Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 10/11/06. The first portion of the meeting was held at the Wisconsin State Crime Laboratory in Madison. The second portion was held at the Best Western InnTowner Hotel in Madison.
Commission Members present: Mike Malmstadt (chairman), Kelli Thompson, John Charewicz, Noble Wray, Ken Hammond, Steve Glynn, Enrique Figueroa, Penny Beerntsen, Keith Findley, Gerry Mowris, Brian O’Keefe (for Nanette Hegerty), Jerry Buting, Floyd Peters, Suzanne O’Neill, Cheri Maples
Also present: Mike Roberts (Administrator, Division of Law Enforcement Services, Wisconsin Department of Justice), Lori Gaglione (Detective, Milwaukee Police Department), Jerry Geurts (Director, Madison Crime Laboratory), Norm Gahn (Deputy District Attorney, Milwaukee County)
Not present: Emily Mueller, Fred Fleishauer, Dan Blinka, Dan Bach, Bob Donohoo, Gerard Randall, Bill Grosshans, Scott Horne
Staffed by: Byron Lichstein
The Commission met in the morning at the Wisconsin State Crime Laboratory in Madison.
Presentation by Jerry Geurts
The meeting began with a presentation by Jerry Geurts, the Director of the Madison Crime Laboratory. Geurts discussed the areas of forensic science handled by the crime lab, and explained several inaccuracies in the media’s portrayal of forensic science (from TV shows such as “CSI”).
Geurts said that there are three Wisconsin State Crime Laboratories: one in Madison, one in Milwaukee, and one in Wausau. The lab in Milwaukee serves 8 counties and 40% of the population. The lab in Madison serves 64 counties and 300 agencies.
Geurts discussed the circumstances under which the Crime Lab sends personnel to a crime scene.
In response to a question from Figueroa, Geurts and Mike Roberts (the Administrator of Law Enforcement Services for the Wisconsin Department of Justice) discussed whether the Crime Lab is required to conduct all DNA testing requested by a police department or DA. Roberts and Geurts said that although the Crime Lab has no statutory authority to refuse requests for DNA testing, the reality is that the Crime Lab gets more requests than it is physically able to handle, so it ends up negotiating with the agencies that request its services. This means that the Crime Lab works with the requesting agency to select which samples would be most probative. It does not test everything agencies submit.
Norm Gahn (a Deputy District Attorney in Milwaukee County) added that the process works in the following manner: 1) the police collect evidence, 2) the DA determines what he/she thinks is most probative, 3) the crime lab negotiates with the DA, and 4) if the DA receives the result he/she is looking for, no more material is sent for testing, unless additional testing becomes necessary to counter a potential defense argument.
Geurts said that, in the average DNA case, the Crime Lab analyzes 8 samples. The largest number of samples they have done in a case is 150, which took 2 ½ months. He said that the simplest DNA case takes about 24 hours.
Geurts discussed what biological specimens can contain DNA, and what a DNA profile is. In answer to the Commission’s question, he said that the stages of DNA testing consist of the following:
1) locate biological stains (this takes hours to days);
2) characterize stains as semen, blood, saliva, etc. (takes 1 hour);
3) extract DNA from stains (4 hours to overnight);
4) extract DNA from suspect and/or victim samples;
5) quantitate the DNA (3 hours);
6) amplify the DNA (4-5 hours);
7) type the DNA (3 hours to overnight);
8) evaluate data, produce profiles, compare profiles to suspect/victim profiles (2 hours to 1 day);
9) calculate statistics (30 mins. to 2 hours);
10) enter unknown profiles into the convicted offender database (30 mins.);
11) Write reports;
12) Peer review;
13) Administrative review.
Geurts said that the Crime Lab measures its DNA workload in terms of the number of cases, not the number of samples (a single case could include many samples). He said this is the most common standard used around the country.
Geurts showed a caseload graph, depicting the following data about the number of case submissions the Crime Lab has received in the last 7 years:
2000: 1,100
2001: 1,050
2002: 1,250
2003: 1,300
2004: 1,700
2005: 2,000
2006: 2,250
Geurts said that the Crime Lab’s current DNA testing capacity is 1,200 cases per year. He said that the recent increase has occurred because of popularity: DNA is a powerful tool for solving crime. Brian O’Keefe agreed that police are sending more and more samples because of DNA’s ability to solve crimes.
In response to a question, Mike Roberts addressed what happened in the Balchunas case (the case in which a police officer was murdered by a man who had left DNA at another crime scene months earlier, but the sample wasn’t tested until much later, leaving the man free to murder Balchunas). Roberts said that the sample from the killer’s prior crime was outsourced to the Orchid Cellmark lab and didn’t come back for over 8 months.
Geurts said that 31% of the DNA cases are sexual assaults, 28% are property crimes, 9% are robbery, 12% are homicides, and 6% are other assaults. Several commission members questioned whether the Crime Lab could alleviate its caseload by reducing the amount of testing in property crimes. Geurts said that some of the testing in property crimes is court-ordered, which means that the Lab doesn’t have a choice. Mike Roberts said that the Lab has great success in getting cold hits on property crimes, and, in addition, no one wants to take the political hit of saying that we won’t conduct testing in property crimes. Lori Gaglione said that many property crimes are “gateway crimes” to more serious offenses, so catching those who commit property crimes is important to preventing more serious crimes. Jerry Buting raised the possibility of outsourcing the property crimes, in order to reduce the wait on more serious kinds of cases. Geurts noted that outsourcing costs approximately $900 per sample, while in-house testing costs approximately $300 per sample.
Figueroa asked whether the increase in requests for testing has been accompanied by an increase in successful inclusions or exclusions. Geurts said he does not have data on that question. Brian O’Keefe said his department is considering studying that issue.
One of the commission members asked how frequently DNA testing clears a known suspect. Norm Gahn said that data suggests DNA excludes a known suspect approximately 1/3 of the time. Other commission members noted that sometimes the prosecution submits a sample expecting an exclusion in order to prohibit the defense from arguing an alternate suspect theory.
In response to a question from Figueroa, Geurts said that a recent University of Illinois study found that the national average for DNA analysts is 2.3 cases per month.
Presentation by Norm Gahn
Norm Gahn then gave a presentation on what’s causing the DNA backlog, and how the backlog can be solved.
He said the backlog exists because of the emergence of CODIS, the databank of convicted offender profiles. Gahn explained the basics of CODIS. He said that, before CODIS, DNA testing only happened if law enforcement had a known suspect. Now, with CODIS, any biological sample from a crime scene can be run through CODIS in an attempt to “match” a convicted offender. Because CODIS has produced many successful matches in cases with no known suspect, law enforcement entities have understandably begun submitting many samples in cases with no known suspect. CODIS has allowed law enforcement to solve cases that never would have been solved otherwise. Gahn provided statistics on the number of “cold hits” in unsolved cases.
Gahn described what profiles get entered into CODIS. He said that 43 states have legislation requiring that, anytime a person is convicted of a felony, their DNA profile must be taken and entered into CODIS. Some states have the same requirement for misdemeanor convictions. 7 states require that, anytime a person is arrested, their DNA must be taken and entered into CODIS. Gahn predicted that, over time, every state will eventually adopt legislation requiring that all arrestees submit DNA profiles for CODIS. He said this will create increasing demands on our already overburdened DNA resources.
Gahn said that, at this point, Wisconsin does not have a backlog on entering profiles into the databank. Wisconsin’s backlog consists of a waiting period for samples that need to be tested.
Gahn discussed potential solutions to the problem. He said one prominent suggestion has been to outsource “no suspect” cases, which are unsolved cases in which law enforcement entities are sending crime scene samples to be tested in the hope of matching a convicted offender in CODIS. Crime labs have the option of outsourcing an entire case or of outsourcing only a portion of the case.
Gahn described the “No Suspect Case Initiative,” which began in April of 2002 using federal grant money. The purpose of the initiative was to clear some of the backlog of samples waiting to be tested in “no suspect” cases. The program involved sending “no suspect” cases to a contract lab. Gahn described statistics of the initiative, which involved the Wisconsin lab sending 705 cases to a contract lab (Orchid Cellmark). Of the 705 cases, 63% produced a DNA profile. Of that 63%, 25% resulted in a cold hit in CODIS. Gahn emphasized that these are “remarkable” results that show how powerful DNA testing can be in solving crime. These results suggest that Wisconsin needs to find a way to fund the testing. Gahn said that one cause of the backlog is that the federal grant money has run out, which means that we’re no longer sending samples out, even though we’re getting the same (or more) submissions.
Gahn said that the best solution would be to provide a large amount of money immediately to outsource the backlog in “no suspect” cases. He said that the plan to hire new analysts for the State Crime Lab has several problems: 1) there may not be space for the new analysts, 2) it will be difficult to convince the legislature to create 15 new state jobs, all of which would require full state benefits, and 3) even if you hire 15 new analysts, there is still a nearly year-long period of training, during which time the backlog will continue to grow.
Presentation by Lori Gaglione
The Commission next heard from Lori Gaglione, a detective with the Milwaukee Police Department. Gaglione’s duties include training other officers in the collection, storage, and probative value of DNA evidence.
Gaglione discussed the power of DNA evidence as a tool for solving crime. She noted that DNA can be used to include a suspect or to link two crimes to each other (by finding the same DNA profile at each scene). She said that DNA can also be used for more than just identifying the perpetrator: it can also be used to corroborate the location or timing of an offense, or to corroborate or impeach a witness. She emphasized that, in addition to identifying the perpetrator, DNA can also clear a suspect, which benefits all in the criminal justice system.
Gaglione said that DNA can sometimes be found on old evidence, but only if the evidence has been stored properly. She said her department trains officers on the proper method for storing items containing DNA evidence.
Gaglione discussed different biological specimens that can contain DNA. She also discussed different items from which DNA can be lifted. She discussed the possibility for contamination, and how it can be avoided.
Gaglione said that her department teaches officers about how to determine the potential probative value of DNA testing. She said they teach officers to submit the most probative samples first, in the hope that sending additional samples will be unnecessary.
Gaglione described several cases that illustrated the power of DNA evidence to solve crimes. In one example, 3 separate victims were sexually assaulted at different times and in different places. Unfortunately, no DNA was found at either of the first 2 crime scenes. But two blocks away from the first scene, police found a used condom in a sewer. The Crime Lab obtained a DNA profile from the condom, and obtained a “cold hit” on a convicted offender in CODIS. When police searched the suspect’s residence, they found items that had been taken from the other two victims.
[The Commission members then left the Crime Lab and re-convened for lunch at the Best Western InnTowner Hotel in Madison]
Malmstadt began the discussion by stating that all the Commission members appear to agree that the Crime Lab currently lacks the resources to conduct the necessary amount of testing. He said that, at some point, another case like the Balchunas case (described above) will come along where the testing does not get done, and the political pressure will build to fix the problem.
Gerry Mowris, Jerry Buting, and Steve Glynn described cases in which defense attorneys have been found to have committed malpractice for failing to request certain kinds of forensic testing.
Floyd Peters proposed that the Commission could support the Attorney General’s current request for increased staffing, but could also start some comprehensive planning for the future.
Mike Roberts noted that, although both the Attorney General’s and the Governor’s proposals called for 15 new positions, some questions remain about where the new analysts would be housed and where the money would come from. Roberts also noted that, even if you create new positions, the training period for the new analysts is at least 9 months. Additionally, if you address the space issue by expanding the Wausau lab, building that new space would also take time.