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
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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
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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.
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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
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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.
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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.
Roberts raised 4 possibilities for solving the backlog problem: 1) increasing
efficiency through automation (Roberts noted that the Crime Lab is in the early stages of
implementing robotics to increase efficiency), 2) increasing the number of DNA analysts
at the labs and/or the resources available for outsourcing, 3) reducing the number of cases
in which testing is requested, and 4) reducing the number of samples per case. Roberts
said options 3 & 4 are unlikely to succeed because of a lack of political will. Roberts
also expressed some doubt about the outsourcing option raised by Norm Gahn, in part
because he thinks the “No Suspect” protocols that were in place as the result of federal
money were time-consuming: the lab had to “triage” the cases at the beginning, and then
work them again at the end if there was a cold hit. Overall, Roberts agreed that long-term
planning is essential, especially because issues like this typically do not get addressed
until a crisis creates political pressure.
Figueroa asked whether there were long-term projections in place 5 years ago,
and whether there are 5-year projections in place now. Mike Roberts said “no” to both.
Roberts said no one knew how large the increase would be in the last 5 years. He said
now is the time to come up with projections for the next 5 years.
Figueroa asked if there is a “best practices” lab in the country. Gahn said that the
Virginia lab is very well-respected. It is headed by Paul Ferrar. Gahn added that almost
all the states’ crime labs have backlogs, and most are far worse than ours. Gahn said that,
especially given the likelihood that arrestee profiles will soon be collected, a
comprehensive long-term plan is necessary.
The Commission discussed several possible ways of increasing funding, including
1) private funding, 2) increasing the penalty surcharge, 3) approaching a University biomedical lab—perhaps one at UW or UWM—and seeing if they would be interested in
starting a DNA lab.
The Commission members discussed who should be responsible for coming up
with a long-term plan. Mike Roberts suggested that DOJ and the 3 crime lab directors
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would be best-situated. He said groups like the Commission could be helpful in
designing the plan and convincing the legislature to adopt it.
Jerry Buting said that, in the current political environment, it might not be the best
idea to vest the Attorney General’s office with full responsibility for coming up with a
plan. He suggested that it might make sense to create a forensic science commission.
Steve Glynn said that the entire court system is dealing with funding issues, which
makes funding a very difficult problem. He expressed skepticism that this Commission
can make much of a difference on funding issues.
Malmstadt said that the Commission should state that the backlog needs to be
addressed, and should also state that an arrestee law is coming, and the legislature needs
to think about ways to pay for it. He also said that, if one of the universities would be
interested in building up a DNA lab, we could help assist that process. Mike Roberts said
that he corresponded with UWM about a DNA lab; their interest was mostly educational,
although they did express some interest in having an actual working DNA lab. He said
their major concern is cost.
Cheri Maples said that the Commission could assist by drafting guidelines to help
law enforcement entities limit the number of DNA submissions. She also said that the
presentations today convinced her that 1) we need to commit funds to outsourcing, and 2)
we need a long term plan for the future. She said it’s important that the reforms are at
least begun now by some of the experts at this Commission meeting, because if nothing is
done until the political pressure becomes too great, then the reforms will be made by nonexperts with an incomplete understanding of the problem.
Figueroa said the Commission should 1) tell the legislature that the demand is
going to continue to grow, and may grow even more than expected due to arrestee
submissions, 2) encourage someone in government to come up with projections for the
future, and 3) draft some guidelines on submissions.
Brian O’Keefe and Keith Findley discussed several kinds of testing that the crime
lab doesn’t currently do, such as mitochondrial testing. O’Keefe said that demands on
the crime lab will continue to grow as new technologies emerge.
Norm Gahn said that if this Commission recommends creating a forensic science
commission, that commission should look at issues other than just the backlog. A
forensic science commission should look at the whole picture, including new
technologies.
Kelli Thompson discussed how the Commission should distribute and publicize
its recommendations. She noted several possibilities, including publishing a “white
paper,” supporting the AG’s funding request, or reaching out to specific people in the
legislature or governor’s office.
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The Commission discussed the difficulties of lobbying the legislature for funding.
Kelli Thompson said that the legislature typically is not receptive to one agency lobbying
for another agency’s budget. Jerry Buting said that the entire funding mechanism for the
criminal justice system seems broken, and he said he would be interested in thinking
about alternative ways of funding the system.
Penny Beerntsen suggested that the experts on the Commission (and the experts at
the meeting who are advising the Commission) could come up with a proposal that the
Commission could endorse.
Mike Roberts said that he doesn’t think it makes sense for the Commission to
make recommendations before the election, because there will be a change in who leads
the Crime Labs after the election. Nothing substantive will happen until after the
election. Roberts said he thinks the Commission should invite the new Attorney General
to attend its next meeting and propose different ways to address the problem.
Noble Wray said that the Commission should agree on a document setting forth a
need for 1) an interim plan, 2) a five year plan, 3) an exploration of other kinds of DNA
technology, and 4) a fiscal impact statement addressing arrestee DNA. Wray said that,
despite the fact that we’re in a political transition, these issues can and should be
addressed now.
Malmstadt said the Commission could recommend that we 1) we deal with the
backlog, 2) study what the future holds, and 3) come up with guidelines for limiting
submissions. He suggested Byron draft a document dealing with these issues and e-mail
it to the Commission for feedback.
Gahn said that it would cost $5 million dollars to get rid of the backlog by
outsourcing. He said the Commission can make a powerful argument that, in other states,
there are civil lawsuits filed by women who were raped by men who could have been
caught earlier if DNA from other crime scenes had been processed more quickly. Gahn
said that, the longer you leave the backlog out there, the greater the likelihood of a
tragedy. Findley proposed a two-stage plan: 1) $5 million for outsourcing to deal with
the short term, 2) long term plan to address the continuing problem. Malmstadt said he is
concerned about giving a specific dollar amount, and would prefer to say “an amount
sufficient to eliminate the backlog” in some reasonable amount of time.
Mike Roberts said that the AG’s current proposal is $1.5 million. With that plan,
we’ll eventually clear the backlog, but it won’t be quick. Roberts said we could suggest
“sufficient funds to clear the backlog in 1 year.”
Gerry Mowris said that the issue of funding for DNA testing can be politically
powerful. One can easily argue that the backlog protects the guilty.
Penny Beerntsen raised the issue of what the Commission should do with its
recommendation once it’s drafted. Several members suggested sending it to the
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Governor, the legislature, the chairs of the Joint Finance Committee, and the media.
Others suggested meeting with the new Attorney General before distributing it.
Gerry Mowris suggested forming a sub-committee on how to distribute these
kinds of documents in an effective way. Malmstadt said that all of the Commission’s cosponsors should have a say in how the recommendations get distributed. Norm Gahn
suggested that one important group to partner with might be the Crime Victim’s Council.
Mowris suggested partnering with the State Bar.
Byron asked who the members would like to hear from at the next meeting. The
members agreed that they would like to invite the new Attorney General, and they also
confirmed that they would like to hear from Peter Neufeld.
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