Post Conviction 2009 : Evidence Location, Retention, and Preservation

[ music ]
>> Good afternoon.
Hi, I'm Rebecca Brown and I'm policy analyst with the Innocence Project, and I'm joined today
by William Vosburgh, laboratory director for the Consolidated Forensic Lab Project
for the District of Columbia; Christopher Plourd, a San Diego based attorney
who has litigated a number of innocence claims, and retired police Major Kevin Whitman
from the Charlotte-Mecklenburg Police Department.
For more information about each of the panelists,
please take a look at your program guide.
Together today, we will be addressing why the preservation of biological evidence is critical
to post conviction case review, and possesses the additional benefit
of helping to solve cold or unsolved cases.
When I came aboard at the Innocence Project,
I was struck by how few criminal cases even possess probative biological evidence.
Soon after, I was stunned to learn that our office was forced to close countless cases
in which there were viable claims of innocence, because evidence had been lost or destroyed.
At our office, just under one quarter of the cases with viable claims
of innocence were closed between 2004 and 2008 because evidence was lost or destroyed.
Historically, little is done to ensure the proper preservation of biological evidence,
because it's probative value was not yet understood.
Our governments can be forgiven for failed to anticipate the future potential
of preserved evidence, but we cannot perpetuate the situation in light of DNA testing's power
to provide justice in some of our most serious and violent cases.
The proper preservation of evidence is a goal shared by all members
of the criminal justice community, from defense lawyers to crime victims, to law enforcement;
to identify solutions to a crisis that will only grow
with time unless evidence management tools are put in place.
Considering the fact that there are inconsistent policies and practices across jurisdictions,
even within states, I think it's fair to say that we have reached a tipping point where all
of us are seeking answers to questions involving an incredibly complex issue.
And today, we're gonna begin to explore that.
Each of our panelists are going to talk for about 10 minutes to provide a brief overview
of their work, offering their different perspectives
on how evidence retention issues impact post conviction case review,
and their respective areas, and then I'll open it up to the audience for further discussion.
We'll begin with Mr. Vosburgh.
[ silence ]
>> Thank you Rebecca.
Good afternoon.
It's great to be here.
I'd like to tell you just a little bit about the project that's going on in Washington D. C.,
our nation's capitol, where the metropolitan police department has been the beneficiary
of great friendships with DEA, ATF, and FBI for many years.
We've also seen kind of a fragmentation
of how our laboratory work has been conducted in the past.
In the post 9/11 world, agendas changed and certainly FBI, DEA,
ATF all said we'd like to move on and why don't you get your own lab?
So we're working on that, and part of the ambitious consolidation is
to put the medical examiner, public health lab, and crime laboratory under one roof.
Certainly Washington D. C. did have anthrax deaths,
so this becomes an important feature of the consolidation.
There will be BSL 3, biosafety level 3, rated facilities within for both public health
and also isolated autopsy within this facility.
Also included is a civilianization of the crime scene technician group.
We view the crime scene techs as the front edge of the laboratory.
This is really to say field scientists, to prevent any problem as far
as understanding what the capabilities are of the lab at the scene;
to coin the old term 'garbage in, garbage out', we don't want to see that.
We want to have a continuity of effort from crime scene into the laboratory.
Certainly over the last 30 years we've seen a case where the science has gotten ahead
of the law, which is why we're here today.
DNA testing wasn't really around before the mid '80's, and all of the sudden it's the big deal.
We don't know what the next new technology will be,
or we only have a twinkle in our eye about it.
So various statutes get passed saying let's hold onto evidence forever.
In D. C. the Millicent Allewelt Act said we hold onto biological evidence for 65 years.
Nobody had actually done the math on this.
I came along and said wait a minute, the average homicide case is about 10 cubic feet
and going back over the years to get an average figure for how many homicides per year,
which was high of 200, I realized that within 30 years we were gonna be at 60
to 70 thousand cubic feet, just on homicide evidence alone;
potentially on funded mandate to build labs.
So I think the point there is that we need some cooperation, which seems to be the theme
of the meeting today, with prosecutors to allow us to purge some
of the evidence that's kind of cluttering up the attic.
We have things, not part 1 offenses, but basically clutter - property crimes,
possession drug cases, that nobody will sign off on.
So all of the sudden we're a wash in this stuff.
We also really need lab information management systems, bar-coding, case management systems,
the ability to track what we've got and correlate so that we can understand it,
and then data mine it going backwards and say what are the trends?
In any event, I think that everybody says in this business, well yeah let's use that cliche.
Let's lock 'em up and throw away the key.
I think the key is evidence, physical evidence.
And the privy of the laboratory, as Dean put it earlier is,
let's answer a question about that physical evidence.
And the lab is customer service based.
We are serving the front end customer, the investigators, the prosecutors,
but we're also serving the victims and the suspects as we clear many in these cases.
And certainly when we clear people, either before or after conviction,
it's a validation of what the lab does.
Certainly this is a very good thing.
Let me just go to a brief sort of journey through some of the trials I've had.
I did meet with Shawn Armbrust from the Innocence Project in D. C. a while back,
and certainly was eager to entertain her request to be involved as far as opening the door
for post conviction examination, and then that brings me to where we are here...
which is the warehouse.
The question that became the question every week for the last year has been, what's your backlog?
I have no idea what the backlog is.
That's the problem.
So I can kind of get there by fuzzy logic, but once again I can't say,
here's the spreadsheet that shows what's going on.
This is a problem nationwide, and certainly some ways are ahead of it,
we're behind it a little bit, but showing all best effort to catch up.
We have a 40 year old warehouse and it doesn't look a whole lot different than that picture.
So you want to test something?
Well certainly we've already heard how money rules the roost here.
No money, you're not really gonna do much.
Finding the evidence is this big problem, and you need this team approach.
Basically computerized management system becomes the backbone of any effort.
So when I see that ugly looking warehouse I say, it's not worth inventorying what's
in there unless I've got a computer system in place.
So we've spent the last 9 months really trying to get a handle on what the system should be,
installing it, and getting it up to speed.
So as I'm building a new laboratory, I'd like to launch it into the future with no backlog.
We expect to break ground this spring,
and I would like to put the past behind me after the ribbon cutting.
So my assessment is I have 3 years to get a system in place, inventory the evidence,
answer the question what's the backlog,
and not just current backlog but any post conviction issues.
Let's find out what is going on with this evidence.
I took a global approach to the problem.
Everybody said, well that's a really great idea, you want to analyze all this stuff...
and the numbers were just horrific, just all over the place.
So I went up to the research department and I said, could you tell me how many homicides
and rapes have occurred in the last 40 years in the District of Columbia?
And within a day they had the sheet for me.
I said, well there's the universe.
It's a finite number, something to work down from.
So in the case of homicide I was able to get the full list of homicides going back 40 years.
Well that's the global number.
I then go into CID commander; I said what's your closure rate?
He says well, it's around two-thirds, somewhere in that ballpark.
So I've got over 10,000 homicides over 40 years and I say okay, 3,300 is probably pretty close.
I walk into cold case and I say, how many cold cases do you have?
3,483. So the point is, there was a number, the fuzzy logic worked, we got close,
and I'd like to start with that spreadsheet that enumerates every single case by CCN number,
by victim name, and then build down from that.
You start with this universe of cases, but then you want to look at cases that are closed,
that are open, evidence was collected, no evidence was collected,
was sent out for testing; basically work your way through, get all the way down so
on one spreadsheet shared among all the stakeholders,
we can see the problem and work our way through it.
The good, the bad, and the ugly.
The problem is that we're still running on a paper system,
so when you get down to the sec squad and you ask them, what are your open cases?
We had a period of years where...
cases were decentralized back to the district.
There was no central CID sec squad, which caused absolute chaos as far
as tracking case jackets and folders.
So we've got detectives, case jackets, we've got the crime scene investigator's case jacket,
we've got what's at the warehouse, and there's no way to reconcile those 3 things.
Also is, evidence has been sent out and reports have come back.
Sometimes copies haven't hit all 3 folders there.
So was this thing sent, wasn't it sent, this just keeps going on and on.
Chain of custody, and then of course some of this stuff is lost.
Nobody knows what happened to it.
And we've heard many accounts for where it could be hiding.
It is really endless.
My goal was try to be methodical enough so that after the lab opens, the number of cases
that we hadn't accounted for is as close to zero as possible.
So it's basically energize the group to that mission.
In the lab we want to know what's most probative,
certainly a crime scene reconstruction can help focus on that.
Laboratories tend to get dump trucked, where nobody wants
to make the decision what not to analyze.
So we collected 100 items of evidence, let's just shove it into the lab
and see if they can solve our case.
That kind of approach won't necessarily focus on what is most probative,
what is most interesting, what am I looking for exactly on this item of evidence?
I like to use a tiered approach and say, these are tier 1 items of evidence,
95 percent or higher rate of success.
Let's go ahead and rate tier 2 evidence and tier 3 evidence.
Doesn't mean we're never gonna look at it, it's just that based
on our crime scene reconstruction we'd accessed what we think is the probative sequence
to go after.
Certainly a problem with degradation in most older warehouses - no environmental controls.
I look forward to building a new warehouse, which is a project that's under way.
They were looking at mechanical retrieval systems, very expensive.
And I said, if I'm storing evidence for 64 years,
I don't need a mechanical retrieval system.
What I do need is environmental controls, a computer system, and a very clean
and neat building that's rat proof, so that I don't have boxes getting chewed into.
I mean it's a very basic thing, but if you're gonna hold onto this stuff
for all these years, it's gotta be in good shape.
Challenges, got people?
Well first you gotta have money.
The people issue is, I think where we come together.
As I've talked this project up amongst the various stakeholders,
I said I need a lot of people.
I happen to know that there's over 1 million boxes in our 40 year old warehouse.
You do a little quick math on that, with a 5 minute touch per item, we need 100 people
for 4 months working 40 hour weeks; no breaks.
So obviously it's a problem.
So you need to find a lot of people and that could be interns, that could be light duty,
reserve officers, recruits that haven't entered a class yet.
Let's build up an army of...
people to help attack this problem, share the goal, and then have a core management.
Obviously we have to break into squads.
You could have people who are not sworn personnel, but 1 person is and holds the chain
of custody for what you're working on, and work your way through those problems.
We're all busy, we're looking at throughput problems with these cases,
and one of the things I've found is that there's always a way to work the efficiency of a lab
and increase your throughput once you get it there.
So these labor based issues are all something that just need to be attacked from kind
of business metrics, as far as how to maximize.
Okay, where is the evidence?
It's in various places.
We've heard it could be in case jackets, archives offsite,
all the usual crazy places including retired detective's attics.
We've seen that happen.
One of the things I found that was important was driving the bus backwards.
What that means is I inspected sites, I would come upon a cluster of evidence,
a bunch of old rape kits that nobody seemed to know about.
Well if I said, well I don't have any paper on this, I'm overlooking this.
It's like oh my gosh!
There's like 20 rape kits.
Let's inventory those, lock those down, and then bring those back
to the sex detectives and say, what about these?
Because now we found what we're looking for, some evidence.
Let's make sure we relate that to the problem.
Be persistent.
I think the biggest challenge is the functional management of people.
We come up with all these great ideas, we go to upper level meetings,
but you gotta share your vision, right down to the worker bees.
Get everybody onboard with what 's going on.
How many times have you made that phone call and you ask somebody, do you have something on this?
And you can tell they didn't even move to the file cabinet.
They just said no.
Okay, so you really have to work on this buy in.
You have to be a salesman for your program, an enthusiast,
a flag waver for getting everybody involved.
If we do that, I think that that's the key vision for success; the functional management
of people, getting this buy in for all this.
So that's what I got.
Thank you very much.
[ applause ]
>> Thank you.
We're gonna hear from Mr. Plourd now, who hopefully can help shed some light
on where that evidence is hiding.
>> It's anywhere and everywhere.
I've been doing this for a little over 20 years, and it never ceases to amaze me when I'm asked
to give a talk to a group like this, that I think back a little over 20 years ago
and the entire universe of the DNA testing and identification field was rather limited.
There were a few people like Woody Clark who was involved in the prosecution of it,
but there were only 3 laboratories.
There was the Life Codes in New York, and then there was Cell Market,
then there was a PCR laboratory in Richmond California, and that was it.
You knew 5 people, you knew everybody.
And now things have just taken off and new technologies are coming along,
and everything is changing and moving ahead so rapidly,
but the one thing that doesn't change is, is that we're dealing
with biological material that has to be collected.
The topic that we're focusing on in this panel is evidence location, retention, preservation,
and more particularly for me anyway, is the evidence location that is the more important
and more significant thing to talk about, because you can't retain it
if you can't find it, and you can't preserve it if you can't find it.
Over my career I've looked at many cases in many different states; large jurisdictions,
metropolitan areas, small communities, and every case is unique.
There's no cookie cutter way to do this, there's only a systematic way that you have to look
at an old case, whether it's a post conviction case where you're looking at it
to exonerate somebody, but the way you look at it is the same.
If it's a cold case where you're looking to prosecute an unsolved crime from years before,
you've got to go back and sort of look into the historical issue of what was the crime scene,
you always begin there, and you understand and you go back and you have
to actually talk with, and this take a lot of time.
These cases are very labor time intense cases where you have to, at least in my opinion
and my experience, you have to go back and talk to people and ask a lot
of questions about where was the crime scene?
What were the parameters of it?
How did you do things back then?
And you have to talk to the people that were on the ground if you can,
if they're still available; whether they're retired.
Ask them what they processed, how they did it, what they used to collect the evidence.
Because a lot of times once you eventually find the evidence,
it's not in the same condition it was when it was collected then.
Sometimes it's the bag that they collected it in that has the probative piece of information,
biological material because things get separated, etc. So my system is
to basically look at what happened from a historical perspective as far
as how did they process those crime scenes at the time, what procedures were in place,
and simply track it from there all the way
to the present day, and never take no for an answer.
You've heard that mentioned by some people, but I've heard so many times
that well, they don't have the evidence.
And the current person says that, then the next level of supervisors says the same thing,
and then if you keep digging, if you keep pushing, if you keep prodding,
you can eventually, in some cases you can find that evidence;
it becomes extraordinarily significant to a particular case.
The... the issue of how the crime scene was originally processed then leads you
to what the evidence collection procedures were at the time, and then you simply track it
from time 1 to time 2, all the way to the present day as to where that evidence should be.
If they insist on telling you that there is no evidence or it's been destroyed,
then the question is how did it get destroyed?
Who destroyed it?
You don't really care to cast blame or you're not looking
to blame anybody, because who really cares?
The case isn't gonna go anywhere if the answer
to the question is, the evidence has been destroyed.
What you frequently get is, is that the evidence, we don't have it...
they don't know that it's been destroyed,
and what you find just like you just heard, it's lost.
People then have to look for it.
So that becomes the part of the investigation that gets going
after you hear the 'we don't have the evidence'.
Well if it's misplaced, where might it be?
Then it becomes just a gut wrenching investigation.
Over the years I've learned to accept the hard work that student volunteers,
who usually come with these innocence projects, they populate the field and they're very eager.
They have to be focused, they have to be educated, but they are willing to spend a lot
of time looking for things, asking questions, but they need a lot of direction.
All of these volunteers who get involved in this work, they...
for all their motivations, they sometimes can spend 100's of hours going in some direction
that doesn't lead anywhere unless you focus them on the right path, and also follow up with them.
In other words, take the time to listen to what they find
out so they can be prodded along to the next step.
I look at the typical case investigation as building kind of a library of information,
when I'm looking at an old case as going from the crime scene
to what I refer to as the broom closet.
And the reason I think in those terms is that the case I did last year,
was an old case that occurred in a large metropolitan area, which I might besmirch,
but it's the same one that Barry Fisher works in.
It wasn't his department, but the culprit in this case was the court.
And courts are notoriously bad at keeping biological evidence retained.
They don't package it, they don't care how it's packaged, how they get it is how they keep it.
They don't really care that much about it.
The court systems in this country in general take the view that once the case is ejudicated,
it's in effect over, and that evidence or exhibits in this case, storage,
that's basically just a problem that they have to deal with.
It's a messy thing, somebody's gotta do it.
But they basically put it somewhere.
The recent case I had was a case that was out of Los Angeles,
and nobody could find the court exhibits.
The last record of it was that it was checked out for a preliminary hearing,
which obviously couldn't have been correct because they had actually went to a jury trial.
And after 6 months, and 6 months of talking to people who actually going back and trying
to find out who the clerks were, etc. What finally led
to the finding the evidence was actually talking to a clerk who worked
in the courtroom next to where the case was tried.
She remembered that they didn't...
they put the evidence, after the trial in the early 1990's, aside for it to be picked
up to be taken downtown to the regular court evidence collection storage facility
in Los Angeles, because this trial occurred in the outside jurisdiction called Compton.
And the person didn't come by on time so they put it
in a broom closet, and there it sat for 15 years.
All there, nobody knew it, and was just...
you gotta talk to the people that were involved.
And the same thing is true when you're looking at an old case.
You've gotta go and talk to the detectives,
the people that collected evidence about how things were done.
Sometimes detectives literally, they took evidence right
to their office, they put it in their drawer.
When the cases was over, they didn't put it in an evidence collection device, they put it...
sometimes it's found in their garage when they're retired.
They still have it.
But you gotta talk to the people and ask them about it, because eventually you can take no
for an answer if you want to, but if you keep progressing you can eventually find the evidence
and then ultimately evaluate it for some probative value.
And if you can't...
you can never argue about the probative value of the evidence unless you find it first,
and then you also have to put in the context of the case that's involved.
You then have to fight about what it might mean, utilize your current technology or technologies
that are on the horizon to do the testing.
So I'm gonna leave you with the thought that whenever you develop a program or you look
at a particular case, don't develop a cookie cutter, do A B and C, check this, check that.
Every case seems to have so many variables, so many differences, and there's such variability
between the way jurisdictions do things, nothing is ever the same.
The evidence might be in the medical examiner's office, it might be in a local hospital,
it might be in a police department, or typically the last place to look is the crime laboratory
because the one thing I learned about crime laboratories is they want the evidence,
and when the case is tested out or they look at it, whether it was in the serology days
or in the DNA days, they like giving it to somebody.
They don't like keeping it.
But they keep a little piece of it.
They keep portions or part of what they call in their DNA extracts
and so forth, that might be tested.
So there's lots of ways to find evidence if you keep prodding, poking, and looking,
no matter how many times they say no.
Sometimes the answer does come to light and somebody is going to be either confirmed
to be the convicted offender rightfully, or somebody's gonna be exonerated.
The stories that you hear, the one that we heard this morning from Jennifer Thompson
and Ronald Cotton, they're very compelling and that's what's really at stake,
is these people's lives both the victim, both the convicted offender, or the true perpetrator.
You're not gonna hear from them because they're in prison.
But because most of the cases that we end up looking at when we're looking
at exoneration requests, most of them they don't have the evidence.
The evidence can't be found, had been destroyed or whatever.
So keeping the evidence, finding it and preserving it,
is the key to doing the work that we do.
And even though this is a kind of a small number percentage wise of cases there,
as you've heard this morning from Jennifer Thompson and Ronald Cotton,
it's very important that we do this work.
So thank you very much for listening.
[ applause ]
>> Thank you Mr. Plourd.
We're now gonna hear from retired Major Kevin Whitman
from the Charlotte-Mecklenburg Police Department,
who's going to describe an impressive initiative undertaken by that department.
>> Good afternoon.
I'd like to also state my appreciation for NIJ
and for the Innocence Project in inviting me to be here today.
I guess my task this afternoon is to not just keep running over the same ground,
but maybe provide you with an example that didn't cost millions of dollars;
may have cost at least several hours of people's time in Charlotte where I worked
with the police department for about 29 years.
As I concluded my career, I was the commander of our criminal investigations bureau.
And so I had about 100 detectives that worked under my authority,
and they investigated a little of everything from auto thefts
and house breakings, to murders in Charlotte.
In my background, back in the mid 80's when detectives started to first hear about DNA,
but no one knew exactly what that meant or how much it cost, which was the bigger issue.
If you had this biological evidence in one of your murder cases, and you were gutsy enough
to approach your supervisor and say, well gee we need to do some DNA testing here.
And they did a little research on that, or of course asked you to do that, and you came back
and said well, it costs 2,200 dollars to test this one sample, it wasn't gonna happen.
So there was this acknowledgement about DNA, but certainly it was at least out of the price range
when I was a detective back in the 1980's.
But my experience paid off toward the end of my career.
I happened to be in the right place, probably on several occasions.
There's probably many people here in the audience
that represent a law enforcement agency, and I'll tell those people something
that they know well but others may not.
When your chief of police has put on a commission or a board or something
of that effect, and they agree to drive 3 and a half hours from Charlotte to go to meetings
on a regular basis, that means that someone lower
in the food chain is going to be going to those meetings.
In my case that happened to be me.
I had the opportunity to go and participate with Chris Luma and others on a commission
that was formed by Beverly Lake, who was then our Chief Justice in North Carolina.
And the group at that time had plowed through some of the major issues dealing with innocence,
witness identifications, and videotaping interrogations, and they had gotten
to the point, when I became involved, where they were talking about evidence.
So I had this opportunity to sit and listen as a cross section of attorneys,
and members of the defense community, and law professors from different universities
in the state, and law enforcement people and judges, sat there and kind of wrestled
with this issue of who has the evidence, how well are we doing with preservation
of that evidence, can we find it when we need it - which seems to be one of the largest questions
that keeps coming up over and over.
So I sat and listened because I have a tendency to do that way more than I do talk, and...
not too long after I'd been attending the meetings, I had the occasion to be with a group
of my detectives at the coffee pot; and if you're in law enforcement you know a lot
of business gets done at the coffee pot in the morning.
I was listening to cold case homicide detectives complain about our crime lab,
which was an in house crime lab, and their complaint was that they believed,
the detectives, that there was evidence in our crime lab and these were those extractions,
those cuttings, clippings, standards, depending on what analyst you spoke to in our DNA section,
they had a different title for those things.
But what the result was is we had 2 upright freezers,
and in those freezers were biological evidence samples that represented evidence
that had been collected in 1,314 cases that we knew of, once we started doing a counting.
And that's a lot of cases.
You've heard all kinds of numbers thrown out here today.
Most of those were homicide cases, and many of those were sexual assault cases.
Now I'd heard this concern enough that I then turned to 2
of my captains who's supervised my homicide and my sexual assault unit,
and I said go to the crime lab and make someone show you these freezers,
and open these freezer doors and tell me what you find when you're there.
And what they found were small plastic trays that had envelopes,
paper envelopes that contained these extractions and samples;
biological evidence that had been tested.
It may be samples that were collected from suspects.
It may be samples from crime scenes.
It was quite a variety of physical evidence.
No one could exactly at that point, tell me how much evidence was contained in those freezers.
Now that brought a host of questions to my mind and concerns, because here I was sitting
with a group in Raleigh North Carolina on a regular basis that were talking
about evidence issues, and all of a sudden I'd kind of kicked the rock
over in my own department and found out that we may not be doing things
as well as I thought we were.
Some things that happened that were advantageous to us,
in 1995 we picked up our police department and moved it
about 3 blocks closer to the courthouses in Charlotte.
As a result of that, all of the old evidence that we had in Mecklenburg County stored
in our facility, had to be catalogued and moved.
At that point some good decisions were made, and the evidence was not only inventoried
but we started to barcode evidence, and actually put in an automated system
because it was a logical time to do that, and determine if we were moving all the evidence,
did we know what cases it pertained to,
and you'll see some pictures I'll show you in a couple of minutes.
Well obviously if you've got bags of evidence from a homicide that had been on a shelf
or on the floor for 15 or 20 years, the paper bag may be disintegrated
and evidence may be poking through.
And all those things had to be dealt with.
They were in the form of assigning police officers to go into that evidence room,
and if we needed to repackage something, then those police officers did that
and all of that was moved from 1 facility to the other.
That became the first kind of component of our automated processes with property and evidence.
So I felt pretty good that those things that were in the crime lab, somehow they made it
from point A to point B, the old building to the new building.
I hope that there was some process whereby we could go back
and tie all that evidence to cases.
We had a cold case homicide unit we started in 2003.
They had gone back and actually catalogued about 400 open homicide cases.
We have a review team in Charlotte that's a unique thing that we bring in folks
to review our old cases, who are not members of the police department,
but 2 or 3 are former FBI agents that donate time.
1 is a forensic scientist who is also a UNC University
of North Carolina at Charlotte professor.
So it's a cross section of people that certainly have knowledge and experience
in law enforcement, in criminal justice, and forensic science.
And these folks came in and started to tackle these 400 cases.
Since the...
forming of that unit, that group has reviewed 96 of those cases.
I've given you some data that was the end of 2007, because I retired in 2008.
They reviewed 98 cases, they had made 18 arrests, and they closed 25
of those cases, or cleared those cases.
Because of the success of that, we then started a sexual assault cold case unit.
Now there are thousands of old open sexual assault cases in Charlotte-Mecklenburg.
That group looked at those cases, they developed a review team and a process,
they have made 23 arrests and they have cleared cases associated with 4
of our serial rapists in Charlotte.
I tell you that upfront because the line is starting to blur, it should be for many
in the room, that the importance of this old evidence that may have only been ABO typed back
in the 1980's or 70's or earlier, that is DNA evidence that's very crucial
for solving these cold cases.
Not every police agency has people dedicated to do that, but I'm sure...
at least speaking to people in the room that have investigated homicides in cold cases,
the victim's families do not stop calling you.
They don't stop after a year, they don't stop after 5 years.
They may never stop calling you.
So those cases are not gonna go away.
Some of the questions that I was confronted with pretty early on is, what are we gonna do
to find all of this old evidence and how would we develop a process to catalogue it?
And my concern was that we had records in our property and evidence bureau,
and that started with a property and evidence sheet filled out by that individual,
a law enforcement officer, a crime scene search officer, who had entered that evidence
into the system, went into the property room, and then that evidence, if there was gonna
by analysis, had been transferred up to our crime lab.
And all that's great, you should be able to track all that chain of custody
on that one form, but what about if the lab kept that little extraction or that cutting
or that clipping of evidence because they had made a match, or had done blood typing
on it back in the 70's or the 80's.
Would the property sheet show me that?
I would hope so, and I would hope so if we were gonna have to take that case into a courtroom.
But I didn't feel confident that between a property sheet, an automated evidence system,
our old paper logs, a detective's case file, a district attorney's case file,
and an analyst in the crime lab's case file...
that I was gonna find the same answer on all those documents.
So obviously when you start to think about 1,300 cases, took a lot of people and a lot of time
to go back and start to reconstruct what we had.
It started with an intern opening the freezer door and starting to account
for every package that was in the freezers.
And that turned into a spreadsheet, a simple Excel spreadsheet.
And the more that we worked with those case files, the more columns
and rows that ended up on that document.
I don't have one anymore because I left mine behind when I retired,
but it ended up being about, I think about a 40
or 50 page document and I think it was maybe 8 font.
So there was a lot of data on that sheet.
This was not a police department project alone,
it was a project that our district attorney's office engaged in after they calmed down,
and if you've ever been in a room with your chief homicide prosecutor and tried to explain
that you may have frozen evidence...
that they don't know about, that they maybe didn't know about when they prosecuted someone
for murder, who may now be sitting on death row in North Carolina, and we have open discovery
in our state and that law's been in effect...
oh I want to say probably 5 to 10 years now.
Fortunately in the county I policed in, in Mecklenburg County,
our district attorney had been in place since 1978.
He's still there, and we've always had a very effective open discovery
with the defense community.
So I wasn't that concerned, but believe me some of the prosecutors were concerned when we said,
we've got to go back and look at all these old cases and determine what we have here.
And I want to hit on just a couple of the actions that we took.
Again that reconciliation of all those records became imperative, and that's what took so long.
So there were detectives that were dedicated to that, there were interns dedicated to that,
there were new hires dedicated to that, somebody had to go and touch all those case files,
and thank God our district attorney keeps every piece of paper in their building.
But people had to go and find all those things in file cabinets.
We worked through those issues...
there were a lot of challenges.
You've felt some of it in the room today with the necessary evil of people checking their egos
at the door, and this was not a police department,
it was not just a prosecutor's problem, it was not just a U. S. attorney's problem
who also was not warm and welcoming when I sat in her office and tried to explain
that she may have put people in federal prison,
and didn't know about some evidence that we had frozen.
But it was also a problem for indigent defense services in North Carolina
who oversee our public defenders, and our local public defender's office.
Just to give you a couple of ideas on the facts again, 1,314 cases and...
we ended up at the conclusion of actually inventorying all this evidence and coming
up with a catalogue, and looking at the cases, the DA's office made a decision that they needed
to send out 24 letters on old homicide cases, and 7 letters on sexual assault cases.
So this big problem, when you boil it all down,
was not that big a problem and that was great in our case.
It was wonderful to see it turn out that way.
Can you hit me?
I want to show you just a couple of pictures,
and Rebecca's already given me my 2 minute warning.
Am I on there?
Yeah, this isn't cooperating, hold on.
[ background discussion ]
Here's the window when you walk up to our property and evidence room,
and I know folks you see this stuff on CSI and other places.
But truly that needs to be a place where there isn't chaos,
where people are turning in evidence there at the window.
We have drying closets...
and you don't see this on CSI but when you bring
in the wet bloody evidence, what do you do with it?
You can't just throw it on the counter.
That has to go into a room and be dried for a period of time,
because the lab's not gonna accept that bloody evidence, and the property clerks aren't either.
That evidence is moved into other containers.
You see the open metal containers there.
So the evidence moves from a drying closet into one of these closets.
This is not our police department.
[ laughter ]
It's actually a shot of one of the existing evidence rooms
in New Orleans after Hurricane Katrina.
That kind of gives you a worst case scenario.
That's some of the evidence that did not float away.
Here is our evidence room, which looks significantly different.
And when you talk about the space issues, they are truly real.
One of the great things, you can find this on the internet
and this is what we had, these huge shelves that roll.
So all of that room that it takes for people to walk down between rows, you can collapse that 4
to 6 feet in between these shelves with these big hand cranks.
We fit about twice as much evidence in one of those facilities.
One of our property sheets, and I talked about that chain of custody,
see it on the bottom left hand side, where that piece of evidence can be tracked.
And we've got automated systems as well now, so...
and I'm sure Rebecca's got some closing comments and if there's questions,
I'll certainly be available later.
[ applause ]
>> Thank you.
Thank you Major Whitman.
We have some time for some questions, if anyone wants to come up to the microphones,
but I can start with a question for Major Whitman.
Proper evidence preservation is obviously an issue of shared concern, and I was wondering
if there was a difference between the type of evidence that you save in a cold case
versus the type of evidence you would save to settle an innocence claim?
>> In my experience, at least in Charlotte, no there isn't a difference.
And I don't think you want to develop individual processes or protocols that would define
or delineate cold evidence from fresh evidence,
or how that's routed or tracked through the system.
I think that's just kind of a recipe for a disaster if you look at things differently.
The first question that was asked in a cold case review in Charlotte is,
do we still have physical evidence - which means people go and crack those old files and look,
and look at those property sheets and those lab results that were returned.
The next step is to go and see if they can put hands on that evidence.
Is it still in a lab?
Is it in the storage room and property and evidence?
>> This question is for Mr. Plourd.
We hear a lot in our work in the states around the country that any evidence
that could have been subjected to DNA testing at trial would have been.
What is your experience with that?
>> Could happen a lot of different ways.
If it was subjected to any type of forensic testing,
either they definitely were limited by the timing of it.
Some of the early cases, some of the early DNA technology for example, wasn't that informative
and newer technologies might give you much more probative information.
The early technologies didn't lend themselves for example, to codist's searches
for unknown profiles and so forth
where the newer technologies obviously you have that option available to you.
One case that I was involved with for a number years, and I actually did 1
of the 2 trials were, a person spent 10 years in prison, several years on death row.
There was DNA testing but it was done with the genetic markers called DQ-alpha and polymarker.
Those were 2 of the early PCR technologies, and there was an unknown profile.
We all knew that after the second trial, he's still convicted,
but once the new codist database came on line that evidence was tested again
and then we identified the actual perpetrator of the crime, and the person was exonerated.
So even though...
so that never is the end of it just because some testing was done.
You always have to look at new technologies.
Even today, you have to look at what's coming on the horizon.
One area of interest to a lot of people for cold cases and innocence cases is,
is that there are forensic scientists are looking at taking latent fingerprints
that were collected that either are usable or not usable, and they're looking
at these new mini STR's to see if they can get a profile from these latent prints
that are just taped onto cards, and they're in every evidence room
in every police department throughout the country.
Even if they weren't usable prints, they're able to tease out of these samples some DNA profiles.
And so eventually they're gonna get that to work much better and those cases are everywhere,
and that's something that still doesn't come on my mind.
So you have to kind of think about the future and where this technology is going,
and the best way to know that is the past, the old testing is not used anymore.
It's considered dinosaur technology, and it's all in 20 years.
Look how far we've come.
So where are we gonna be at in 20 years?
We'll be a lot further down the road.
>> Thank you.
I think there's a question over here.
>> Yes, I'm Mary Ann Wiley from Texas.
We have some evidence retention requirements in our state,
but what we're also finding is during the plea bargaining process,
that keeping the evidence is plea bargained away.
And I was wondering if other jurisdictions are using that method, or is it prohibited
in your states, or just a general sense of the plea bargain effect?
>> Sometimes that's done, at least in I know my jurisdiction in California...
courts want to get rid of evidence for example,
and they a lot of times have time limits that they keep it.
Some have notification issues, some don't.
But the bottom line is that the defendant's can wave and give up their rights to anything.
They give up their right to a trial, if they give up their right to keep the evidence,
the bottom line is as long as they're fully informed, that's their business.
If they made a bad decision, well sometimes people make bad decisions.
What can you do about it?
There are justifiable collection issues.
It costs money to keep the evidence.
So if there are legitimate cases where they cannot have to keep a big pillow
or couch or whatever, then so be it.
>> I know the guilty plea question is something that certainly comes
up when folks are discussing statutory provisions.
Is there a question over here?
>> I really quickly wanted to talk about actually having the legislation in place.
Arizona last year passed it's preservation of biological evidence legislation,
and I think that now makes 25 states.
It was not an easy process.
I knew going into it, it sort of got punted to my agency
from the attorney general's cold case task force.
And that's how we wrote our legislation, not only for post conviction evidence,
but we also put in cold case provisions as well which made it a much easier sell to do that.
And there's actually a couple of people in the room that helped work on that legislation,
so glad Judge Rheinstein carries a Blackberry.
But if your state doesn't have that, I would strongly suggest if you really want to put
in place what these people are doing, you really do need that and we did.
We followed the federal model.
I called the fellow that wrote the federal regulations, we put in provisions
for bulk evidence disposal, and Rebecca was...
just you were tremendous.
Rebecca has a spreadsheet of all the statutes, so I think that's what's really needed
and that's also a big purpose of the grant
that brought us here today; was preservation of evidence.
>> Thank you.
Chris?
>> I do want to follow up from my question this morning regarding consequences
for premature destruction in violation of statute.
I know there are some states that have some consequences, but primarily I think
for contempt type destruction and not negligence or incompetence,
or any other type of destruction.
The other question I have is, we run into cases where a profile may show up,
an unidentified profile shows up on a piece of evidence and we'll tell that may be
from a law enforcement officer that collected the evidence.
Is there any state that requires law enforcement to give DNA profiles so they are in codes
and can be identified if a profile is picked from...
obtained from evidence?
>> As to your first question, I believe there are, I think 5 states plus D. C.
and the federal government that have some sort of sanction in place.
And I think another possibly more interesting or important question also are the remedies
that are available to folks, because I mean ultimately we can sanction evidence custodians,
if they lose evidence but I think more importantly what do we do for people
who are languishing in prison, who don't have access to evidence?
And as for your second question, did any of you have any thoughts on that?
>> Just...
based on Chris, the response is, I know I became a police officer in 1979.
One of the first things they did was fingerprint me.
And you say well why you doing that?
Well your fingerprints are gonna be at crime scenes, and so the thing that comes
to my mind is are we now to the point where we say to people in law enforcement,
those crime scene search technicians and police officers and detectives,
that their DNA profile should be there because we're gonna have to collect it for comparison
if there's a question at that scene.
And I'm sure that gets into all sorts of civil liberties,
but I didn't really resist too bad when they rolled my prints.
So that wouldn't be a new thing.
>> I would just add too, I think that there are really a large number of unresolved issues
around the preservation of biological evidence.
For instance, what crime categories do we save evidence in for how long?
Are there destruction policies?
If so, what do they look like?
Perhaps privacy issues around the issue we were just talking about.
Crime victim concerns; I think the list has been pretty much endless, certainly in our work
in the various states, and I'm wondering if I could just get a sense from the audience
through a show of hands if you all think it would be useful to form a national working group
on the preservation of evidence, perhaps led by the NIJ?
If folks think that would be a useful thing.
So maybe before we wrap up, if we could just hear from each of the panelists just a bit
about kind of what you think needs to be done, what would be most helpful
to addressing this issue from chaining to resources and the like?
>> When this panel first spoke in a conference call,
we talked about what the major barriers were to evidence preservation.
And really l look at that being 3 things, and I think they've all been touched on here today.
The first thing is collaboration, and the communication
across our different silos in the criminal justice system.
And then we need to take this major issue off the table of resources,
and I know there's the federal government's in bad shape,
the state's are in bad shape, everybody needs more money.
But I'll tell you from my experience,
it didn't take a million dollars to go through those 1,300 cases.
What it took was determination, and it took some people saying we're gonna have to do this.
We need to do it because we're gonna clear and solve old cases,
and we're gonna give some relief to those victim's families.
But also we're gonna be prepared if those claims of actual innocence come,
from the project in your state or from the judicial system.
So it's very necessary, and I think the third point, the final thing I'll touch
on is standardization; because you can move around from jurisdiction to jurisdiction
in North Carolina, there's 100 counties, and I'd be willing
to bet you might find 100 different systems when you start to look at property
and evidence and how that's done.
Now that doesn't mean that there's not statutes in place, that there's not processes
and procedures taught to new law enforcement officers, but those things somewhat just get
out of kilter when you move from place to place.
I think it's time for us to standardize some of these processes and procedures,
and then it won't be so hard to find this evidence later on.
>> I think the big thing for me is...
continuing education is a constant.
For those of us here, we've spent our careers in this business, we understand it pretty well,
but the criminal justice system is a dynamic organization of people who come and go.
There is a constant need for internal educational activities,
activities between the various silos, as Major Whitman pointed out.
It's just never done.
I think...
the thing I like to point out in a police environment is,
a police officer will lose his police powers if he doesn't go through his in service every year.
What about a laboratory?
The technicians who's gonna testify in a court of law needs to keep their credentials up.
So I think it's an absolute constant to continue to bang the drum for continuing education
for all the stakeholders within the criminal justice system.
And the hardest one to reach of course, is judges; find a way to make sure
that they're keeping up with what's going on.
So that would be my big take home push.
>> My take home point would be that I think we have to change the thought process
on how we deal with evidence, and essentially what we do is we entrust and we train
and we educate law enforcement officers to go to a crime scene, to carefully collect it,
package it, preserve it, we take it to the police station, and we put it in the right spot,
and we document where it is, and we put it in containers that sometimes we spend money
for because we want to get the right container for the right piece of evidence.
And then if the case goes to court we take it and give it to people who don't know what to do
with it, and they would let lawyers handle it, we let it go back into jury rooms,
then we let county clerks, courts, to hold onto the evidence who don't know how to take care
of it and don't have any vested interest in doing it.
So we have to change the dynamic of rather than take the physical evidence,
prosecutors might show things to the jury, they like to wave it around,
they like to hand it around, they like to open the bag...
etc, etc. And we just can't do that anymore, if we're going to be serious
about preserving biological evidence because that's all inconsistent with the integrity
of that evidence, and we're going to have to go to and accept the notion that photographs
or PowerPoint's, or whatever the case may be, are good enough.
And they really are good enough, it's just that we've got to educate and convince prosecutors
and defense lawyers that they can't have the physical items opened up anymore.
They open them up without gloves, etc, and then they basically throw them
down the drain by not taking care of them.
>> Great. Well I'd like to thank all the distinguished panelists,
and also the NIJ for hosting this.
And our hope is that we can just receive a little bit more guidance,
so we can begin to standardize these practices and policies
within states and across the nation.
Thank you.
[ applause ]