Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 8/29/06 at the UW Law School in Madison,
WI.
Present for Commission meeting: Kelli Thompson, Mike Malmstadt, Dan Bach, Steve
Glynn, Enrique Figueroa, Dan Blinka, Penny Beerntsen, Keith Findley, Gerry Mowris,
Brian O’Keefe (for Nanette Hegerty), Scott Horne, Jerry Buting, Emily Mueller, Floyd
Peters, Suzanne O’Neill, Cheri Maples
Not Present: Noble Wray, Ken Hammond, Bob Donohoo, Gerard Randall, Bill
Grosshans, John Charewicz
Chaired by: Mike Malmstadt
Staffed by: Byron Lichstein
The Commission began by discussing the backlog for DNA testing at the State
Crime Lab.
Dan Bach discussed the causes of the backlog (1). He said the DOJ will be
putting out a budget proposal around Sept 15th. He said the number of DNA case
submissions and samples per case have increased dramatically, and the backlog tracks
that increase. Bach said the crime lab has added some robotics equipment, but a large
part of the solution is adding human resources. Several members suggested that the
Commission might support DOJ’s funding request (2).
Scott Horne agreed that the crime lab issue essential. He also said the
commission should consider the quality and funding of defense counsel, and the
caseloads of prosecutors (2-3).
Brian O’Keefe described the importance of being able to get DNA testing done
quickly in order to apprehend perpetrators and prevent them from committing further
crimes (3). He said Milwaukee County has been looking at different options for
increasing funding for DNA testing.
Bach said that doing DNA testing in-house costs about 1/3 of what it would cost
to outsource the testing.
Horne said that not having DNA testing before charging makes it very difficult
for a prosecutor to make a charging decision (4). He said the delays can be as long as 1-2
years.
Figueroa asked if there is a nationwide accepted unit of measurement for
measuring capacity in testing (4). This would allow a comparison of Wisconsin’s
capacity to other states. Bach said virtually every state is dealing with a DNA backlog
1
issue: some are dealing with it through pouring money into outsourcing, others are
expanding facilities and adding people.
Findley said he thinks the Commission should look at both the provision of legal
services for the indigent and the DNA issue. He said that, if the Commission looks at the
DNA issue, he thinks it should also look at the broader relationship between crime labs
and wrongful convictions, and try to avoid some of the problems that have happened in
other states (5).
Mowris asked whether there is a shortage of DNA analysts to fill the positions
(6). Bach discussed limitations on the amount Wisconsin can pay DNA analysts, and
also the period of time spent training an analyst after he/she is hired (6-7).
Glynn asked about the backlog for entering convicted offender profiles into the
database (7).
Bach said that, for some of these more detailed DNA questions, he’d be willing to
set up a time for the Commission to either hear from a crime lab DNA expert, or tour the
Crime Lab (8).
Figueroa asked whether the defense and prosecution can have DNA testing
performed at two different labs, and those labs reach different conclusions (8-9). Glynn
said that, although the defense sometimes has access to DNA testing, there are no
protocols in place addressing whether the prosecution can destroy all the biological
material during its testing. Buting said that labs have different standards for when they
will pronounce a match, and he also pointed out that contamination can be an issue (910).
Maples said this Commission should work on DNA testing as the lead issue,
because it is timely and because it will help the Commission gain credibility with law
enforcement. She also said the Commission may want to consider the quality of
probation and parole officers, access to the criminal justice system for immigrants, and
problem-oriented policing (10-11).
Thompson agreed that the Commission should consider the DNA testing issue.
She also said that fees for private bar indigent defense are extremely low, and need to be
addressed (12).
Blinka said that the Commission seemed to have a consensus in support of
increased funding for the crime lab. He proposed a resolution supporting increased
resources for DNA testing by the crime lab (12). In the longer term, he suggested the
Commission look more broadly at the crime lab’s overall goals and effectiveness (13).
O’Keefe said that, as we get better and better at DNA, the submissions to the
crime lab will only increase (14). He noted the public safety risks of a delay in DNA
testing.
2
Figueroa said that we need standards that allow us to know when the crime lab is
operating at an acceptable capacity (15). Bach agreed, but said the standard is a public
policy question based on how long a delay policymakers are willing to accept.
Figueroa asked how frequently DNA clears a suspect versus how frequently it
implicates a suspect (16). Mowris said we don’t have data on how often DNA testing
clears a suspect, and he said that, politically, funding will be easier to obtain if we
emphasize catching the guilty. Findley added that DNA testing is a win-win process,
because it finds the truth, whether the truth is the suspect’s innocence or guilt.
Malmstadt discussed DNA testing in paternity cases (17). He said the
Commission should have a presentation from someone from the crime lab, because most
of the Commission is unfamiliar with the inner workings of DNA testing. O’Keefe
offered to arrange presentations from Norm Gahn and Detective Lori Gaglione.
Buting said the Commission may want to think outside-the-box about different
ways of funding crime labs and indigent defense. He suggested that our current system
of state funding may be broken (18), and perhaps a creative solution would be in order.
Malmstadt, Buting, and Thompson discussed the importance (in an adversarial
system) of effective defense counsel (18-20). Glynn said that funding in the civil justice
system is in as bad shape, or worse, as funding in the criminal system (20).
Glynn said that, in the current budget environment, a resolution supporting more
funding is not going to have any effect (20). Maples said she believed a resolution from
our Commission—which is made up of people from all sides of the criminal justice
system—could have some effect. Malmstadt said a resolution should be followed by indepth study of the DNA issue.
Malmstadt suggested the Commission might also consider the broader issue of
whether courts are admitting junk expert testimony drawn from questionable behavioral
science—he mentioned as an example testimony about a child’s behavior being
“consistent” with having been abused (21).
Glynn said that, before the Commission passes a resolution on DNA testing, it
should study the issues a little more closely (22). A resolution without study might harm
the Commission’s credibility. The Commission members discussed whether studying the
issue at the next meeting—on November 30th—would be too late (22). Malmstadt asked
for a show of hands as to how many members wanted a resolution today, and how many
wanted to wait on the resolution until after studying the issue. The members voted to
wait on a resolution until after studying the issue (23). The members then discussed what
date would work for a tour of the crime lab in the near future (24-5). The members
settled on October 11th (26).
3
The members discussed what issues to address at the October 11th meeting (2628). Peters and Glynn said that it might be best to use the October meeting to address the
resolution for funding in Wisconsin, and then to move on to national issues in November.
Blinka suggested the October meeting should address the crime lab’s caseload, its
turnaround time, and protocols (29). Glynn added that the issue of entering profiles into
the databank should be addressed (29-30). Beerntsen suggested the members provide
Byron with a list of issues they’d like addressed at the October meeting (30).
Peters agreed with Buting’s earlier comment about thinking of creative ways to
fund the system, because it seems that every facet of the system is underfunded (31).
The members discussed whether and to what extent taxpayers will support increased
funding for criminal justice initiatives (32-3).
BREAK
The Commission then resumed and began a discussion of false confessions (33).
Findley and Blinka discussed the proposals that had been debated at the last meeting: an
admissibility test; training protocols; a study group to review taped interrogations (33-4).
O’Keefe said that Milwaukee PD would be willing to participate in a study of
interrogation practices (34). O’Keefe discussed the costs of electronic recording,
including open records, redaction, and transcription (34-5).
O’Keefe said he’d object very hard to an admissibility rule (35). He said
recording addresses the problem adequately. He said an admissibility rule would confuse
law enforcement.
Buting suggested that a compromise solution (rather than a rigid admissibility
rule) could be a new jury instruction that discourages but does not prohibit deception
(36). Mueller said that jury instructions typically track existing statutes and caselaw; the
jury instructions committee usually doesn’t change an instruction based only on policy
arguments (37). The members discussed to what extent the legislature can impose jury
instructions on the courts (37-8).
Buting said he’d oppose an admissibility rule, because the prior draft raised a
number of questions and challenges that would make the rule problematic (38). O’Keefe
said he would oppose a jury instruction that says deception is a bad practice (38). Buting
said the instruction wouldn’t be worded to outlaw deception, and he said Saul Kassin’s
presentation suggested some rational ways to distinguish different kinds of deception (389).
Findley suggested that the jury instruction would be a halfway point that would
explain some of the factors that can contribute to false confessions. It wouldn’t tell the
jury that the police conduct was wrong (39). O’Keefe said that the instruction would tell
the jury to question the credibility of the police officers (40). Findley said that it would
not attack the truthfulness of police testimony, because it would only be used in situations
where there is no dispute about whether deception was used: it’s only purpose would be
4
to provide the jury with information about false confessions (40). Bach suggested that
such an instruction might not be appropriate in every case involving a confession.
Findley and Buting said that the instruction would only be given in appropriate cases
(41).
The members discussed the difference between situations in which there is no
dispute about what technique was used and situations in which the suspect and the officer
have different versions of what technique was used (42).
Bach noted the difficulty of defining deception (42). The members discussed
Saul Kassin’s different categories of deception (43).
O’Keefe said he objects to a jury instruction that says deception is a bad practice
(44). Malmstadt said the instruction wouldn’t say that. O’Keefe said it would be better
to wait and see how recording affects interrogation practices. Peters said that Neil
Nelson’s experience suggested that recording changed interviewing practices (44).
Blinka discussed several possible categories of deception (44-5). He also said that the
jury instruction would merely alert the jury to factors it should consider in determining
the reliability of a confession (45). O’Keefe said he thinks it might be better for the
lawyers to argue those points without the court stepping in with an instruction (45).
Malmstadt said it’s appropriate for the judge to tell the jury to consider the circumstances
of the statement (45-6). O’Keefe said that if the instruction neutrally tells the jury that it
can consider certain factors, it might not bother him that much (46).
The members discussed the voluntariness standard and its relationship to
deception (47). Blinka said that after the Miranda decision, confessions are rarely kept
from juries based on interrogation techniques (47).
Maples said that she doesn’t believe the Commission will settle the jury
instructions issue today (48), and therefore the Commission should focus on points of
consensus, some of which may be contained in Floyd Peters’ e-mail.
LUNCH BREAK
Malmstadt began by discussing jury instruction 180, which addresses confessions
and was provided to the commission members after lunch (48).
Malmstadt said that the only consensus he’s heard is on field research and training
guidelines (49). As to training, the members agreed that the issue of recording has been
dealt with by DOJ, so what’s left over is interrogation techniques (50).
Findley and Maples suggested that Byron might write a report summarizing the
research, presentations, and discussion so far, and the Commission could use the report to
determine appropriate recommendations (51). Malmstadt suggested the draft report
could become a working document for a final report (51).
5
Figueroa asked who the audience for the work product should be, and the
Commission discussed his question (51-2). Malmstadt said he thinks one audience
should be the public (52). On the subject of reaching the public, Maples said the most
effective counties at coordinating criminal justice efforts are those with criminal justice
councils, which are county bodies similar to this commission (52). Maples said reports
from this body should go to those councils. Maples said this Commission could also
encourage the creation of those councils—at the present time, approximately 25 out of 72
counties have them (53).
Blinka said this Commission could greatly improve on instruction 180 (53).
Mueller said that the jury instructions committee typically only looks at statutory and
case law, not policy (54). Findley suggested the Commission might submit an instruction
to the Supreme Court and ask it to adopt the instruction as a rule (54).
Horne said he would much prefer a jury instruction to expert testimony on
confessions (55). Blinka volunteered to take the lead on drafting an instruction (55),
starting by talking to Dave Schultz about what new instructions on
recording/interrogations are pending. Blinka said the instruction would provide
information on factors to consider in evaluating reliability.
The Commission discussed the role of pattern jury instructions, and the
relationship of the instruction to the voluntariness test (56).
O’Keefe asked if the jury instruction committee would be offended by the
Commission going over its head to the Supreme Court. Mueller didn’t think this would
be a problem (57). The members discussed how the process of implementing a new
instruction would work (58).
Blinka said he and Byron could look at the case law and come up with a new
instruction that is well-grounded in existing case law but that more adequately accounts
for reliability factors. The Commission agreed that Dan and Byron would draft such an
instruction that could then be presented to the jury instruction committee (59-60).
Malmstadt suggested that the Commission might want to survey police or district
attorneys about which law enforcement jurisdictions will be recording (61-2).
Figueroa raised the issue of whether interviews with non-English speaking
suspects will be problematic (61). The Commission further discussed the issue.
Beerntsen asked whether the jury instruction on eyewitness ID is adequate (62),
and the Commission agreed that might be an issue worth looking at.
Findley suggested that, if we’re going to survey law enforcement on electronic
recording, we might also want to survey what eyewitness practices are in use (63).
6
The Commission discussed what training is required for law enforcement in
Wisconsin (64).
The Commission agreed that Byron would draft a letter to send to District
Attorneys, surveying them on electronic recording and eyewitness practices (65).
Blinka said that, at a later date, he’d like to see some discussion on the use of
expert witnesses (65).
Malmstadt suggested that, at some point, the Commission might want to look into
juror education (65). The members discussed juror education (66).
Blinka raised the issue of continuing legal education for attorneys (67). He
suggested that it might be beneficial for public defenders and prosecutors to have to
attend common sessions, rather than having separate conferences (67). Mowris and
Thompson further discussed training for prosecutors and defense attorneys (68).
Figueroa raised the issue of what constitutes a jury of one’s “peers” (69). The
members discussed the issue (69-70).
On the subject of legal education, Findley mentioned that the recent legislativejudicial conference had been very beneficial in bringing different constituencies together
for a presentation on the causes of wrongful convictions (70).
Malmstadt said that one reason judges don’t report lawyers to the Office of
Lawyer Regulation more often is that the consequences for the lawyer are so severe (701). He said judges might be more willing to report lawyers if the consequence was
training, rather than suspension. Mowris suggested the State Bar might be able to address
that issue (71). Buting said the criminal law section of the State Bar might be interested
in helping encourage that kind of feedback from judges (72).
Maples said that she believes it’s critical for the Commission to address some of
the problems with the Reid technique, in part because the technique is so common in the
U.S. (72).
Malmstadt ended the meeting by saying the Commission will meet again on
October 11th, at which time the members will hear information about the State Crime Lab
and consider a resolution supporting increased funding.
7