Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) 627-1091 Washington, DC (202) 258-2301

1. 2004 Forensic DNA Legislative Update and the “Attorney Generals Report on the DNA Evidence Backlog”Fifth Annual DNA Grantees Workshop Washington, DC June 29, 2004 Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) 627-1091 Washington, DC (202) 258-2301 London 0 (44) 798 953 8386 Tim Schellberg, JD tims@smithallinglane.com

2. Smith Alling Lane A Professional Services Corporation Governmental Affairs Attorneys at Law

4. ISSUE #1 CONVICTED OFFENDER DNA DATABASE EXPANSION 2004

5. Legislature Casework Database Expansion’s Relationship to Casework Utilization Increased offender testing = increased casework Legislatively created database law scenarios • No database • All convicted violent offenders • All convicted felons • Suspects

6. SCENARIO INo Database LegislationPer 5 Million in State Population • No offender samples • 1,000 annual casework samples

7. SCENARIO II All Violent Offenders LegislationPer 5 Million in State Population Offender Database Samples Casework Samples • On the eighth year after the passage of the legislation, an estimated 2,500 annual casework samples will be tested

8. SCENARIO III All Felons LegislationPer 5 Million in State Population Offender Database Samples Casework Samples • On the eighth year after the passage of the legislation, an estimated 7,500 annual casework samples will be tested.

9. SCENARIO IV All Suspects LegislationPer 5 Million in State Population Offender Database Samples Casework Samples • On the eighth year after the passage of the legislation, an estimated 16,000 annual casework samples will be tested

10. Summary of Legislation Scenarios 270 million US population Offender Samples Estimated number of samples tested during the five year period after the passage of the legislation Casework Estimated number of samples tested occurring on the eighth year after the passage of the legislation

11. 1999 - 6 States 2000 - 7 States 2004 – 34 States Legislation pending in 5 states 2002 - 22 States 2001 - 13 States The Recent Trend To All Felons 2003 – 31 States 2006 - 45 States (est.) -- assuming data and funding

12. * 2004 Legislative Session: DNA Database Expansion Bills Considering all felons legislation in 2004 (5) Currently an all-felons state (31) Enacted limited expansion legislation (2) Enacted all felons expansion legislation in 2004 (3) * Failed to pass all felons legislation (4) Through a voters’ initiative

13. California DNA Initiative (#1029 - www.dnayes.org) • Requires DNA from all convicted felons • Probation and community corrections • Juveniles • Fully retroactive (including probationers & parolees) • Includes all offenders in custody if there is a prior felony conviction • Requires DNA for all felony arrests in 5 years • Fee of $1 per every $10 for court ordered criminal fines • Includes infractions of state vehicle code and local ordinances, but excludes parking tickets. Money available to fund casework (Section IV, subsection 3). • Offender outsourcing required if backlog of 60 days

14. Database Statutes

17. Database LegislationAs of June 24, 2004

21. ISSUE #2 ARRESTEE TESTING

22. Introduced legislation Enacted legislation Emerging Database TrendsArrestee Testing Proposals Maryland (2004) – Felony charges New Jersey (2004) – Violent felony arrests New York (2001-2004) Fingerprintable arrests Oklahoma (2004) – Felony arrests Texas (2001) – Certain felony arrests and indictments Virginia (2002; 2004) – Violent felony arrests; arrests for violent felony attempts Washington (2004)– Arrests for criminal charges Arizona (2002, 2003) – All arrests California (2004) – Felony arrests Colorado (2003) – Felony arrests Connecticut(2000) – Fingerprintable arrests Delaware (2004) – Fingerprintable arrests Illinois (2004) – Felony arrests Louisiana(2003) – Felony arrests and some misdemeanors

23. What Will Impact the Arrestee DNA Debate? • Crime Prevention Data • Constituent Reaction The California Initiative • Sample Destruction

24. CONS PROS Arrestee Sample Destruction Options • Destroy all samples • Save the convicted samples and destroy the arrestee samples • Likely required for arrestee legislation to pass • Reduces chances of unconstitutionality • Hinders technology changes • Makes quality control difficult

25. ISSUE #3 2003 FEDERAL LEGISLATION

26. S 1828 Sen. Kyl (R-AZ) HR 3214 Rep. Sensenbrenner (R-WI) S 1700 Sen. Hatch (R-UT) Advancing Justice Through DNA Technology Act Titles I and II – President’s DNA Initiative • $1 billion over 5 years • All felon federal and military crime databases • Allow all legally collected samples (juveniles, arrestees) • Permit local agencies to apply for the DNA money • Titles III – Innocence Protection Act • Post conviction DNA testing • Grants for counsel improvements during capital trials

27. More Than $1 Billion Over 5 Years (2005 - 2009) Proposed 2005 spending • $151 million for Debbie Smith DNA grant At least half ($75 million) for no-suspect casework Offender DNA analysis and collection Crime lab capacity for DNA analysis Suspect casework 1% for accreditation • $30 million for Sexual Assault Nurse Examiner Training • $12.5 million for training for criminal justice professionals • $15 million for research and development. • $42 million for FBI DNA programs • $2 Million for Missing Persons DNA Programs • $5 Million for Post Conviction DNA Testing

28. The Politics of the DNA Initiative The “Deal” vs. DOJ / White House / Kyl’s Camp

29. 2005 DNA Appropriations • President’s Request $175.7 million $175.788 million is proposed for State and local crime laboratories to reduce and eventually eliminate backlogs of DNA casework samples (including crime scene and convicted offender samples). Effective backlog reduction requires both the direct defray of sample analysis costs to meet immediate needs, and improvements, especially automation upgrades, in forensic laboratories to increase their capacity, eventually enabling them to keep abreast of their DNA analysis without additional Federal funding. These efforts will help prosecute the guilty and exonerate the innocent. The amount requested for this effort reflects a nearly $81 million increase over the level of resources in the 2004 Omnibus. • House 2005 Justice Dept. Appropriations $175.7 million DNA Initiative. The Committee recommendation is $175,788,000 for the Administration’s DNA Initiative, $76,840,000 above the current year level and the same as the request. The recommendation fully funds the second year of the Administration’s initiative to eliminate the DNA backlog in five years. The Committee recognizes that DNA technology will allow law enforcement to identify certain criminals quickly and accurately, solve additional crimes, especially violent crimes such as murder and rape, and identify persons mistakenly accused or convicted of crimes. According to a report submitted to Congress by the Attorney General on April 6, 2004, the total number of crime cases with possible biological evidence either still in the possession of local law enforcement or backlogged at forensic laboratories is over 542,700, which includes 221,000 with possible evidence in rape and homicide cases. The report also found that a significant proportion of law enforcement agencies continue to misunderstand the potential benefits of DNA testing. The Committee directs the Department to provide an annual report to the Committee on the achievements of the DNA Initiative in addressing the backlog and solving crimes. • Senate is undecided but leaning towards full funding • Senate Concurrent Resolution 95 on the 2005 federal budget includes language supporting funding the DNA Initiative at the President’s requested amount. • Kyl letter to Appropriations Committee • Leahy & Hatch letter to Appropriations Committee

36. ISSUE #5 NIJ DNA ASSESSMENT

37. Forensic DNA Assessment Project NIJ Grant Conducted by Smith Alling Lane, in partnership with Washington State University Project Goals …to provide a general assessment of the use of forensic DNA by law enforcement …to give a base from which extrapolations may be made projecting the national DNA backlog (not a national census) …to educate on the importance of expanded, operational forensic DNA programs and databases

38. Forensic DNA Assessment Project Final Report Topics • Backlogs • How big is it • Why do we have them • Related growth problems • Storage • Education • Effectiveness of DNA programs • CODIS data (solving crimes, preventing crimes) • Efficiencies & costs • Comparative analysis to the United Kingdom

39. TIMELINE • Released to Congress and the Public in April 2004 Forensic DNA Assessment Project Assessment questionnaire sent to • State DNA labs (100%) • Local DNA labs (100%) • Local law enforcement agencies (50+ %) • All agencies with 100 or more officers (approximately 1000). • A statistically valid sampling of remaining agencies (approximately 2000). • Indian tribes

40. Forensic DNA Assessment Results Backlogs • Law Enforcement Homicide – 52,000 cases Rape – 169,000 cases Property Crime – 264,000 cases • State Labs 34,700 cases • Local Labs 22,600 cases

41. Forensic DNA Assessment Results Reasons why law enforcement does not submit cases • DNA not considered a tool for crime investigations - 50.8% • No suspect has been identified - 31.4% • Prosecution had not requested testing - 9.2% • Suspect identified but not yet charged - 10.2% • Poor funding - 23.6% • Labs can’t produce timely results - 10.4% Backlog timeline for no suspect casework • State labs - 24 weeks • Local labs – 30 weeks

42. Forensic DNA Assessment Results Preventable Crimes Who would be alive or not victimized by a sexual assault if: • State legislature had passed and implemented all felons legislation • Casework was completed in a timely manner Focused on states without all felons laws

43. Case StudyMassachusetts THREE PREVENTABLE RAPE/MURDERS In late 1997, a woman was found raped and murdered in her home in Springfield. In early 1998, another three women were found raped and murdered – one in her home, two others in alley ways. All four murders were linked through DNA, and due to the unique positioning of the bodies which became the offender’s “signature.” Following the fourth murder, a voluntary DNA sample was collected from a person who had become a suspect in the case. Within a few weeks, that suspect was tied through a DNA match to the crimes. The suspect’s criminal record included two prior felony convictions in 1996 – one for larceny and the other for breaking and entering, for which he was sentenced to community supervision. If Massachusetts had required a DNA sample for either of the 1996 non-violent felony convictions, a DNA match could have been obtained after the first rape/murder, thereby preventing the subsequent three rape/murders.

44. Case StudyMissouri ELEVEN PREVENTABLE RAPES AND MURDERS From April of 2001 through May of 2002, police began finding the bodies of women who had been raped and murdered in the St. Louis/western Illinois area. Investigators recovered semen from the victim’s bodies that was sent for crime laboratory analysis. The DNA profiles from the semen recovered from the victims all matched. A person known to the police became a suspect in the crimes after he wrote an anonymous letter to a local newspaper. An internet-generated map enclosed with the letter led to some computer forensics that eventually identified the specific computer that downloaded the map. The suspect was ultimately arrested in June of 2002 when police found videotapes of himself killing and torturing his victims. On the videotape, the suspect states that he had just committed “murder number seventeen”. Police have conclusively linked 12 victims to this offender thus far, and believe the number could be as high as 20. This individual committed suicide shortly after his arrest. In March of 1988, this offender committed a series of five robberies and was sentenced to fifteen years for robbery and armed criminal action. In June 1994, he was paroled after serving five years and three months of his sentence. Unfortunately, Missouri does not require DNA from convicted robbers, and this offender was released without submitting a DNA sample for the state database. With a DNA sample in the database, this offender could have been identified as the killer of the first victim long before a minimum of eleven additional women lost their lives.

45. Case StudyNew Jersey FOUR PREVENTABLE RAPES Between April of 2002 and May of 2003, five women were raped in the Trenton area. DNA testing linked all five offenses to the same unknown perpetrator. After police released a composite sketch of the suspect in 2003, nearly 75 tips were called in identifying the same person. In June 2003, U.S. Marshals eventually arrested the suspect in Pennsylvania on a parole violation warrant that was issued in July of 2002. Trenton Police obtained a DNA sample from the suspect through a court order, and thanks to expedited testing at the state laboratory the man was linked to the crimes within a few days. The charges on 16 counts involving five victims are pending as the suspect awaits extradition to New Jersey from Pennsylvania. The suspect’s criminal record included two felony convictions for theft and forgery related offenses in New Jersey, and nine felony convictions for theft, forgery, and receiving stolen property in Pennsylvania. If the suspect had been required to give a DNA sample for any of these crimes in either state, he could have been identified after the first assault, thereby preventing the subsequent four rapes.

46. Forensic DNA Assessment Project - Results England and Wales • Over 1,700 crime scene to crime scene or suspect to crime scene hits per week • 40 percent chance of obtaining a match between a crime scene profile and a “criminal justice” (arrestee or suspect) profile loaded into the database • Adds between 8,000–10,000 arrestee or suspect profiles to the database per week • Adds between 1,000 to 1,500 crime scene profiles to the database per week • Increases the suspect identification rate for domestic burglary from 14 to 44 percent when DNA is available at the crime scene • Solves 0.8 other crimes for each crime solved with DNA • Prevents 7.8 other crimes for each custodial sentence resulting from a DNA based conviction • Will contain profiles of the entire “criminally active population” by March 2004

47. Questions ? www.dnaresource.com tims@smithallinglane.com