[Senate Hearing 108-323]
[From the U.S. Government Publishing Office]
S. Hrg. 108-323
DEPARTMENT OF JUSTICE OVERSIGHT: FUNDING FORENSIC SCIENCES--DNA AND
BEYOND
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HEARING
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JULY 31, 2003
__________
Serial No. J-108-33
__________
Printed for the use of the Committee on the Judiciary
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WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas JOHN EDWARDS, North Carolina
Bruce Artim, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
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Subcommittee on Administrative Oversight and the Courts
JEFF SESSIONS, Alabama, Chairman
CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York
ARLEN SPECTER, Pennsylvania PATRICK J. LEAHY, Vermont
LARRY E. CRAIG, Idaho RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas RICHARD J. DURBIN, Illinois
William Smith, Majority Chief Counsel
Jeff Berman, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa,
prepared statement............................................. 58
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 97
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 1
prepared statement........................................... 105
WITNESSES
Baden, Michael M., M.D., Director, Medicolegal Investigations
Unit, New York State Police, New York, New York................ 22
Clark, Frank J., District Attorney, Erie County, Buffalo, New
York........................................................... 20
Hart, Sarah V., Director, National Institute of Justice,
Department of Justice, Washington, D.C......................... 5
Hillman, Randall, Executive Director, Alabama District Attorney's
Association, Montgomery, Alabama............................... 16
Johns, Susan Hart, President, American Society of Crime
Laboratory Directors, Springfield, Illinois.................... 19
Neufeld, Peter, Co-Director, Innocence Project, Benjamin N.
Cardozo School of Law, Yeshiva University, New York, New York.. 24
Serra, Rosemary, New Haven, Connecticut.......................... 14
SUBMISSIONS FOR THE RECORD
Baden, Michael M., M.D., Director, Medicolegal Investigations
Unit, New York State Police, New York, New York, prepared
statement...................................................... 32
Clark, Frank J., District Attorney, Erie County, Buffalo, New
York, prepared statement....................................... 34
College of American Pathologists, Division of Government and
Professional Affairs, Washington, D.C., statement.............. 38
Downs, J.C. Upshaw, M.D., Forensic Pathologist, Savannah,
Georgia, statement............................................. 42
Fisher, Barry A.J., Crime Laboratory Director, Los Angeles County
Sheriff's Department, Los Angeles, California, statement....... 50
Hart, Sarah V., Director, National Institute of Justice,
Department of Justice, Washington, D.C., statement............. 62
Hillman, Randall, Executive Director, Alabama District Attorney's
Association, Montgomery, Alabama, statement.................... 85
Johns, Susan Hart, President, American Society of Crime
Laboratory Directors, Springfield, Illinois, statement......... 90
Serra, Rosemary, New Haven, Connecticut, statement............... 100
DEPARTMENT OF JUSTICE OVERSIGHT: FUNDING FORENSIC SCIENCES--DNA AND
BEYOND
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THURSDAY, JULY 31, 2003
United States Senate,
Subcommittee on Administrative Oversight and the Courts, of
the Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:09 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Jeff
Sessions, Chairman of the Subcommittee, presiding.
Present: Senator Sessions.
OPENING STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATORFROM THE
STATE OF ALABAMA
Chairman Sessions. Good afternoon. It is a busy, busy day.
The floor is in a state of uproar, as is normal. I understand
we have got a conference or two meeting. Senator Schumer
expects to join us if he possibly can in a little bit.
The issue before us today is an important one. Forensic
evidence evaluation is a critical and fundamental part of the
criminal justice system today more than ever. Everyday in this
country, thousands of crimes are solved through the combination
of hard work of law enforcement and the crime lab scientists
and technicians who evaluate fingerprints, ballistics, drug
samples, DNA, and other forensic evidence.
Crime labs all across the country play a critical role in
criminal and civil investigations. These labs face the mounting
task of performing an array of forensic services. Over the last
several years, I have been concerned that our Nation's forensic
labs lack the resources to do their jobs promptly, effectively,
and properly.
I was a Federal prosecutor for 12 years and I know that the
job of a prosecutor depends heavily on the work of forensic
scientists. If their jobs are not done properly, society is at
risk. In fact, more and more prosecutors depend on
laboratories.
As Americans, we have become familiar with television shows
such as ``CSI'' and ``Law and Order,'' and the novels of
Patricia Cornwell, who helped us promote the Paul Coverdell
legislation a couple of years ago, in which the forensic
scientists have the most up-to-date equipment. No expense is
spared when it comes to investigations of crime in those
television shows and books.
Unfortunately, that is not the reality in State and local
crime labs across the country. Instead, the reality is that
this country's crime labs are severely understaffed and work
with equipment that for the most part is, at best, mediocre.
These labs are suffering from severe underfunding, and that
underfunding creates a bottleneck in the criminal justice
system, stifling the ability of prosecutors to try cases in a
timely manner and leaving far too many crimes, including
murders, rapes, and child molestations, unsolved, and leaving
people who are entitled to be cleared of crimes uncleared of
crimes.
I have spoken with representatives from the American
Society of Crime Lab Directors, the Consortium of Forensic
Science Organizations, the American Academy of Forensic
Sciences, the National Association of Medical Examiners, the
College of American Pathologists, the International Association
for Identification, State prosecutors, and State and local law
enforcement about this lack of funding.
All of these individuals and groups tell me that the lack
of personnel, staff, and funding has created a crisis for State
laboratories. They all say that drug analysis, ballistics
tests, fingerprint evaluation, and all of the other forensic
science evaluations are often backlogged. Let me share with you
the following examples of the crime lab evidence backlog.
The Alabama Department of Forensic Sciences has a drug
chemistry analysis backlog of 11,917 cases, a firearm
evaluation backlog of 700 cases, and a DNA backlog of over
2,000 cases.
The Los Angeles Police Department has over 6,000 murder
cases in which fingerprints have not yet been evaluated because
it cannot afford to update its fingerprinting analysis
equipment.
The New Hampshire State Forensic Laboratory has a 13-month
fingerprint analysis backlog. I didn't even think they had
crime in New Hampshire. I thought everybody lived on a mountain
top and listened to Judd Gregg. But they have a 13-month
fingerprint backlog, a 3-month drug analysis backlog, and a 7-
month firearm analysis backlog.
The Phoenix, Arizona, crime lab has a drug analysis backlog
of 3,500 cases, a fingerprint backlog of 5,900 cases, a firearm
backlog of 412 cases, and a 342-case DNA backlog. The Kentucky
State Police has a backlog of about 6,000 drug identification
cases that will take 9 months to process.
Like I said, forensic evidence evaluation backlog of drug
analysis, ballistics testing, fingerprinting evaluation, DNA,
and others is clear and undisputed. Backlogs of this magnitude
mean tardy investigations, criminals put back on the streets,
and innocent suspects detained too long while awaiting the
outcome of forensic evaluations.
President Bush and Attorney General Ashcroft have
introduced a DNA Initiative which seeks just over $1 billion
over a period of 5 years to reduce and eliminate the DNA
evidence backlog and for other DNA-related purposes. It is
designed to improve the use of DNA technology, which is very
important in the criminal justice system, especially the
Federal, State and local crime labs, by providing funds,
training, and assistance.
Some of its fiscal year 2004 provisions include $92 million
to assist in clearing backlogs of unanalyzed crime scene DNA
samples, such as rape kits and offender DNA samples. There is a
growing concern in this Senate and in the Congress that we have
got to move these rape kits. A backlog is just not acceptable.
Ninety million dollars will go to increased forensic
laboratory capacity for DNA analysis, Federal DNA laboratory
programs, and to operate and improve the Combined DNA Index
System, and $28.4 million for DNA-related research and
development.
Besides funding, the DNA Initiative includes the Attorney
General's recommendations that we here in Congress passed
legislation to require that all convicted felons submit a DNA
sample when they are convicted--they ought to be in the index,
just like their fingerprint is; expansion of the statute
governing the national DNA index to allow States which submit
DNA profiles, to include all of those persons who are lawfully
arrested--presently, only convicted offenders can be submitted,
or are eligible to be submitted to the profile; and that the
statute of limitations be tolled or stopped when DNA evidence
identifies the offender that may have occurred some time after
the statute of limitations has begun to run, the time in which
a person can be charged.
This is an admirable and worthwhile initiative, and I would
like to help the administration work to implement some of these
legislative recommendations. These are important concepts for
Federal prosecutors and law enforcement, but I think that the
problem with this initiative is that it only funds the backlogs
of DNA evidence.
A 2003 survey by the American Society of Crime Laboratories
of State and local forensic laboratories found that DNA
evidence accounted for only 5 percent of the total backlog in
those facilities. Fingerprint analysis, drug analysis,
questioned documents, and other forensic discipline work made
up the bulk, the other 95 percent, of the laboratory backlog.
I know that it is not the responsibility of this Congress--
and this important--or for the Federal Government to take over
State crime labs, to pay all the expenses of State crime labs
in the 50 States when it comes to State-run facilities. That is
not a healthy example of federalism. We should not do that.
However, if we are going to fund such programs to some degree,
our focus should be on the areas which need the funding most,
and in this situation the entire filed of forensic needs
assistance.
The crime labs would benefit in different ways from funding
through the DNA Initiative because labs have backlogs in every
type of evidence, including DNA. For instance, the Georgia
Bureau of Investigation has a fingerprint analysis backlog of
6,096 cases and a DNA backlog of 434 cases.
The Philadelphia crime lab has a drug analysis backlog of
2,832 cases and a firearm analysis backlog of 2,072 cases, and
yet only a 344-case backlog for DNA analysis. The Illinois
crime lab has a drug analysis backlog of 2,067 cases, a
fingerprint analysis backlog of 3,132 cases, a firearm analysis
backlog of 591 cases, but only a 309-case backlog of DNA
evidence.
Some crime labs do not even have a backlog in DNA evidence.
For example, the Columbus, Ohio, crime lab has a 920-case drug
analysis backlog and no DNA backlog. The Vermont crime lab has
a drug analysis backlog of 350 cases, a fingerprint backlog of
250 cases and no DNA analysis backlog.
But looking to backlogs may not be sufficient for us. Law
enforcement needs very prompt forensic evidence analysis
reports. Often, the filing of criminal charges or the
advancement of an investigation is stopped and put on hold
until the scientific analysis is complete. Our goal should be
that our crime labs around America are able to supply for their
police and prosecutors reports of analysis in days, not weeks,
not months, and not years. This would be a huge advancement in
criminal justice.
We need to fund forensic sciences and reduce the backlog of
evidence across the board. States need to step up and do more.
In 1996, USA Today reported that 8 out of 10 crime labs
experienced a growth in their caseload that exceeds the growth
in their budget and staff. Unfortunately, this statistic from 7
years ago seems still to be the norm today.
I recall the story--and D.A. Robby Owens over there has
probably heard me tell it--in Alabama about a man I got to meet
who ran a dry cleaners. He had heard me speak about the need to
move cases promptly, and delaying a case going to trial didn't
help anything. He said he really made his success in the
business by buying dysfunctional laundries and dry cleaners. He
would find clothes stacked up; they couldn't find them, they
were lost. It was just a mess. People would come back and ask
for them and they hadn't been cleaned, and he wasn't able to
collect any money.
He set up a system so when the person brought in the
clothes for cleaning, the assistant would take and put them
right in the machine that minute. And there it was back and
waiting on the rack, waiting for the customer within an hour.
Well, this whole criminal justice system today to an
extraordinary degree--every police officer, every D.A., every
court, every judge, is dependent on prompt receipt of
information from the forensic laboratories. People expect it.
In the past, you know, you might not have to provide
fingerprint analysis or drug analysis or DNA analysis, but you
have to do it today. People have seen these shows on television
and they expect it, and they have a right to when we can do it.
So I would like to see us set a goal for America, and it can't
all be done from Washington, but we need to engender a vision
of the possibilities for criminal justice in America.
If every drug analysis, every fingerprint, every DNA, and
every other scientific analysis reasonably possible could be
produced for the investigative agencies within days, it would
change law enforcement more than anything I can imagine, and
realistically would not be expensive compared to all the other
things we are spending money on in law enforcement. It would be
very inexpensive.
Ms. Sarah Hart, thank you for coming and listening to my
diatribe there.
Sarah Hart was nominated by President Bush to be the
Director of the National Institute of Justice and was sworn in
as Director on August 7, 2001. Before her appointment, Ms. Hart
served as Chief Counsel for the Pennsylvania Department of
Corrections, a challenging job, and as a prosecutor in the
Philadelphia District Attorney's Office.
You had a good boss. You didn't go back to Senator Specter,
though, did you?
Ms. Hart. My husband was an intern for him. I was not.
Chairman Sessions. He was a good one, and I know the
current one there is--what is her name?
Ms. Hart. Lynn Abraham.
Chairman Sessions. Yes, Lynn Abraham.
Ms. Hart. I just met with her last week about DNA.
Chairman Sessions. She is a committed prosecutor and
professional.
You have served as lead counsel in Federal litigation
involving the prison system of Philadelphia.
Previously, Ms. Hart has provided substantial assistance to
the State of Pennsylvania and to the Judiciary Committees of
both the House and the Senate in developing legislation that
addressed prison litigation reform.
We are delighted to hear from you. You have an important
task before you and we will be delighted to hear your comments
on this subject.
STATEMENT OF SARAH V. HART, DIRECTOR, NATIONAL INSTITUTE OF
JUSTICE, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Ms. Hart. Thank you very much, Mr. Chairman. I am very,
very pleased to be here today to discuss two very important
topics--the President's initiative, Advancing Justice Through
DNA Technology, and also support for other forensic sciences.
Everyday, we read about how DNA has solved previously
unsolvable crime, linked seemingly unrelated crime, and
identified serial predators. In my hometown of Philadelphia, a
serial rapist, dubbed the Center City Rapist, murdered a
Wharton graduate student and raped several other women. Over a
year later, DNA evidence tied these Philadelphia rapes to a
series of rapes in Colorado. This gave the police a key piece
of information. They were looking for somebody who was in these
two locations at these specific periods of time.
Armed with this information, they identified a suspect. DNA
confirmed his guilt. He pled guilty to all of his crimes and
all of the rape survivors were spared the trauma of a trial.
Without DNA evidence, those crimes would not have been solved.
Unfortunately, the power of this technology to advance
justice has been limited due to insufficient funding,
insufficient laboratory capacity, information systems that are
inadequate, overwhelming caseloads, and a lack of training.
Despite a substantial Federal effort to reduce the backlog
and improve crime labs, there are hundreds of thousands of DNA
samples awaiting analysis, many of them, if not most of them,
rape kits. This is plainly unacceptable and it is wrong.
The President's DNA Initiative is a 5-year, over $1 billion
plan to eliminate backlogs and prevent them from occurring in
the future. I have provided the specifics of the President's
initiative in my written testimony, but this comprehensive
strategy includes all of the elements that you outlined,
Senator Sessions.
While the President's DNA Initiative is a comprehensive
approach to building the Nation's capacity to use DNA evidence,
the Justice Department continues to dedicate significant
resources to enhance other areas of forensic science, such as
fingerprint identification, the analysis of explosives, drugs,
firearms, and arson.
Many Department of Justice agencies have each invested
millions of dollars to help equip and train Federal, State and
local law enforcement, and to fund research into new forensic
technology. A stunning example of this is the FBI's Integrated
Automated Fingerprinting Identification System. We all know it
as IAFIS.
To illustrate, in just 1 day last week, on July 23, IAFIS
processed nearly 67,000 sets of fingerprints from Federal,
State and local law enforcement agencies. This included over
38,000 sets of criminal fingerprints, with an average response
time of 53 minutes.
The ATF's National Integrated Ballistic Information Network
program--we call it NIBIN--helps State and local agencies solve
firearm-related violent crime. Since fiscal year 2001, ATF has
spent over $73 million on the NIBIN program. A significant
portion of this funding directly supplies State and local law
enforcement agencies with NIBIN equipment.
The President has also directed the creation of a National
Forensic Science Commission, to make recommendations on
maximizing the use of all forensic sciences in law enforcement.
The National Institute of Justice has also funded over $15
million in research and development projects involving forensic
tools and techniques other than DNA. For example, we have
funded elemental analysis of glass and paint materials,
improved software for testing evidence from seized computers,
development of three-dimensional bullet profiles, and
teleforensic projects, just to name a few.
In the last several years, NIJ has also provided over $94
million under its Crime Laboratory Improvement Program. At the
same time, the Bureau of Justice Assistance has provided more
than $30 million through 234 specific local law enforcement
block grants to States and localities for crime lab
improvement, non-DNA forensic technology and equipment, and
forensic training.
Since fiscal year 1995, the Bureau of Justice Statistics
has provided nearly $400 million to improve our Nation's
criminal records and information databases, and this
information is also used by crime labs in solving crime.
We at the Department of Justice recognize that most of the
law enforcement and prosecution in this Nation occurs at the
State and local levels. Having been a prosecutor for 16 years
in Philadelphia, I especially know this. At the same time, we
will continue to support State and local crime labs in their
non-DNA forensics, as well as their forensic DNA work. This
joint approach will help bring the guilty to justice, eliminate
innocent suspects, and ensure public safety.
Thank you very much, Mr. Chairman, and I would be very
pleased to answer any questions you may have.
Chairman Sessions. Thank you, and well stated. Would you
have an estimate just for perspective here--and I certainly
wouldn't hold you to it, but how many scientific analysis
requests were made by the Philadelphia Police Department and
DA's office as compared to the Federal officials in
Philadelphia?
Ms. Hart. I remember when I was a prosecutor, I used to
mention, Mr. Chairman, that we prosecuted more crimes in
Philadelphia than the entire Federal Government did. Now, I
realize that our DUIs might not have been comparable to some of
the more complex cases. But, yes, that was the bulk of crime.
Chairman Sessions. But they frequently had drugs involved,
so you have to have a chemical analysis of the drug.
Ms. Hart. That is correct.
Chairman Sessions. Fingerprints on a robbery, maybe, or
blood on assaults, and firearms.
Ms. Hart. Well, it is interesting that you should bring up
the Philadelphia crime lab. I think it is a good example of
some of the problems that we are facing in this country.
Even though you mentioned that Philadelphia had a
relatively low DNA backlog, Philadelphia has done that by
simply funding half of the analysis for DNA. So although they
have half of the crime of the State of Pennsylvania, none of
their DNA cases are going into the CODIS databank. All they are
doing is comparing it with known suspects and other cases in
Philadelphia.
They are not comparing that DNA to convicted offender
profiles. They are not comparing it to see whether it is
occurring in another county or across the State, whether there
are related crimes. Frankly, that is not the kind of system
that you want. You want to be able to encourage these labs,
especially these major labs that are handling large volumes of
crime, to be able to make use of this Federal database that is
such a powerful tool.
Chairman Sessions. Will the President's proposal allow
funding for those kinds of things, too?
Ms. Hart. It would allow it for the local laboratories
directly, yes. One of the problems we found is that by funding
it directly to the States, most of the money was going to the
State labs and the big jurisdictions were not getting the
money.
So, for example, in Los Angeles we saw the unfortunate
circumstance of thousands of crime scene samples being thrown
away because they had not been tested for years. I can't begin
to imagine what those thousands of rape survivors must be
thinking after going through all of that to have the evidence
taken and have a rape kit, only to learn that the system has
thrown the evidence away and nothing will happen.
Chairman Sessions. That is not acceptable.
Tell me again what it is--for those laypersons that will be
listening, what it is that Philadelphia is doing and what they
further could and should be doing, and explain why that is
important. I think I know, but I would like to get it straight.
Ms. Hart. Well, if I may just first say I don't mean to
pick on Philadelphia.
Chairman Sessions. Absolutely. We have got problems all
over America, but it is something you know because you have
been there.
Ms. Hart. Right. A very, very committed bunch of people are
working with limited resources. They are not getting direct
Federal funding. So what they are doing at this point is that
you have a lab that is only doing--instead of doing analysis of
the 13 loci that are required to go into the database, they are
only doing 7; they are only doing half of that.
Now, that is enough to tell you with very, very good
precision whether that particular person matches somebody else,
but it is not consistent with the quality assurance
requirements of the FBI's CODIS requirement.
Chairman Sessions. The FBI's CODIS requirement is the
national index?
Ms. Hart. Yes. I am glad you are explaining for me and I
appreciate the help. We tend to all speak in acronyms and I
apologize for doing it here.
Mr. Chairman, as you know, the Combined Offender DNA Index
System, I think it is called, is comprised of a variety of
systems. You have what we call LDIS, which is your local DNA
system where people like Philadelphia can put it into their
local databank. Usually, those get uploaded into State systems,
which are SDIS. And then the State can send their stuff--if it
meets the requirements of the Federal law and the FBI's quality
assurance guidelines--they can upload that into the national
database, the NDIS.
What happens is you have a lot of DNA profiles out there
that are not getting into the national database. So, for
example, Virginia, which has many arrestees and juveniles--
many, many profiles that they have cannot be uploaded into the
national database. What you have is a lot of jurisdictions who
are aware that there are all these other databases out there
developing a system of faxing requests out to each lab. Each
lab will input it separately and do a search and give that
information back, but a very inefficient system that wastes a
lot of very valuable law enforcement and crime lab time.
Chairman Sessions. Because they don't do the complete
analysis of the DNA material and they don't have a sufficient
quality analysis, the FBI will not accept it for their system
and it is not in the national system.
Ms. Hart. That is correct.
Chairman Sessions. I am going to ask a question. It seems
to me we need to confront this proliferation of systems. I
mean, Pennsylvania has a system, the city of Philadelphia, the
FBI has a system. It seems like it is a tremendous cost. We
ought to be able to use one system that everybody could inquire
of, and then you wouldn't have to worry about whether or not it
was in some other State.
Ms. Hart. With the President's proposal, I think these
issues will very much be addressed. I mean, ultimately the
collection of evidence occurs at the local system, and you need
to have that go up ultimately to the Federal system. What you
want to make sure of is that at the local system, when testing
is being done, that it is being done in a quality way and it is
meeting national guidelines.
At the same time, we need amendments to the Federal law to
permit States to send in all of their lawfully-collected
samples so that we don't have this proliferation of separate
databases.
Chairman Sessions. Well, I would agree with that.
What about the States that have basically caught up on DNA?
Are they able to access any of the money under the bill as it
is now written?
Ms. Hart. Well, we are working with Congress on the
legislation. Nothing has been introduced yet, but I think
everybody who is involved with this is very mindful of the fact
that you would certainly not want to penalize the States that
have done it right. We want to make sure that we eliminate
these backlogs. We want to make sure that no rape victim feels
that their evidence has not been tested. They should know that
the system was trying to find the perpetrator.
But at the same time, every system frankly can use
improvement and use help. We still have significant backlogs
throughout the country not only in case work samples and
convicted offender samples, but a very, very significant
backlog in what we call the owed samples. We suspect it to be
about a half million to a million samples that the State law
requires that they be collected, but, in fact, they have not
been collected.
Chairman Sessions. I think Federal law has a 5-year statute
of limitations on almost every crime, except maybe murder.
Let's say there was a serious assault and DNA was taken and it
did not produce a hit. Eight years later, an individual commits
another serious assault or murder or rape and their DNA goes in
the system and, bingo, this is conclusive proof that this was
the person that committed that crime. Under Federal law, what
would happen to that defendant on the first charge?
Ms. Hart. At this point, they could not be prosecuted if it
was too old. You bring up a very good point. There was also a
recent case in Philadelphia, a 1986 rape and homicide of 10-
year old Heather Coffin that was just solved a few weeks ago.
The defendant was arrested just a few weeks ago and pled guilty
right away to the crime.
The reason that case could be prosecuted was it was a
homicide and there are no statute of limitations for homicide.
But if that had only been a rape and not a homicide, there is
still a very compelling interest in being allowed to prosecute
that case. The evidence didn't go stale. The many reasons that
you often have a statute of limitations bar are to deal with
issues that witness's recollection isn't as good down the road.
The evidence may become stale.
The unique thing with DNA is that evidence does not become
less reliable or less persuasive. It is equally reliable
whether it is day 1 or year 50, and for that reason--
Chairman Sessions. So it will remain valid for 50 years?
Ms. Hart. If you do that sample, 50 years down the road you
can do that.
Chairman Sessions. Yes.
Ms. Hart. In fact, you are seeing some old testing where,
for example, the Romanov family was recently identified in
Russia through mitochondrial DNA testing. Those murders were
done, I believe, not quite 100 years ago. So it is a very
remarkable technology that is able to solve things and give us
answers that we didn't anticipate we would get before.
Chairman Sessions. Well, I think we need to deal with the
statute of limitations question. For serious crimes of
violence, that is particularly important because,
unfortunately, people who commit crimes of violence--rape,
pedophilia--tend to do it again.
I don't know what the numbers would be, but if you go out
and take a cohort of people who have committed a serious
assault and a cohort who have not, there would be probably 50
times as many second assaults committed by the first group. I
believe that is one of the reasons we have done some good with
crime prevention in America through the repeat offender laws.
We are identifying those repeat offenders and they are serving
longer time. It may not be perfectly in accord with reality,
but basically it works in hammering away at the repeat
offenders. The thought that someone could get away from a very
serious crime because they were 5 years and 1 day late before
it was discovered is not acceptable to, I think, most
Americans.
With regard to the funds that are there and how they can be
used, would you support language that would help laboratories
who don't have DNA backlogs or who could show they don't need
it all on DNA to use it on something else?
Ms. Hart. Well, the President's initiative contemplates
capacity-building for crime labs, and much of the proposals,
the things that we are looking at, have application across the
board to help crime labs in a variety of ways with other types
of evidence.
One of the things that we think is very important for crime
labs to have is laboratory information management systems. We
call them LIMS. If you think about it, we go to supermarkets
and you see all of your inventory that is controlled with a bar
code and people can know where stuff is and what is happening
and who has bought what.
But if you go to most crime labs, you will see people, very
highly trained scientists, hand-writing out form after form
after form. Some of the basic technologies for managing that
evidence, such as using bar codes and computer systems, are
missing from some of the crime labs. Those kinds of
improvements would go across the board both to DNA and non-DNA
evidence. Also, it would free up a significant amount of staff
time that can be devoted to other things.
In addition, the President's proposal also talks about
evidence storage. The reason that we have such a difficult time
getting a handle on the DNA backlog is because it appears that
almost all of it is sitting on police shelves and not at the
crime labs. That is because the crime labs lack the kind of
storage capacity for the evidence.
Chairman Sessions. Director Hart, is there a definition of
what a backlog is?
Ms. Hart. I don't think any formal one.
Chairman Sessions. Is it a month, a week, or 6 months?
Ms. Hart. I think at this point people are counting what is
sitting on the shelves. And you are right. I think your point
is a very good one. If it is sitting there for a day, it is a
little hard to say that is really a backlog because in the best
of all circumstances, there is going to be a certain amount
that sits there.
So it is not so much the amount, but how long it has been
there. In other words, if you are able to process 10,000 cases
a week and you have 10,000 cases sitting there, it would be a
little misleading to say there is a backlog of 10,000 cases. So
it is difficult to put a handle on it, especially because so
much of this is not actually in the crime lab.
Chairman Sessions. Director Hart, you note either in this
testimony or in the House testimony that you gave that you have
hopes, or we have the capacity to develop new systems that
would allow the processing of DNA in minutes rather than hours,
with less people and more accuracy. What can you tell us about
that?
And I would just add parenthetically that I am a very
strong believer that a person in your position that is
supporting, in a way, law enforcement throughout America--that
research to help bring online rapidly something that would help
every laboratory in America reduce their costs would be a
wonderful thing to promote.
Ms. Hart. When I talk about this, Mr. Chairman, I often
give the example about when I was a child and somebody told me
that there would be a computer in every house. And at the time,
the computer was about the size of a garage, and I just
laughed. I thought that was ridiculous, that nobody would ever
be able to afford it, and why would you have something of that
size.
If somebody had told me then that we would have actually
more than one computer in my house, I wouldn't have believed
it. But the reason we got there was because we made them
smaller, we made them faster, we made them cheaper, and we made
them easy to use. That is what we need to be doing in law
enforcement for DNA.
We have a kind of mantra, which is ``faster, better,
cheaper.'' What you want is for DNA to be able to be used as a
routine law enforcement tool, and that means it has to be cost-
effective and it has to be relatively inexpensive. Portability
is the ideal that we would like to have, something very small
and very precise.
So our research funding is directed that way. We are
developing DNA on a chip which uses nano technology to reduce
the amount of time to do a DNA test. That was the funding we
provided to MIT's Whitehead Institute to develop that, and we
are working with NIST, also, to try and bring that up to speed
so that we can start using it. So that is one of our goals
here. If we want to make this a routine law enforcement tool,
which is what the President's vision is, we need to make it
very accessible, easy to use, and inexpensive.
Chairman Sessions. How close are we to significantly
improved processing equipment?
Ms. Hart. We are a ways out on this particular chip. We are
making advances all the time with DNA. One of the major
advances that we had, for example, within just the last year
followed out of the September 11 tragedy and the World Trade
Center.
We were faced with that with a very unprecedented DNA
question, which was how do you identify so many human remains?
With so many potential victims, how do you sort everybody out?
And here you had families who were desperate to have their
loved ones identified. We had the Nation's experts from all
around the country come in; many volunteered their time. As a
result of that tragedy, we have had major advances in the
science of how to analyze degraded remains from that.
The science of DNA is moving so rapidly. Some of it is
being developed in the private sector, some in the public
sector. We try and leverage funds wherever we can, but there
are major advances going on in this.
Chairman Sessions. Well, you know, if it is pretty clear
that a new technique could reduce time and cost of DNA or
cocaine analysis or anything else, I think we really ought to
put the money into getting that down, helping the users get it
as soon as possible, because it will just save the system money
and make it work better.
Thank you for your testimony and for your leadership. I
guess with regard to research and improvement of the system, do
you believe we need to be doing that for the other areas of
forensic analysis, other than just DNA?
Ms. Hart. Absolutely, and we continue to support it and we
will.
Chairman Sessions. One of the things you are going to need
to wrestle with and all of us need to wrestle with is all these
different databases. The ATF has got theirs. They used to have
a fight with the FBI, you know, over guns analysis. I think
they have settled that, and a waste of taxpayers' money to an
unnecessary degree.
DEA has a drug database, Customs has a database, the
Philadelphia Police Department has a database. Everybody has
got them, and one of the things I would like to spend some time
on in the months to come is analyzing how we can make that
better, make the whole system that needs to be national be
available nationally.
For example, it is a secret who are here illegally. At
least that is my little way of saying it. We have found that
INS does not put their fugitive warrants in the NCIC, and no
police officer that stops somebody on the road is going to
think to call the local INS office before they let somebody go.
They should be in there if they have got a warrant for their
arrest or they are a fugitive. I think we have got a lot of
work to do on making that system be as powerful as it could be.
As a person who spent a lot of years in law enforcement, I
am well aware, as you noted in your opening comments, that
these hits on older cases help solve more crimes than most
people ever know. It really has helped us identify repeat,
dangerous offenders and get them off the streets, and has been
a reason for the declining crime rate, I think.
Do you have anything else?
Ms. Hart. No. Thank you very much for inviting us.
Chairman Sessions. Thank you for your leadership.
Ms. Hart. We appreciate it. Thank you.
[The prepared statement of Ms. Hart follows:]
Chairman Sessions. We will bring up the next group. The
next group will include Susan Hart Johns who is the Bureau
Chief of the Illinois State Police Division of Forensics and
currently serves as President of the American Society of Crime
Laboratory Directors and Administrators. She has worked as a
laboratory analyst and a laboratory director, and has been
active in the field of forensics for 25 years.
Come on and you can be seated. If there are name cards, we
will put them out.
Dr. Michael Baden is a board-certified forensic pathologist
and former chief medical examiner for New York City.
How many books have you written, Dr. Baden?
Dr. Baden. A few, sir.
Chairman Sessions. He is the author of Dead Reckoning: The
New Science of Catching Killers.
You could probably write some individual case stories.
In addition to maintaining a private practice, he is the
Co-Director of the New York State Police Medicolegal
Investigative Unit and has served as President of the Society
of Medical Jurisprudence and Vice President of the American
Academy of Forensic Sciences.
As an expert in forensic pathology, Dr. Baden has been
involved as an expert in numerous cases of interest, including
the assassination of Dr. Martin Luther King, the death of John
Belushi, and the examination of the remains of Czar Nicholas,
of Russia, and family.
Peter Neufeld is a co-founder and Director of the Innocence
Project at the Benjamin Cardozo School of Law, Yeshiva
University. An expert on DNA evidence, Mr. Neufeld is Co-Chair
of the National Association of Criminal Defense Lawyers' DNA
Task Force. In 1995, he was appointed by the New York State
Governor's Office to the Commission on Forensic Science, which
regulates all State and local crime laboratories. Mr. Neufeld
obtained his law degree from the New York University School of
Law in 1975.
Chairman Sessions. Mr. Randy Hillman was the chief
assistant district attorney in Shelby County, Alabama.
Mr. Hillman. Yes, sir.
Chairman Sessions. And currently serves as Executive
Director of the Alabama District Attorney's Association. He
graduated from Cumberland School of Law and entered the private
practice of law in Mobile, Alabama. From there, Mr. Hillman
practiced as an assistant district attorney in Shelby and
Jefferson County, Alabama, before leaving the DA's office in
Shelby, Bessemer Division. Now, he is the Executive Director of
the State Association. So he brings the perspective of the
district attorneys themselves and as a hands-on prosecutor who
dealt with cases personally.
Mr. Frank Clark is the District Attorney in Erie County,
New York, and has been in that position since 1997. Prior to
that, he was Deputy District Attorney in Erie County and served
as the Chief of the Organized Crime Drug Enforcement Task Force
in western New York for 5 years and as the chief of the Violent
Felony Bureau in the Erie County District Attorney's Office.
Mr. Clark is a decorated veteran of the Vietnam War, where he
earned the rank of captain.
Ms. Rosemary Serra is currently a stay-at-home mom, retired
after 20 years from Federal Express as an operations manager.
She is one of millions of people in this country who have been
victims of crime. Her victimization was due to the murder of
her sister, Penny, and today she will tell us about her
experiences.
Ms. Serra, you will start off and give us a perspective
from the world where people lose loved ones as a result of
crime and how that, in your opinion, impacts forensic science
analysis.
STATEMENT OF ROSEMARY SERRA, NEW HAVEN, CONNECTICUT
Ms. Serra. Mr. Chairman, Members of the Committee, I was a
victim for 28 years. On July 16, 1973, my only sibling, 21-
year-old Penny Serra, was stabbed to death on a sunny afternoon
in a parking garage not more than 2 miles from her home. Penny
was not only my sister and best friend, but also my surrogate
mother, since our own mom had died when I was 6 and she was 11.
Although the murderer left behind a calling card of
evidence, he was not apprehended until June 1999, 29 years
after the murder, almost to the day of Penny's death. During
those days, I graduated from high school, attended college,
dealt with the false arrest of a person who the police
suspected murdered my sister, an acquittal, four primary
suspects, my father's death, and my becoming an adult.
Although at the time of the murder DNA was not more than
letters of the alphabet, the crime scene investigators took
meticulous care in collecting, preserving, and logging the
evidence found at the scene. Throughout the next 26 years, the
key pieces of evidence--a tissue box with a thumb print, a
hanky with fluid, paint chips, and a bloody parking ticket--
were hauled from the police department to the chief State's
attorney's office, from one forensic lab to the next.
From 1973, and for close to three decades, this evidence
went through every technological advance of testing that was
available. Literally thousands of manpower hours were spent in
laboratories from coast to coast. The fingerprint on the tissue
box seemed to always split the investigation into two schools
of thought. One was that the print was that of the assailant;
the other was the murder was a crime of passion. Hence, the
fingerprint was not a key factor. Both theories were pursued
vigorously.
As years went by, my father's perseverance on keeping the
case active was heart-wrenching but successful. I, however, had
lost faith of ever finding my sister's murderer. My life as I
knew it was over and the hope of closure seemed to diminish as
years passed. However, unknown to me as I was trying to build a
new life, strangers were working furiously to find my sister's
murderer. Christopher Grice, a forensic lab technician in
Connecticut, is just one of those individuals.
On July 30, 1994, Mr. Edward R. Grant was fighting with his
girlfriend. After a heated exchange that took place at her home
in a nearby town in Connecticut, Grant beat his girlfriend
enough that she filed charges with the local police department.
Grant was taken into custody and booked on an assault charge.
His fingerprints were taken as part of routine police procedure
and entered into the FBI regional fingerprint database.
Christopher Grice, working from the Connecticut State
Police Forensic Science Laboratory in Meriden, had been
involved with our case since the early days of the
investigation. Then a print specialist in the detective bureau
of the New Haven Police Department, Grice had memorized the
whirls and ridges of the thumb print found on my sister's
Kleenex box.
As he sifted through literally thousands of prints for a
match, of course, at the time no computer database for criminal
fingerprints existed. There were just dedicated individuals
hovering over black and white cards, tracing an individual's
unique markings.
Mr. Grice, who now administers the Automated Fingerprint
Identification System, routinely runs checks for all of the
unidentified prints associated with unsolved cases in the
State. This was the process he undertook in July of 1997, 3
years after Grant's arrest. Several possible matches were found
in respect to my sister's murder case, and by process of
elimination Edward R. Grant's print appeared on the screen with
a match of at least 12 points.
After 3 years of tireless effort, the State prosecutor and
his team built a strong forensic case against Grant and we
entered superior court armed with everything but a motive. The
print on the tissue box was unquestionably Grant's. The DNA in
the blood on the parking ticket matched Grant's DNA by a ratio
of greater than 1 in 1 billion. The paint chip, which we did
not realize at the time was a paint chip, which was found at
the scene matched the paint used at the auto body shop which
Grant owned.
Edward R. Grant was prosecuted and convicted in May 2002
solely on forensic science. He is now serving a 25-year
sentence for the murder of my sister, and hopefully will never
see another day of freedom. On the day of Grant's sentencing,
my long-awaited ache for closure was achieved and my days of
being a victim were over. In the past year, I have adopted a
beautiful daughter, Jessica Anne, and look forward to new
beginnings.
This story could have died along with my sister if it were
not for the qualified and dedicated personnel who worked on
this case, or the wide spectrum of forensic science analysis
available in this country. Edward Grant would still be walking
the streets a free man and I would still be looking over my
shoulder for the person who stole my youth and my beloved
sister.
I am not a scientist and would be lying if I said I
understood the mechanics of forensic science. I am just one of
many who depend on forensic science professionals for justice.
To spend government money solely on DNA would be a travesty and
an injustice to all the victims and families with unsolved
cases in this country. Please think of Penny Serra when you
think of forensic science, and be aware that this case, along
with 50 percent of all other homicides, cannot be prosecuted on
DNA alone.
I would like to submit my written statement for the record,
and I thank you for your time.
Chairman Sessions. Thank you for that impressive story. It
brings a human face to what these people do, so many do
everyday, and it saves lives and brings justice and closure for
a lot of victims of crime. We thank you for sharing that with
us very, very much.
Just one question. It was the fingerprint that got the
original hit confirmed by the DNA and the paint. Would that be
correct?
Ms. Serra. Exactly. If it was not for the fingerprint, it
was a needle in a haystack. He would have never been arrested.
[The prepared statement of Ms. Serra appears as a
submission for the record.]
Chairman Sessions. All right, let's see. I guess we will
just start at the left with Randy Hillman. It is good to see
you again and we are glad that you are here and glad that
Robbie was able to come, too.
Share your thoughts with us, and I think you have a story
to share, too, about how this can save lives.
STATEMENT OF RANDALL HILLMAN, EXECUTIVE DIRECTOR, ALABAMA
DISTRICT ATTORNEY'S ASSOCIATION, MONTGOMERY, ALABAMA
Mr. Hillman. Yes, sir. First, Senator, let me thank you for
asking us to be here and represent the perspective of the
prosecutors. One of my brothers is down here from New York and
I am sure he can tell you a lot of what prosecutors face with
forensics as well.
First, let me very quickly clarify my background. I spent 3
years between Jefferson and Shelby Counties as an assistant DA,
and then I spent 9 years as the chief assistant for Mr. Robbie
Owens, behind me. Eighteen months ago, I assumed this job,
which is the Director of the Alabama District Attorney's
Association. Now, it is my responsibility to represent all 42
DAs throughout the State of Alabama.
I have been in the trenches. I have tried, I can't tell you
how many felony cases, misdemeanors. I have spanned the whole
gamut of prosecution. I can't tell you how important it is that
we fund all areas of forensics. DNA is a good thing. I applaud
the President and the other people for what they are trying to
do, but DNA makes up a very small part of what we deal with
everyday.
The majority of our cases in forensic sciences deal with
the other disciplines. Fingerprints, questioned documents, and
drugs are a major part of what we deal with everyday. Without
forensics, I don't think there would be any question amongst
here that the criminal justice system would absolutely shut
down.
Let me talk very quickly about Alabama. The Administrative
Office of Courts in Alabama, their numbers show that between
1990 and 2000, just in Alabama, our caseload felonies went up
by 54 percent over the previous 10-year period of time.
Taylor Nogel, who is the Director of the Alabama Department
of Forensic Sciences, says we have more work than we can
possibly do; we are just swamped. All of his disciplines--
toxicology, fingerprints, drug chemistry, ballistics, firearms,
trace evidence--all of those disciplines are severely
underfunded and overworked.
In Alabama, I did kind of an informal survey of all of our
prosecutors. We estimate that somewhere around 40 percent of
our caseload, of our dockets, are directly drug cases. Those
are the possessions, the trafficking, the manufacturers.
Methamphetamine is a huge problem for us now. We get
clandestine labs out there in the rural parts of our counties.
Forensic workers have to go out and process these labs because
they are so dangerous.
We have currently--and I think you said it in your
statement earlier, Mr. Chairman--we have somewhere around
12,000 cases that are backlogged for just our drug chemistry
section in the State of Alabama.
One other point. Ms. Serra was talking about the
fingerprint analysis. In Alabama, we have one fingerprint
analyst in the whole State. We just cannot continue to do our
business when they are at that level, when forensics is at that
level.
What happens--and it is a trickle-down effect--when
forensics gets behind, then it clogs our dockets; it puts us
way far behind. For example, Robbie, sitting behind me--Shelby
County has somewhere between 165 and 170,000 people. We process
roughly 2,000 to 2,200 felonies a year. Right now, we have a
pending backlog of 1,000 felonies sitting there waiting on
trial. Most of them are waiting on forensic reports.
Not only does it stymie the criminal justice system, not
only does it slow it way down, but is also causes other
problems for us. During that wait, during that period of time
between--let's say there is an initial arrest and the time that
the samples come back from the Department of Forensic Sciences.
We are running more and more into problems with the defendant
being out there on the street causing or committing other
crimes.
Two examples, and I will be very brief with these. Crenshaw
County, Alabama. Last August, a defendant was out on bond from
a distribution of cocaine charge, had been out on bond almost a
year. It was 11 months before the toxicology report came back
on his particular case.
Chairman Sessions. Not indicted, but released after arrest?
Mr. Hillman. I am not sure if he was indicted or not,
Senator. Most of the time, we do not indict cases. There is an
arrest and we sit back, or oftentimes cases are brought to
grand jury first.
Chairman Sessions. But the question is, without the
chemical analysis, some district attorneys will not indict.
Some will make the indictment, but they can't go to trial until
they have scientific confirmation that the substance is a drug.
Mr. Hillman. Right.
Chairman Sessions. So, somehow, the analysis hasn't come
back on this case 11 months later?
Mr. Hillman. Yes, sir. It was still with the Department of
Forensic Sciences.
In that interim, this defendant went to his girlfriend's
house and spent the entire day, started at seven o'clock that
morning and went until nine o'clock that evening,
systematically murdering six members of her family. As each
would come home, he would murder that person--six people over
the course of 1 day. Had we gotten that tox report back a
little bit sooner, maybe we could have done something to
prevent that.
Chairman Sessions. I would note I think that is the largest
mass, serial murder in 1 day in Alabama history. And I think it
is possible that had the report been readily available, and
there had not been a backlog, he might have been serving time
for distributing cocaine rather than being out there murdering
people.
Mr. Hillman. Yes, sir.
Chairman Sessions. I thank you for sharing that story.
Mr. Hillman. Yes, sir.
Chairman Sessions. And that happens to a much less dramatic
degree all over America everyday when cases sit for long
periods of time.
Mr. Hillman. Yes, sir.
Chairman Sessions. Go ahead.
Mr. Hillman. One other very quick example. Covington
County, Alabama. A defendant is arrested in January. The drug
that he is charged with possessing and trafficking in, a large
quantity of methamphetamine, is submitted to the Department of
Forensic Sciences for analysis. Seven months later, he takes a
plastic garbage bag and puts it over his 7-year-old daughter's
head and suffocates her to death. Ultimately, that sample took
us 16 months to get back. Mind you, I am not disparaging the
people who are doing this work. They are just swamped and don't
have the ability to do what they are asked to do.
The unseen aspect of all this--you hear about the violent
crimes that are occurring while people are out on bond. What
society does not understand about what we see everyday is the
drug offenders. That is the big problem. You will arrest a drug
offender for selling cocaine. He makes bond, he gets back out
on the street. He can go and do this again and again and again,
and if he is caught, he will go back through the same process
while we are waiting on the tox reports to come back. You have
multiple, multiple victims, often young, often children, from
that set of circumstances, and people don't often see that and
I would very much like for this Committee to know that.
Chairman Sessions. Mr. Hillman, you will wrap up fairly
quickly and we will--
Mr. Hillman. Yes, sir. I am sorry.
Chairman Sessions. This has been fascinating, but we have
got a good panel here.
Mr. Hillman. I apologize.
Chairman Sessions. That is all right.
Mr. Hillman. One final thing is investigations. We are
stymied oftentimes with investigations; for example, DUI
murder, DUI homicide, those types of cases. The intoxication,
whether it be on alcohol or controlled substances--that is the
main element of the offense. It is taking us anywhere from 9
months to 12 months to get a toxicology report back from the
Department of Forensic Sciences.
Meanwhile, the victim's family and the defendant are out
there. Oftentimes, the defendant is on bond. The victim's
family is just lost until we can establish if this defendant
was intoxicated, and that is a tragedy that we shouldn't have
to go through.
One last statement, if I may, please, sir. This Committee
and this body has a chance to do something that prosecutors
rarely get the chance to do. You have a chance to make a
difference up front. You have a chance to help us be proactive
and prevent some of these things from happening. Ninety-nine
percent of the time as prosecutors we react and we don't get a
chance to prevent things from happening. You all have the
chance to do that and I would respectfully ask that you do.
Chairman Sessions. Thank you very much. It is just
important to know that steps in investigation are not going to
be taken until the toxicology reports or the reports come back.
Indictments can't be returned, people can't be arrested, trials
can't be held. The whole system is dependent on getting these
reports in, and for every one dramatic case there may be
thousands of others which, if not dealt with promptly, could
become another dramatic case.
[The prepared statement of Mr. Hillman appears as a
submission for the record.]
Chairman Sessions. Ms. Johns, you are the President of the
American Society of Crime Lab Directors. We are delighted that
you can be with us. Give us your thoughts, please.
STATEMENT OF SUSAN HART JOHNS, PRESIDENT, AMERICAN SOCIETY OF
CRIME LABORATORY DIRECTORS (ASCLD), SPRINGFIELD, ILLINOIS
Ms. Johns. Thank you very much for the honor and privilege
of testifying today. Like you said, I have been in the crime
laboratory for 25 years. I have analyzed evidence, I have
presented my findings in court. I have also been a laboratory
director, managing resources, and currently I am responsible
for our Westchester and Chicago laboratories.
Today, I am here speaking as the ASCLD president, but I am
also speaking as a lab director and a member of the forensic
community, and I am speaking in support of providing funding
for all forensic disciplines in the crime laboratory.
Many of the examples or remarks I was going to make you
have already covered in your opening remarks, so I might skip
over them. But I do want to make the point that our crime
laboratories analyze evidence, and that is a critical element
of the criminal justice system.
I once heard forensic laboratories referred to as the B
team in criminal justice. While more visible front-liners are
seen as essential, the crime laboratory is relegated to a
support position, expendable when times are rough. And we are
in rough times when it comes to State and local funding for
forensic resources.
Like you said, the majority of the cases worked in this
country are worked in State and local crime laboratories. You
gave the same examples I was going to use, in that these rough
times have resulted in crime laboratory closings and in layoffs
in talented and trained personnel.
Mr. Chairman, resources have an impact on the quality of
the work being done in our laboratory. ASCLD supports
accreditation, but not all of our members are accredited, and
the reasons given for not being accredited are related to
resources both in the personnel needed and in the costs of the
program itself. I personally believe the cost of not being
accredited far exceeds the cost of accreditation. As you have
mentioned and given numerous examples, the lack of resources
causes a bottleneck and significant delays.
Crime laboratories analyze all types of evidence. As of
July of this year, there were 237 laboratories accredited by
the American Society of Crime Laboratory Director's Laboratory
Accreditation Board. Eighty-three percent of those laboratories
have accredited sections which analyze for controlled
substances. Sixty-one percent of those laboratories have
firearm sections, 59 percent have sections which analyze trace
evidence, 58 percent have forensic biology/DNA sections, and 49
have latent fingerprint sections. My submitted report has a
full list of all of those areas accredited.
Problems in laboratories are not unique to evidence type.
Backlogs--and it is interesting you did ask what a backlog was,
and it can be defined, but backlogs are created when evidence
is submitted to the laboratory faster than it can be analyzed.
Not all evidence, though, has the same requirements for
training, equipment, personnel, and facilities.
I would like to emphasize one thing, also. Workload is
different than backlog. We don't get to choose the type of
analysis that we perform. It works the other way around. The
evidence that is presented to us determines or dictates what
types of analyses are performed.
In Illinois this year, our workload has been more than
55,000 cases. Seventy-two percent of those cases--now, this is
the workload, the cases coming into the laboratory--required
drug analysis. Eight percent need latent fingerprint analysis,
5 percent need toxicology analysis, 4 percent need firearms,
and 3.8 need what I will call forensic biology.
Let me clarify what forensic biology is. Forensic biology
is you have to examine the material presented for body fluid
type or what type it is. After you do that, approximately half
of those samples or half of those cases yield a sample which is
suitable for DNA analysis. So only approximately half of the
3.8 percent of the cases coming to the laboratory even have
samples suitable for DNA analysis. I think that is an important
point for you to note. I have polled our crime laboratories
and, like you, have found similar numbers on the cases that are
backlogged.
I think assistance has been provided to the crime
laboratory community through a variety of programs, to include
the forensic resource network and grant programs from the
National Institute of Justice. These programs have invaluable
in assisting the community as a whole to address issues ranging
from quality systems, training models, and accreditation and
certification.
But additional resources are needed, and the lack of
resources is the common denominator for crime laboratories.
There is no one-size-fits-all approach that will address our
problems. There are differences in the types of evidence used
in criminal justice and each of those evidence types have
different needs.
Controlled substances, latent fingerprints, firearms,
toxicology, trace evidence, and forensic biology DNA are all
part of the crime laboratory. We need assistance that is
flexible and can be used to address the full range of issues
that we deal with in the laboratory.
I would like to thank you on behalf of ASCLD and if you
have any questions, I would be happy to try to answer them for
you.
[The prepared statement of Ms. Johns appears as a
submission for the record.]
Chairman Sessions. Thank you, and we will have some. Thank
you for that good presentation.
DA Clark?
STATEMENT OF FRANK J. CLARK, DISTRICT ATTORNEY, ERIE COUNTY,
NEW YORK, BUFFALO, NEW YORK
Mr. Clark. Thank you, Mr. Chairman. Although it is sad, it
is somewhat comforting for me to find out I am not standing
alone in this problem.
I would like, if I could, Mr. Chairman, to kind of focus in
on what one urban area faces in this. We are a community of
about 1 million people. I would say we probably have about
2,000 police officers, we have 100 prosecutors, and right now
we have 16 technicians in our lab. It has got a $1.8 million-a-
year budget.
Chairman Sessions. You are not counting prison guards,
probation officers, judges and their law clerks, and everybody
else that deals with crime?
Mr. Clark. No, sir. I am just talking about policemen on
the street.
Sixty percent of our $1.8 million budget comes from State
and Federal grants, which means that our county only finances
40 percent of the lab. It gets requests from more than 50
agencies in our county, and we also handle requests from six
neighboring counties which are much smaller and not able to
afford those types of things themselves.
I am going to kind of limit my comments in two areas;
firearms, number one. In the city of Buffalo this year, for the
first 6 months we have had over 1,000 shootings, which is up 30
percent from the average of the past 5 years. So we plainly
have a problem.
In every case that we have, operability obviously is
something which has to be established when we are talking about
possession of a firearm. So the lab has to do that test
initially on every single firearm case we have. We have got a
72-hour time limit for a preliminary hearing. So all those
tests have to be done within 72 hours, and the testimony. If
you don't have it, we can't prove it. The preliminary hearing
is denied and the person is released without bail--is
exonerated and the person is released.
If we are talking about more serious cases, felony cases--
shootings, robbery, assaults, even homicides--and we are trying
to match a bullet or a casing to a weapon, that is only done on
a priority basis. We have to establish the immediate priority
of that particular request so the lab can get to it. Many such
tests are never, ever performed simply because the backlog
becomes too great.
Let's talk about a weapon, a shooting. How about tying that
weapon into other unsolved shootings? Simply not done. We have
neither the time nor the resources to go back and do that. So
but for the real profile case, tying that weapon into other
unsolved shootings simply isn't done.
I heard NIBIN mentioned before, which is a wonderful
system. It is like a DNA database, except it is for weapons. We
don't have time to do the tests and submit the information to
NIBIN. We are too busy working on the cases that are pending.
Chairman Sessions. Do you agree with that, Mr. Hillman?
Mr. Hillman. Absolutely.
Mr. Clark. So here we are. There are two of us facing the
same problem. A databank which would serve all of our people so
well isn't getting all the information it needs because we
don't have the resources to do that.
Chairman Sessions. Is that done by the laboratory or the
DA's office?
Mr. Clark. No, sir. That is done by the laboratory. all of
that work is done by the laboratory.
If we are talking about gun powder residue, if we want to
test clothing to find out whether an individual fired a weapon,
if we want to find out perhaps the distance between shooter and
victim, we have no capability of doing that at all. That has to
be farmed out to private laboratories, with greater expense--we
have to pay for that--and then the time frame that follows.
Drugs. Twenty-five percent of all of our cases are drugs. I
am listening and it is like I am hearing myself. The New York
State penal statutes and regulatory codes require that a
certain formula be followed. So a procedure may taken an
individual chemist hours, and you have to follow that for
evidentiary purposes and accreditation purposes. You can't
short-cut the system. So we try to do that and we can't do it.
We don't test misdemeanors. If we had to test misdemeanor
amounts, the backlog would be measured in years rather than
days or months. So we simply don't do it. We have to test not
only for the type of drug, but the degree of purity, the
weight, et cetera. All is essential for us to establish
elements of our narcotics statutes. Oftentimes, we need that
for a preliminary hearing if the person is being held.
Seventy-two hours from the arrest, we have to hold a
preliminary hearing. The result is we are simply not prepared
to do that. So those defendants are released and the bail is
exonerated. We can present it directly to a grand jury, but
that could be weeks or months. We don't even have the
capability--
Chairman Sessions. And the defendant could be gone by that
time.
Mr. Clark. Oh, sure, gone, or as we heard here, sadly,
committing other offenses while he is out.
We don't even have the capability of testing for date rape
drugs--Ecstasy, GHB, and things like that. We have to go to
State or Federal facilities in order to do that, with all of
the problems that attend it.
I have given you some idea of the problems that we face
everyday, day in and day out. Obviously, these things impact
not only on the quality of proof that we are able to introduce
during the course of a prosecution, but on the people's
perception of what we should be doing.
You mentioned earlier in your remarks that they see all
these shows on television. It creates an expectation in them
that the things we see in DNA exist across the board, and they
simply don't. Often, sadly, the perception is that we are not
doing all that we can do, when we have dedicated men and women
that are working around the clock to do the very best job they
can.
Thank you, sir.
[The prepared statement of Mr. Clark appears as a
submission for the record.]
Chairman Sessions. Well said.
Dr. Baden?
STATEMENT OF MICHAEL M. BADEN, M.D., DIRECTOR, MEDICOLEGAL
INVESTIGATIONS UNIT, NEW YORK STATE POLICE, NEW YORK, NEW YORK
Dr. Baden. Thank you very much, Mr. Chairman. Thank you for
honoring me with having me testify before you.
There will be 45 murders today in this country; more than a
third will not be solved. Most of the autopsies will be
performed by hospital pathologists who are well-trained in the
examination of natural disease--heart disease, cancer--and not
by forensic pathologists who have the additional training to
specifically investigate trauma, homicide, and unnatural death.
The hospital pathologist who performed the autopsy on John
Kennedy made serious mistakes that linger with us 40 years
later. I was the chief forensic pathologist for the U.S. House
of Representatives Select Committee on Assassinations in the
late 1970's that reexamined President Kennedy's death. In its
final report in 1979, the Select Committee urged that
medicolegal investigation offices and crime labs be improved
nationally, because it was recognized then that many mistakes
were made nationally, and even with the autopsy of the
President of the United States.
Nothing was done to that end until Coverdell brought hope
to improving medical examiner offices and the forensic science
community. Today, in the United States, there are more than
800,000 physicians. Less than 400 are full-time forensic
pathologists. Some States have no forensic pathologists in the
entire State.
Mr. Chairman, I agree fully with your opening comments that
crime labs around this country are in great trouble, and with
in, the criminal justice system. Today, medical examiner
offices and crime labs have the additional responsibilities
that we didn't have in 1979 that we are the early-warning
agencies for any death from acts of terrorism, from chemical or
biological weapons. It is the medical examiner and the forensic
scientist who must determine if a death is from anthrax,
smallpox, SARS, cyanide, sarin gas. It is they who must recover
the identifying bomb fragments or bullets from the body.
We must develop, I believe, new forensic disciplines to
meet these new threats, such as forensic infectious disease
experts who are internists. Infectious agents with high
contagion can spread globally very quickly and must be
identified as quickly as possible for effective containment.
The delay in identifying SARS in China resulted in global
consequences.
During the past 15 years, the development of DNA technology
has been a wondrous addition to the medical community and to
the ability of forensic scientists and police to investigate
sex crimes and to identify the unknown death.
But in my examination of the literature and DOJ statistics,
less than 1 percent of all murders in this country involve
sexual assault. They get a lot of publicity in the papers, but
are small in number, fortunately. In my calculations, in less
than 10 percent of murders does the perpetrator leave DNA
evidence behind. Most murders are by gunshots from a distance.
About 5 percent of crime labs' workload involves DNA analysis.
Medical examiner offices and crime labs require properly
trained forensic pathologists, crime scene investigators,
criminalists, toxicologists, ballistics experts, fingerprint
experts, odontologists, entomologists, anthropologists, as well
as expertise in DNA analysis.
The criminal justice system requires teamwork among all the
forensic sciences to function properly.
It is of interest the example Susan Hart Johns gave of the
young University of Pennsylvania graduate student who was
murdered in Philadelphia, whom they caught miraculously by DNA
comparisons from rapes he did in another State. In that
instance, the family has brought lawsuits against the
Philadelphia police because they felt that they did not respond
properly to her cries for help. They came, they wouldn't go in
the door, they left. She was found dead. Training of police in
how to respond to dangerous situations, domestic situations,
how to collect evidence at the scene, is all part of what the
forensic scientist initiative should include.
The criminal justice system requires a national team of
properly trained medical examiners and forensic scientists.
Please consider all of the members of the team in your
deliberations. To paraphrase Voltaire, we owe truth to all of
the dead.
Thank you, Mr. Chairman.
[The prepared statement of Dr. Baden appears as a
submission for the record.]
Chairman Sessions. Thank you, Dr. Baden.
Peter Neufeld.
STATEMENT OF PETER NEUFELD, CO-DIRECTOR, INNOCENCE PROJECT,
BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, NEW
YORK, NEW YORK
Mr. Neufeld. Good afternoon, Senator Sessions. Thank you
very much for permitting me to be here today. You might be
surprised to know that I, too, agreed with everything you had
to say at the beginning of these proceedings. I think your
points were extremely well taken.
Certainly, you know about the Innocence Project, and we
will be the first to sing the praises of DNA technology and
what it has done to bring truth to the criminal justice system,
both in the pursuit of the guilty and also the clearing of the
innocent. But we know firsthand that DNA plays a very small
role in solving violent crime in this country.
Even as much as we care about DNA technology and we want it
to be used most effectively by law enforcement, we realize that
even if we educated everybody about DNA and we had them using
it in property crimes, as well as rapes and homicides, that
nonetheless in at least 80 or 90 percent of the violent crimes
there would be no biological evidence to test. If that is the
reality, then the reality is that law enforcement has to rely
on other forensic sciences to solve crime. It is as simple as
that.
I know that the sexiness of DNA has generated funds and
generated all this concern nationwide, and we have been part of
that as well. Obviously, whenever the public reads in a tabloid
that a person who committed eight murders in Louisiana has been
identified and apprehended through DNA, that is a big story. Or
when somebody walks off of death after spending 20 years there
for a crime he didn't commit, that is a big story.
But it is all these other forensic disciplines that
actually solve the overwhelming majority of crimes, and it just
doesn't make any sense to give all the funding to DNA and not
also give additional funding to these other forensic science
disciplines. It is that simple.
One of the things that we have learned from the wrongful
conviction cases, Mr. Chairman, is that in over a third of
those cases, the misapplication of forensic science played a
critical role in sending an innocent person to prison or death
row.
What that means is this was not DNA testing; it was the
other forensic science disciplines. These are cases that
involve toxicology, involve ballistics, involve medical
examiners' opinions, involve trace evidence, all those other
disciplines. Some of the most famous involved hair. Twenty-one
of our cases alone involved forensic scientists working in
government laboratories stating that hairs matched when it
turned out that they didn't match.
We know and you know that every time they convict an
innocent man, it is not just sending an innocent man to prison
that is the problem. It is that the real bad guy is out there
committing more crimes. So good forensic science makes sense
from everybody's standpoint.
We have seen so many cases where criminalists or crime lab
personnel have wrongly excluded somebody. They have wrongly
excluded a bad guy, and so a guy who committed a murder walks
away from a crime even though he is guilty. If the laboratories
had better funding, had better training, had better personnel,
that would not have happened. So the bottom line is that bad
forensic science is bad law enforcement.
One of the things that we have been thinking about was a
little bit different than what the other speakers have brought
to you today: how to not only be concerned with providing
additional funds to these different forensic disciplines,
because God knows they need it and we certainly support that
completely, but along with additional funding must go the
responsibility of oversight, something that you are obviously
very much educated about.
Sure, Congress has to give these additional funds, but we
are worried about the integrity of the results, as well, not
just us, but obviously the public at large. A victim needs to
know that when you have excluded somebody through toxicology or
through trace evidence that you have excluded them
professionally and you are not letting a guilty guy go. We all
have to know that.
One of the things that you have in the Federal Government
that most States lack is you have oversight through the Office
of the Inspector General. We all know about how the Inspector
General has oversight over the FBI Crime Laboratory, and they
can decide when it is appropriate to commence a forensic audit
of something that went on there.
We know how important forensic audits are in everything in
life. When the space shuttle crashed, you didn't want it to be
an in-house investigation by NASA. You folks in Congress
demanded that it be an independent external audit. When the
Enron scandal happened, people said, no, it can't be Enron or
Arthur Andersen that looks into this; it has got to be an
independent external audit. Well, the same things applies when
there is some major mishap at a crime laboratory. You have it
in the Federal Government, but these folks don't have it at the
State level.
Our suggestion is very simple and very inexpensive, and it
goes like this: Allow the IG here at the DOJ which has
expertise in this area to simply set up some guidelines, some
parameters, and then allow each State on its own, because we do
agree with you and the position that you have taken before as a
matter of federalism that the running of the criminal justice
system should be left to the States themselves to experiment
with--so let the States come up with their own type of IG.
It could be a different agency in each State, but there has
to be some external, independent auditing mechanism in place,
which means certain minimum Federal criteria, chosen by the
States so that when there is a scandal--and my God, in the last
year there have been more crime lab scandals in America, and
you read about them in the newspapers, than in the preceding 5
years.
In those scandals, it wasn't just about innocent people
being wrongly prosecuted or convicted. More often than not, it
was about guilty people going free because of laboratory
sloppiness. So we need to have somebody who can look into it
when it happens, not to point the finger, but to make
recommendations so this kind of thing doesn't happen in the
future.
So we are going to suggest that one of things you might do,
which is very inexpensive, would be to set up this kind of
local auditing system. Let the States do it their own way, but
have it certified by the Federal Government in exchange for the
generous contributions and support that hopefully you will be a
part of.
Chairman Sessions. Thank you. I think that has some
potential. You know that labs get complained of and most of the
time the complaints are not true. They are doing a good job,
but have to defend themselves. Perhaps you would like to have a
national group that could be called in, known to be
independent. If Alabama wanted to verify that its laboratory is
operating according to the highest level, they could be called
on to do an independent audit.
What do you think of that, Ms. Johns?
Ms. Johns. Well, actually, in my opinion, there are
resources that--
Chairman Sessions. That is your accreditation process.
Ms. Johns. Yes. That allows us to call in people external
to our agency to come in and have outside eyes look at our
processes and what we are doing in the laboratory.
Chairman Sessions. Where do they come from?
Ms. Johns. The American Society of Crime Laboratory
Directors' accreditation is a not-for-profit organization that
is comprised of--it has some full-time staff inspectors, but
many of its inspectors are volunteer inspectors. I am an
inspector for the ASCLD/LAB program, as well as a team captain,
and I think it is an excellent, excellent program.
I think that external audits can also be done contractually
with some organizations such as the National Forensic Science
Technology Center. So if you want to go hire someone to come in
and audit your laboratory, you can contract with that agency to
do that.
I think this goes to my comments that I alluded to on
accreditation. I really do feel that accreditation is something
that our laboratories need, and that is what my colleague at
the end of the table was speaking to, then I agree with that. I
think that it is very, very important that we urge our
laboratories to do that.
Some of the problems in not getting evidence or DNA
analyses into the database relate to laboratories not having
external audits or reviews of the work they have done. That is
one of the requirements of NDIS, and it could be one of the
reasons that some laboratories are not getting their
information into the database.
Chairman Sessions. Thank you.
Mr. Clark, you and Mr. Hillman are users of the--you are
the customers, I guess, at one level.
Mr. Clark. Yes, sir.
Chairman Sessions. So are the police and sheriffs and
deputies.
I will start with you, Mr. Clark. Would you respond to the
idea that if somebody were looking at this criminal justice
system afresh and they realized that we had a shortage
consistently of funding in the laboratory, which is critical to
almost all of our cases moving forward, that even if they
didn't have additional money, they would find some way to
rearrange money to get it to the laboratories because it
represents a bottleneck that undermines police departments and
DAs' offices and court systems?
Mr. Clark. WE have been for years robbing Peter to pay Paul
to try and help them do that, Senator. I do feel that some of
the Federal money that has been available recently has been a
godsend to us.
I think part of the problem is that we have to make people
in local areas understand--those legislatures that control the
purse strings have to understand the need. You have taken the
time to do this today. I wish somebody in my area, and I wish
somebody in Mr. Hillman's area would take the time to do this
to realize how critical our need is. The county is only paying
for 40 percent; you are paying for 60 percent. You are paying
more for me than my own locality is, and that is not right.
Chairman Sessions. Let's go back to the numbers you gave.
About how many police and sheriffs and DAs?
Mr. Clark. We have lots of policemen, we have lots of
prosecutors, but we don't have many technicians to handle all
that.
Chairman Sessions. Their work is undermined, their work is
effectively stymied as a result of a small lack in one part of
this system. Would you agree?
Mr. Clark. Yes, sir, that is true, and in many cases I am
told that the COPS grant and things like that which put more
policemen on the street don't consider laboratory technicians
as law enforcement, so that they don't qualify under those
grants of money. So what you are doing is helping in one sense.
Policemen are going out on the street and making more arrests.
It is just creating a bigger backlog in the labs.
Chairman Sessions. Is that true, Ms. Johns, that lab
technicians are not considered law enforcement for the purposes
of COPS grants?
Ms. Johns. I put it gracefully when I referred to us as the
B team, but that is true. We are considered support personnel
and most of these grants that he refers to do not address the
crime laboratory problems.
Chairman Sessions. That is something to think about, Mr.
Clark.
Mr. Hillman, you have been a user, also. Do you think in
terms of priorities--let me just put it bluntly. In terms of
priorities, do you think that improving the whole system could
be effected better by working on the labs than almost any other
part of it?
Mr. Hillman. Yes, without question. It is probably the
biggest cause of every delay that we have, and again not
because these people aren't doing what they are supposed to do.
They are just swamped. They don't have the time or the manpower
to keep up with the system.
Alabama grew 54 percent in 10 years. I can't tell you what
their budget is, but it wasn't that much that it grew over that
same 10-year period of time. And that stopped 3 1/2 years ago.
Imagine where they are now.
Chairman Sessions. Mr. Hillman, do you find that perhaps
based on these television programs and that sort of thing that
when you try a case, if there are five drops of blood on the
scene and you test three of them, Mr. Neufeld would come in and
say the real murderer was in those other two, why didn't you
test those?
Mr. Hillman. The general public now thinks that murderers--
their investigation, their processing at the lab, their arrest,
the prosecution, and their incarceration occurs in 60 minutes.
It just does not happen. It takes years sometimes.
Chairman Sessions. Well, I was just kidding because people
deserve vigorous defense and maybe the drops were somebody
else's. But I think you have gotten to the point where we are
testing--would you say, Mr. Clark, crime scenes are requiring
more tests per crime scene than ever before?
Mr. Clark. Absolutely, positively, and the sad part is we
would love our laboratory technicians to be able to come to the
crime scene. They could add a tremendous amount to that, but,
of course, that is a pipe dream. They are still working 18
hours a day trying to do the drug tests.
One problem leads to another, leads to another, leads to
another. But, yes, the expectations are so much greater, the
time required is so much longer, and the problem isn't getting
any better. The only thing that is growing is the backlogs.
Chairman Sessions. Dr. Baden, are police and investigators
sufficiently trained to preserve evidence when it gets to you
or to Ms. Johns? Does that cause a problem sometimes?
Dr. Baden. It often causes problems. Now, they have a trial
going on down in South Carolina, the Peterson/East trial, the
novelist who is accused of killing his wife and throwing her
down a staircase. The defense on Court TV--they have cameras in
the courtroom--is having a field day in showing all of the
things that were done wrong by the technicians, the police
tramping through the area improperly.
We thought that had been explored sufficiently at the O.J.
Simpson trial and that police agencies learned about it. There
are many good agencies, but most of this country still--the
crime scene analysis, the training for police officers, has not
been effective enough or there hasn't been enough training.
I might suggest that Dr. Jamie Downs advises me that
nationally there is one lab person for every hundred police
officers, and the lab persons can't manage that kind of
workload. A better ratio would be 1 out of 40.
Chairman Sessions. Dr. Downs used to be our director and he
moved up to South Carolina.
Dr. Baden. He is now in Georgia.
Chairman Sessions. That is right, Georgia. He had an
interest in recovering the remains of the Hunley submarine as
one of his extra projects. He did good work on that.
Dr. Baden. Yes. He is my guru; he is my rabbi right now.
If I may, on a discussion about national concerns, it
struck me as a physician that we have a Surgeon General who has
been a bully pulpit over the years for doing research and for
improving natural diseases--heart disease, cancer--and it has
been a very effective bully pulpit.
Maybe the time has come to have some kind of a national
bully pulpit, like a forensic sciences general, who can have
authorization to be a bully pulpit and to help set up the kind
of programs, training programs. The most important link in the
chain at a crime scene is the least experienced police officer,
who is the first responder who is supposed to protect the
scene.
When we train the New York State Police and they say, well,
we are here, we are trying to protect the scene and the bosses
and the higher-ups come down, how do we keep them out--and the
example I have used is you have a book; everybody that goes on
the scene has to be signed in. You have the mayor or whoever it
is there, because it is often a photo opportunity for certain
kinds of people, sign in and tell them, look, if you go on that
scene, you are the first witness that Peter Neufeld is going to
call for the defense as possibly mucking up the scene or
potentially having evidence destroyed.
I would also like to make one point, too, about the World
Trade Center. Of the 1,500 bodies that have been identified,
out of the 2,800, the great majority have been done by
traditional means--fingerprints, dental, x-rays, visual. Most
of them have been identified that way.
Chairman Sessions. Mr. Neufeld, do you want to comment on
that?
Dr. Baden. Point of personal privilege.
Mr. Neufeld. No, no, no. I mean, actually, it is
interesting. In New York State, we have a forensic science
review board. We are the only State in the country that does
have that. and what we have done for people like Mr. Clark is,
in a sense, we have created certain standards and mandates, and
therefore we have had to put our money where our mouths are and
we have had to provide them and their laboratory with
additional funding.
So sometimes by requiring higher standards of laboratories,
you create a mandate and then there has to be the money flowing
so they can satisfy that. So it is not always a bad thing. It
actually sometimes acts as a very good carrot device.
The one little comment I did want to make, though, is a
response to Ms. Johns. ASCLD accreditation is not enough. I am
not even addressing that issue. Obviously, the internal audit
that goes on through an ASCLD accreditation is very, very
important. I am talking about a different situation.
The FBI crime laboratory is ASCLD-accredited, but
nevertheless there was a small scandal in that laboratory
recently when it turned out that one of the scientists was
consistently not utilizing a certain control which was
essential in all the forensic DNA tests.
So the IG of the DOJ commenced an audit, and they commenced
that audit for a lot of reasons. They wanted to see what was
the scope of the problem, where did the traditional controls
fail, what changes should we make in their protocol which would
make it more likely that that won't happen again. So it can
even happen with accredited laboratories. I am talking about
the forensic audit.
Accounting firms ordinarily have wonderful means of doing
internal audits, but if something serious goes wrong--I am not
talking about two drops that weren't picked up. I am talking
about the serious mishap, and we have seen them in Oklahoma, we
have seen them in Indiana recently, and in Montana. The first
three cases we have looked at involving a hair expert--all
three of them were exonerated. He used testimony in a court of
law which all of his peers at the FBI and the British Home
Office said is nonsense and not scientific.
So sometimes something does go wrong and needs to be
investigated. You folks are experts at that, okay? All we are
saying is that in those situations, there should be an
independent external entity that does it. It can't be the folks
doing it themselves.
Chairman Sessions. There need to be reviews for specific
allegations of wrongdoing.
Mr. Neufeld. That is exactly right.
Chairman Sessions. Some good thoughts. I think we ought to
think about that as we go forward.
I think back on my career and what the Innocence Project
brings to mind, and when I have had a series of things like Ms.
Serra talked about--a fingerprint, a DNA, and a paint--I have
never had it come back that that person wasn't guilty. But I
have seen two in my career that really were innocent and in
danger of being convicted. One was convicted on eyewitness
testimony. I don't know if others have seen that, too.
We have got to be alert to the possibility of the innocent
being convicted. I certainly believe that, but good
circumstantial evidence, good scientific evidence has proven to
me over the years from my personal experience to consistently
lead us toward truth.
I don't think you would dispute that, Mr. Neufeld.
Mr. Neufeld. Dispute it? I wholeheartedly agree. I will
take good toxicology and ballistics over a lone eyewitness 7
days of the week, and I think you would, also.
Chairman Sessions. All right. Do any of you have anything
you want to add to this agenda at this point that is on your
brain and heart before we go forward?
Senators Grassley and Leahy have statements for the record,
and we will leave the record open for one week for a additional
statements and follow-up questions for all witnesses.
I think we are getting to this, and this is what I would
say to you. I don't believe that this Congress is going to fund
the State laboratories to any significant degree ultimately. I
think helping in critical areas, providing the best equipment,
best training, and additional funds when laboratories are in
crisis is very helpful. But I doubt and don't expect, and am
not sure I can support a whole lot more money.
I did fight for and help pass the Paul Coverdell forensic
sciences bill, which has not been adequately funded, but
provides for the kind of utilization of the money I think I
hear you saying you favor.
Would that be fair, Ms. Johns?
Ms. Johns. Yes, I agree.
Chairman Sessions. And so we can get some more money there,
I hope. We are spending money on things that make the news and
get people excited, and sometimes that is what Congress does.
But in the long run, we have got to figure out a way to
strengthen forensic sciences throughout America, and maybe a
forensics czar wouldn't be a bad thing, to be able to go into a
State and call all the newspaper editors together and say,
look, you are spending all this on police and jails and
prosecutors and judges and just this little bit on research.
And you have got this backlog and something could be done.
I believe once the information is out there, the American
people would respond. There is so much on television, so much
in novels and things, that people are more attuned to the
capabilities of it. So that is where I am coming from.
I will be supporting additional funding. I am going to be
supporting that because we are funding a lot of aspects of
criminal justice that need it less than this aspect. I intend
to do all I can to create a circumstance in which States will
be more successful in going to their counties to get them to
contribute more. I know in Alabama, I think the Governor is
convinced that forensics need more money in Alabama and somehow
he is going to find it. I am proud to hear that, but we have
been talking about it for a number of years.
Anything else before we finish?
Thank you for coming. This was a very valuable panel. We
will look to utilize this to promote public policy that will
help forensic sciences in America, and I think that will help
criminal justice.
Thank you very much. We are adjourned.
[Whereupon, at 3:55 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
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