be done by an accredited lab.
And course that lead into the discussion of whether
or not we would put the profiles in the CODIS
after a profile has developed in a postconviction case.
The sentiment among many of the lab people there
and the prosecutors is why wouldn't you use an
accredited lab?
And if you do that and you get a profile
that meets the CODIS requirements there wouldn't be
any reason why these laboratories
at least wouldn't put their evidence
through the CODIS process.
So I think that's-- those were the primary issues that we had.
It was a great group and I asked them
to applaud themselves afterwards for coming here
and participating in this collaborative process
between prosecutors and defense attorneys
and the Innocence Project.
You know, there-- it wasn't too many years ago
that you would never get these people
to talk together with each other.
I think it's commendable that you're all here doing
that today along with the laboratory personnel
and the police.
Thank you.
>> Sounds like you logged on Ken.
Ken is probably one of the most organized people that I know.
[Laughter] Jules, they naturally picked you for the deep south.
[ Laughter ]
>> We got along just fine.
[Laughter] Thank you.
>> Jules had Region 4 which was Florida, Georgia, Mississippi,
North Carolina, South Carolina and Tennessee.
>> Alright.
And I will truly try not to repeat.
Big issue, evidence, preservation-- I should backup.
I'm tremendously impressed how so many
of the states I had the pleasure of meeting with and learning
from have a very well respected state labs.
In other words, all the players say we're okay
with the state labs, we like them, we all work together
and I find that just a tremendous advance in things
that have gone on over the years,
and in many of the states, a true collaborative model.
We-- I'm gonna come back to that because it's clear.
It's not everywhere and one of the urgings is
that there being more convocations such as this
to present more and more models
of successful collaborations hoping
that that will filter down.
Evidence, evidence, evidence.
So let me just read a bunch of bullet points,
making sure this was from the labs that people requesting,
testing, and the like follow the regulation
so that things are done in a uniform way following the rags
or statutes so that all the players are indeed
preserving evidence.
Following up again a request for a best practices,
recommendations, series on evidence preservation
and recognizing in particular
that when the state lab does the testing,
they've got a nice system.
They've got an in system and an out system
and then it goes somewhere
to some small police department somewhere
or some small prosecutors officer or court system
and thus system of evidence tracking
and preservation breaks down.
In terms of destruction, people felt,
yeah we need a rational destruction of evidence policy.
And again where the players,
the different stakeholders come together to help formulate it.
And then we need to know when it's really implemented
and if somebody said something is destroyed especially
if they say was destroyed before this policy got implemented,
that they've really done--
do diligence check so that
when they say it's destroyed we can rely on that.
I'll talk to you about labs, saving extracts,
and request for grants where are--
where the people with the wallets here, okay.
That grants are needed for local labs and local police
for their evidence preservation.
And with that, money to inventory the old items.
We talked about labs or departments that may have 2
or 3,000 evidence, envelopes or whatever,
and they don't have the money to barcode those
and formalize a way to track them which goes back
to addressing the concerns for postconviction.
Then we talked some law and had some very
interesting discussions.
People heard me say earlier today, "Do the test
and then figure out where you are" because until we know,
it may not be able to or we may not be able
to really answer the question what does it mean?
How significant is it?
And the important point was raised is
that nobody should get whipsawed.
That if you agree to do the task as a prosecutor
that should not be misread or misargued as "Aha!
That means you've agreed that if it comes back with an X result,
my guy is exonerated".
That they are two different questions and that
if we'll going to have this collaborative model,
people have to play it straight and say, "If I'm asking for A,
I'm asking for A. and I'm not trying to bend the rules
and say Aha, that's conclusive on issue B".
We talked about, you know, different standards
of probative witness versus absolute exclusion.
And one of things we talked about and it seems pretty clear
that this remains a problem that many of the cases
that we're looking at were tried
from the defense side ineffectively.
And that that should be remembered
if you will ask a filter when you're looking at a case to say,
"Might it deserve postconviction testing, don't presume
that the case was tried a state-of-the-art".
So that you're not saying well, "The lawyer did A, B and C
and therefore we only have to evaluate, you know, well,
maybe A, B and C were wrong or insufficient".
And so again it's much more of a let's have a bit
of an overview perspective.
In terms of collaboration as I said, a strong feeling
that some places are-- have the collaboration,
some places are well we've got communication which means
on a one-on-one case, yeah, I can call somebody.
There's somebody to listen to me, but that's different
from a systems collaboration.
And that has to be encouraged.
We need more work on the model.
And a very important point which is please bring lab people
in at the early stages
when we're designing this collaborate--
I see a lab person nodding her head aggressively.
[Laughter] Yes.
But bring lab people in early to help structure
and inform the collaboration.
I think much the way Dean's talk yesterday said,
"Here all these things, you'd better be thinking about us,
the world of unintended consequences proceeds".
So that's our report.
>> Okay. Thanks Jules.
And I wanna thank Mark for stepping in for Carol again.
He had the Island States of Hawaii
and the Northern Mariana Island as well
as the great state of California.
>> I just want to put a plug in for Mark.
If any of you are aware of the program he runs at the Center
for American International Law,
some of us have participated in it.
Jules and everybody had talked about collaboration.
They run a program called Actual Innocence Establishing Innocence
and Guilt every year, I believe, and it's for prosecutors,
defense attorneys and judges.
I think it's cosponsored by the Texas Court of Criminal Appeals.
And it's really a very good educational training program
for everybody involved in the system.
Mark.
>> Thank you for the plug, Ron.
On the theory that great minds tend to think alike,
what we discussed resonates really pretty well with much
of what we've heard from the other groups at the table.
The buzz words were collaboration and cooperation
and there was a sense that it's important to build
from this meeting and go back to our home states and home regions
and continue to meet on a regional basis to share ideas
and to make sure that we're talking with one another
on a continuing basis.
The notion was that familiarity bridge agreement rather
than contempt and that we need
to get past issues of turf protection.
There was also a sense that we should do cross training
and that there should be joined training.
We should work together to bring people into the same room,
teach the science especially on scientific issues
and to endorse what's been said by at least a couple of others.
We suggest the creation of an NIJ working group
on evidence retention.
And specifically one geared
to identifying best practices model policies.
And there especially important at the front end to get all
of the players around the table: the scientist,
the law enforcement,
prosecution, defense, and judges.
It was suggested and I think well said that we need
to recognize that we all own this problem.
And one plea that we heard was that we not take
for granted the funding for Innocence Projects,
that some are facing very difficult financial times.
We've had a couple
of recommendations for the NIJ folks.
One, this was from the great state of California,
is that California is awfully big.
And it would be nice if it didn't have
to be a state application.
We also think it's really important
to make special efforts to get the word
out about this upcoming grant application period.
And if possible to expand the window to give people
as much time as possible from getting noticed till the time
that the applications have to be in.
And since my comments I think, Ron, are all that stand
between the audience and the end of this session, I'm done.
[ Laughter ]
>> Oh, I vote for him.
[ Applause ]
[ Laughter ]
>> Oh, I think Chuck or Robin is gonna get the last word
but is there anybody that has any questions or comments
about any of the things that were just discussed from any
of the groups, anything at all?
Well, thank you!
Well, Chuck do you wanna come forward
and do the closing, here?
Do you want to just stay up here?
>> Sure.
[ Pause ]
>> Thanks to Ron for moderating and to all of the facilitators
for doing a fantastic job.
As I move around from room to room briefly, I've noticed
that there was a lot of interaction and a lot
of discussion and that's exactly what we had planned
and hope would happen that you felt comfortable enough
in your groups and regions that you could talk about the issues
that were challenging you in your states
and hopeful resolutions that you might be able to work
on together not only in your states but between states
with suggestions and ideas.
A couple of housekeeping items before I close everything out,
don't forget to turn your evaluation form s in.
These are very very important to us as we continue
to hear requests during the past two days that we might need
to hold some more of these, your comments would be very useful
to us and in the case that we are able to do so
and structure another one or more of these events.
As was mentioned earlier, and Ron read some
of the solicitation, you will be getting an e-mail
from Jocelyn Williams in the next couple of days
after you return home.
And it will have a link to the 2008 Postconviction Solicitation
as well as attached PDF copy of it for your review.
So you'll have a sense of what the solicitation is
about and its contents.
And there will be some minor changes as it goes
to the review process for the next round which I said earlier
as we're hopeful would be out of the end of February
or beginning of March.
Now one thing you can do is you can go to grants.gov and put
in an e-mail notification that you can get based
on different programs that you're interested in.
So it's my understanding that if you go there
and you're interested in postconviction, you can sign
up to get a notification as to when any type of grant
that involves postconviction DNA testing or other types
of testing hits the streets, and then you will get an e-mail,
you'll know that it's out there and it's out for people
to start applying for.
You will also get another e-mail from Jocelyn once the video
and the PowerPoints are available.
But don't hesitate to check in 6 or 7 days, as well at the URL
that we have on the back of your program.
With all of that being said,
I would like to thank you all for attending.
I would like to thank all the people
that helped us put this together especially again Robin Jones,
Jocelyn Williams, and Margaret Black
who helped me pull this off when we were told to do
in the October 5th and invite 300 people
and have it done in January.
And I think we actually-- we did it.
Hopefully you're taking home some information, contacts
and tools that would help you not only work
on postconviction assistance in your state but equip you
to submit applications for future grant opportunities.
My contact information is in the book as of the other Department
of Justice NIJ people.
If you have any questions, if you have any suggestions,
don't hesitate to call us.
That being said, enjoy your evening, have safe travels,
and I hope to see you soon.
Thank you.
[ Applause ]