forensic focus - Web Exclusives: A Q&A on Forensic DNA Issues With Lisa Hurst

Fulfilling the Promise of DNA Technology
President’s DNA Initiative Brings Hope of Crime Lab Funding, Backlog Resolution
By Kelly M. Pyrek

Crime Lab Design is in the Details
By Kelly M. Pyrek

Forensic Photography:
The Pros and Cons of Going Digital
By John Roark

EDITOR’S LETTER
Demanding Respect for Forensic Science

PERSPECTIVES
Field Needs Adequate Funding, National Forensic Science Commission

SPECIAL SECTION
Advances in DNA

NEWS & VIEWS
Industry News Briefs, Off the Bookshelf, Notes from the Field

A Q&A on Forensic DNA Issues With Lisa Hurst

Lisa Hurst, a government affairs attorney with public services corporation Smith Alling Lane, keeps an eye on legislation relating to DNA and the expansion of CODIS. One
issue of focus for the Governmental Affairs group of Smith Alling Lane is forensic DNA. The Governmental Affairs group has established a reputation and gained respect among members of the law enforcement and forensic communities for its expertise in areas of interest relating to forensic DNA. Smith Alling Lane has represented law enforcement interests since 1990, and began providing consulting services on forensic DNA issues in 1999. Since this time, the firm has become recognized as an excellent resource for both national and international data on the past, present and future of forensic DNA. Hurst shares her insights with Forensic Focus magazine:

Forensic Focus: Can you give us a quick update on the database expansion efforts?

Lisa Hurst: "There are 30 states with all-felons databases; there are four or five bills still pending, but only one, in my opinion, really has a shot at going anywhere this year and that's the Massachusetts bill because it has already passed the Senate. I'm told by staff it is expected to be taken up by the House this fall. It enjoys strong support from the prosecutors and police, and most importantly, it has had very strong support from a victim's family. When they get involved, victims groups and individuals are very powerful. They are very motivated by their cause, and they get a lot of sympathy and a lot of coverage from the press. There is a victim's family in Massachusetts whose daughter went missing several years ago. Just this year some bones were found near a bathing suit they thought she was wearing the day she went missing, and they were able to identify her. However, they were not able to get any forensic DNA to determine who killed her. Her family had been out in the forefront on this."

FF: So a victim or a victim's family can more easily reach lawmakers?

LH: "It can be a huge help to lawmakers if a victim or their family members get involved. As a rape survivor, Virginia resident Debbie Smith was very brave in coming forward, telling her story and advocating the resolution of unanalyzed rape kits. It's very difficult to get rape victims out in the public eye. As the DNA databases started to build up -- with the first coming into the U.S. around 1990 -- they have been slowly building. It's been in the last three to four years that we have seen this tremendous growth in adding profiles to the database. A large portion of this growth is due to federal funding, plus information coming out of the United Kingdom and then Virginia about the cold hits they had.
The proponents of these databases were the crime labs; occasionally prosecutors and local police departments. It's been only recently that victims and victim's groups have latched onto the issue. It's great for prosecutors to use this database to prosecute cases; but wouldn't it be better if we could catch the serial rapist out there today as opposed to five victims from today? It's a preventive issue. There's the whole backlog problem with rape kits ... in states where victims get involved the issue gets more attention. Look at Louisiana - they had a serial killer who could have been caught earlier if they had taken a DNA sample from him for a prior felony conviction. But the state legislature never funded it and it never got done."

FF: Do you think the DNA backlog issue or the DNA database expansion issue will be resolved first?

LH: "I think they are about equal in progress. The database gets more discussion simply because it is a legislative issue, but the backlog issue is starting to catch up."

FF: Is privacy becoming an issue as the criminal justice community pushes for all-felon databases?

LH: "The controversy and resistance over getting samples from convicted felons has shrunk; the American Civil Liberties Union (ACLU) has pretty much given up that fight. I'm not going to name names but there are a few states where it's always going to be an issue or a hold out, and frankly that's why I am hoping Massachusetts does adopt the all- felons approach because a lot of those northeast states -- and a big state in the West -- have a stronger history with civil-liberties issues. There are going to be hold-out states but across the board, the ACLU has chosen not to challenge these all-felons databases because they have lost every time they have. It's a different issue when you go to arrestee testing. There is a challenge being mounted against Louisiana's arrestee provision; they were collecting those volunteered samples and Barry Scheck was trying to make it into a class action suit. Mr. Scheck is challenging not just the voluntary collection but the entire statute. That will be the first challenge in the United States to an arrestee statute. If I were Mr.Scheck, that's where I'd take it. There are only three states that even have that statute - Virginia, Texas (which really hasn't implemented it because they haven't had money) and Louisiana. Virginia has a great program and has had a lot of successes to argue for why they should be collecting DNA samples from arrestees. Louisiana is just getting off the ground and there are more issues; Mr. Scheck has the cover of having this volunteered DNA sample issue as the umbrella under which to challenge the whole thing, because there will be more speculation over whether to keep the volunteered samples. We'll see what happens. It was only a matter of time; it's one thing to take sample for convicted felons but another thing to take it from people who we don't even know will be convicted."

FF: Can you give us a quick update on statute of limitations laws being proposed?

LH: "There were several bills this year dealing with this and it's been ongoing. Every year several states will do something with their statute of limitations laws. It usually comes after something hits the press about all these rape kits not being analyzed and the statute of limitations clock is ticking and people say 'Gee, we have to fix this. But another reason for readdressing statutes of limitation laws is to address the backlogs. There's an even more important scenario. Say somebody is raped today. Her rape kit gets sent to this lab in an appropriate amount of time, and it gets processed by the lab in an appropriate amount of time. But that offender has not made it onto the criminal justice radar screen; if you live in a state where they limit the database to just sex offenders and murderers, and it takes that guy another eight years before he gets caught for a sex offense crime and your state says six years for the statute of limitations, well it's too late by the time your case is solved. It's not just about a backlog, it's giving that database time to work and the time it takes for the criminal justice system to catch up with the offender.
I have been told some states have moved their statute of limitations laws from six years to 10 years, and that Kentucky has never had a statute of limitations for rape."

FF: Even if the backlog and database expansion issues are addressed, can a log-jammed court system accommodate a new flood of cases to prosecute?

LH: "You can't ignore the overcrowded courts, and the lack of training for judges and prosecutors. That's a legitimate question; among those of us who get together and theorize on these kinds of issues, it was pondered if there was some way we could do a cost-benefit analysis of the cost savings of presenting DNA evidence immediately because you do anecdotally read a lot about suspects, who when faced with DNA evidence, cop to the crime. In what percentage of cases does this happen and how often does it happen? I don't know. A prosecutor who is well known for his work in DNA says, 'Not if it's me and my case - once I have DNA he can forget a plea agreement. I'm taking this guy to court and I will stick it to him.' It's his opinion that it makes his caseload go up because now he's not going to let the guy get away on a plea. It depends on your prosecution. It's a really scary thing to think that all of these needs are so great - you can go state by state and document cases where rapes and murders could have absolutely been prevented if only we had picked up the perpetrator for his prior felony conviction in the database. There are a lot of 'if only's' -- if only we had collected it for that burglary, or if only we didn't have this case tied up in a backlog and never got around to doing the analysis... I wish there was a way those victims could get more of a voice."

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