JUD Committee Hearing Transcript for 03/20/2008

REPRESENTATIVE LAWLOR: --Judiciary Committee public hearing. As is the practice of this Committee and the rules governing legislative public hearings, we'll begin in the first hour with public officials.

And after that, we'll go to members of the public. There appears to be, it's not a very long signup sheet today, fortunately.

And I think, if I had to guess, if you're at the end of this sheet, you're probably talking about testifying around 2:00, 3:00 this afternoon.

So for planning purposes, it looks like we'll be able to work our way through this in a reasonable period of time.

First on the list is Speaker Amann, and he will be down shortly, so we'll skip over him, and we'll go to State's Attorney Mike Dearington, who, I believe, will be accompanied by State's Attorney Steve Sedensky.

I was just reminded of an important fact, as these gentlemen come up, that our rules call for the agency heads or the chief elected officials or municipalities or commissioners, and I was reminded that individual state's attorneys are, in and of themselves, constitutional officers under our State Constitution.

And they fall into that category. They're not like the deputy commissioners or anything like that. So I'm reminded of that over the dinner table occasionally. And so with that in mind, welcome to Mr. Dearington and Mr. Sedensky.

STATE'S ATTY. MICHAEL DEARINGTON: I think I'm first. Good morning, I'm here to speak about Raised House Bill 5832, which is captioned AN ACT CONCERNING EYEWITNESS IDENTIFICATION.

I've submitted a short statement with a couple of enclosures. But what I'd like to do is just briefly summarize what this involves.

This is a bill, as you're all aware, which has been introduced, I think, four or five times over the last four or five years.

And it concerns, principally, three different issues, the issue about mandated sequential identification procedures with respect to law enforcement, the second issue, double blind procedures, and the third is the second half of the double blind procedures.

As far as the double blind procedures, as I'm sure you're aware, it mandates that police officers, with respect to an identification procedure, whether it's a lineup or photographs, instruct the witness or victim that the suspect may not be in the array, that there's no obligation or pressure to make an identification.

And there are several parts to the instruction. One of the enclosures includes the paperwork, or the forms, used by the New Haven Police Department. And one of them is the officer instruction for photo identification.

And then the second form is the form that is read to and filled out by the witness. With respect to that aspect of the bill, the state is already in compliance.

Three years ago, the state's attorneys recommended to the Connecticut Police Chiefs Association that this be adopted, and it was adopted by all police departments, the State Police, as well as local police departments and such.

We're already in compliance with that aspect of the bill. The second part of the double blind, the bill provides that it's a best practice that the person or official showing photographs or conducting an array not know who the suspect is, such that there would be no conscious or subconscious suggestion by the official.

Again, that's a recommended practice in the bill. It has been recommended to many departments, or to all departments, but, as you're all aware, it is, in many respects, not practical.

Small departments don't necessarily have personnel who are not familiar with a suspect of a particular investigation.

Large departments, particularly on the midnight shift, may not have people available who would not be familiar with the suspect. And that's why, in the bill, it is, at most, a recommended best practice.

And finally, with the most controversial aspect of the bill, mandated sequential identifications, Jim Clark spoke before this Committee, I think, last April and presented a rather thorough and thoughtful statement, which I've actually included to my remarks.

As you're all aware, sequential identification is a procedure that was created probably 20 years by Professor Wells and few others at the University of Iowa, based upon classroom mock situations with mock crimes and mock witnesses.

And since then, it has been touted as measurably reducing the number of false identifications.

And I hasten to point out, as I know you're aware, that the statistics are that probably 75% of all wrongful convictions are based upon faulty identifications.

Many departments in many states, or at least three states, have adopted it statewide, that is, the sequential procedure, which involves not showing simultaneously photographs or a live array but showing the photographs, for example, sequentially, one at a time.

And a number of people, there are a number of departments nationally that have adopted it. Also, I think I read that Israel and Great Britain and France are looking at that type of procedure.

And it was the end-all and the be-all when it first was presented by Professor Wells probably 15 or so years ago, or maybe up to 20 years ago. And as a result, a lot of agencies jumped onboard.

But since then, there has been counter information, based on studies, that it may not be as valid as initially thought in reducing wrongful identifications.

One of the criticisms is that the mock crime in a classroom with mock witnesses is not the same as how actual witnesses perceive things with respect to actual crimes.

So the Philadelphia Police Department, in the last two years, conducted a study which suggested that sequential identifications were not any better than simultaneous identifications and maybe, in some situations, not as good, as far as reducing wrongful identifications.

And then I hasten to point out that the methodology used in that study is now being challenged. So the bottom line is that the jury, so to speak, is still out on this.

But I just want to, in my statement, I cite a statement made by Gary Wells a number of years ago, which seems to have been lost, but I think it's really significant.

Even Gary Wells, who espouses sequential identifications, on page three of my statement, indicates, in fact, however, I think it is unfortunate that the sequential procedure has come to dominate so much of the discussion regarding lineup procedures.

Most of my research and writing over the years has been addressed at problems with lineup procedures that are independent of the simultaneous versus sequential lineup issues.

Regardless of whether one uses a simultaneous or sequential procedure, there are other important problems with lineups that have to be addressed.

And I point out that's what this Committee has addressed, and that's what we've addressed in the Division of Criminal Justice.

I go on, these other problems include instructions to eyewitnesses, the selection of lineup fillers, how witness certainty is assessed, how to eliminate inadvertent influences from the lineup administrator.

And finally, fixation on the sequential procedure is creating a certain degree of myopia with regard to seeing the broad problems with lineup.

In closing, I indicate that in the spirit of what Professor Wells has indicated, this state, in conjunction with this Committee and the Division of Criminal Justice and law enforcement, have followed his admonition that it's not just sequential identifications.

It's more the integrity of the whole system. And that's why our adoption of part of the double blind, I think, is so important.

And that is why, in conclusion, in my statement, I indicate that, in conclusion, the Division of Criminal Justice believes House Bill 5823 [5832] is premature and unnecessary, given the inconclusive nature of the research to date and the ongoing good-faith efforts being taken by the law enforcement community to address the underlying issues.

And it goes on to say that we request that this bill be rejected, although, in fact, we have adopted a good part of it. Thank you.

REP. LAWLOR: Thanks very much. And I think it might be appropriate just to have a few questions about this topic, and then we'll get on to talking about sex offenders because they seem to be pretty unrelated, although one thing that bridges the gap is the case I wanted to just throw out that as an example of the problem at least, which is the Tillman case, who, you know, Mr. Tillman was convicted of a sex offense, and it turned out that he was actually innocent.

And this is the case that gives rise to so much of the discussion, especially recently, because, I mean, people who saw, on the front page of the Hartford Courant, the photo that was identified, the photo of Mr. Tillman, compared to the photo of the guy who ultimately, apparently committed this crime, was identified through a DNA match.

You can see the great similarities between the appearance of these two men. And it is just one of many examples, and you pointed this out in your testimony, where sometimes if the only evidence is an eyewitness id, especially if it's a cross-racial identification, that the unreliability of those is very high.

And it's that concern that gives rise to the question for us, as a matter of public policy, what is the best system for conducting these photo id's to have the lowest possibility of misidentification?

And I just wanted to focus in on one comment you made at the end, which is, in my opinion, a very true statement, that you have made a very good faith effort to identify what are the best practices and make them commonplace among law enforcement agencies throughout the state, which is totally true.

And I guess the only unanswered question is is there more that could or should be done to ensure that misidentifications are as infrequent as possible.

And I guess your testimony is that there might be, but the specific language of this bill might be too much or have unintended consequences or actually be unnecessary. Is that, in essence, what you're saying?

STATE'S ATTY. MICHAEL DEARINGTON: Yes. I think it's too soon to adopt a sequential system. It should be looked at, and we should wait and see.

I think just as in all law enforcement procedures, what's really important is the integrity of the police officer. That's why training, education is so important.

And as Professor Wells indicates, there's nothing, that is the most important factor, the police officer administering the procedure.

REP. LAWLOR: And the last thing I want to throw out, and I know you were present at the meeting last week on the Commission of Wrongful Convictions, where these topics came up for discussion.

And I think it would be fair to say that there was something of a consensus of the people who are members of the Commission on Wrongful Convictions that this might be something worth taking up in the context of its deliberations, in terms of recommending additional best practices, over the next year or so.

Does it seem like something that, because one of our options here is to sort of throw this back to that panel of experts, really, to have more discussion about what would actually be effective, as a matter of state statute. So is that something you would be comfortable with if that's what we ultimately decide to do?

STATE'S ATTY. MICHAEL DEARINGTON: Well, I think the answer is clearly yes. But the information has to be available to make an intelligent decision, if we're talking on sequential, and the information just isn't there yet.

And that's what we have to wait for. And I know there are a lot of studies going on right now, and we'll see how it shakes out.

But as you pointed out, sequential, in some studies, has been less reliable than the traditional simultaneous.

And you mentioned cross-racial lines, also young witnesses or elderly witnesses. So I agree with you though.

REP. LAWLOR: Are there further questions on this topic for Mr. Dearington? Steve?

STATE'S ATTY. STEPHEN SEDENSKY: Good morning, Chairman Lawlor, Members of the Committee. My name is Steve Sedensky. I'm the State's Attorney for the Judicial District of Danbury.

I'm here to speak in support of Raised Senate Bill 699, AN ACT CONCERNING THE SEXUAL ASSAULT OF CHILDREN. It has a number of provisions in it.

I'm just going to highlight a few of them that I think are particularly significant, starting with Section 2, that permits a person close to a child to be present in court when the child is testifying in court.

I've tried a number of child abuse cases over the years. And one of the problems that typically comes up is that the testimony is needed of a close family member, and at the same time, that person is also needed potentially to sit in court with the child to provide comfort to the child.

So we are then put in the situation where do we need their testimony more than we need them in court to be a comfort to the child?

And what Section 2 does is allows that person, that close person, to testify prior to the child, the child is not in court at the time, and then to also be present in court later on as a support person for that child.

Section 3 includes child abuse cases with crimes of physical violence, as given a priority for investigation and prosecution purposes.

Section 4, as written, I know the intent is to give child abuse cases a priority on the trial list. The difficult that we have with the statute is that it automatically gives the case priority.

And in every case of child abuse, the child may not be ready to testify as soon as the case comes in.

Often, children are going through therapy and, through the benefits of therapy, are then better able to testify later on.

The suggestion that I've provided in my handout is that it be in the discretion of the prosecutor involved in the case whether or not to make a motion to give that particular case priority and that it would be focused more on the individual needs of the victim or to be able to accommodate the victim as to whether or not the case should be given privileged status.

We did make a suggestion, and our suggestion, I believe, also includes the elderly, that we could move cases up.

And the reason we include the elderly, it's not unusual, if a case sits on the trial list for a while, behind the murder case, that in a financial crime, we've had cases where the victim has died, and it was a financial case.

And if we had been in a position where we could have moved it up, that would have helped the case tremendously.

Just as an aside, you also have before you today Raised Senate Bill 694, which seeks to, AN ACT CONCERNING THE ERASURE OF CRIMINAL RECORDS, and it would put criminal records that receive a nolle or dismissal when it's part of a global disposition on the same plane as an isolated nolle or dismissal.

For example, if someone is charged with a larceny in the sixth degree for shoplifting, and that's the only charge, the case gets dismissed. The entire record gets erased of that arrest.

If the case involves, say, a burglary of a home that also involved a larceny of a theft, the prosecutor, in resolving the case, may decide to nolle the larceny in the sixth degree charge.

But those facts are still necessary for the proof of the burglary. And under the current law, the nolle remains as being visible, even though it eventually gets dismissed.

When that happens, the crimes are often so intermingled that the facts of one crime, that being the burglary, are intermingled with the crime of the larceny in the sixth degree. So we would urge you to maintain the current law on that. And thank you.

REP. LAWLOR: Senator Handley?

SEN. HANDLEY: Thank you. Good morning. When you were talking about the priority given to cases that involve children with child abuse or the elderly, it occurred to me that just as with the elderly, where somebody might not live long enough to see a trial, do you make any special consideration for someone who has been the victim of a crime, or an important witness in a crime, who's very ill and not likely to survive for a very long time because of their illness?

STATE'S ATTY. STEPHEN SEDENSKY: Under the current statute, we could move that the case be given privilege trial status. It doesn't specify specific reasons to do that.

So if that is an issue, the prosecutor in the case can move for privilege trial status, and we can do that if it involves a witness, yes.

SEN. HANDLEY: Okay, thank you.

REP. LAWLOR: Other questions? Stephen, first of all, I think this is your first appearance before us since you've actually become State's Attorney. Is that correct?

STATE'S ATTY. STEPHEN SEDENSKY: That's correct.

REP. LAWLOR: So congratulations for that.

STATE'S ATTY. STEPHEN SEDENSKY: Thanks very much.

REP. LAWLOR: And historically, you've been one of the leading experts among prosecutors on prosecution of sexual offenses against children cases, so you've been here many times to testify on those things.

So I guess it's good news to have a real expert on this topic as one of the state's attorneys, so that's great.

And with that in mind, I just wanted to ask you a question. On the DNA, obtaining the DNA samples from persons either convicted or arrested for crimes, you know, obviously, there's proposals to expand the scope of the mandate for collective DNA evidence.

One of the bills requires testing arrestees for felonies, and there's a good deal of controversy about that.

And one of the proposed solutions to that problem, in other words, a compromise, was actually suggested by some prosecutors and some defense attorneys and others, that instead of the current law, which requires collecting this DNA sample at the end of the sentence, which is what it currently requires, instead, if we change the law to say, for all persons convicted of felonies, that they had to provide a sample prior to the imposition of sentence by the court, in other words, up front, get the evidence up front.

STATE'S ATTY. STEPHEN SEDENSKY: Before their sentenced.

REP. LAWLOR: Before they're sentenced because one of the current problems apparently is what happens if an inmate, for example, refuses to give the sample? How do you compel him to do it?

And one of the proposals we've got is actually give DOC the ability to strap him down and forcibly take it. And obviously, that's awkward and risks injury to both the staff and the offender.

But as an alternative, if the goal was to ensure that not just persons simply suspected of a crime, felony, have to give it.

Instead, if you did it right before the sentence was imposed, there's the one point in the criminal justice process where the maximum pressure on the offender to cooperate is there, because if he hasn't been sentenced yet, obviously, his refusal to give the sample could be taken into consideration as a factor in his sentencing.

So my question to you is what do you think about changing the proposal to say that at the time you're convicted of a felony, you must be required to give a sample prior to the actual imposition of sentence and that if you refuse to do it, that could be taken into consideration by the judge in the imposition of the actual sentence?

STATE'S ATTY. STEPHEN SEDENSKY: That would be fine. The way you're explaining it to me is they have been convicted. They've been convicted, either after a jury trial or after a plea but prior to the imposition of a sentence.

REP. LAWLOR: Correct.

STATE'S ATTY. STEPHEN SEDENSKY: Depending on whether or not they occur simultaneously, plea and sentencing, because depending on the case, even if it's a felony, there may not be a pre-sentence investigation.

We're trying to be respectful of probation's time and, at the same time, you know, make sure that the information gets to whoever it needs to get to in terms of the sentence.

So other than the logistical issue, I don't see a problem with it. The person has been convicted, and the only thing that remains is the sentencing.

Now if they eventually do not get sentenced, you may want to have a provision that perhaps holds off on the actual testing until after the sentence is imposed.

REP. LAWLOR: Why wouldn't it get sentenced though?

STATE'S ATTY. STEPHEN SEDENSKY: I don't know. Something may come up. They move to withdraw the plea--

REP. LAWLOR: Gotcha. The logistics part, apparently, that's doable because probation is already gearing up to make sure that they can collect these samples actually in the courthouses.

STATE'S ATTY. STEPHEN SEDENSKY: We do. We actually, before our cases, we take buccal in the swabs in the courthouse.

REP. LAWLOR: So that would be, it seems like that would be a more sensible solution to the problem. It's a lot less complicated.

And the important thing, as it was explained to me, is getting as much information as possible into the data banks so that you get as many hits as possible and as many exonerations as possible.

So the more information in the database, the more likely it is you'll be able to resolve cases one way or the other more quickly.

And the current law seems to require you wait until the guy is actually getting out of jail, assuming he goes to jail. And why not do that up front, the sooner the better?

And that would eliminate the need to take everybody who, simply upon arrest, and then take it out of the data bank if they ultimately don't get convicted. It seemed like this was a reasonable compromise, and I just--

STATE'S ATTY. STEPHEN SEDENSKY: As I sit here, it does seem like a reasonable compromise. It's the first time I've had an opportunity to think about that proposal, but as long as it's after they've been convicted--

REP. LAWLOR: Right. Okay. Further discussions about, Representative Adinolfi?

REP. ADINOLFI: Thank you. On that DNA testing, which is probably better known as Katie's Law out in the field.

It's interesting to note that in Virginia, who has implemented this, that in 2003, 63 arrests were matched to other crimes. In 2004, 68 arrests were matched to other crimes.

In 2006, 69 arrests, and in 2007 through May, this is where I have the figures up to, it was 32 arrests so far.

So it does work, and it does bring out, and on the opposite end, it does, in one case, in one of the other states, in Chicago, it also found a man that was already in jail for a crime, they found somebody else that had committed it.

There were able to release somebody that was actually innocent of the crime and to get the proper criminal and convict him of the original crime along with the crimes he was picked up on. So this does work.

It would compromise in certain areas, but it would certainly make things better and bring more criminals to justice. So I'm glad to hear people are supporting this. Thank you.

REP. LAWLOR: Senator Kissel?

SEN. KISSEL: Thank you very much, Chairman Lawlor. Attorney Sedensky, it's nice to see you. I'm just trying to, this is along the lines of what Chairman Lawlor was asking [inaudible - microphone not on] a little bit of criminal work and was a special public defender.

Let's say you're negotiating, and you get a plea agreement. And it's one of those things where you want to do it that day, to try to move business along. Everybody is in agreement.

Have times moved along so much so that this DNA hit, this swab, can be done, let's say you're negotiating, and it's 11:00 in the morning.

It can be done, and then somehow it's fed into a database, and there's a check before the individual goes and maybe pleads before the judge after the lunch break and comes back at 3:00, I mean, can it all be done that fast?

STATE'S ATTY. STEPHEN SEDENSKY: In terms of taking the swabbing?

SEN. KISSEL: Well, along the lines, maybe I misconstrued it, but it seemed like Chairman Lawlor was indicating that the DNA sample would taken sort of at the same timeframe that someone is pleading but before the imposition of a sentence.

Now in a plea agreement, which is over 90% of these matters, that quite often, not all the time, if you're ordering a PSI or something, there will be the plea, and then there will be the argument.

And sometimes, it's like, all right, minimum of five, maximum of 10, and we'll argue in between. But sometimes, it's just a cut deal, and everybody knows what it's going to be.

And in those instances, is there any way to get all this stuff done before one gets before the judge?

You know, maybe you can take the swab, but between that and getting it in the database and, again, seeing what pops up, because part of what I'm hearing is that maybe it might have an impact on either the acceptability of that plea or the imposition of a sentence. I'm just wondering, again, sort of the nuts and bolts, the pragmatic, how that would work.

STATE'S ATTY. STEPHEN SEDENSKY: Well, just in terms of logistically what may happen, assuming, you know, victims are onboard with whatever the plea agreement is, and they happen to be in court that day, the plea gets taken in front of the judge, and the sentence is given right then and there, all right.

That's just why I had a question as to the logistical matters of it. I don't know if the Legislature would then require, because I haven't seen the legislation, would then require than a break be taken prior to the sentencing.

The person then goes into a room where they take the swab, and then the come back out, or it becomes just prior to the plea being taken.

You know, if they know the plea is going to be taken right then and there and maybe just prior to the plea being taken, I mean, there's a logistical framework that would have to be worked out.

But if it's plea, swab, sentencing, that is going to break some things up, in terms of actually the majority of cases. The majority of cases are resolved by some type of plea.

SEN. KISSEL: And that was my question because on some of the taskforces that I had served on, when it came to victim notification, because the victims have to have a reasonable opportunity to participate in this process.

If a plea agreement is reached, the notion was that there wouldn't be a requirement that the victims actually had to be present but that the wording was such that there had to be a reasonable opportunity, such that maybe there was a phone number in the file, and the state's attorney would have to make a reasonable attempt to get them involved.

And so it was a balance between the constitutionally protected rights of victims to be able to participate in this process, and at the same time, we all know, business has to move through the courthouse.

And so if the majority of cases are resolved through negotiated plea agreements, and we have an ability to reasonably notify victims to come in and participate, I'm just wondering if now, we also have this new element where someone goes, accepts the plea, they plead out, now you break, and a couple hours goes by.

And it's not even just a collecting, because I'm not, and maybe you can help me with this. There would need to be some kind of mechanical time lag for the collection.

But how fast can that DNA then be submitted to the database and then the database be searched to see if there's any match? I mean, I don't know if that takes a couple hours or--

STATE'S ATTY. STEPHEN SEDENSKY: Well, I wasn't equating the collecting and the searching as taking place at the same time because it has to be tested, and that's going to go beyond that day.

SEN. KISSEL: So that's why I don't understand when Chairman Lawlor, and maybe I have to talk to him about this, because it almost seems like the DNA is in the database to potentially impact the sentencing.

But if the sentencing is going to be that day, and it's going to take many days to get the information back as to whether there's a hit, there's no way that's going to have an impact on the sentence that's been agreed to that day.

STATE'S ATTY. STEPHEN SEDENSKY: My understanding of the original question had to do with the issue of someone who's at the end of their sentence, not being cooperative in the taking of the DNA, versus someone who is about to be sentenced, perhaps being more cooperative, and that all we were talking about is the actual taking of the sample.

It certainly does move the sample along in the testing process by having it taken sooner rather than later. But I'm not aware that they do it all in the same day, in terms of the taking and the testing.

REP. LAWLOR: To clarify, this came up in discussions about how to deal with this issue. And all we're talking about is taking the swab.

I mean, you have to be trained to do it so there's no dispute later on, in terms of chain of custody or whatever, but just to get that information on its way to being included in the databank.

There is a significant backlog in actually getting this stuff in, and there's thousands and thousands out there waiting to be catalogued.

But the real issue was under the current law, it seems to say, it does say that you obtain the sample at the end of the period of punishment, which, in some cases, could be 40 years from now.

And since the real issue is how do we get more samples into the databank of people who are already being convicted of crimes, why not do it at the beginning, rather than at the end?

The law doesn't require it to be done no matter what. All it simple says is that's when it has to be, I mean, the offender has to cooperate and allow it.

So it doesn't mean it would be an illegal sentence if you didn't gather the sample. It would be like just do it at the beginning and get it on its way earlier.

And that might deal with some of the concerns that people had about obtaining samples from people who are accused but not yet convicted.

And it would be a significant expansion on the amount of information getting into the databank very quickly.

So that was thrown out there in some of the discussions we had about one way of doing this, and I was just bouncing it off him.

But it wouldn't mean that everything would have to grind to a halt if they hadn't collected the sample. It just meant that you could have done it if you wanted to at the beginning.

SEN. KISSEL: All right, thanks. So I think I understand that we're not utilizing the results to sort of overlay or add to the judge's discretion as to what sentence may or may not be imposed.

But I guess the notion is that, as part of the plea negotiations, it will always be, all right, here's the sentence. Here's the proposal.

And in every instance, it's going to be, and your man or woman is going to have to give the DNA sample today too, boom, and if they don't do that, then that, A, may blow up the plea negotiation or I guess alternatively, it may expose that individual to a sentence that's higher than what was agreed upon.

So I guess it's the leverage of cooperate, and we'll move this through today, as opposed to, we'll check it today. And you think that that can work.

STATE'S ATTY. STEPHEN SEDENSKY: As it was presented to me today, yes. Just what you do need to know though is that the pleas and sentencing often take place at the same time.

SEN. KISSEL: Right. I guess, now, I think I'm beginning to see the mechanics of it. While that, because you're exactly correct.

Typically, after the negotiations, in other words, the state's attorney is talking to the defense counsel, all right, we'll reduce it to X, Y, Z if your guy, let's say it's guy, pleads out to this charge, five years to serve.

Go talk to your client. And of course, cooperation with the DNA sample has got to be part and parcel. Then the defense counsel comes back, talks to the state's attorney, and it's either a yes or a no.

And if it's a yes, then there's usually a lag before that individual goes before the judge. And during that lag, I guess somebody could be brought into the lockup and take the DNA sample so that as you're rolling forward, it's all a done deal.

STATE'S ATTY. STEPHEN SEDENSKY: And technically then, that would be prior to the plea.

SEN. KISSEL: Right, so, I guess, technically prior to the plea, but I think mechanically, that's the way it would probably have to work.

I can't see someone pleading, and then you stop everything, and then you go and put them in a lockup, do the DNA swab, then come back out.

But I think mechanically, you can cut the deal, while it's not formally entered on the record, and as part of, because after the defense counsel said, yeah, we have a deal, usually you don't race right in front of the judge.

There's a line of things going on in front of you. And that's when maybe mechanically, the swab can be taken. And then the individual pleads. So I think that's probably how it would shake out.

REP. LAWLOR: Senator Meyer?

SEN. MEYER: Thank you, Mr. Chairman. I think DNA is the fingerprints of the 21^st Century, as your testimony suggests. I do have a concern though, and that is is there the staff to make expedited use of DNA when it's received?

Or are we looking under current staff levels and accumulation of DNA data that will not be processed and be able to be effectively used for some time?

In other words, I am concerned about the fact that we would be getting DNA through this bill but that we would not be able to process it in a manner to use it on an expedited basis.

And, you know, if that's true, then there's not much point taking it at the time of arrest. If we do have the staff, and we can process the DNA on an expedited basis, then it does make sense.

It will exonerate people who have been found guilty. It will help to catch other people who have committed crimes.

But I just want to be sure that there isn't another piece to this puzzle where we need to be better staffed in order to process DNA data.

STATE'S ATTY. STEPHEN SEDENSKY: It may very well be a staffing issue as to who you want to have take it, whether the marshal services or corrections be assigned to the courthouses, I mean, that's a logistical, and then it has to go to a lab for testing.

SEN. MEYER: Okay. But my question is [inaudible] do you know whether or not we have the current--

STATE'S ATTY. STEPHEN SEDENSKY: Oh, I do not. I was just asked the question about the general concept of doing it sooner rather than later because there's a problem oftentimes with doing it later in that oftentimes, the inmate may not cooperate.

And if it was required to do it sooner, prior to a plea or immediately after a plea, the likelihood of getting cooperation was increased and reduced risks of anyone being hurt by forcing someone to do it.

SEN. MEYER: Well, will DNA data be in the possession of the Connecticut Division of Criminal Justice?

STATE'S ATTY. STEPHEN SEDENSKY: I don't think, oh, the data?

SEN. MEYER: Yeah.

STATE'S ATTY. STEPHEN SEDENSKY: The data may eventually be, but the actual taking of the sample, I would presume, would be done by someone else.

SEN. MEYER: No. I understand that. But I got to ask you one more time, and maybe you don't have an answer to it. Do we have sufficient staff to process DNA data on an expedited basis?

STATE'S ATTY. STEPHEN SEDENSKY: That I don't know.

SEN. MEYER: Who would know that?

STATE'S ATTY. STEPHEN SEDENSKY: I would imagine the State Police lab may have that information.

SEN. MEYER: Thank you.

REP. LAWLOR: Further questions? Representative Dillon?

REP. DILLON: Good morning. I'm sorry, I missed the previous question. I was outside the room. I just wanted to follow up on your comment that it would, quote, unquote, go to a lab. What lab would it go to?

STATE'S ATTY. STEPHEN SEDENSKY: My understanding is that, in terms of the DNA testing, that goes to the State Police lab.

REP. DILLON: This may have been discussed when I was outside, but I remember there was a case that was discussed in [inaudible] recently, I think incorrectly actually, where there was a match, but the DNA was actually on the shelf among the, what, 22,000 unprocessed samples that we have already. Are you aware of that case?

STATE'S ATTY. STEPHEN SEDENSKY: I am not aware of that particular case.

REP. DILLON: Have you thought through, and I don't mean to say this in any way to be critical to prosecutors, but there have been a lot, I know Americans are religious about their science.

Sometimes we trust science more that we trust our own faith, and I don't know if we're always right about that.

But there were a number of celebrated errors in Illinois on death penalty cases that ended up to being a breakdown, either incompetence or corruption in a lab.

And there was also a rather celebrated case in North Carolina, where a corrupt prosecutor colluded with the lab director, who wanted state business and who believe his client was the prosecutor, not the people, and they withheld exculpatory evidence.

He ended up, after a rather sensation series of events, to be removed from his position. But I'm interested in many, many, many things because this opens, it exists for our existing practice, but it also does if we expand it. What kinds of controls are there over the chain of custody of evidence is my first question.

STATE'S ATTY. STEPHEN SEDENSKY: My understanding, and this is just as to how it's taken, currently the DNA is taken at the Department of Corrections and then forwarded to the state lab for testing.

A test is done, and then it's compared with any other outstanding cases that may exist that have a similar match. After that is done, a new sample is required.

So let's just say, this is my understanding as to how it works, okay, let's just say that there's a match that's done. A test gets taken at corrections as part of the statute. It's sent to the lab. It's eventually tested.

And then it matches an existing criminal case that's outstanding, let's just say an unsolved rape case, all right.

A new blood sample is then taken from the suspect, and that sample then I compared with the sample from the crime.

REP. DILLON: I'm still not clear, I mean, some of this, it sounds like if we have a backlog already, that expanding it is going to cost money, yes?

STATE'S ATTY. STEPHEN SEDENSKY: I don't know. The suggestion was an expansion, was just moving up the taking of the sample. That was Representative Lawlor.

I think the suggestion was the taking of the sample is moved up in time. Rather than at the end of the sentence, it's now done at the beginning of the sentence, or beginning when they enter a plea.

I don't know that it would be an increased number of samples being taken. The time that it's taken is just moved up to just at the time of their plea, rather than at the end of their sentence.

REP. DILLON: Well, so that's different from the bill that was originally submitted to us?

STATE'S ATTY. STEPHEN SEDENSKY: Okay. Yeah, I'm not familiar with, I haven't seen the bill.

REP. DILLON: That's radically different from the bill that was originally submitted to us, which would have brought in, you know, unlike a fingerprint, for example, would have [inaudible] if you get my DNA, you get my mother, my father.

You get all of, you know, my great grandparents. You get my sisters and brothers and their children.

And when you're doing a match, depending on who gets arrested in this state, and I think we know who that tends to be, we can look at our corrections population, and it has all kinds of implications in terms of how that is handled.

A fingerprint is just about me. My DNA is about everybody that contributed to my DNA, all of whom I'm proud of, by the way, even though I don't agree with them all.

So I'm really, I'm interested in the chain of custody right now, and I'm interested in the cost as well. And obviously, given the news about our revenue, I'm very, very concerned about the cost.

But I don't want to let go also because as we've gone further and further towards talking about taking discretion away from judges, and I know we had, I had an exchange with Judge Gold about this when he was before us.

In some ways, it gives more discretion to prosecutors. And I can remember when we had a [inaudible] prosecutor years ago, Jack Bailey saying, well, you know, he didn't have much influence over prosecutors.

And I didn't really think about it until we started changing the law more and more and more to take away more discretion from judges, that I still don't understand what checks and balances there are if you have a bad apple in the prosecutor's office.

I've worked in prosecutors' offices, although I wasn't paid for it by them, when I was just out of school, and everybody was very mission driven and terrific. But that isn't the point.

The point is what checks and balances are there? Prosecutors don't come before us for appointment. Judges do.

And the prosecutors, theoretically, I guess, every six years go before a commission, that most people in the public don't know very much about.

I always worry about checks and balances everywhere in our system. I don't know if you want to respond to that, but I just wanted to mention it.

STATE'S ATTY. STEPHEN SEDENSKY: Just in terms of the checks and balances, in terms of individual cases, certainly depending on the case, the judge certainly serves over the individual case.

In terms of the reappointment process, the state's attorneys themselves are subject to reappointment so that there is that commission there that takes input regarding individual state's attorneys.

REP. DILLON: Right. Well, think, you know, the North Carolina case was a corrupt prosecutor, and I don't know if that would have been discovered, you know, if the defendants hadn't had the money.

And I would want to believe, as an American, that we have a system that's self-correcting. And I don't want, as a legislator, to help create a system that isn't, that doesn't distribute justice equally. So I want to look at this really carefully. But I really appreciate your being here.

STATE'S ATTY. STEPHEN SEDENSKY: Thank you.

REP. LAWLOR: Thank you. Are there further questions? If not, thanks again, Steve.

STATE'S ATTY. STEPHEN SEDENSKY: Thank you.

REP. LAWLOR: Next is Kevin Kane.

CHIEF STATE'S ATTY. KEVIN KANE: Thank you, Chairman Lawlor and Members of the Committee. I think it's good for the other, first of all, my name is Kevin Kane. I'm the Chief State's Attorney.

And as was said before, the state's attorneys and the chief state's attorney all are independent officers. We have different functions. We do overlap.

We do have fairly wide experience, which, collectively, can be very helpful to the General Assembly. Some of us have had more experience in certain areas than others.

All of us probably have certain areas where collectively, we can be helpful, and none of us know everything about everything though, so I think it's good that all the state's attorneys are up here to talk to you.

I'd like to point out, Representative Dillon, just to mention an important point, is the prosecutor you talked about in North Carolina was an elected prosecutor, appealing to the public at the time when a vote was coming up about a controversial case.

And fortunately, I think, in Connecticut, in the 200 years or more we've been in existence as a state, we've not had [Gap in testimony. Changing from Tape 1A to Tape 1B.]

--and hopefully, we never will. I'd like to talk about some bills, House Bill 5919, access to police reports.

We are about on the verge of establishing a database which will be available to the entire criminal justice system with information.

What we're doing now, we have been working on it in the past. The public defenders have had access to all sorts of information from that database.

What we're about to do now is have police reports and witness statements be put into that database.

The disclosure of witness statements and police reports is governed by the rules of discovery, by the statutes, by the Constitution.

We are obligated to provide that information to defense counsel and the defense during the course of the state of a prosecution.

That obligation will not change. This will not change that law. What it will make sure of is that, as it exists today, prosecutors have to be able to examine police reports and witness statements and make sure that there is nothing in it that should not be disclosed before disclosing it.

If these reports are disclosed before prosecutors are able to look at those reports, we run the risk of what we saw happen in Bridgeport with Karen Clark and her son.

We have to be able to make a quick determination, make not a quick determination, a careful determination, as to what information should be disclosed, should not be disclosed.

We need to protect witnesses. We need to protect the integrity of the case. We need to protect the identity of informants. But that is all very carefully governed by present law. This new statute would not change that.

All it would do is make sure that this new information that's going into the database, police reports and witness statements, the release of that is controlled by prosecutors, as it is today.

I believe the public defenders are behind this and not in disagreement with it at all, as long as it's clear that the present rules of disclosure apply and will continue to apply, and they will.

So we would ask the Committee to favorably report House Bill 5919. That would be important to protect the safety of witnesses, most obviously, and I hope that we'll report it.

The other 2, Senate Bill 692 and House Bill 5034, about the DNA, what's important, I think, is that we expand the database as quickly as we can, without overwhelming the state forensic lab, which has worked through a pretty big bubble right now of cases in the past.

They're still a little bit behind. They're catching up. We don't want to overwhelm them, certainly, but we do need to expand the database. This would be a fair way to do it.

Ideally, I think, practically speaking, the best way to do it would be to take samples upon arrest. And when I say practically speaking, I'll get to one thing in a minute.

The reason for that is the controls, this is done during the course of the booking process, where mug shots and fingerprints are taken.

The purpose of this is for identification, which is the exact, same purpose as taking mug shots and fingerprints. It's just taking a buccal swab.

It can be secured as the police secure any other evidence, or it will be secured as the police secure any other evidence, secured, sealed, identified with the proper tags and marking, and sent under controlled conditions to the State Police forensic lab, where it will continue to be processed and secured, as is other physical evidence.

That's the cheapest and most practical way to do it. It's probably the way to increase the database and get the most appropriate people in the database.

It helps most, if we're concerned with the serious crimes, it helps to get samples from the people who may be more likely than other people to have committed those crimes.

If we can take samples from people who are arrested for Class A and B felonies, if somebody has been arrested for sexual assault in the first degree, for instance, it's more likely that that sample will be more valuable to put in CODIS than somebody arrested for shoplifting in a supermarket. It's a priority.

The question of whether or not it can be taken before or after an arrest is a legal question. The Connecticut Supreme Court is not, I mean, before conviction is a legal question.

There are good arguments to say it's fine. The Virginia Supreme Court has ruled on it. We've got some material in the written testimony that we've offered, and I don't want to go into the legal arguments here. It's a judgment call.

The second circuit hasn't ruled specifically on it, and neither has the Connecticut Supreme Court. It seems that the arguments that can be best made, it's likely that they will allow it to be taken after arrests.

That's not a guaranteed conclusion. It's an opinion. It's ultimately up to the General Assembly whether or not it wants to take that risk.

And I'm not prepared, and the Committee is not prepared, to hear an Appellate argument right now about it, although we've referred to it in writing there.

The important thing is expanding the database. And two other things that are important that need to be changed in the present law. Right now, people are required to submit a sample.

Sometimes, the sample is taken, is sent to the lab, and it's turned out to be an insufficient sample. I think the statute has to be amended.

Whatever is done, the statute has to be amended at least to require that a sufficient sample be taken so that we can go back and take a second sample from the same suspect, in the case where the first sample turns out to be insufficient.

And we don't have to get into the argument as to what's a sufficient sample or not. At least if the lab doesn't have enough on the first sample, we should be able to go back and take a second sample to do that.

The second thing is increase the penalty for refusal. If somebody is convicted of a serious crime, those are the people that we most want to get the samples from.

Those are the people who are going to be imprisoned for 10 or 20 years, and if they refuse to submit a sample and are only going to get a year more, what do they care? It's not going to impact them at all.

We would ask that it be increased to a Class D felony. The rest of my remarks about that are in the written testimony.

With regard to Senate Bill 694, erasure of criminal records on nolled charges, Attorney Sedensky spoke a bit about that.

The important part about that is when a case is nolled pursuant to a plea agreement, as the example he gave of if a person pleads guilty to burglary, the state nolles the larceny charge, and certain parts of that police report may have to be expunged.

If it's involving other crimes that are nolled, pursuant to a plea agreement, at the same time, the present statute makes sense.

It's important for the parole board and the Department of Corrections and the probation department to be able to have access to the complete factual information that is involved in the crimes for which the person was arrested, even though he was only convicted of some.

If the Legislature passes that, it may mean that certain information which the parole board and corrections and probation should legitimately have access to [inaudible] may have to be erased.

I think we need to think this out a little bit further and figure out how the statute would impact on the ability of those agencies to get information which they need and should legitimately have.

And I would ask that the Committee not act positively on that bill. With regard to Senate Bill 608, recording of interrogations, last session, the state gave us $100,000, which we are in the process of spending fast. It will be gone.

We have awarded a contract now to provide equipment for different police departments to do testing. I think we're up to do recording of interrogations, and I think we're going to see it done quickly.

There are four local police departments and two major crime squad districts from the State Police that are on the verge of doing it. We've, as I said, signed the contract. We're purchasing the equipment.

We're going to be up and doing this. In the State Police Eastern District, the State Police Western District, the City of Bridgeport, Waterford, and Meriden are going to be doing this quickly.

It involved getting the right equipment, installing it, determining what has to be done. There are issues that we are working out and we have worked out to a great degree.

REP. LAWLOR: Okay. That's an emergency alarm. There are two emergency exits. If you go out, straight out these doors, there's an escalator that goes out the front. And if you go to the right, you can go out the side.

CHIEF STATE'S ATTY. KEVIN KANE: I was talking about recording interrogations, which I just wanted to make one point.

The General Assembly can be very helpful and have a very important function [inaudible] requirements and statutes, with regard to certain areas.

There is a line though, and I think the General Assembly has been careful. And in my last few years up here, I've noticed it very closely.

There's a line where the General Assembly, particularly this Committee, has been careful to come close to but not go and over manage or micro manage certain areas where agencies have to act.

And this is an area where I think if the General Assembly goes and micro manages things like eyewitness identification and recording interrogations, at least at this point, it might do more harm than good.

Interrogations, for instance, video recording interrogations is an area we have not had problems in this state like they have had in other states.

The police are very conscientious. In my experience oftentimes, police are more hesitant to interrogate suspects when interrogation might be very helpful. It's an important tool in solving crimes.

I think the use, and what we're about to see as these departments start the practice of video recording interrogations, we're going to work through various issues, such as the equipment, whether or not it's properly functioning, one of the big problems you get is inaudible portions of conversations, the need to make transcripts, storage of data, but most importantly training police officers in interrogation techniques, which is more important, also training in the equipment.

We're about on the verge of developing that. I would hope, with regard to recording interrogations, the Legislature will let us continue along with what we're doing and see how it goes.

I think what we're going to see is a wide practice of developing of recording interrogations. That's my guess at this point.

And we're going to be able to work out the problems as we do. And there will be problems that have to be worked out.

Many of those I think we can deal with in training, but we need to know what they are, how they work, and continue with that. Thank you.

REP. LAWLOR: Thank you. And as you point out, and this bill has been before, the recording of confessions bill at least has been before us quite a few times.

And over the last few years, I think it's fair to say that your office has been willing to move in that direction, and we provided some funding, as you pointed out. And I know that it's just getting underway.

And I know last week, we had a meeting of the Commission on Wrongful Convictions, and we talked about the potential role of that commission in monitoring the success or failure of this experiment as it unfolds.

And so if the ultimate resolution this year was to authorize some type of evaluation by that commission of what's currently underway, do you think that might be an appropriate way of dealing with this?

CHIEF STATE'S ATTY. KEVIN KANE: That's a good idea. That's a good idea, yes.

REP. LAWLOR: Are there further discussions? Senator Meyer and then Representative Dillon.

SEN. MEYER: Kevin, I wanted to just chat with you about the DNA bill. I think it's, the DNA represents the greatest step forward we've had in investigative techniques in many, many years and has an