Wisconsin Criminal Justice Study Commission



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 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 (9-10).

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.

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 in-depth 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).

The members discussed what issues to address at the October 11th meeting (26-28). 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 (38-9).

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 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).

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).

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 legislative-judicial 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 (70-1). 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.

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