Post Conviction 2009 : Testing Assistance Programs

Uploaded by TheNFSTC on 02.10.2012

[ Music ]
[ Background Music ]
>> Again, I'm Chuck Heurich, the Program Manager
for the Postconviction DNA Testing Assistance Program, and one of the comments
that I heard this morning was that there maybe a little confusion
as to why we're all here for these 2 days.
And I think Dr. Morgan made it very clear yesterday that there were 2 main purposes
and I just want to restate those purposes.
First, the first purpose is to bring all of you together in what is not necessarily a team
from your state but a cross-section of professions or disciplines
from within your state that can start a discussion within your state
and with individuals from other states about the topic of postconviction DNA testing
and how to better set your state up or find out where your state maybe lacking
in the infrastructure for postconviction DNA testing
because as was mentioned yesterday we did put out a data request
after we only got 5 applications for the program.
And there were a high number of states that sent back as their response
that postconviction DNA testing was not an issue in their state
and I will not name those states obviously.
But obviously there is some disconnect between the groups involved that need
to be involved together in the collaborative effort that we've all been discussing
to move forward and better the infrastructure for postconviction DNA.
Now my panel that is here now is the second reason we are here.
And that is to give you a cross-section of the applicants that were successful
in getting funding under the Postconviction DNA Testing Program so that you can go back
and feel comfortable with developing a plan and hopefully an application
for the next time this funding will become available which we're hoping is going
to be late February or early March.
Because as Dr. Morgan said again yesterday we would be extremely happy if we could go
into double digits on the next round of applications and bump off the amount
of funding that's going out and giving that funding to more states.
With that being said, I'd like to introduce our presenters very briefly
and then we will get going with the presentation.
We do again have 5 states represented and from the state of Arizona we have Kent Cattani
who is the Chief Counsel of the Capital Litigation and Criminals Appeals
at the Arizona Attorney General's Office.
We have Carrie Sperling who is the Executive Director of the Arizona Justice Project.
We have Pete Marone who is the Director of the Virginia Department of Forensic Science.
We have Jacqueline McMurtrie who is an Associate Professor at the University
of Washington School of Law in Seattle.
And Gary Shutler who is the DNA Technical Leader also with the Washington State Patrol
who will be presenting the Washington proposal, and Marguerite Thomas from the Post Conviction--
who is the Post Conviction Branch Manager of the Department of Public Advocacy
at Frankfort Kentucky, and Mary Anne Wiley the Deputy General Counsel for the Office
of the Governor in Austin Texas and we will be proceeding
through these presentations in alphabetical order.
So I would invite either Kent or Carrie to come up and start with the Arizona perspective.
[ Pause ]
>> Thank you very much for inviting us and above all thank you for the grant.
We're very excited about this project.
Before I start I did wanna comment on one, one thing Jules was talking about in terms
of impediments to doing DNA testing, in Arizona we don't-- from a prosecution perspective,
we don't think there are any impediments.
We have very liberal rules of criminal procedure that allow DNA testing at any time.
We even have a separate actual innocence provision,
that's Rule 32.1h if you ever wanna look that up.
And it was put in there, we had discussions initially, do we really need this, if you have--
if the technology has changed with DNA, it comes in under newly discovered evidence.
And we put it in there anyway saying,
"Well what if the attorney had the evidence but didn't do anything with it.
He's just a negligent defense attorney.
It's not really nearly discovered.
He had it with him."
So we have this rule 32.1h.
And my only reason for mentioning this from a prosecution perspective is
that it has not opened the flood gates.
It's been in the books.
We've had it for almost a decade and it simply is-- it gives us a lot of confidence.
When people are raising claims we say if you've got a legitimate claim
of innocence there is nothing that's keeping you out of the courtroom.
It's not to suggest that we have a perfect system but to the extent you do have impediments
like if you have a case, or there was a confession,
or there are some other corroborative evidence.
I would not be reluctant to remove whatever impediment that you have.
It does not bog down the system.
We are asked to talk a little bit about how we got to this process
or why we decided to apply for a grant.
And to start--
[ Pause ]
>> It-- it all began with Larry Youngblood.
I actually wanna go back one step further.
It really all began with a capital commission that was convened
by then Attorney General Janet Napolitano in I think it was 2001 after all the reports
that had come out, the lead man [phonetic] study.
There were all kinds of issues that were being raised in Illinois.
There was a concern about capital punishment and she decided to convene this capital commission
that included prosecutors, defense attorneys, members of the judiciary,
the academia for what little value they had, [laughter] and members of victims organizations.
The-- one of the projects that we undertook was to review all of the capital cases,
all of the post-Furman capital cases in Arizona.
One of my pet peeves is listening to defense attorneys talking
about anecdotal stories from other parts of the country.
And we thought it was important to focus in their defense,
that's all they can do unless you have really good data from your state,
and we didn't have really good data.
And so we decided let's evaluate all of the cases in Arizona.
Let's look at every time there's been a reversal, not necessarily an exoneration,
we hadn't had any exonerations but we just wanna look wherever there's a reversal and let's see
if there's something about the system that we can improve.
And we put together a small committee
that included some prosecutors including Paul McMurty [phonetic] who is now a judge
and a defense attorney, John Stookey who happens to be a partner of Larry Hammond.
And we had some really interesting-- it was a committee that actually accomplish something
where we went through every case thoroughly and just kind of discussed all the different reasons
and we didn't necessarily agree on everything but I think we came
up with a very worthwhile report detailing just different reasons for stops in the process
and kind of highlighting things that could possibly be corrected.
In the course of doing that, I developed a good friendship with John Stookey and more
than a friendship, just a great respect for someone.
He's a very accomplished respected defense attorney and he was just very thorough,
reasonable, and just a delight to work with.
And over the course of working on this project we had--
there had been 2 exonerations in Arizona.
And the first involved Larry Youngblood and John and I were having some discussions about, "Gee,
we ought to undertake kind of the same type of review
that we're doing in this capital commission".
But to look at the Larry Youngblood case and see if there are lessons that can be learned.
So we decided to kind of undertake an in-depth study,
a postmortem of what it happened in the Larry Youngblood case.
And before I go any further, we have had-- in Arizona there's 2 exonerations.
I kind of feel like it's an AA meeting and I'm Kent, I'm from Arizona with 2 exonerations.
[ Laughter ]
>> But it's, it's really it's not about that.
In Arizona the exonerations came through the normal postconviction process.
When you talk to prosecutors in Arizona, one of the first responses you'll get when if--
initially the response to let's form a capital commission, the response was we're not Illinois,
no offense to anyone from Illinois or we're not Texas, you know,
we're Arizona, we're proud of what we do.
And our response has been, well, we agree.
Hopefully we don't have major systemic problems but we're all Texas, we're all Illinois
to the extent we have cases that have relied where the convictions are based
on eye witness identification, confessions.
We can't say with 100 percent certainty
that we have no innocent people in prison or even on death row.
And it's in all of our best interest and if we do a study, if we put out the data
that will show the public that we're not Illinois if that's your goal.
>> But we will show the public that they can have confidence in our system.
So we viewed doing things like this as a way of showing that the system works.
At least that's our pitch to prosecutors in terms
of getting involved with theses types of projects.
So this all began with Larry Hammond, I'm sorry not Larry Hammond, [laughter] Larry Youngblood.
And we-- about the same time the American Judicature Society was encouraging postmortems
around the country and I think Larry was the President
of the American Judicature Society at that time.
And we decided to do this in-depth study of the Youngblood case.
Many of you maybe familiar with the United States Supreme Court decision in Youngblood
and it just very briefly it's a case that involved a sexual assault of a 10-year-old boy.
The police officers failed to refrigerate the boy's shorts and underwear at that time.
At the time of the trial testing procedures were available
that might have exonerated the defendant if the clothes have been properly preserved.
This case went all the way up to the United States Supreme Court and there's kind
of a convoluted history but at the end of the day the holding which remains the law is
that the failure of police to preserve potentially useful evidence does not constitute
a denial of due process unless there is bad faith on the part of police.
Well unfortunately, the rest of the story is that Youngblood is innocent.
The evidence was preserved with improved technology.
DNA testing was available and Youngblood's lawyers sought postconviction testing.
After he'd been released he was required to register as a sex offender
and in 2000 DNA testing exonerated him.
[Pause] Why study wrongful convictions?
I think we've all heard the reasons why.
In addition to having these discussions with John Stookey about let's do this,
we also got a request about the same time from the Arizona Supreme Court
to the Attorney General's Office asking us gee, there have been two--
would you undertake these studies.
And so we suggested this is what we've already proposed and so we'll go ahead with it.
And while John Stookey and I were going through this kind
of elaborate process, so this is what we're gonna do.
We're gonna carefully read all the transcripts.
We're gonna go interview everyone involved, the prosecutor, the defense attorney,
the victim, the Larry Youngblood.
At the same time there are people who are much practical in our office.
One of those people is John Todd.
There was a second exoneration in the Ray Crone case and Crone involved someone who is convicted
in part based on testimony from a forensic odontologist regarding bite mark evidence.
And when we realized that there had been an exoneration
and that the bite mark testimony wasn't as credible as we had thought,
John just immediately without kind of undertaking a thorough study
and let's read all the transcripts, he immediately said, "Gee, we gotta see if any
of our cases involved testimony from the same bite mark expert".
So some people-- John is one of my personal heroes just in terms of people
who just do their job and do their job well.
I can see I'm gonna run out of time but the quick down and dirty on doing a postmortem
if you're at all interested in the criminal justice system,
a postmortem is just a fascinating-- a fascinating study to learn.
You know that the wrong person was convicted, so now you can start from the beginning,
and let's go through and see if we can learn something about what went wrong.
And I won't have time to go through very much--
at the end of the day Larry and I ended up doing some joint presentations including
to police departments and I think Larry did presentations to the defense bar
and we did presentations to prosecuting agencies, county attorney's office.
And we focused on-- from the Attorney General's perspective we focused primarily on preservation
of evidence and eye witness identification.
And it's a fantastic learning opportunity for a prosecuting agency with a discussion
on eye witness identification evidence.
And that Jules pointed out that there--
all of the eye witness identification procedures were upheld in these cases
of wrongful convictions and there is a reason for that.
As an appellant prosecutor, we routinely argue that factual determinations made by the trier
of fact are essentially unreviewable on appeal.
And I think that's the right result.
The jury or the judge is there and sees the testimony, sees the witnesses
and makes credibility assessments
that don't really lend themselves to review on-- on direct appeal.
But because of that, I think it imposes a greater burden or obligation
on law enforcement to make sure we get it right.
Because this is not a-- this is not something
that will be corrected through the appellant process.
Anyway I digressed and I won't have time to go through.
It's a fascinating study.
It's something that we've done in presentations
that can take an hour and a half or up to 2 hours.
But how did that get to where we are.
In Youngblood, that was the-- that was Larry Youngblood on the left and the person
who actually committed the crime is on the right.
But how did that-- what does this have to do with getting this grant?
Larry Youngblood, it was a photo array.
What it has to do with getting this grant was I guess because of this friendship
that had developed in this joined effort in reviewing cases
where there's been an exoneration, Larry and I were meeting on some other issue,
I think it had to do with Coverdell certification.
And he mentioned that there was this grant opportunity available from NIJ and that one
of the requirements from the grant was that the state's highest law enforcement officer certify
that the state had a mechanism in place to preserve evidence whether by statute
or by practice and-- and he asked if we would be interested in helping to see if or to work
with Terry Goddard to get that--
he's our current Attorney General to get that certification
so the justice project could apply for this grant.
At that point the discussion evolved into--
gee, this is something the Attorney General's Office has talked about.
We listened to presentations from Woody Clarke at a conference on the San Diego experience
and we'd really like to be involved.
And I don't remember if I-- I think I suggested it, Larry may have suggested it,
but at some point we just agreed, "Hey, this would be a great idea
to just jointly apply for this funds.
The problems that Larry had identified in handling these cases were difficulties
in working around the state with different local prosecutors in obtaining evidence
and just a different level of cooperation as you went around the state.
With that, gee, this would be a good opportunity.
We can designate one person to be the point-- point person to help in gathering evidence
and to try to-- to try to make this a smooth process.
And conversely we can also provide assistance to the counties
if an evidentiary hearing is required.
We can provide in this case it's John Todd as the person from our office who will do it,
who has extensive experience in handling DNA evidentiary hearings.
So we decided to jointly apply and we were successful in doing that.
And I guess before I'll let Carrie kinda finish up with where we're going from here.
But I guess my pitch would be even if you're from a state
where you don't think postconviction is a big problem,
in Arizona we think we already have a mechanism in place to handle it.
The technology has changed.
We acknowledge that there maybe cases that have slipped through the cracks.
This is our opportunity to find those cases.
We hope it shows that there are no other people who are in or at least
who can be exonerated through DNA.
If that's the result, that's great.
We'll document it and I think the public will have greater confidence in our system.
If there are some exonerations, we'll of course deal with that as well.
We'll try to learn from them as we have from the Youngblood and the Crone cases.
So from our perspective, it's-- it's a win-win situation.
No matter where your state is in the process,
if you think you've got a big problem this is a great opportunity
to take advantage of some money that's available.
And I don't think any of us can say that we can say with certainty
that there's absolutely no problem in our state.
And why not take advantage of a great opportunity to try to catch these cases
that may have fell through the crack, fallen through the cracks.
[ Applause ]
[ Pause ]
>> Like many exonerations, I'm here basically through dumb luck.
You know how you just stumble upon things.
I was hired about a year ago to direct the Arizona Justice Project with some sort
of promise that we're very hopeful that we'll get a grant from the National Institute
of Justice to do this very important thorough systematic and collaborative study of all
of our sexual assault and non-negligent homicide cases in Arizona.
>> And you're gonna get to direct this project and it's very exciting.
And it was dumb luck that one, I was asked to do it, two, that we did get the grant
so we have the money, and three, that I get to work with someone like Kent Cattani
because if we could just clone him and send him out to all of the different states,
everyone would be better off for it.
So I wanna just talk to you a little bit about our processes.
So I'm gonna flip through here.
So obviously as Kent said, we teamed up forces in Arizona to get the grant written.
As Mary Marshall from the Arizona Criminal Justice Commission likes to say,
"These things started out as the 6-page grant proposal for about 30 some thousand dollars
and turned into over a 100-page grant application asking for 1.4 million dollars.
And really that was the help of a lot of people like the Arizona Criminal Justice Commission
and NIJ to get really down to the heart of what we needed to do
to systematically go through things.
So we joined forces.
[ Background Music ]
[ Laughter ]
>> As you can see--
[ Laughter ]
>> -- we've got Larry Hammond here and Kent Cattani who maybe some saw as adversaries.
They have litigated on opposite sides of cases for a long time but came together
for a common goal as Kent was stating.
[Background Music] And this really although this is a picture of me,
this really should be a picture of Lindsay Herf who I've made the good judgment to hire
as our Project Manager on this grant.
She did the slideshow so she put me in instead, I think, out of modesty.
And then John Todd, the attorney from the Attorney General's Office who's heading
up their side of the work on this project.
But that's really whose doing the brunt of a work, and what I'm gonna be talking about.
And this we have is sort of unidentified people that we are out there looking forward to see
if we have anyone with valid claims of innocence.
And so how are we gonna get this done?
First of all, our intent in the grant application or our process
in the grant application 'cause we didn't really know what
to expect was we were gonna have a big press conference, get a lot of publicity,
and then we were gonna canvass all the criminal defense attorneys in Arizona and the prosecutors
and tell them what we were doing and say, "Hey, give us those cases that bothered you.
Give us those cases where biological evidence could have made a difference,
could have exonerated."
He had the big press conference and it was wonderful.
It was a love fest.
There's Terry Goddard, our Attorney General and Larry Hammond again,
Kent Cattani and our Attorney General.
This is a prosecutor, Derek Rapier, thank you.
I hate to mispronounce his name, that's sort of embarrassing.
But he's the head of the prosecutors association of APAC in Arizona.
And he also came to the press conference to show a real buy-in from the county attorneys
because we need that to go through with this grant.
Obviously, the Attorney General has some power but county attorney still hold the power
to test the evidence, release it to us, to determine whether to fight us
on the results or what happens after we test.
So we really needed a buy-in too from the county attorneys
who really hold on to all this evidence.
So what are we doing?
Here's the, you know, the list of players and how are we gonna go about this.
The Arizona Justice Project also at the same time I was hired,
moved in to the Arizona State Law School,
and so now we've got students that we can put to work on this.
We've got a new postconviction clinic which is gonna be helping out in identifying these cases.
And then the Arizona Attorney General's Office is gonna help out, and of course ACJC
who helped us get the grant and is there to help us throughout the process.
The first thing I said was when we put the application
and we thought there would be enough interest driven by a press conference
and then pulling attorneys getting the word out, that we'll have cases flooding in.
That hasn't happened.
We've sent several e-mails in different ways to attorneys throughout the state
and really haven't heard from them.
So what we decided was to sort of backup, and one thing I've done when I found
out that we might be getting this grant is I've called a lot of you in the room.
Anybody I thought who might be doing something similar to this
that we could take the practices from.
I hope that I contacted.
But one of the things that we have done was think about how we could go directly
to the inmates that would be eligible under this grant.
We'll there's over 5,500 that would fit these crimes in Arizona.
So the expense of printing up a questionnaire, sending that to them,
sending them return envelopes just was somewhat now the question.
So one thing we've done is we put an ad in a publication that goes to most of the prisoners.
We also, having got an agreement just last week with the Department of Corrections
where we can go to most of the prisons that house most of these inmates, do a presentation,
tell them what the grant is all about, tell them how they would qualify, tell them a little bit,
give them a primer on DNA and biological evidence so that maybe we will weed out some
of the sort of frivolous request that we might get.
And we hope to start doing that.
I got that one from Mark Godsey at the Ohio Innocence Project.
They've done that in the past.
And then we've looked at cases that we've closed in the past.
We've been in existence for 11 years.
We've had a lot of people that have requested that we look at their cases and we just wanted
to go back through and see if DNA could have made a difference,
and we just didn't have the money at the time or didn't see it right.
So we've gone back through our old files.
The other thing that we're doing is we're trying to go through sort of like Dallas County
and look at the people who had applied under our statute which has been in effect
for about 10 years, our DNA testing statute to see who's been denied and why
and whether they should get a relook.
So we're trying a lot of different methods.
Unfortunately, the courts don't really keep these records systematically
through the different counties, so it's been a very difficult process.
Like Jules Epstein was advocating, I think we've got an agreement here
that we ought to test early and often.
That if we see that DNA is relevant, let's go ahead and test, and then we'll fight
about the test and the results later.
But we sort of, we've put in procedures in place so that once we see the relevance
of DNA, we'll go ahead and test it.
It's a lot cheaper, a lot better use of the money to test it than to spend hundreds
of attorneys hours writing a brief to get testing under a statute.
So I think we've decided, and we've only got 18 months
to finish this thing so we've got to get it moving.
And then once we get the results, we can compare it to all the other evidence
in the case and see what it means.
Because it's not always gonna be clearly exonerating even if it shows
that the defendant isn't included-- is excluded from the samples.
So hopefully we put in place procedures where we can sort
of mediate our way through these things.
So that we have a group of individuals who really trust giving us an opinion
about which way to go so that we don't have to litigate everything after we get the results.
And then of course one of the main I think benefits of this project other than seeing
if there's any innocent people in Arizona and freeing them from prison,
is going through the process of if we find an exoneration why was
that person wrongly convicted.
And it's something like Kent said that we'd had some experience
with in Arizona 'cause we've had 2 exonerations and we've gone
into detailed postmortems on both of those.
So hopefully, that's how our process will work.
But of course it's always evolving and we're open to suggestions.
One thing I can tell you is that on our website,
we will post our grant application, so if you wanna look at that.
We'll also post the procedures that we're putting in place.
And we'll also post our questionnaire that we're sending out to the people
who qualify based on crimes under our grant.
And really as we go, any other important information we're gonna post in our website
and our website at the Justice Project is AC-- I'm sorry,
So that should be a relatively thing.
Thank you.
[ Applause ]
>> Our next presenter will be Marguerite Thomas from state of Kentucky.
[ Pause ]
>> Hi, I'm Marguerite Thomas with the Department of Public Advocacy in Kentucky
and that is the statewide public defender system.
I wanna start out by asking if anybody has heard of this little horse race
that happens the first Saturday in May.
It's called the Kentucky Derby-- excuse me.
When I was asked to talk about our application process,
it seemed like the Kentucky Derby was the perfect parallel.
All derby horses have to go through a selection committee.
>> They have-- they're all well trained.
They all come from good stock.
They're all-- they all have a winning record and they all are deserving of it.
So basically, every one of them on paper should be able to win the race.
But obviously because it's a sporting event, what happens,
the conditions play a factor and luck plays a factor.
If you've heard or watched the derby, you also know what they say about it.
It's the fastest two minutes in sports.
So these horses will race around the track as fast as they can and the person that gets
to the finish line first gets to go to the winner's circle and get all the money.
So you can see where this is going.
And the Department of Public Advocacy is a statewide public defender system.
So we have trial offices in all our 120 counties and we also are rather unique
and that we have a Post Conviction Branch.
The Post Conviction Branch is setup to do all direct appeals from antigens
and a full sale postconviction effort in all of the prisons.
So we have access to all of the state prisons and we've had a full case regular capital
and non-capital post conviction cases for years.
So that allowed us to be very well situated or suited to have an innocence project.
In 2000 we set up innocence project out of the Post Conviction Branch
and one of really important factor is we had no money.
We set that up with zero budget line items.
No money coming in.
On year 2, we got a very, very small grant from our bar association but we had no money
for testing and no money for positions.
We just took a couple of existing staff positions and made--
myself and Gordon Rahn, he's here.
We've basically did our regular day jobs and kind of started Innocence Project at night.
And we coupled up with law schools and we took a teaching curriculum into the law schools
and we developed a screening instrument.
We worked closely with the New York Innocence Project and helped, you know,
they helped us get on the ground running.
So we device this you know the scheme that worked fairly well as Innocence Project.
I am proud to say in 2003.
So within 3 years, we had our first exoneration.
And by the year 2008 when we applied for this grant, we've had 8 people released,
2 absolute on exonerations and 6 people whose convictions were vacated
and all the charges were dismissed.
So the one thing about the-- really another important factor with the money,
with the lack of funding, we could not take just DNA cases.
We had to primarily focus on cases that didn't involve DNA because we had no money for testing.
So basically in 2008, the time to apply for the grant, we had a winning record in place.
And so the other important factors, the conditions were absolutely favorable to us
and like Carrie indicated a little bit of luck was on our side.
We already had an existing screening instrument.
We already had structure in place in the Post Conviction Branch and in the Innocence Project.
But 3 other important factors, we had preservation statutes in place.
We had testing statutes and preservation statutes in place.
More importantly, we on most days this is a bad thing, but it happen to be,
this was very instrumental in getting the grant.
We are actually as the Public Defender's Office in the justice cabinet in our state.
And while a lot of times that's a conflict because also in the justice cabinet
or the state police, the labs and all of the corrections, in this particular occasion much
like Arizona, it worked because we were able to partner up with justice.
They were actually supporting us and applying for the grant.
The most important support they gave us was obtaining the signature
from the Attorney General's Office.
So with everything, we were able to, you know, we were able to apply for the grant.
Now the correlation here between the fastest 2 minutes in sports.
We had maybe 3 days in the time we found out that we were gonna apply for the grant.
There was-- there was some question whether we internally whether we were eligible.
Once we resolve we weren't eligible, then we had to-- then we try to partner with justice.
Once you partner with justice, then you have to wait on them and they had to-- it took--
it took every-- it took a lot of time to resolve if the Attorney General was gonna sign,
when they were gonna sign, if we were gonna apply, how are we gonna apply.
So basically with 3 days or less remaining, it fell on our office.
We got to go ahead and it fell on our office to apply for the grant.
And okay, so now picture that, Public Defender's Office,
everybody busy, nobody has time to do this.
Not much grant writing expertise, and I'm very, very proud to say that we got the grant.
The grant was submitted a full 30 seconds before the due date, I mean the time.
I'm less than proud to say that if you look at the grant there are several type over
and typos and some incomplete sentences.
But nonetheless, we got it in under the wire.
And okay, this is where the rest of the story sort of departs from the Kentucky Derby.
In the derby, you know they win the race and by that they're excited by the time the honors
and everybody gets to the winning circle, you know.
Everybody is all dignified and controlled and act like, you know, whatever.
So you can imagine the call that when we got the call in our office
in this poorly funded Public Defender's Office that's struggling
that where we're getting 1 million dollars, you know,
we were less than controlled and less than dignified.
At any rate, we as I said, we already had the-- we already had the structure in place
and I think that is really, really important.
We had a file drawer of 48 cases already identified, already screened that involved DNA
that we had never been able to touch because we had no money.
So we had a ready-made pool of cases which was you know very exciting,
and we have you now we're ready to go with that.
We-- so the plan under the-- here we have--
I gotta say that there's a bet in my office whether I'm gonna use this thing
so I don't know who's winning or who's losing.
But anyway there is a-- we set up a--
we have a structure in place now
with the existing Kentucky Innocence Project and now the grant.
And I guess our fear was the grant would be, you know, I mean the grant would take
over all of the really good work.
The Innocence Project is doing well.
The grant would never replace working with the students and going into the law schools
and doing all that important work.
If the grant was basically taking out a lot of good cases and you know taking all of the--
I guess focus way from the Innocence Project you know we were concerned about that.
So we set up a structure where there's gonna be a manager over both,
so they'll be separate but equal entities.
And the crossover of course will be the cases that come in.
As I indicated, we already had a screening--
we already have a mechanism that gets the cases to us.
But with the grant, what we hope to do is now go through the existing pool of 48 cases,
make a determination as to whether there's-- the evidence is available, whether it can be tested.
If it can be tested you know where to test it.
To make an assessment like Carrie said whether the DNA would have any true impact
on the-- on claim of innocence.
So we're gonna hire 2 attorneys to screen the cases and 4 investigators.
Our state is made up of 120 counties and so a lot of ground to cover.
We have 120 different jurisdictions that have evidence collection problems.
So we have no system in place in any of the counties for finding
that evidence or storing that evidence.
So a great deal of manpower will be spent actually looking
for the evidence to see if it exists.
And at the conclusion, once we've blow through all those 48 cases, we hope to then expand
and work with the labs, work with the Attorney General's Office,
work with the Commonwealth Attorney's, so the local prosecutors,
and try to find any other cases that are out there as well as recanvassing the prison.
And like Arizona going through the-- starting from scratch and going through the--
a thousand or so applicants that we've received through history
to make sure that we didn't miss anything.
And I think that's about it.
Thank you.
[ Applause ]
>> Our next presenter will be Mary Anne Wiley from the Office of the Governor of Texas.
[ Pause ]
>> Good morning.
Texas has been involved in these issues for almost a decade now.
We had a couple of exonerations, some of whom you all have heard about,
the Ochoa and Danziger cases are probably the ones that have gotten the most publicity.
Those cases involved-- Ochoa confessed and also pled guilty and then he testified
against his codefendant Mr. Danziger.
However, they really weren't codefendants.
So another inmate several years later confessed to the actual crime and they were exonerated.
We also had other cases that were really almost more the pure DNA type of case.
After the Ochoa and Danziger cases came to the forefront in Texas, it became very evident
that we needed to do something in our statutes to make sure there was an avenue
that these cases could precede because there were kind of walls in our existing.
I think most of our states could say that just didn't recognize it this was gonna be an issue.
So when we first enacted postconviction DNA statute in Texas as Mr. Ware told you yesterday.
In 2001, we already knew that we had
to cover a guilty plea should not cut you off postconviction nor should a confession cut you
off postconviction.
So that's kind of where we started.
We've had to clarify that to make sure that the courts knew the true legislative intent
of the statute, make it a more crystal clear.
The other things that have gone on in Texas probably due to a lot of our criminal law,
which I'm not gonna try to advocate for or against here today,
but we have 156,000 inmates in Texas.
We have the death penalty in Texas.
I would say we're very active in capital cases in Texas.
There has been an extreme reduction leaving not only 8 people were sentenced to death last year.
1995 it was about 45, so even Texas.
But because of that activity, we've had law schools in Texas that have been very active
in innocence work, very active in postconviction work not just on innocence for several years.
The University of Houston, the University of Texas, Texas Tech University,
and we kinda have a new kid on the block for the last 3 or 4 years
and that's Texas Southern University.
As things began to develop when we saw the development and more exonerations in Texas,
state funding-- most of those schools are operating with their own funding
or with grants they were finding from the regular world, non-government,
private-- private type of funding.
We did start doing state funding to those entities probably 5 or 6 years ago now.
Minuscule amounts of like 100,000 dollars.
I'm not trying to you know say that they were fully funded by the state.
The state then also started acting with grants to the schools
to help the coordination 'cause what's going on in Houston where the University of Houston is
and what's going on to that Texas Tech University in Lubbock which,
let's say are about 600 miles apart.
We have prisons all over the state.
We needed to be able to have a way that they could coordinate with each other not
that they would have to share all of that with the outside world.
So even the Governor's Office then started allocating grant funds
to let them develop a computer programs that would let them cut
down on any duplication of effort.
So that has really been successful in Texas.
Those schools have an immense case load.
They are very diligent in what they do.
So when we saw the opportunity for the NIJ grant, that's where our first focus went to.
Let's see if we can get some more money to the people that already have the processes in place,
the people that have already started to review all of the cases.
I think Mr. Ware would tell you that-- what Dallas county started was an initiative
of Innocence Projects, Texas Tech Law School an assistance from the Wesleyan Law School
in Fort Worth, and another entity in Texas, the University of Texas at Arlington to try to be
of assistance in Dallas working toward where they are today,
with them, Mr. Ware a part of their office.
I will say in Texas right now, only the public law schools are recipients
of the state funding although we do have other private law schools in Texas.
I don't know if that will change.
The idea of being able to aid them by providing more investigators, more attorneys,
more travel money, more DNA testing just in it caused to those schools was to let them be able
to not have as many financial restraints upon them being able
to continue to develop their cases.
We thought hat this was going to be people beating at the door
of the Governor's Office processes grants in the state of Texas.
We though the walls would come down.
We thought that everyone would think that this was a small blessing that had been bestowed
in ready cash that they could accept, access.
Surprise, surprise.
Only 2 of the law schools have even applied with the Governor's Office for grants.
One of the-- I'm trying not to badmouth any other law schools but I'm gonna come close.
One of the leading law schools in the United States, see if you can figure that one now,
has with a very good Innocence Project, has been having trouble with their administration.
It's probably the easiest way for me to say that in being able
to apply for some of this grant money.
Now in Texas we only ask for 500,000, but now when I'm hearing
up here maybe we need to go back.
[Laughter] But if we're not getting any interest now, maybe that's not a good idea.
The Texas Tech University has made an application almost 211,000 dollars.
The University of Houston is in the process.
They've already given us a proposal but not a true application yet
and they earned about 167,000 dollars.
That's for additional attorneys, the travel,
cost of testing is they're gonna lay that out to us.
That's still leaving money in our pot.
Part of our motivation of course in trying to get this money was to perhaps have a bit
of helpfulness to what Dallas County has been going
through 'cause they have been very effective in being able to get your overall review
that has Mr. Ware told you truly led to a lot of exonerations.
Not that they weren't having some before the current system was put
in place but it is an ongoing effort.
So we thought by providing funds to Texas Tech, we could be helping Dallas County.
At the time we were having a lot of this discussion,
Dallas County was getting private grant funding.
I'm not sure anyone recognized the-- the volume of Dallas and inside or out.
So I think as Mr. Ware was telling you yesterday, things are getting tight.
So we're hoping that maybe some of what Texas Tech will be able
to do we'll be able to help them.
The great thing about what went on in Dallas in being able
to cure the problem is the retention of evidence.
Now, that has not happened all across the state of Texas.
We have retention limited.
Some of you saw may ask the question yesterday about plea bargaining.
One of our largest counties did actually puts like 50 percent of our folks
in the penitentiary, has-- they have a policy of plea bargaining.
>> The only reason that concerns me is because what happened in the Danziger and Ochoa cases
that we see the guilty plea, we see the false confession, and exoneration.
Mr. Ochoa of course is now an attorney today.
Thanks to efforts from, I believe, state of Minnesota.
But it-- we're still in kind of a conundrum, a quandary how do we take away some
of the fearfulness of people being exonerated and I'm not just talking
about from the victim point of view or the defense point of view, I let my client down
or anything like each just a little bit of--
none of us like to admit we've been wrong even though we may not have intentionally been wrong.
So moving forward in the big cities, we seem to be making progress there
because they have attached themselves to some of our Innocence Projects.
But we also have had the University of Texas' Innocence Project, they're in Austin,
has solicited in a nice way rural prosecutors and I'm talking about in a smaller counties,
let's say there's 50, 60,000, maybe up to a 150,000 to help prosecutors be able to go back
through their files, have you had request come in, do have need any assistance
in evaluating those cases 'cause I think as Mr. Ware explained to you yesterday,
having the prosecution and the Innocence Project, the defense being able to sit down
and look together is probably the best cooperation you're eve gonna get
in these situations.
None of the prosecutors took him up on the offer.
So we are continuing to try to see if we can spread these efforts in the state
of Texas, outside to the big cities.
Trying to work on why certain of the schools have not asked
for grant money, how can we change mind sets.
If even wanna think that less than 5 percent of the somewhat 35,000 people
in the state penitentiaries in Texas convicted of sexual assault cases or burglary
with intent to commit sexual assault.
I mean we're still talking about a large number of people if I just wanna look
at numerical statistics 'cause 5 people is too many, if we're talking 350, you know.
And we're probably between 30 and 40 that have been exonerated now in Texas
and a lot of them still in the pike.
So I really urge you all to encourage applications for this grant money.
I think it'll be essential.
I think you will find it rewarding that you have truly sought justice and I'm an ex-prosecutor.
I mean and I work for a very conservative governor and there is nothing embarrassing
about trying to make things right.
[ Applause ]
>> Our next presenter will be Pete Marone who is the Director
of the Virginia Department of Forensic Sciences.
[ Pause ]
>> Thanks Chuck.
I'd like to take this opportunity to thank NIJ for asking to give this presentation
on what Virginia's project has been.
>> So you got it up.
>> Okay. I think from a standpoint of looking at what laboratories are used to
or what laboratories think about when we're talking about postconviction.
From a laboratory-- I'll step over here and say from a laboratory standpoint, lab say,
"Well gees, how do I know what cases I'm talking about?
All I know about all the cases that are coming in the door
for receptions unless somebody tells me I have no idea what I'm looking at."
And yes, we may get 1, 2, 3, 5, even 10 postconviction type requests that filtered
down through the defense community.
I'll speak very bluntly.
They have to fill out the same paperwork for 10 cases
that I have to fill out for 7 or 800 cases.
So to get the 100,000 dollars in there, you know, for their project for whatever it is
that they wanna do, they look at it and say, "I have other bigger grants to apply for
and I'm not going to-- I can't do that.
How am I gonna fit into my mechanisms?"
And so they pick and choose.
Not to say that at least of what just-- that one the solicitations come out,
you've got four weeks to get them back in,
that's if you see for them write at the same time.
So there are a lot of logistical problems on laboratories
who don't have grant writers to put these projects together.
This is no news to NIJ.
We'd set it a couple of times up at the Senate and House Judiciary Committee meetings too so.
Anyway, you heard yesterday about how Virginia's project began
and really it's entirely different, 180 degrees different
from what most of these other projects are.
We were in the situation where we had to identify where the cases are
as it happen the first 3, 4 cases were exactly as most folks are the defense would ask for.
In most cases, you know, the request go out to the police department, to the courts,
and everything, do you have any evidence left in this case.
In that particular instance in a number of cases, the evidence folks,
the records folks would go in and look for the chain of custody and say, "Nope,
you know officer so and so signed everything up and we don't have anything."
In a particular instance that started the ball rolling.
Our director happened to get the call, look over the request, pull a folder out,
and in very colorful language exhibited his surprise at what he found, "Holy cow!"
And the rest kind of is history.
The first request came.
The second request came.
And then the governor sat down and said, "Look if this is the way it's going,
we really need to see how big is this picture, you know, what are we talking about here."
And I'll show you exactly what we're talking about.
Mary Jane Burton was an examiner in the agency and for historical purposes it went
from a bureau to a division to a department but that's beside the point.
We discovered-- actually folks knew about it but really didn't think about it,
had the pension for keeping her analysis ends in her case file, right under her
and you can't see it too close so we'll blow it up, that what it was.
Okay, so they were her notes up top.
I'm told that this-- they're not done work-- is that it?
No. They were her results on top and she-- no brand names, scotch-taped the--
dried out and scotch-taped the samples that she had collected and used.
A lot of folks have described it to her far thinking
that it would eventually be used for things.
Mary Jane actually was very adept at demonstrations.
She was big into showing the jury.
Here it is-- these are the cuttings that I made.
You can see the tablecloth and such and such and here are the actual samples
that I collected from wherever it was.
So we had these particular types of evidence
and a very select limited universe of cases that we had to do.
So after the Marvin Anderson case which was the last of those that came by way
of Innocence Project with the defense committee, Governor Warner at the time said,
"We've got to carry out this evaluation.
We've got to move on."
And we got a letter through the Governor's Council telling us this is what we want you
to do.
And it was a discussion back and forth based on discussions with Paul Ferrara
who was the Director at the time and the governor.
And the governor's follows up the council.
They sort of setup the parameters for what the testing protocol would be.
And the letter from Bob Lou, the Governor's Council list number one
that we're gonna do is sexual assaults 'cause this is the sampling.
Let's see how big of an issue we have.
It will be sexual assaults and obviously we had to have evidence in the case file,
a named suspect, and that that suspect had been convicted.
Not necessarily the crime that, you know, they came in for or were tried for,
but that conviction had to be in for sexual assaults.
And in addition to that, that we had since--
again it was a sampling there had to be a significant amount of seminal fluid
or sperm identified in the case file.
So it's not a method now of going back and determining is there evidence
and what evidence is probit of that determination was made 30 years ago.
>> When the examiner made the assessment, it was what was probit of it at the time.
She ran the original test.
She made that determination.
So what was meaningful in that case at that time?
So that was already there and those are the samples that we had to work with.
Some of them were known samples of the victim and the suspect.
And I'll be quite honest with you, if you go to the best practices book on how to preserve DNA--
or how to preserve evidence for future DNA testing, this ain't it.
Okay. That was not the intent at the time, the processor whatever.
We had no idea, okay.
You don't keep them.
But what I can tell you is, I know that the scientists are familiar with the old ABO typing,
many of you attorneys might be but I'll go over it a little bit.
The process for ABO absorption-elution testing required that those samples,
you add NSR [phonetic] to it and a lot of bunches of washings and everything like that.
And everything else that you're doing all which you would think would preclude further testing.
So if you're worried about how do we preserve it and I hear it by talking
about getting freezers upon freezers upon freezers.
This stuff was washed to beat the band, dried out, scotch-taped on those sheets,
put in a file folder, and stored away for 20 to 30 years.
Dry conditions, evidence storage but--
you know, the state library who keeps our records has several warehouses
that are controlled on-- environmentally controlled that is, you know, it's not too hot,
it's not too cold, the humidities here for document storage.
But the damn places look like the scene from Indiana Jones, right?
And they find these boxes.
So we did the 10 percent study, if you will.
Governor of course comes out with a press release and he says, "You know,
I believe I looked back at these retained case files.
It's the only morally acceptable course.
And what truth they can bring only bolsters confidence in our system.
Our Department of Forensic Science has taken an impartial scientific and unrelented approach,
yeah, yeah, yeah, there's a whole 2 pages worth of it and we begin.
And at the time, he also said, "And, oh by the way,
I'm gonna front 1.4 million dollars to get this thing off line."
So this is long before NIJ came around, we were putting this system in place
and we had the support obviously,
the administration 'cause let's face it 1.4 million dollars is not some change.
So we begin that-- oh, by the way, of the initial 10 percent,
31 cases were identified that went on for testing.
So that was 60 or 70 boxes of case files.
Now one of the other things you have to keep in mind is 1973
to 1989, there were no LIMS systems.
Everything was kept manually.
So we knew what the case numbers were but we didn't know what kind
of cases they were or who worked them.
So literally we had to pull all of the case files of everything that had been worked
in the agency from those timeframes.
And initially when the governor said go forward with the full review, [pause] we started
with a 160 some thousand case files and several hundred boxes of case files.
And at the time, going into it, Dr. Paul said, "Oh, it'll take a year to 18 months."
And as we got into the process we sat down and said, "Okay, now we're not appellant anymore.
We need to look at not just sexual assault cases.
We need to start looking at all of them where there's a conviction."
And we expand it too and the governor concurred to, I'll lump it into a terminology of crimes
against the person, homicides, the egregious assaults, and so forth.
In other words not being eased, you know, not property crimes and that was agreed to.
Wow, that went fast.
So the full review then goes.
And the criteria for the full review was as I said, evidence in the case file,
name of suspect and a conviction.
It went from as 160 some thousand case files
and we were sitting there and saying, "You know what?
Mary Jane worked the cases from other labs."
During that timeframe there weren't enough examiners
and if there was an overage we shift cases around.
And there are some people not a lot, but there are some people
who may have done the same process as her, you know, god forbid that we go
through a 164,000 case files and somebody asked for another one from another laboratory
and it's oh, my god there are still others out there.
So we had to go back and do them all, half a million cases
to make sure the criminal justice system got it right.
So over the course of the project, we retrieved 534,000 case files
and those case files were reviewed by hand, page by page.
Drug cases, firearm cases, all kinds of stuff making sure
that if we had a report, there was an evidence there.
And there was other evidence beside this kind of evidence
because our medical examiner also had circumstances
where they gave us just a blood sample.
Maybe it was in an automobile accident and they stored it and said here, you know,
retain the stain for future analysis and that stuff was
in there too because Mary Jane kept that all.
So we have to sort that out and very early on we realized, you know, it's not automated now,
we better start inventorying all these stuffs so that if questions come down we'll be able
to pull it back out and not have to go through them all again.
[ Pause ]
>> So we ended up with 534,000 case files.
Now as part of that process-- and oh by the way, putting together this inventory system,
we thought to be pretty easy, you know, what kind of data do we wanna keep, jurisdiction,
case number, victim's names, suspect's name, all that kind of stuff
and literarily listing what the items of evidence were
so we knew what we were dealing with.
And every time we came upon something was, "Oh, nuts go back, change the system again,
add more fields of things we wanted to track" because if you're doing this thing on the fly,
it's like, you know, you're a thousand-- but when the files were identified,
we had case evidence there placed aside so we didn't have to go
through them all again just the case files were to collect more information as it went.
So this was an on again-off again,
two-step forward one-step-back process to actually identify all these.
As part of the process, we met with the Commonwealth Attorneys who are our prosecutors,
law enforcement to get there by in to it, and we met with the Innocence Project.
Not necessarily all at the same time.
I must admit.
Some of the folks wouldn't come to the table.
So we met with them all and based on consultation and such, we decided--
first we were going to report out only those cases
where we didn't identify the individual's DNA.
I-- for reasons that have come up before, we hesitate to use the word
"eliminate" 'cause immediately it translates to exoneration.
You don't wanna go there.
So where we didn't have the individual's DNA we were gonna write reports and those
where we included the guy was like a-- okay, why do we have to beat them over the head again,
you know, he's already been convicted.
We don't have to-- or those cases where we just didn't find anything.
The original intent was, well, we probably won't write those reports but based
on the consultation from the stakeholders we said, "Okay,
we're gonna start writing reports on all of them."
So we had an initial batch of cases that we had written reports for those
that were eventually exonerated and then summaries
to the Governor's Office 'cause that's why we were doing this.
Because the governor said, "Go forth and do this."
So we ended up going back.
I'll get their check don't worry about it.
The bigger part-- the more complicated part was,
remember one of them was determine whether the guy's convicted or not
and I gotta watch him because he's paying the bills.
Convicted or not-- again, 1973 to 1988, think about the condition of the records
to determine if the individual's convicted.
Now you may say, "Well, correction should have that.
No they got that the guy's convicted."
Not necessarily, and some of these individuals were convicted multiple times,
how do you figure out which one it is, and so forth and so forth.
And so we in conjunction with the prosecutors, Commonwealth Attorneys,
state police who have access to conviction data too, and the clerks of courts who we've--
over the years got a pretty good working relationship with them because we go testify
on the courts all the time and file stuff back and forth, got them to send us conviction data
on these folks and that conviction data was compiled.
All of it wasn't the same.
Some of it was contradictory, you know, one showed this, one showed that.
And one of the other things that is very nice at our agency,
we have our own staff council and paralegal.
Not attached to anybody else.
She works in the office right next to mine.
And so we had an attorney reviewing that conviction data to be able to determine who--
you know, who is right and who is wrong or where it was
and if there was confusion she would be making the calls to try to sort it out, so we had that.
And that, trust me, is a labor intensive process.
This, by the way, is all before the NIJ grant.
[ Pause ]
>> Okay, one of the other things that was directed by the governor was,
you're not gonna do it in house, you're gonna send it outside
because I don't want your case backlog to go up because of this, so you go out
and it all be done in a private laboratory.
That laboratory has to be accredited.
Site visit the whole 9 yards.
And in February of 2007, we began transferring cases by the lab.
So here's where we are.
750 cases have been sent to the contract laboratory, roughly.
400 have preliminary results.
Sometimes we got results.
Sometimes it wasn't as good as we wanted so we told him to go back
and do some further work, sit and get more data on it.
We've gotten preliminary results on those 400, 350 are still up there had been sent
over the time and there's still a hundred hanging out there that we are still trying
to find conviction information on.
Again, it's not an easy thing to do.
Postconviction testing program, ours from the beginning was unprecedented in scope,
no map to follow, yet we moved forward.
I mean this is something that we hadn't done before.
Nobody had done something like this before in this scale.
Instituted by Governor Warner, strongly supported by Governor Kaine,
one of the first things I-- meetings I had after my appointment in 2007 was I got a meeting
with the big guy and you know, you wanna talk about intimidation, and I got to sit there
and he got to sit here and I had to explain this project to him
and told him what we had projected it may cost, you know, several million dollars
and he just looked and said, "Well, whatever, we gotta do it."
So if you can get that funding that's fine, if not we'll have to find something else and move
on so that the support that we had has been unbelievable.
In addition to that and sort of after that, the defense community said, "You know,
you really need to go back and notify everybody," and actually I suggested
who hasn't had the newspaper ad, okay?
I said, "You know, why don't we just, you know, like treasury does, send this thing out,
the unclaimed accounts thing, send it out.
You don't have to name names but say we have this project and this is what we're doing
and at least try to notify the folks," and that was poo-pooed.
I don't remember what the reasons were but a lot of folks didn't like that idea.
So we began-- as I said, the defense community wanted us to go out
and notify not just the ones we to identify but all convicted individuals
so that would pick in the burglary guys.
We identified 1,051 who were eligible to be notified.
845 of those are still living, 206 will be determined to be deceased.
317, we've identified confirmations.
We went out, you know, returned receipt and the whole nine yards.
317 of those were confirmed notifications.
100 more have their returned receipts but we really can't make sure
that that's the right guy anyway and there's still 528 that aren't confirmed addresses.
We don't have good notifications.
Our intent is we write reports, we sent them to the prosecutor,
we sent them to the original police department, we send them to --
if an attorney identifies himself with a client, the defendant notifies himself
or notifies us he wants the copy the work and we'll send it.
If we have these confirmed notifications, we're gonna send a report to that person too now
that we're sure of the address and anything else we have will be turned
over to pro bono attorneys who wanted to get into it, that was fine
but they also wanted a lot of the information that we had, at least that was part
of the process and although I don't say no, I don't wanna work
with them, I can't give them the data.
They wanted the whole database that we had and I can't give them that because that's got
so Social Security numbers, date of birth, and all that kind of stuff and I had no coverage
on it as far as releasing 'cause there's a lot of code sections saying you just won't do this.
So it's now in process.
The legislature saying you will have the authority, that bill is in process
and after we've gotten kinda coverage on liability and all that such, you know,
it'll move on to let them continue to try to identify those individuals.
So that's where we are.
[ Pause ]
[ Applause ]
>> Thanks very much to our.
>> Sure. Our final presenters will be from the State of Washington
and it'll be Jacqueline McMurtrie and Gary Shutler.
>> Hi, I'm Jacky McMurtrie and I'm the Director of the Innocence Project Northwest
at the University of Washington School of Law, so that's the hat I'm proudly wearing today.
It's an honor to be here and I feel especially lucky to be here to talk about money
that we receive from the National Institute of Justice that will help our project
and most importantly, help our clients.
But really the only reason I'm here is because of the collaboration that exists
between our project and the Washington State Patrol Crime Laboratory and it's
because of Gary Shutler and the other folks at the crime lab who have such talent
in obtaining grants and obtaining funding and such a good track record with the NIJ
that I was even able to squeeze into this without--
with the effort coming from Gary and his folks.
So in order to understand the sort of the collaboration that we have,
I just wanna give you a little bit of history about Washington state
and the postconviction DNA testing statute because it's unusual and I don't think
that many other states replicate it.
My project, the Innocence Project Northwest was started at the law school in 1997
and we do both DNA and non-DNA cases.
And currently it's a clinic, I work with 10 students at in the law school and we work
on cases throughout the year and we're a very low budget operation.
But nonetheless, in the years that we've been in existence we have been able
to successfully overturn the convictions of 13 individuals and there's nothing
like a success that breeds requests.
So I'm sure that the applications will come pouring in to the other projects.
I think one of the things that Gary and I have realized too just in sitting here is
that we need to think bigger for next year because we're gonna talk to you
about the Beer Budget Application of a little under 300,000 dollars that Washington state put
in to the NIJ and we have gotten ideas from sitting here today about ways to think bigger.
But-- so don't anybody else apply for money 'cause [laughter] we want it all next year.
So in Washington state, we've had a postconviction DNA statute since 2000
and it's changed a bit but what's always remained the same, that if the court--
if testing is granted and now it's a court that-- the application's made to the court
and if they are authorize the testing then the testing will be done
by the Washington State Patrol Crime Laboratory.
So over the years, our project has had [noise] a wonderful relationship with the great people
at the Washington State Crime Lab.
I can't say enough good things about them.
They are great in approaching this work.
As the scientists that they are, they answer all my questions and talk to me about the cases.
There's no problem in terms of getting a profile,
when it's obtained, uploaded into CODIS.
There's no question when the prosecution get the results from the crime lab
that they are going to be respected.
And so, it's really been a wonderful opportunity for our project to work with these folks.
And it was the careful work of Phil Hodge, who's one of Gary's colleagues, on one of our cases
where he approached the evidence very carefully and a very thoughtful manner and conducted tests
that resulted in Washington state for the first time reversing convictions based
on postconviction DNA testing.
But as with any other public servants,
there are things that we thought could be improved in the collaboration.
And so, I guess the next slide.
So I think I'll turn over to -- Gary and I kinda share this presentation,
sort of the limiting factors and I'll talk about the first couple because they have to do
with the project, is looking at these applications.
We have a filling cabinet filled with files and some
of those we've looked at, others we have not.
And so, we've got a backlog of cases that we really need to review to determine whether
or not there is any kind of legitimate postconviction DNA request that could be made
and in order to do that, we-- as was pointed out in the earlier panel, we do a thorough review.
We get the police reports, we get the transcripts, we get the laboratory reports,
we get all that background information before proceeding with a case and it's time consuming.
We just found out that-- we found some transcripts recently
in the Seattle National Archives.
I didn't even know Seattle had a national archives but they had the transcripts in cases
where the court reporter of the court, the prosecutor
or the defense attorney didn't have those.
So it's a time consuming process.
And then finding the evidence is also a treasure hunt which is time consuming.
So we needed more people in order to be able to assist in that process.
>> Thanks for those kind words Jacky.
One of the things that puzzled me was, you know, when you look at other states
that were doing postconviction DNA testing, there seems to be a lot more demand
for that testing and I was always wondering why we only got maybe two or three cases a year.
So, you know, talking with Jacky and you know, trying to identify some of the bottlenecks
and that's one of the nice things about the NIJ folks, is that, you know, their old capacity,
enhancement grants, and then with the forensic case or backlog reduction grants.
They're always looking at enhancing your capacity by removing bottlenecks,
so why not apply the same process to the postconviction DNA review?
So we're looking at what our limiting factors were and that was--
essentially a lot of it was at the front end of processing the applications
which is really outside of the crime lab.
But, you know, looking at crime lab resources like my other fellow crime lab employees
that are faced with the same problem, you've got these large backlogs that, you know,
are almost chronic and you've got the demands for getting cases turned
over really quickly because of public safety issues.
You know, somebody out there is about to commit the next crime.
So with all these demands, you know, one of the bottleneck resources for us in terms
of processing postconviction cases is manpower
and grants generally don't solve the manpower problem but, you know,
at least if you can expand it temporarily to address the issue, it certainly helps.
And the other thing too is that we, you know,
especially DNA testing, we didn't have Y-STR's online.
We're validating it but we don't have it online yet
and we don't have mitochondrial DNA testing capacity
and the FBI regional labs aren't really setup for postconviction DNA testing.
So those were the limiting factors for-- that inspired us to go for this grant.
>> So to deal with that first bottleneck again, we got resources to get paralegal consultants
to assist in reviewing the file applications in order--
in tracking down the information that we needed, the police reports, the transcripts,
trying to determine through phone calls what actually happened to the evidence,
whether it still exists and if so, where is
and also ultimately assistant filing the applications with the court.
>> Then second component of our grant application was
to hire one experienced DNA scientist and just by fortuitous luck, there was somebody available
that wanted to move to our Vancouver lab and the person already was trained with some experience.
I'm sorry Oregon, we stole one of your people but [laughter] the--
having the additional capacity, we could argue that we could turn
around the postconviction cases a little bit more 'cause we do compensate and so,
we're taking away from the urgent cases coming in or efforts
to reduce the backlog so it's complimentary.
And the third component of our grant too was to outsource the specially DNA testing,
the mitochondrial DNA and the Y-STR typing.
So there's a component in our application to deal with that too.
>> And so, in terms of implementing the plan, and then there's the picture
of the law school on the background.
This is also serving as a travel log for Washington state.
So we're doing our job as ambassadors here.
That person's going to be supervised by me, again, in order to determine whether
or not the criteria for testing are met and as we've stated before,
to assist just in this lengthy process of--
and very unglamorous process of gathering all the documentation for review in order to make
that assessment of whether we should go forward in postconviction DNA testing.
>> And as part of the implementation plan, it's either myself or my colleague Phil Hodge back
in Seattle, we've done a lot of declarations in support of postconviction testing.
We're working closely with Jacky and her staff.
We will write a declaration to sort of verify that DNA testing can make a difference
in a particular case and that I think has helped in getting some
of those applications approved through the judge.
And with our project, just because we have the individual compensating
for the additional postconviction work at one lab, you can still submit to all five
of our labs to do postconviction testing.
And then challenge is-- was finding an experienced forensic scientist and one thing
and it's kinda sad but it's part of the times now where our budgets are being constricted
and there's actually, you know, scientists being let go.
So there are actually experienced DNA scientists out there looking for work.
So, you know, if you include that as-- in your project application,
you might just find somebody and save you about 1,000 dollars getting somebody who's experienced
without having to train them fresh from university.
>> And certainly, setting up the paralegal consultant especially in terms of coordinating
with two big bureaucracies, State of Washington and then the University of Washington.
Being an inexperienced person in requesting grants, I'm still trying to go--
work through that process and indirect costs are something that have to be contemplated
in grant applications in the future.
So-- but I'm sure we'll be able to work all--
through those issues and look forward to getting more applications
into the lab to do additional testing.
We've got probably about seven cases that are currently backlogs so that having a new person
on board will certainly help in getting the ones that we've already had processed tested.
>> Okay.
>> Thank you.
>> Thank you.
Any questions?
[ Applause ]
>> Yeah, a little bit.
[ Inaudible Remarks ]
>> Okay.
>> I'd like to thank all of our panelists and open it up for questions.
We are right on time actually.
So it won't be a little later till lunch but Greg you have a question?
>> Yeah. First of all thanks Gary and Jacky, you both-- we've--
I've worked with both of you and took your DNA course on mixtures, Gary and it's great
to see this type of partnership and that's the kind of things I hope to do.
I did have a question and you mentioned at the very end [laughter] about the indirect costs.
So when we have partnerships, university, other state entities, is that something you're going
to negotiate next time when you ran into a little bit of sticking, a little trouble with
or what's the real story on that?
>> It's a slipping point and I think part
of it is just my inexperience with the grant applications.
I was just kind of swept into the process by, you know, a knight on a white horse
who offered me money to-- for help out with the project.
And so, yes, if you're part of a university you should first consult with your office of grants
and make sure that they're on board and they're reviewing the applications prior
to it being submitted.
>> But the NIJ allowed for that type of negotiation to go on?
>> The Washington State Patrol was the grant-- is the grant applicant.
>> Okay.
>> And they sub-- they're subcontracting with me
and I'm subcontracting with paralegal consulting firm.
>> Yeah, that's kinda one way around it because we, you know, we're state agency
so we can subcontract and it's kinda getting around some of the restrictions, you know,
that the universities have 'cause they take a pretty steep cut in grants
that go directly through their administration.
>> But they still see my subgrant as being a grant
that should have 56 percent indirect costs associated with.
>> Now, UW's football team definitely needs some [laughter] additional funds I think,
for tough seasons.
>> Yeah. Thanks, Greg.
>> I do have one question I wanna put out to the panel before we break
and I have some housekeeping items.
One of the challenges that I've heard as the program manager for this program
from the States is that they are having a real difficulty getting the buy-in
to have these certification signed by the Chief Legal Officer of the State and obviously,
we have five states sitting here who were able to do that.
>> So if anybody would like to speak to any speed bumps that they encountered
in getting these signed and how they overcame that and got the buy-in
from the Chief Legal Officer, I think the audience would be welcome to hear that.
[ Pause ]
>> The--
[ Inaudible Discussion ]
>> In our particular case, fortuitously, staff council was a former assistance AG.
She knew [laughter]-- she knew this that the--
who to talk to, who to grease the skids with, and speaks very eloquently.
And still with that, the only reason we were able to get it through was we got the buy-in
with the first go-round with the first grant application that nobody got.
And so, we still had it and held 'em to it for the second ground--
second round and so, we had with it but that grant application was-- I mean it's--
[ Inaudible Remark ]
>> Did you say 30 seconds?
Ours was rated 5 o'clock.
It's problematic to get the paperwork together.
It is extremely problematic and it's more problematic when agencies have to go
through their own state bureaucracy, maybe their criminal justice services, agency or something
like because every time you do that, it sits on somebody's desk
for a significant period of time.
And like I said, the specifics of those solicitation come out and you've got four weeks
to meet it and you don't know what those are gonna be and really until it happens
and that what's it make problematic.
What was good in this particular instance, they didn't change a heck of a lot
from the first go-round to the second go-around so a lot
of the question were already answered with our first application.
>> In part, the certification requirement seemed a little bit odd.
I mean we're happy to certify obviously we're one of the applicants.
But here, the certification was that your state had in place a mechanism for preserving evidence
and I think therewas some level of frustration that were the funds are available
to do testing obviously where there is some evidence that's there and so,
there's a frustration that if it's a requirement there may be some corner
of the state that's not preserving evidence, that that is an impediment to the rest
of the state getting money to do the testing for evidence that is available.
We at the Arizona Attorney General's Office, we did a survey of all the county attorneys
and this wasn't a scientific survey.
We did not have a statute in place at the time.
So we just-- we surveyed law enforcement, we surveyed defense attorneys,
and we surveyed presiding judges in the different counties around the state
to get the certification, to get a comfort level that our Attorney General would sign off
and say that yes we do have a mechanism in place to preserve evidence.
But I do wonder if that's-- in the future if that's a requirement that is serving a purpose.
I understand the purpose or I'm guessing the purpose is try to encourage states
to put a mechanism in place to make sure that evidence is preserved but in some ways it's kind
of odd to tie it to the grant request.
[ Pause ]
>> Just a comment on that.
I think Washington state barely made the threshold on that
because the law does mention preservation of evidence on that but it's not all encompassing.
It focuses more on once this has identified that postconviction testing can be done then it's--
you're obliged by law to hold on to the evidence but I think that's an area
that could be improved by our legislators, I'm sure.
>> And we do appreciate-- we did use this, I mean our efforts with the legislature
and just noted that this was a requirement.
So it's not that it's a horrible thing and we now have a statute in Arizona.
We think the practice before was to preserve and we obviously can't guarantee
that every single person, but it has served a useful purpose at least
in terms of getting legislation enact it.
>> And that was before I take nationals and that was the purpose in easing the requirements
by changing it to the-- into the new solicitation to just assign certification rather
than all of the legal documentation that had to be submitted along with the first round
of applications that were-- where the award money was never put out.
This was decided to be the next best mechanism at this point.
It maybe addressed in the future but I can't speak to whether or not that's gonna happen.
Our next question?
>> This is for Charles.
What are the requirements for the 2009 grant applications for DNA preservation?
>> When the announcement comes out that the solicitation has hit the streets
in late February or early March, you will see some language change hopefully.
We propose some language changes that are under review right now
which will hopefully make it easier for state agencies to apply for this funding,
may be multiple state agencies from the same state.
But we will not know that until it comes back from the final--
Office of Justice Programs review back into NIJ.
But there have been some changes that will hopefully make it--
the requirements easier for everybody in this room
to make an application through a state agency.
That being said, we're going to go ahead and break for lunch.
Oh, one more question?
Yes. Can you go the microphone, please?
[ Pause ]
>> For those Innocence Projects in states where for one reason
or another they can't get agreement of the tops legal officer in that state,
is there some reason why the Innocence Projects can't apply without that?
>> I'm sorry?
>> I'm wondering why the Innocence Projects can't apply
for this grant [simultaneous talking] without the approval of the attorney general?
>> The language, as I recall I believe in the Bloodsworth Access
that the money will be distributed by the mechanism of grants to states
and that interpretation is grants to state agencies.
The Innocence Projects are not state agencies.
>> Okay. Well, what about the courts?
>> Again with the new solicitation, as it comes out there maybe an approved language change
that will make it easier for state agencies to apply, more state agencies to apply.
>> Thank you.
>> Sure.