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                            LexisNexisª Academic

           Copyright (c) 2002 The American University Law Review
                          The American University

                               February, 2002

                            51 Am. U.L. Rev. 401

LENGTH: 12658 words

SYMPOSIUM: THE HUMAN GENOME PROJECT, DNA SCIENCE AND THE LAW: THE AMERICAN
LEGAL SYSTEM'S RESPONSE TO BREAKTHROUGHS IN GENETIC SCIENCE Washington, DC,
Friday, October 19, 2001: PANEL TWO: CRIMINAL LAW AND DNA SCIENCE: BALANCING
SOCIETAL INTERESTS AND CIVIL LIBERTIES

SUMMARY:
... To Mr. Asplen's right is Professor David Kaye from Arizona State
University College of Law. Professor Kaye is Regents' Professor at Arizona
State University. ... But Professor Miller has been here at the law school
for thirteen years. ... To Professor Miller's right is Bill Moffitt from
Asbill, Junkin, Moffitt & Boss. Mr. Moffitt is a premiere criminal defense
lawyer and a graduate of this law school. 1n 1999, he served as the
president of the National Association of Criminal Defense Lawyers, the
preeminent defense criminal organization in the country. ... As with the
other panelists, I certainly thank the law school for the opportunity to be
here. ... DEAN DINERSTEIN: Thank you, Professor Kaye. ... In reality,
they're on the payroll of the law enforcement. ... But any law enforcement
device can be misused. ... I'm an employee of this law school. I'm not
neutral about this law school. ...

TEXT:
 [*401]

MODERATOR:

DEAN ROBERT DINERSTEIN

Washington College of Law

PANELISTS:

CHRIS ASPLEN

National Institute of Justice

DAVID H. KAYE

Arizona State University College of Law

BINNY MILLER

Washington College of Law

WILLIAM MOFFITT

Asbill, Junkin, Moffitt & Boss

DR. F. SAMUEL BAECHTEL

DNA Unit, FBI

 [*402]  * * * * *

P R O C E E D I N G S

DEAN DINERSTEIN: Good morning - or, continued good morning. My name is Bob
Dinerstein. I'm one of the associate deans for Academic Affairs here at the
Washington College of Law. I believe you met my colleague, Andy Pike,
earlier, and the astute of you who got an early program will note that I am
not Angela Davis.

I am pleased to be here today to moderate our panel on criminal law and DNA
science, subtitled "Balancing Societal Interests in Civil Liberties." I
think we have for you a terrific panel that will be able to raise a number
of questions about this topic. I may raise questions, and I'm hoping that
you will raise them as well. We'll have time at the end of the session to do
so.

I'm going to introduce everyone first, briefly, and then panelists will each
speak for a few minutes on their particular expertise in this area.

First we'll be hearing from Christopher Asplen, to my right. Mr. Asplen is
an assistant United States Attorney here in the District of Columbia but is
currently detailed as Executive Director of the National Commission on the
Future of DNA Evidence, which functions within the National Institute of
Justice.

Mr. Asplen has presented on DNA issues at numerous conferences and published
articles on DNA technology and its application to the criminal justice
system in a number of different journals. He's on the board of the Journal
of Biolaw and Business, among other matters, and he'll be our kick-off
speaker.

To Mr. Asplen's right is Professor David Kaye from Arizona State University
College of Law. Professor Kaye is Regents' Professor at Arizona State
University. In 1985 he was the first director of the university's Center for
the Study of Law, Science, and Technology. His research focuses on the law
of evidence, on the use of social science and statistics in litigation, and
on genetics in the law.

He serves on committees at the American Statistical Association, the
National Academy of Sciences, and the National Commission on the Future of
DNA Evidence.

To Professor Kaye's right is my colleague Binny Miller from the Washington
College of Law, where she is the Director of the Criminal Justice Clinic.
For those of you who haven't seen her recently, she is in that hated
category on the faculty, "on sabbatical." But Professor  [*403]  Miller has
been here at the law school for thirteen years.

Among many other activities, she's on the Board of Directors of the
Innocence Project of the National Capitol Region and in my opinion has been
the person most responsible for the law school's involvement with the
Innocence Project here in this area. She will be able to speak to some of
those issues.

To Professor Miller's right is Bill Moffitt from Asbill, Junkin, Moffitt &
Boss. Mr. Moffitt is a premiere criminal defense lawyer and a graduate of
this law school. 1n 1999, he served as the president of the National
Association of Criminal Defense Lawyers, the preeminent defense criminal
organization in the country. He's given numerous lectures - national as well
as to various state bar associations.

And finally - last but not least - is Dr. Samuel Baechtel from the DNA
Analysis Unit of the FBI Laboratory, where he's a forensic examiner. He's
worked in the DNA Analysis Unit since 1995. He will provide the science that
all of you who in law school have tried to avoid.

With that, I will turn it over now to Mr. Asplen, who will start us off. The
panelists will speak in order and then entertain questions both from the
panel and the audience. Christopher Asplen.

MR. ASPLEN: Thank you. As with the other panelists, I certainly thank the
law school for the opportunity to be here. I appreciate it. I think it's a
wonderful opportunity for you folks to engage in what are obviously very
important discussions.

Also, like at least one of the other panelists, I have to issue a disclaimer
that as I am a representative of the United States Department of Justice,
nothing that I say in the next, oh, five, ten minutes should be taken as an
official policy statement on behalf of the United States Department of
Justice. With that caveat, I will try to be provocative. But I also, after
that first panel, remember exactly why I didn't go into patent law and why I
went into criminal law.

What I would like to do in my brief shining moment here is talk, first,
about an example of the integration of DNA technology into the criminal
justice system and the extent to which I think that ultimately integration
has been very successful. Secondly, I'm going to talk briefly about what I
think will be the next big issue in the context of DNA and privacy matters
and of DNA as an investigative tool. I will, third, leave you with a
question.

First of all, I'd like to talk about the post-conviction dynamic that has
gone on in this country over the past six or seven years. The whole
Commission - the whole national Commission on the future of  [*404]  DNA
evidence - owes its start to the post-conviction issue. A number of years
ago, then Attorney General Reno read about a number of cases n1 in which DNA
had been used to exonerate people who were determined to be actually
innocent years after their wrongful conviction.

And upon reading about a number of those cases, she began to figuratively
scratch her head and ask whether or not we were doing enough to facilitate
or to maximize the value of DNA technology in the criminal justice system.
So we put together the Commission and began to look at a whole host of
issues, but obviously that was one of the very specific issues we looked at,
since it was the genesis.

The dynamic about four years ago was a number of prominent defense attorneys
identifying cases in which they said that DNA technology was proving
wrongfully-convicted people to be innocent. This was going on against a
backdrop of prosecutors who - quite frankly I was one of them - were also
new to the science, but who were unfortunately very used to what was already
a post-conviction appeal process that was not based on the kind of evidence
that would allow such specific evidence of innocence.

If you look back to the Anti-Terrorism and Effective Death Penalty Act n2 of
a number of years ago, the appellate process had gotten so out of control,
at least in political eyes, and that the availability of habeas corpus was
significantly curtailed as a result. That was based on the experience of
prosecutors having to deal with appeal after appeal after appeal after
appeal after appeal based on evidence that was not as effective as DNA.

Well, now this DNA comes along and prosecutors, quite frankly, have a
difficult time getting their head around the idea that we're in a little bit
different ball game now. We now have an opportunity to do things
differently, and we need to adjust. Originally we had prosecutors who would,
in the face of DNA technology, simply object to an appeal based on the
statute of limitations on the time to file that appeal.

Well, clearly, that's not justice; clearly, that's not getting to the issue
of truth. So we had to initiate quite a program of education across the
United States and we began to do that with some of the  [*405]  publications
of the Commission. n3 However, from a societal and political standpoint, as
the issue became more prominent in the public's eye, we began to see
legislation being passed all across the country that would allow for the
specific post-conviction appeal based on DNA or forensic evidence.

To date, we have probably close to twenty-seven different states who have
passed DNA-specific post-conviction legislation. So we went from beginning
to educate prosecutors a little bit better to the point where legislators
were beginning to get in tune with this particular issue and recognize its
power.

Finally, I think that the next chapter was the extent to which, four years
later, even prosecutors are proactively going back and looking at cases
absent any request by defense attorneys to determine whether or not DNA may
prove exoneration in a specific number of cases. Unfortunately, in a limited
number of cases. The D.A.'s office in San Diego; Suffolk County, New York;
Travis County, Texas; the Attorney General's office in Ohio have all begun
programs, and there are numerous others where prosecutors themselves are
taking more ownership of that opportunity to determine actual innocence. I
think that it's a great example of just how far we've come in a very short
period of time and of the effect that DNA has had on the criminal justice
system.

Let me get to the second general consideration - the second point I wanted
to talk about - and that's what's the next logical step? Well, the next
logical step in the integration of DNA technology into the criminal justice
system has to do specifically with DNA databases. As you probably know, we
have criminal databases or convicted offender databases where we put DNA
profiles from individuals who are convicted of crimes into the database.

We put these individuals' genetic profiles, at 13 specific loci, into the
database and we compare crime scene DNA profiles to everyone who is in
there. Now, you have to be convicted first. That's the way the system exists
right now. The next question, though, is do we then get to the point where
we begin to put into that database individuals who are simply arrested?
That's part of the provocative part.

Do we begin to do that? We already do that with fingerprints. We already
database people with fingerprints. The issue then becomes,  [*406]  how
different are fingerprints from DNA profiles? The issue then becomes ... do
you retain DNA samples or do you destroy them, thereby more closely equating
them to fingerprints? And that whole discussion begins to kind of swirl
around, and the discussion is starting to become a legitimate and very real
discussion in state legislatures.

The State of Texas recently passed legislation n4 that goes so far as to say
that if you are indicted for certain crimes, you get to go into the
database. Can't just be arrested; you have to be indicted. But they've
already begun to go there. The State of Virginia is talking about it. n5

And to connect it to my first big point is if your concern is using DNA
technology to exonerate people who have been wrongfully convicted, you have
to commit yourself to doing it right in the first place. You have to commit
yourself to utilizing DNA technology on the front end so that you get the
right person in the first place.

We don't want to wait until ten years after someone's been convicted to
utilize DNA technology in an effort to free them when we could have gotten
the right person in the first place. Thus, we begin the journey into the
balance of cost-benefit analysis.

And it becomes a very complex proposition and at times less based on
constitutional analysis than on societal perception and what we're willing
to do. Whether or not arresting/testing is ultimately deemed constitutional,
I suggest to you right now it's less important than whether or not society
wants to do it.

And it goes back to a comment made by one of the earlier panelists, and that
is you don't want to kill the goose that laid the golden egg - from a law
enforcement perspective. You don't want to integrate DNA technology to an
extent or at a speed that causes the public to have a reactionary response.
You begin to lose some opportunities to solve crimes, because every time you
solve a crime and you do it right you prevent that wrongful conviction.

Here's the third point that I wanted to talk about, and a provocative
question. One possibility, one thing we could do in the world that's been
created subsequent to September 11th, is require that people applying for
entry into the United States before getting a visa would have to, at the
consular office from whatever country they're coming from, provide a DNA
sample.

 [*407]  That DNA sample would be profiled in 13 genetic loci, and they
would be run against the database. We could begin to put together, for
example, terrorist databases or suspected terrorist databases. Every time we
go into a terrorist training camp we could collect DNA samples. We already
have suspects that we know of internationally.

And in order to get into this country, you may well have to provide a DNA
sample. That profile would be put on your visa and then that would be
confirmed when you come into the country by fingerprint analysis. If we
assumed that the letters containing anthrax in this country were not of a
domestic nature, given our ability in the past to get DNA off of things like
stamps and envelopes, there's a very real possibility that we would know
rather quickly who sent those letters. You're not dealing with the civil
rights issues that you are when you're talking about being in the country;
it's a question that I would suggest may warrant some discussion.

And I will leave it with that.

DEAN DINERSTEIN: Thank you, Christopher Asplen. Professor Kaye.

PROFESSOR KAYE: Although I want to proceed where Chris left off, I'd like to
begin with an overview of the kinds of legal and social issues raised by
forensic DNA technology.

Let me divide these issues into three groups. One group arises with respect
to DNA as a prosecutorial tool; a second group concerns post-conviction
relief issues; and a third involves DNA as an investigative tool.

In the late 1980s, prosecutors began using DNA evidence to link defendants
to rapes and a few other crimes. The issues that were raised had to do with
the admissibility of that evidence. Were DNA typing methods generally
accepted in the scientific community? Were they executed properly? Were they
scientifically valid? Were they reliable? These were the kinds of questions
the courts initially confronted. Further, questions arose as the defense bar
probed prosecutorial efforts to use DNA evidence to support probability
estimates as to how rare a given DNA type would be. n6 This certainly
entered the public consciousness with the O. J. Simpson case. n7

 [*408]  A second set of questions arises with respect to the defendant's
access to expertise in the face of this scientific evidence. When should
courts provide that access to indigent defendants? Some courts are more
stubborn than others about providing funds for experts retained by the
defense. n8 The defendant's right to obtain independent tests of DNA
evidence also has come into play, and with it, yet another issue arises. If
the defense is given a portion of the DNA to analyze - as can often be done
now - does the prosecution have a right to bring out at trial the results of
that testing? In the Simpson case, there was no word about the results of
the DNA testing conducted for the defense. Should the prosecution be
entitled to call to the witness stand the defense expert? Or, in a different
situation, to point out that the defendant had the opportunity to test
samples but preferred not to do so? n9

Another category of evidentiary issues has to do with statistics as to the
rate at which laboratories have made mistakes in the past, either in actual
case work or on proficiency tests conducted to verify that the laboratory
correctly types DNA samples. The admissibility of such statistics is
questionable, under the rules governing character evidence. Technically, the
fact that a laboratory has made errors in the past, in unrelated cases, is
circumstantial evidence of conduct on another occasion, which often is
deemed inadmissible character evidence. n10

I won't say much about post-conviction relief because Chris Asplen has
already discussed some of these issues, and I'm sure that Professor Miller
will have more to say. n11 Instead, I shall only mention what some
individuals think of as a symmetrical issue. Since defendants can raise
claims of innocence long after the period for appeals, should prosecutors
who have crime-scene DNA evidence, but do not find the person from whom it
came until the statute of  [*409]  limitations has run be allowed to bring
cases notwithstanding the delay?

Some state legislatures have eliminated the statute of limitations in rape
cases where DNA evidence is often prominent, or they have tried to make
exceptions for rape cases involving DNA evidence. n12 In several respects,
however, efforts to create DNA exceptions to the statute of limitations are
problematic. n13

The third area, the use of DNA as an investigative tool is, I think, the
most interesting at this time. Let me distinguish two situations. One
concerns a known suspect, an identified suspect, while the other concerns an
unknown suspect. When there is a suspect, the issue becomes the acquisition
of that suspect's DNA. How can the police get hold of it? Voluntarily? By
going to the suspect and saying, "Would you mind giving us some of your
blood? Maybe a swab of the inside of your cheek? Perhaps some saliva?" The
Constitution permits individuals to consent to searches. But what if someone
just leaves DNA somewhere? If I take a drink of water here and leave my cup,
an enterprising police officer might obtain it, and a prosecutor could argue
that no search occurred. There have been a number of cases like that.

Perhaps the most interesting arose in southern California over the summer. A
police detective had a hunch as to who might have committed a rape. She
asked him, "Would you mind coming and having lunch with me? I want to
discuss this case and get your help as to who the rapist might be." She
figured that people who are guilty of crimes often like to talk and give the
police false leads.

She didn't say, "I suspect you." She said, "I want your help." They met at
Taco Bell. An undercover police officer posed as an employee. The detective
bought her suspect a soft drink. After a while, the detective said, "Here,
let me get you a refill." She took the  [*410]  cup and handed it off to her
confederate. DNA evidence recovered from the straw showed that the man was
indeed the person whose DNA was associated with the rape.

He pled guilty, by the way. The public defender said that he didn't think
the defendant could succeed in suppressing that evidence. The state's
argument would have been that the straw was abandoned or taken with his
consent. Issues of consent also arise with regard to medical records. Could
the police obtain tissue samples that were taken for diagnostic medical
tests?

There are millions of such samples in the country. United States v. Miller
n14 suggests that the Fourth Amendment would permit the government to
acquire many existing samples without consent from any patient. n15 The
theory of Miller, which involved financial information held by a bank, is
that once the information is voluntarily disclosed to such an institution,
the individual who disclosed it loses any reasonable expectation of privacy
in it. Of course, one might try to distinguish medical records or biological
samples from financial information, but it is far from clear that this
distinction will prevail. n16 DNA also can be obtained from a known suspect
by court orders. As with other search warrants, these testimonial orders can
be based on probable cause, but the lower standard of reasonable suspicion
seems sufficient. n17

To this point, we have considered the accessibility of DNA when the suspect
is known. Where the suspect is unknown, other controversial investigative
methods have been used. Let me mention one development that started with a
sexual assault of a child in Wisconsin. A seven-year-old girl was late for
school one morning. She was hurrying along Milwaukee's south 18th Street in
a snowsuit when a man grabbed her wrist, pulled her into an alley, and raped
her.

Six years later, just before the Wisconsin statute of limitations was to
run, an arrest warrant was issued. The warrant was for a John Doe, unknown
male, with matching deoxyribonucleic acid at genetic locations D2S44,
D4S139, D5S110, D10S28, D184, and D17S79. n18 The  [*411]  unknown male is
still at large, but the prosecutor who initiated this practice of issuing
so-called John Doe DNA warrants, Norman Gahn, is watching. "Someday,
somewhere, we hope this guy comes up in somebody's databank," Gahn said.
"And we'll nail him." n19

Is this practice permissible in light of the statute of limitations? The
issue is just beginning to surface. n20 Chris alluded to offender DNA
databases, which raise important policy and constitutional questions about
who is to be included in those databases. Can the growing databases be
reconciled with the Fourth Amendment's prohibition of unreasonable searches
and seizures?

The Supreme Court decided two cases last Term that cut back dramatically on
the "special needs" exception to the Fourth Amendment, n21 which was often
used by lower courts to support those databases. n22 Both Texas n23 and
California, n24 have statutes that permit DNA to be taken on indictment.
Louisiana has a law that permits DNA to be taken at the point of arrest, n25
although that has yet to be implemented largely, I believe, for cost
reasons. The validity of these laws have yet to be tested in the courts.

This takes us to the point where Chris left off. He talked about collecting
DNA from people coming into the country - reminiscent of proposals in the
1920s to require fingerprints of all immigrants and other people coming in
to the country. n26 I want to raise a broader question.

Why not a population-wide database? Why not take DNA from everybody? We
already do. Everybody in this room had a DNA  [*412]  sample taken, I would
guess, as a newborn. (Well, perhaps if you're old enough, you didn't.)

PROF. MILLER: Not all of us.

PROF. KAYE: But four million new babies each year have their DNA taken for
public health purposes, for a series of genetic tests for conditions such as
phenylketonurea, for which early dietary intervention can prevent mental
retardation. n27

With the same blood sample, medical personnel easily could perform DNA tests
for identification purposes, characterizing loci that have no medical
significance and sending only the identifying numbers to a centralized DNA
database for use in all kinds of situations - criminal investigations, mass
accidents, and terrorist attacks. This system would keep DNA samples out of
the hands of law enforcement personnel. It would avoid the issues that arise
when police canvas entire neighborhoods, asking all men to give DNA samples
to help solve murders or rapes for which there are no other leads. n28

In contrast, if we continue down the road that we are now traveling, we will
end up with a DNA database containing information on a quarter to a third of
all men, that is how many are arrested in the course of a lifetime. n29 In
some African-American neighborhoods, as many as ninety percent of adult
males will have an arrest record, n30 and across the nation, an
African-American male is five times more likely to be arrested than a
Caucasian male to be arrested for murder, rape, robbery, and aggravated
assault. n31 As a result, our prisons are populated predominantly by
minorities, by people of color.

Limiting the databases to convicts or arrestees thus will have a
dramatically disparate impact. I am not saying that this outcome is
unconstitutional, but the disparity surely raises an important question of
fairness and should prompt us to ask whether it would it make  [*413]  more
sense to move toward a population-wide database. n32

Thank you.

DEAN DINERSTEIN: Thank you, Professor Kaye. Professor Miller.

PROF. MILLER: Well, when the Law Review asked me to speak on this panel, I
was very honest with them. I said I don't know nearly as much about DNA as
the other panelists. However, I can talk about my work with the local
Innocence Project, the Innocence Project of the National Capital Region,
which some of you may know is housed here at the law school, and the role
that DNA has played in that project, as well as my thoughts on how DNA has
affected the work of criminal defense attorneys.

I think that all of us on this panel have different perspectives on law
enforcement; that should be obvious from the remarks thus far. I would guess
that folks in the room have very different perspectives on law enforcement.
My own perspective is a criminal defense perspective and a civil libertarian
perspective. I think more about representing clients and less about nailing
suspects, except to the extent that suspects eventually become clients, and
I'm looking for an alternative suspect.

So, I want to talk a little bit about my work with the Project. Basically
what the Innocence Project in this area is about - and it's similar to a lot
of Innocence Projects that have cropped up around the country - is
investigating claims of innocence. Those claims are most often received from
inmates writing letters from prisons, but sometimes they are received from
inmates' families and friends and other sources. Looking at those
applications can be a long and complex process. It involves trying to
determine, out of all of those applications, which contain claims of
innocence, possible claims of factual (or actual) innocence that we think
might be ultimately provable in court. In looking back on the conviction,
looking back on the transcripts and police reports and information contained
in the letters from inmates, we are searching for those cases in which, one,
there might be actual innocence; and two, we might be able to prove it.
Those cases then get referred to law students for investigation, and if they
pass that stage, to a group of outside attorneys working with the Project
who are assisted by law students - in fact some students here at the law
school.

I've been one of those attorneys working with the Project, specifically with
a group of WCL students, trying to figure out which  [*414]  cases have
promise and which ones don't. One of the things that has become so clear to
me in my work with the Project is that without DNA and without, let's say,
good DNA to test, it is almost impossible to tell the difference between a
factually innocent person and a person who is not factually innocent.

Some criminal defense attorneys will tell you that, based on their
instincts, they probably have a sense of whether someone is guilty or
innocent, even for those clients who don't tell the whole story about what
happened. But you just never really know, and one of the beauties of DNA
evidence, if it's used properly, is that it can shed that kind of light on
cases.

I think the flip side of that in doing innocence work - what I would call
the darker side - is that without the aid of DNA evidence it's very
difficult to make a case for innocence. There are so many problems in the
process of prosecuting people and bringing them through the court system
that make many convictions at least possibly unreliable, yet unless a DNA
test can shed light on a conviction, it is hard to challenge from the
standpoint of innocence. I'm sure all of you have heard about problems with
false confessions and with eyewitness identification, evidence that the
courts still treat with a great deal of respect. But when you really look at
the science of eyewitness identification, as a number of psychologists and
other experts have, you see that eyewitness identification is rife with
mistakes.

In reviewing inmates' letters and looking at other evidence, we see
suspected false confessions, many which may not be able to be challenged
legally on the basis of Miranda, voluntariness, or other kinds of issues. We
see problems with snitch witnesses. We see all kinds of problems, and yet we
can't know with any certainty in looking at a particular application whether
that person was convicted based on a false confession or a confession that's
completely valid. The vast majority of criminal cases can't be resolved by
DNA evidence.

Yet, in a kind of round-about way, we have DNA to thank for the fact that we
now know more than we used to know about the causes of wrongful convictions.
We know that wrongful convictions occur with some frequency. In situations
where DNA has exonerated someone, it's possible to look back and say, "Well,
this person was convicted based on a very certain, very honest, very
truthful eyewitness, but she must have been wrong because DNA says that this
person in fact could not have committed this crime." You're then able to try
to figure out what went wrong in that process. There may not be misconduct
of any sort. In fact, wrongful convictions are more  [*415]  likely to be
the result of mistake than misconduct.

DNA has shed a huge amount of light on wrongful convictions, and our
Innocence Project has provided me with a real education in looking at these
cases and thinking about the difficulty of making a determination of
innocence in the absence of good scientific evidence. I suppose that DNA is
just about as good as it gets in terms of reliability and in terms of
pointing to the right person. But it only goes so far, a point I'll return
to later.

The more controversial piece of what I have to say comes from the tension
that a lot of criminal defense attorneys experience in thinking about the
use of DNA. That tension goes to the use of DNA as a prosecutorial tool, DNA
as a post-conviction tool, and DNA as an investigation tool. In the big
picture we would all prefer that actually guilty people be convicted rather
than actually innocent people. I don't think very many people would argue
with that proposition, even criminal defense attorneys. But it's also true
that in the work of an individual criminal defense attorney representing an
individual client, it's your duty to do the best job possible to represent
that client to the best of your ability, even if that means an acquittal for
someone who is guilty. That's something many of you know from taking
criminal law and procedure classes from Professors Mike Tigar and Angela
Davis and other professors.

The pursuit of truth really isn't the job of a criminal defense attorney.
There are always limits to what you can and can't do, but if DNA points to
your client your ability to advocate effectively is quite limited. You can
argue about the quality of the DNA analysis, but as the techniques get
better and better there will be fewer and fewer of those kinds of arguments
- such as the quality of the collection techniques - to make. These kinds of
arguments can provide interesting case theories but some of the fun of story
telling in the criminal process - for our clients it's not fun but for
lawyers, hopefully it's a little bit fun - has changed because of DNA, and
that's behind a lot of the ambivalence criminal defense attorneys feel about
the emergence of DNA as a tool in criminal cases.

Many people working with innocence projects, especially people with a
criminal defense perspective, have concerns about DNA profiling - a massive
data collection effort whose target has moved from individuals convicted of
crimes to individuals arrested for crimes, and which may in the future
include individuals from other countries seeking visas, to most of us here
who don't fall into any of those categories.

In thinking about this issue we should keep in mind that DNA  [*416]
certainly doesn't answer every case and is not a panacea for solving crime,
any more than it is a panacea for proving actual innocence. Only a
significant minority of cases at this point can be resolved one way or the
other with any certainty based on the examination of DNA evidence. I'm sure
that will change as the technology improves and as law enforcement puts more
emphasis on DNA. But DNA certainly isn't the be-all and the end-all of
effective and just law enforcement, and there are a number of well-known
cases that illustrate this. Earl Washington's case from Virginia strikes me
as perhaps the best example. n33 In the case of the Ford Heights Four in
Chicago, DNA evidence was exonerating to the best of anybody's information
and yet it was still possible for the prosecution to argue that DNA was not
definitive because crimes can be committed by multiple people. n34 Even if a
person didn't leave his or her DNA evidence at the scene of a crime, it's at
least hypothetically possible that that person might have been there, so I
don't think it's always the perfect tool that law enforcement would make it
out to be.

I'll end with a comment of a different sort on the issue of collecting
samples and profiling everybody's DNA. It raises some concerns for me from a
civil liberties perspective and also from a scientific perspective. As a
non-scientist I have no clue as to what uses DNA might be put in the future.
Very few of us here would ever have anticipated what's happened with DNA in
the past twenty years let alone in the last eight or nine years, and we
can't know what the future will bring. It concerns me that we are making
decisions driven purely by law enforcement concerns which implement changes
that are not minimal and could have far-reaching consequences that none of
us can anticipate. I'd like to see a wider discussion of that subject when
all the panelists have finished their remarks.

Thanks.

DEAN DINERSTEIN: Thank you, Binny Miller. Bill Moffitt.

MR. MOFFITT: I guess I have to start with the perspective from which I come.
Like Alfred Hitchcock, I love my government but I'm afraid of it, and that
is the truest perspective on why and perhaps the  [*417]  reason that I am a
criminal defense lawyer. I would suggest to you that in many ways the one
thing that the criminal justice system, wherever it has existed, has sought
throughout history, is certainty.

Most people of goodwill would like to be certain that when we incarcerate
people or when, in a society like ours, we often kill them, we are certain
of the result. The one thing that DNA purports to give people is this
certain sense of security that we are certain of the result. My experience
as a criminal defense lawyer teaches me several things about that.

DNA is not the first scientific technique or method that has been introduced
into a courtroom with the imprimatur of certainty. And we are no more
certain today than we probably were twenty-five or thirty years ago or even
a hundred years ago in most cases about the result. And what we are
essentially being sold is the notion that we can have a degree of certainty.

I'll start with another premise, and it's a premise that's probably going to
upset many people sitting at this table. There is a difference between pure
science - science done for science's sake - and forensic science. Forensic
science is often a science where a particular position has been established.

When you look at our society and you look at who does forensic science, it
is most often done by law enforcement. It is not a neutral party that is
working the scientific portion of the case. It is the FBI; it is the local
forensic science people who have connections to law enforcement. And I
suggest to you that if you've looked at the newspaper recently you've seen a
series of articles in "The Washington Post" about coerced confessions in one
of the local counties. n35

I suggest to you that people don't start out with the idea that they're
going to coerce a confession. When they coerce a confession, they think that
they're doing the societal good and they think they are justified in the
answers that they get.

The same pressures that operate on police officers who coerce confessions
operate on "forensic people" in a high-profile case to come up with a result
that is supported. And we've seen this happen over and over. If you remember
the Olympic bombing where an individual was literally tried and convicted in
the press with a lot of  [*418]  help from the FBI but was not guilty. n36

When you learn that forensic science is not done by neutral parties and you
also learn that the poorest of people, the people who cannot hire an
independent group to do the science, have to rely on law enforcement for
their science, you become extremely concerned. What this means and how this
operates or should operate in a system that presumes the innocence - not the
guilt - of a defendant is disturbing. But the very people who are trying to
put that accused in jail are the people who control the science. That ought
to bother us a little bit. That ought to trouble us some. What else ought to
trouble us a bit are things like DNA dragnets. Police are going to citizens
and suggesting, "Well, if you were innocent you would give us your DNA."

Now, let me ask you this. In what neighborhoods do you think these things
are going to happen? And who are the people that are going to be most
affected by these kinds of tactical responses? And as I sit here today, the
suggestion has been made that perhaps we ought to take everybody's DNA and
create a database. Who do you think - what groups of people - would be most
affected by such a thing and what benefits would they derive from it?

Remember, we live in a society that was quite willing to intern a group of
people based on their race during World War II. We have had outgrowths from
fears of crime and violence in this society that have caused it, in a law
enforcement context, to overreact. And who are the people whom the
overreaction is most often against?

Are you secure in the quality of forensic science received by an indigent in
Alabama who is accused of the crime of perhaps killing a person of another
race and must rely on the Alabama forensic lab? And believe me, even our own
FBI lab stories - if you look at the inspector general's investigation of
only a small segment of the FBI lab, you will see that internal pressures
cause people to do certain things. The training of people in areas in which
they were testifying was almost nonexistent, and they were willing, in a
courtroom, to extend their expertise beyond its true ability. It's very
effective when someone walks into a courtroom and says, "I am a scientist".

I don't mean to minimize the good that DNA has done, and it is because of
the good that we are willing to extend the notion of how we use DNA to areas
where it should not be extended.

So, to my other panelists who are very comfortable with supplying  [*419]
DNA and what have you, I say to you - I sit here today with a current
medical disability that none of you are aware of. It's none of your damned
business. It's none of your damned business and it's certainly none of the
government's business.

But I suggest to you that if they took my blood they would know about it,
and they would use that in whatever context is important. We have also had
presidents, ladies and gentlemen, who turned the IRS loose on citizens who
defected from their view of the world. Imagine what could happen under
circumstances when someone was aware of what a person's physical
disabilities were, or could find out, because the government kept a
database.

Please understand, I think DNA is a tool, like everyone else, and certainly
as a criminal defense lawyer, I would use it to free a client. And I
certainly believe that it has a place in the context of our criminal justice
system.

But to create the notion that it is a panacea that will cure whatever ails
us in this society - I suggest that we have looked at other panaceas
throughout the 20th century, and other societies look for panaceas, and we
have seen some of the consequences of that.

So, I suggest to you that before we turn ourselves over to the science of
DNA, we must decide whether we want to remain a society where people's
individuality and privacy are what matter and count for something. So, I
raise a dissenting vote here to all the ease at which we say, "if we catch
one more criminal we've made the world a better place."

We're not ever going to catch everybody that commits crime. While we should
make a goal of catching as many as we can, it should not be at the expense
of our privacy and of our individuality.

Thank you.

DEAN DINERSTEIN: Thank you, Bill Moffitt. Dr. Baechtel, who I'm sure will
have interesting comments or response.

DR. BAECHTEL: There are advantages and disadvantages of going last. One of
the advantages is you know the position of the people that preceded you. Let
me start off by mentioning the same disclaimer that Chris Asplen mentioned,
that my views on some aspects of DNA typing can often differ from those of
the Department of Justice and the FBI, so I'm not speaking for a position
that they might hold.

First of all, let me tell you something. I was sitting at my desk this
morning reading Nature Biotechnology, which is a British scientific journal,
and there's a cartoon here that caught my eye and then I read the article it
accompanies, and this will tie together the  [*420]  preceding group with
this group. Let me read this. "A new company was launched in August to help
people copyright their DNA profile at $ 1500 a person. The service is
targeted at celebrities who fear being cloned unknowingly. Because material
must be unique to qualify for a copyright, this company will create a
profile similar to those made by the U.S. Federal Bureau of Investigation
that are commonly used as evidence in courts of law, an image of a pattern
created by the thirteen highly polymorphic loci that had been discussed
earlier." n37 Isn't that interesting?

I'm going to depart from some stuff here. Some of what has been mentioned
here today is quite true. Most of it is quite true. Let me take you back to
fifteen years ago before the advent of DNA profiling, and let me describe a
situation for you. A rape occurs. The vaginal swabs go to the laboratory,
and the laboratories run a test to determine the blood group of the semen
donor. If the individual is a secreter and about eighty or eighty-five
percent of us are, we will elaborate our blood group into our body fluid -
saliva, semen, vaginal fluid, et cetera.

Suppose the typing came back - and let's just assume, since I'm making this
up, that the victim in this case is a non-secreter, so when we test this
sample, using this test, her blood group is not going to interfere. And
let's say it comes back as an O secreter, and, lo and behold, our suspect in
the case is an O secreter. And furthermore, there's some nebulous eyewitness
account that he was the perpetrator.

I guarantee you there are people in prison right now on the basis of that
slim forensic evidence. And when you realize that about forty-five percent
of the population is a group O - not all are secretors mind you - you see
even more the impact of the weakness of that evidence.

So, I would put forth as a statement to begin with that the power of DNA
technology has absolutely changed the face of these sorts of criminal
investigations. If I were wrongly accused of some crime in which I had left
biological evidence behind, I'd doggoned sure would want a DNA profiling
test run to exonerate me at least from leaving that material.

So, it's obvious - I use DNA profiling techniques to determine if genetic
linkages exist between evidence, items, and individuals. I use a mature
technology that's been acceptable in courts throughout the country, and it
comes as no surprise that I think DNA profiling is  [*421]  perhaps the most
significant advance in the forensic area of criminal justice since the value
of digital fingerprints was recognized.

Now, it's already been pointed out that we have several applications for DNA
typing. I use it to look at evidence for criminal cases. Profiles that are
generated from those criminal cases are used a couple of ways. They're used,
obviously, if the case goes to court, and those profiles are also put into a
national databank - a databank to which many crime and forensic laboratories
in the nation contribute profiles.

Obviously we're trying to link crimes that were not apparently linked. For
example, the law enforcement investigators in Washington, D.C., don't
necessarily know what's happening in Missouri. But if the DNA profiles from
the case in Washington, D.C., are put into this national databank, the crime
lab in Missouri can check it against their unsolved crimes or crimes with no
suspects.

I'm going to go into a little bit of education here because I want you all
to realize the applicability of DNA typing. I looked through the log of the
cases that are assigned to me. I have at the moment 129 cases assigned to
me, and I looked at what the criminal acts were in those cases and I just
pulled out: homicides, rapes, bank robberies, clothing that the robbers
discard as they're fleeing the scene, threatening letters, extortion
letters, kidnappings, public corruptions, health care fraud - just to name a
few.

In other words, the variety of situations to which this technology can be
applied is very extensive. Do you realize that on a given day you might have
looked at your image at an airport security camera? A red light camera might
have caught your license plate, if you're a traffic scofflaw. But you've
also left a genetic residue of yourself in all of your daily surroundings.

The cup you drank your coffee from, the cigarette you had at the break, the
shirt you took off yesterday or you're going to take off this evening. I can
pick up your DNA types off the collars of your shirt, the baseball hat you
wore in here. That's a wonderful source of DNA. The tissue you blew your
nose on and tossed in the trash can.

It's almost impossible to not leave some genetic legacy of yourself behind
everyday, and one of our jobs, of course, in the lab, in the system, is to
determine if the genetic material that's there is pertinent to the crime or
was just incidental.

And you also have to realize that today if I took a DNA buccal swab sample
from your cheek, it would take about two normal workdays for me to get your
DNA profile back. But also recognize that the potential technology is on the
horizon that enables that sample to be  [*422]  processed and the profile
developed in a matter of minutes or just a few hours. There is no doubt that
this is a worrisome technology. I worry about it.

Just like my colleague here at the table, Mr. Moffitt, I'm not sure I always
trust my government. What you have to understand, as potential attorneys, is
the sort of oversight there is of me in my use of this technology. Well, I
boil this down to about three areas, and before I go into those, let me
point out something else.

If you're interested in criminal law and you're dealing with DNA typing and
profiling - if that's part of your case - the first book you want to pick up
is this, The Evaluation of Forensic DNA Evidence. n38 You go right down
Wisconsin Avenue to the National Academy of Sciences bookstore - at least it
used to be down there - and pick this up. Without a lot of explanation, this
is a very astute look at DNA profiling. In fact, one of the members of the
panel here, David Kaye, was on the committee that helped put this book
together.

Not only is it a good explanation of the technology, but it also goes into
the legal ramifications. I always carry this to court and not only to
support my position. I guarantee you many of the defense attorneys that I go
up against also have a copy of this, and they're going to quote from it. So,
it's the first good thing you need to pick up.

Okay, what are the three areas? One ensures that we do the DNA profiling
correctly. Fifteen years ago when, prior to the days of DNA, the laboratory
systems around this country - forensic labs - were very balkanized in the
sense that everyone had their own pet methodology for performing these
tests. There was no commonality, limited ability to interchange the data.

Secondly, what are we learning about a person's genetic privacy? And
finally, what do we do with the information? Was the work done properly?

The second document you want to pick up is the Quality Assurance Standards
for Forensic DNA Testing Laboratory. n39 This document specifies that any
forensic laboratory or private laboratory, for that matter, who's doing DNA
typing has to adhere to the standards in this very slim document.

This document answers the questions: What are the qualifications  [*423]
and training people have to have to perform this technique? Under what
conditions can you carry it out? Has your methodology been validated? Did we
just kind of read something out of a book and go off into the lab and start
utilizing this technology, or has it been extensively validated? And it has.
What's the quality control on the test procedures? Do the analysts have to
undergo any kind of proficiency testing to make certain they know what
they're doing? Finally, what do you do if the lab makes a mistake? What's
the error reconciliation process?

As I already pointed out, we have a validated operational protocol that
wasn't handed down on stone tablets. Some serious scientific work went into
the validation of that procedure. Most labs today either hold, or are
actively seeking, accreditation by an outside agency to specify that the
work is done under standard acceptable conditions.

And finally, as attorneys, you need to realize that after I complete testing
on a case, I turn the work product over to the prosecution. Obviously you
are entitled to discover every piece of paper that I generated. And I do
provide that material routinely. In almost every case that I have in the
District of Columbia, I get a discovery request, and I dutifully Xerox all
the pages; I put on a CD all the data off the instrumentation we work; and I
turn it over to the prosecution who then turns it over to the defense.

Recognize also that although my colleagues and I work for a law enforcement
agency, I'm not an advocate for that agency. I am neutral in the process. If
you're a defense attorney and your client is looking at trial based on the
case that I work, call me up. I'll talk to you. I'll explain the technology
to you as readily as I will to the State. We're not in some tower down there
that's inaccessible.

Secondly, do we invade a person's genetic privacy? It's already been pointed
out, the areas in the DNA that we look at don't tell us anything about a
person's race, their eye color, their hair color, or their stature. In fact
there are good scientific reasons for not looking in those areas.

The areas we look at don't tell us anything about the tendency to develop a
disease or whether somebody already has it. And finally, what do we do with
the information? It's already been pointed out that it goes into a computer
database. If it goes to court, it will come out at trial. Nobody from the
outside has access to that information.

Suppose I told you at the first location that we type in DNA D3S1358 and I'm
a 17/19. That doesn't tell you anything. It doesn't tell me anything other
than the fact that I'm 17/19. And all my  [*424]  children ought to have
either a 17 or a 19 at that locus. So, there is no real invasion of genetic
privacy once we have that profile.

The disadvantage of going last, I might add, is that all the questions I
might toss out for general discussion have already been brought out. I would
point out that personally I cannot imagine doing DNA typing on every person
who is arrested or even every person who is indicted.

People that suggest these things have probably not been near their local
crime laboratory in a long time. We have our hands full just handling cases
going to trial and getting the evidence out there to either exclude or
include someone.

And I'll quit at that.

DEAN DINERSTEIN: Thank you, Dr. Baechtel. I don't know about you, but as we
start talking about the ways in which one can leave your DNA, it makes me
very self-consciousness of even writing a note at this point.

I know the panelists may well want to respond to or elaborate on their
comments but I'd first like to open it up to the audience and ask anybody
to, in a nice loud voice, ask any questions of either particular panelists
or the panel in general. We'll try to address those questions and then we'll
an opportunity to do some summing up. Then I have an announcement about
further logistics for the remainder of our program.

Don't be shy.

SPEAKER: Well, with great trepidation, I go into this discussion simply
because I think DNA is a mystery to many people. It certainly is to me. I
want to direct my comment to Dr. Baechtel. I do share concerns about my
genetic privacy and you stated - and I take you at your word - that what you
do does not lead you to understand a person's condition or information about
their stature. You cited examples that include things like DNA taken from a
hat or from a shirt or from other items. That's what you work with, correct?

DR. BAECHTEL: That's representative, yes.

SPEAKER: So, when you say that you do not have the ability to look into
someone's medical conditions or stature, that's a self-imposed restriction?
The material you have before you really is open to that, correct?

DR. BAECHTEL: Oh, yes. Good point. Yes.

SPEAKER: So, the limitation on you is really an ethical restriction, and is
it fair to say that those who would seem to abuse that information would be
able to do so once the government is in possession of my hat?

 [*425]  DR. BAECHTEL: Well, I can only speak for my agency, and the point
you make is true. Once you have the cells from someone, then the potential
exists to essentially probe anywhere within that DNA. We're not interested
in that. We don't have the methodology to do it, nor do we really have the
time to pursue those sorts of things. Whether that might happen in the
future I don't know. I certainly would be opposed to it. But let me point
out - I don't want to dominate all the discussion time here - once I've made
a DNA match, what's the next thing I have to do?

I have to calculate the probability of which that match being coincidental.
And I routinely carry out that calculation for four basic groups of
individuals - African-American, Caucasian, southeastern Hispanics, and
southwestern Hispanics. And oftentimes, practically every time, those
probability estimates will differ somewhat from race to ethnic group or
other races.

I occasionally have police officers who have seen my report and notes and
look at those probabilities and say, "Well, the probability of finding this
profile is most common in a black person, so should we be focusing our
investigations on a black person?" I say "absolutely not."

Law enforcement, in a scientifically ignorant way, wants to take the results
- the fruits of the technology - and kind of twist it to their own means,
and I always discourage that because the investigation can be severely
misled by trying to go down a path like that.

So, yes, certainly the possibility exists that somebody could take that item
and conduct those tests. No public forensic lab that I'm aware of has the
time to think about doing that.

I'm sorry I'm so long-winded, folks.

SPEAKER: Question for the panel. What do you do after someone's been proved
innocent by DNA evidence?

DR. BAECHTEL: You take the piece of evidence which exonerated the guilty
person and put that profile in the database.

SPEAKER: But the guilty person is still at large.

DR. BAECHTEL: Well, that's a good point. Sometimes you've got statute of
limitations problems. Quite frankly, once you've already convicted somebody,
the likelihood of ever convicting anyone else again is very, very, very
slim. It's happened, but even if you have a DNA match with somebody, a
defense attorney gets to say, "Well, the government thought they had it
right last time, too. What are they going to tell you next time?" You're
starting behind a very, very big eight-ball. But basically, that's one of
the things that happen. We just take that same evidence and we try to find
the right person.

 [*426]  SPEAKER: This question is directed toward Mr. Moffitt. You spoke
earlier about minorities and limited access to forensic technology because
of a lack of funds required to hire private investigators to collect this
DNA evidence. Regional profiling and even racial profiling still exist in
our society. Do you not feel that some of these defendants who are being
targeted simply because of their race will not be exonerated?

MR. MOFFITT: I think that the following occurs, and a lot depends on the
nature of the case. In a lot of DNA cases we're talking about some very
harsh and terrible crimes. There is a tremendous sentiment to solve the
crime, to catch the perpetrator. That sentiment permeates the law
enforcement community at that particular time. That law enforcement
community is often made up - and I firmly believe this - of the people who
are in the laboratory.

As part of an organization and as an individual, I have advocated - when I
was president of NACDL - that the science part of the process ought to be
separate and apart from the law enforcement part. In other words, the lab
should not be the FBI lab or the Virginia State crime lab that works almost
all the time with the government; this should be an independent scientific
inquiry. The poor would benefit far more from that.

When I am representing an indigent client, I don't have the ability to ask
for an independent test because he can't afford it. In most circumstances,
frankly, what you learn in law school doesn't actually apply to the real
world. I'm just being honest. In the real world it's very difficult to get
an independent test, despite what the case law might say.

What I am concerned about is the lack of independence. Many of these
forensic labs, until very recently, were not accredited at all. Many of them
had very few protocols. Even the preeminent lab in the country, when it was
investigated by the inspector general, was found to not be accredited in
many areas. Now, I don't know about the DNA lab because I just haven't
looked at it.

But what I am suggesting to you is that in a system that is fair, the
scientists remain scientists. In reality, they're on the payroll of the law
enforcement. An FBI agent can talk to the member of the FBI lab in a way
that a defense lawyer can't. They're all part of the same organization.

That gives them some esprit de corps, some sense that they belong together.
I mean, I am an outsider when I walk into that door. They are trained to
respond to me as if I am an outsider. We have gotten  [*427]  manuals from
the FBI in which people are taught how to testify and respond to defense
lawyers. This is because we are on the other side and we are seen as the
enemy. If this is a scientific inquiry, if that's what it is, that is
unnecessary. That's my concern.

DR. BAECHTEL: I don't really look at the defense attorney as an enemy. I
really don't. I've had hundreds of cases and I've testified dozens of times.
I probably shouldn't admit this, but I find what really excites me most
about what I do is not interpreting the DNA profiles and doing the reports
but rather going to court, actually, because that's where the unknown lies.
So, there's a certain degree of excitement with it.

But honestly - and I think I speak for my colleagues - none of us looks at
the defense as an enemy. I don't think that any of us feel that we are
advocating the government's position.

MR. MOFFITT: But isn't that neutrality in the process very contrary to what
was testified to by Dr. Whitehurst, and isn't that very contrary to what was
found in the Inspector General's report regarding the FBI lab? n40

DR. BAECHTEL: Okay, we could spend another hour discussing that. I will say
that many of the points that the inspector general brought out in that
report - deficiencies in the FBI laboratory - we had already addressed in
DNA typing from day zero in 1988, when we began using this technology. The
Inspector General's report did not affect the DNA Analysis Unit.

Many of those points that are being alluded to here, we addressed from the
beginning with protocols and validated research. That's kind of a broad
brush my colleague here is painting with.

PROF. KAYE: I'd like to throw in a word in answer to the last question,
which was very perceptive. We've been talking about whether the laboratory
is an agency of the police that will distort the DNA results in some way.
One needs to know a lot more about DNA technology to see how easy or
difficult it is to do that. Are there cases where people have lied about DNA
evidence outright? Yes.

One forensic examiner has been charged with perjury and falsifying material
in West Virginia. n41 But any law enforcement device can be misused. Police
have forged fingerprints. England has moved  [*428]  to a system in which
the DNA analysis is done by an independent laboratory that charges law
enforcement a set fee for every sample it analyzes and does the same for
defense counsel who want to have samples analyzed. I would be all in favor
of that.

But it is important to recognize that DNA itself is race neutral. With
regard to Mr. Moffitt's suggestion that law enforcement authorities in
Alabama will target minorities and indigent individuals or groups, the best
way to make sure that the investigation does not use racial profiling is to
use DNA. Whether someone is black, white, Asian, African-American, or
Hispanic, the DNA markers either will match or they won't. Only in the
unusual case where the laboratory tests are ambiguous is it likely that
interpretations of the evidence could be influenced by racial bias.
Furthermore, if the databases are broadened to include more individuals,
then there will be a better chance of finding the person who committed the
crime in the first place. In this way, comprehensive and consistent use of
DNA typing with the broadest possible database can mitigate racial
profiling.

In this area of the law, it is dangerous to say, "We're lawyers, we don't
know anything about science." General protestations such as "We don't know
what DNA will prove in the future," are vacuous if one knows little or
nothing about human genetics to start with.

Consider the following scientific fact. Most of your DNA does not code for
proteins. It does not get translated into RNA or proteins, which affects
bodily function. Ninety-nine percent of your DNA is of this noncoding type.
The particular STR types, referred to by Dr. Baechtel, clearly don't code
for anything, and that fact is not about to change.

How do we know that? Well, pick up, for example, Matt Ridley's book called
Genome. n42 As it points out, for millions of years, human DNA has been
infected by viral DNA. Much of your DNA is streamlined viral DNA that is
good for nothing more than duplicating itself throughout the human genome.
n43

We can wait one hundred years, and this degenerate DNA still won't do
anything new. It's not going to tell you the inherited disability that I
have, for instance. The gene for that condition, or any other that might be
socially stigmatizing, cannot be found in the DNA types that are being
looked at by forensics examiners.

As a result, I believe we could have a system for identifying individuals
from their DNA that respects individual privacy, but it  [*429]  won't
respect the desire to mask our identities. The privacy we're talking about
involves only the claim of a right to anonymity, to be able to leave DNA and
not have it be known that you were the one who left it. The fundamental
issue is not whether society should respect privacy in the abstract or in
all its possible forms. Rather, it is whether we should privilege the demand
for anonymity.

PROF. MILLER: If I could make just a quick comment? It touches somewhat on
the racial profiling issue. I think there is something to be said in favor
of the idea that if you're going to start collecting DNA samples from
anyone, that you collect them from everyone - despite the impossibility at
this point of doing anything with all of it. If you're not the affected
person, I think it's always easy to say, "Oh, hey, that's a great idea, you
should collect from convicted felons for such and such case. You should
collect from all convicted felons. Let's collect from people seeking visas.
Let's make a DNA sample a condition of getting a green card." And so on. I
think it really changes the nature of the debate. In fact, it probably
changes people's individual thinking about the issue if everybody is
affected. That's not to say I would support such widespread collection, but
there's a lot to be said in favor of it, especially these days as people are
becoming more and more confused about racial profiling. Maybe there's
something to be said for taking measures that don't have the possibility of
discrimination.

I'd also like to jump into the debate about perspective and neutrality. One
of the things that you hopefully learn in law school is that there is no
such thing as neutrality. It just doesn't exist. Everybody has a perspective
and a bias, as simple as that seems, and while I think Dr. Baechtel is the
model of an FBI employee, and I have no reason to doubt him, he, too, has a
perspective.

All of us are affected by our roles and our jobs. Prosecutors are affected
by the role of being a prosecutor. I would probably be a different person
today if I had gone in to prosecution instead of defense work. There's no
question about it. And that affects how you look at things.

I'm an employee of this law school. I'm not neutral about this law school.
If somebody calls me and says, "Should I go to AU or Catholic or
Georgetown?" I'm going to give my best answer and try to be really fair and
honest, of course, but I have a particular perspective that is mine simply
by virtue of working here. I think that's true for all of us, so this notion
of the possibility of being neutral in our decisions about who's being
tested, let alone the way in which we do our work, is about as fictitious as
the idea that we could ever be truly  [*430]  certain about anything. But
this opinion might just be an excuse for the fact that I don't know as much
science as I should about this whole subject.

DEAN DINERSTEIN: We're pretty much out of time. I would simply add that what
this panel has brought out really well is something that we all need to be
thinking about. Certainly as law students and lawyers, we need to be
thinking about it. And that is there's a difference between what one can do,
scientifically or otherwise, and what one ought to do.

I think "the ought" is a lot of what we've been talking about - the ability
to gather kinds of information does not tell you whether it should be used
and/or how it should be used. We've heard a nice range of perspectives on
that question and thoughtful perspectives from all the panelists.

So, I want to thank all the members of the panel, and I want to thank the
audience for your questions and your attentiveness.

I've been asked to tell you that you can pick up your lunch outside and
bring it back in here. The lunch presentation will be in this room and will
begin at about 12:45. So, take a break but come back and be settled by then.

(WHEREUPON, A RECESS WAS TAKEN)

* * * * *

FOOTNOTES:
n1. See Janet Reno, Message from the Attorney General, in Edward Connors et
al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of
DNA Evidence to Establish Innocence After Trial (1996) (describing the
former attorney general's reaction to cases where DNA was used to exonerate
individuals after trial).

n2. Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (1996).

n3. See generally Connors et al., supra note 1 (describing the role that DNA
evidence played in the exoneration of wrongfully convicted individuals);
Nat'l Comm'n on the Future of DNA Evidence, Nat'l Institute of Justice, What
Every Law Enforcement Officer Should Know About DNA (1999) (educating law
enforcement about the background and use of DNA evidence).

n4. Texas Gov't Code Ann. 411.1471 (Vernon Supp. 2001-2002).

n5. See Maria Glod, McEachin Vows Steady Vigilance, Democrat Pledges to
Protect Rights in Attorney General Bid, Wash. Post, Oct. 26, 2001, at B1
(alluding to the debate over expanding Virginia's DNA database to include
individuals arrested for violent crimes).

n6. See generally David H. Kaye, DNA Evidence: Probability, Population
Genetics, and the Courts, 7 Harv. J.L. & Tech. 101 (1993); David H. Kaye,
The Admissibility of DNA Testing, 13 Cardozo L. Rev. 353 (1991).

n7. See Nell Henderson & Marc Fisher, Prosecutors Build DNA Case Against
Simpson; Odds Are Astronomical That Bloodstains Are Someone Else's, Lab
Chief Testifies, Wash. Post, May 12, 1995, at A1 (detailing the statistical
analysis of DNA evidence in the O.J. Simpson trial).

n8. See, e.g., Dubose v. State, 662 So. 2d 1189 (Ala. 1995) (holding that
due process was violated by the failure to provide an indigent defendant
with funds for an expert to counter testimony that there was a 1 in 500
million chance that defendant's DNA profile would appear in the North
American black population and, therefore, that "you would expect to find
this pattern once and we have found it"); Harrison v. State, 644 N.E.2d 1243
(Ind. 1995) (concluding that the trial court's refusal to provide an
indigent defendant with an independent DNA expert did not deprive him of due
process); Husske v. Commonwealth, 448 S.E.2d 331 (Va. Ct. App. 1994)
(concluding that it was error not to provide an indigent defendant with an
expert to challenge the statistical conclusions of the prosecution's
expert).

n9. Such issues are discussed in Edward J. Imwinkelried & D.H. Kaye, DNA
Typing: Emerging or Neglected Issues, 76 Wash. L. Rev. 413 (2001).

n10. See Fed. R. Evid. 404; Imwinkelried & Kaye, supra note 9.

n11. See also Karen Christian, Note, "And the DNA Shall Set You Free":
Issues Surrounding Postconviction DNA Evidence and the Pursuit of Innocence,
62 Ohio St. L.J. 1195 (2001).

n12. See, e.g., 2001 S.B. 152, 141st Gen. Assembly (Del. 2001) (providing
that "in any indictment for a crime in which the identity of the accused is
unknown it is sufficient to describe the accused as a person whose name is
unknown but who has a particular DNA profile"); 2000 S.B. 2347, 209th
Legislature, 2d Sess. (N.J. 2001) (eliminating the statute of limitations
for prosecuting criminal sexual contact and endangering the welfare of child
"if the identity of the defendant may be determined by physical evidence
capable of forensic deoxyribonucleic (DNA) testing"); Staff and Wire
Reports, 77th Legislature, Ft. Worth Star-Telegram, Apr. 24, 2001, at 6
(reporting the signing of legislation "that ends the statute of limitations
for sexual assault if a DNA sample from the attacker is available but no one
has been apprehended"); see also Cindi Lash, Prosecutors Want More Time To
Try Rape Cases, Pittsburgh Post-Gazette, Nov. 18, 2001, at A1 (reporting on
prosecutorial support for move to increase statute of limitations in rape
cases).

n13. See Imwinkelried & Kaye, supra note 9; Jonathan W. Diehl, Note,
Drafting a Fair DNA Exception to the Statute of Limitations in Sexual
Assault Cases, 39 Jurimetrics J. 431 (1999).

n14. 35 C.M.R. 292 (1965).

n15. Immwinkelried & Kaye, supra note 9.

n16. Id.

n17. See Bousman v. Dist. Ct. for Iowa, 630 N.W.2d 789, 796 (Iowa 2001)
(refusing to quash order for DNA sample that was based on reasonable
suspicion); In re Nontestimonial Identification Order Directed to R.H., 762
A.2d 1239, 1246 (Vt. 2001) (upholding order for DNA evidence founded on
reasonable suspicion).

n18. Eric Slater, Rape Case DNA Tests the Limits, L.A. Times, Feb. 11, 2000;
see also David Doege Unknown Rapist Charged Using New Type of DNA Analysis;
Probability of Finding Another Person with Same Profile as the Assailant is
at Best 1 in 66,000,000,000,000,000,000, Milwaukee J. Sentinel, Jan. 7,
2000, at 3 (recounting the first use of so-called "John Doe" warrant by
Assistant District Attorney Norman Gahn).

n19. Slater, supra note 18.

n20. For commentary on the practice, see Andrew C. Bernasconi, Comment,
Beyond Fingerprinting: Indicting DNA Threatens Criminal Defendants'
Constitutional and Statutory Rights, 50 Am. U. L. Rev. 979 (2001).

n21. See Ferguson v. City of Charleston, 532 U.S. 67 (2001); City of
Indianapolis v. Edmond, 531 U.S. 32 (2000).

n22. See D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10
Cornell J.L. & Pub. Pol'y 455 (2001) (considering the implications of these
cases for DNA databases).

n23. See Texas Gov't Code Ann. 411.1471 (Vernon Supp. 2001-2002).

n24. See DNA and Forensic Identification Data Base and Data Bank Act of
1998, Cal. Penal Code 297 (West Supp. 2001).

n25. See DNA Detection of Sexual and Violent Offenders Act, La. Rev. Stat.
Ann. 609 (West Supp. 2001).

n26. Universal Fingerprinting Act of 1941, H.R. 3157, 77th Cong. (would have
required every person in or entering the U.S. to be fingerprinted); cf.
Alien Identification Act of 1942, H.R. 6258, 77th Cong. (would have required
every alien in the United States to appear, be fingerprinted, give
information under oath, and carry an identity card).

n27. See Committee on Genetics, American Academy of Pediatrics, Issues in
Newborn Screening, Policy Statement, 89 Pediatrics 345 (1992).

n28. This investigative practice is discussed in Imwinkelried & Kaye, supra
note 9.

n29. See The Real War on Crime: The Report of the National Criminal Justice
Commission 36 (Steven R. Donziger ed., 1996) [hereinafter Donziger]
(reporting that "there are least 30 million individuals in the United States
with a criminal record" and that a "conservative" estimate is "that
one-fourth of all men in the United States have a criminal record on file
with the police").

n30. See Jerome G. Miller, From Social Safety Net to Dragnet: African
American Males in the Criminal Justice System, 51 Wash. & Lee L. Rev. 479,
485 (1994) (reviewing studies and surmising that "the percentage of nonwhite
males [in cities] who could expect to be arrested and at least briefly
jailed would [be] 90%").

n31. See Donziger, supra note 29, at 107. About three times as many
African-Americans as whites are arrested for less serious crimes, which make
up the bulk of arrests. Id. at 107-08.

n32. See, e.g., David H. Kaye et al., Is a DNA Identification Database in
Your Future?, Crim. Just., Fall 2001, at 5.

n33. See Brooke A. Masters, DNA Clears Inmate in 1982 Slaying; Gilmore
Pardon Doesn't Ensure Va. Man's Freedom, Wash. Post, Oct. 3, 2000, at A1
(describing how Earl Washington remained imprisoned, despite a gubernatorial
pardon granted after exoneration by DNA evidence).

n34. See Andrew Fegelman, 3 Convicted of Murders are Finally Exonerated, No
Apologies As Judge Dismisses 1978 Case, Chi. Trib., July 3, 1996, at 7
(reporting the exoneration of three of the four men convicted of a 1978
double murder and rape as the result of new DNA evidence). The fourth man
convicted of the murder was freed June 24, 1996 by a Cook County Circuit
Judge. Two of the Ford Heights Four were sentenced to death, one to a life
sentence and the fourth to a seventy-five year sentence. See id.

n35. See Craig Whitlock & Ruben Castanada, Prince George's Prosecutor
Accuses Police of Coverup; Suspect's False Confession Was Concealed While
Another Man Was Convicted, State's Attorney Says, Wash. Post, Sept. 15,
2001, at B1 (containing allegations that police in Prince George's County,
Maryland, obtained from a murder suspect a false confession).

n36. See Jewell Loses Hope of Becoming Cop, L.A. Times, July 2, 1997, at A14
(summarizing the continued negative consequences suffered by individual once
suspected by the press in the Olympic Park bombing).

n37. See Copyright your DNA, Nature Biotech., Oct. 2001, at 902.

n38. Evaluation of Forensic DNA Evidence: Update on Evaluating DNA Evidence
(Comm. on Nat'l Council ed., 1996).

n39. DNA Advisory Board, Quality Assurance Standards for Forensic DNA
Testing Laboratories and for Convicted Offender DNA Databasing Laboratories
(July 2000), available at http://www.fbi.gov/hq/lab/codis/qualassur.htm.

n40. Sam Skolnik, Clean Bill of Health Eludes FBI Crime Lab, Legal Times,
July 27, 1998, at 12 (detailing the criticisms of the FBI crime lab first
brought to light by whistleblower Frederic Whitehurst).

n41. See In re Investigation of the W. Va. State Police Crime Lab., Serology
Div., 438 S.E.2d 501 (W. Va. 1993); Rachelle Bott, Zain Changed Results,
Trooper Says, Charleston Gazette, Sept. 13, 2001, at 7B (summarizing
allegations that West Virginia forensic technician falsified findings in a
rape investigation).

n42. Matt Ridley, Genome: The Autobiography of a Species in 23 Chapters
(2000).

n43. Id. at 124-29.