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 ability to do much more than the fingerprint could do, in terms of investigation criminal activity as well as exonerating innocent people.

We have constituents, and we have even Members of this Committee who believe that if we permit the taking of DNA at time of arrest, or maybe at any time, that it represents an abuse.

It represents an unnecessary invasion of privacy. Those words have been used. And I wonder what reaction you have to that concern.

CHIEF STATE'S ATTY. KEVIN KANE: It's understandable why some people may feel that way, and I think that's an important question for people to have an answer to.

The actual act of taking certainly is a minimal intrusion. It requires an opening of the mouth, and the swab is taken with something that's similar to a Q-Tip and wiping the inside of the cheek just hard enough maybe to push the cheek outside so that the person taking the sample can know there's enough pressure to take the swab.

That's the physical intrusion into the person. It seems minimal. It's done during the course of an arrest, after there has been probable cause.

It's certainly a minimal intrusion which the courts, I am sure, would say is proper. The reason for people's concern as soon as you mention DNA is there's so much that can be learned from DNA.

If DNA is tested in certain ways, you can learn a person's genetic predisposition to all sorts of different conditions, physical and maybe other, mental health conditions, things like that.

That's not the kind of testing which is done by the State Police forensic lab. The State Police could not do that testing if it wanted to in a lab. They don't have the equipment, and it wouldn't take the time.

The only testing that's done, the swab is sent to the lab. It is then tested by the lab to determine, to use that portion of the DNA, and I don't have the terminology in my mind.

I have to learn it every time I get involved in it, and then I forget it. But they use that portion of the DNA, the sequence, only for identification purposes, which enables the lab then to assign a number to that DNA, which is, that number is unique to that particular DNA.

The number is submitted into CODIS, which is the databank. What's submitted does not identify the person from whom the sample was taken. It only identifies that sample, so what's in the databank is not an intrusion.

It's a number which would be unknown to anybody. If, for instance, a police department gets a hit, if CODIS gets a hit because there's another sample in there, the police department would have to inquire of the originating laboratory and police department whose sample is that.

The only thing that's known is the identification sequence from the identifier. It does not disclose anything about any personal health information.

And I think people would be legitimately concerned if we're taking samples and testing them to find out what their genetic predisposition is to diseases.

That's an intrusion that's serious and needs to be addressed. But what we're doing here is not like that. And what we're doing is no different really than taking fingerprints or mug shots.

It's solely for identification purposes. That's the only use it can be put. Now the sample has to stay at the laboratory where it's secured itself and remains there in case somebody is arrested afterwards because they're entitled to retain an expert to do their own test to challenge it on the sample, so it is kept there.

But it can't be tested by our lab. We don't have the facilities and certainly have no reason to test it, other than to use the identification code.

SEN. MEYER: Just one other question, please. I'd asked before, to a prior witness of the Division of Criminal Justice, whether or not the State Police lab has got the staff to do processing of DNA on an expedited basis.

And I think you addressed that in part in the earlier part of your testimony, which you said that the backlog of DNA data is being reduced. Could you fill us in on whatever information you have on that?

CHIEF STATE'S ATTY. KEVIN KANE: You would have to ask the State Police. They are reducing the backlog significantly.

They do have a grant from the federal government, and I don't know the amounts of the dollars or how long this grant is going to last, but I think this grant is going to expire pretty soon from the federal government, which has enabled the lab to get through that backlog.

That's one of the problems. If we suddenly unloaded a whole load of DNA samples on the lab, that would create a backlog, and the lab would have to, as it has in the past, prioritize what it's going to test, and it will take a while.

So these issues are important, but we do need to expand the database somehow, and the most desirable way, in the state's opinion, at least in the Division of Criminal Justice, is to expand it by taking the samples from those people, who we feel are the most significant people to take the samples from, and get them into the database and try to do it as quickly as possible.

REP. LAWLOR: Representative Dillon?

REP. DILLON: Hi, thank you. I just wanted to get back, and then maybe I'll leave it, although probably not. I didn't really want to talk about any cases involving Connecticut prosecutors.

I feel much more comfortable, even though I could, I feel much more comfortable talking about Illinois and North Carolina.

But I do want to say some of my background questions, first of all, on the issue of North Carolina, the fact that that prosecutor was running for office only goes to his motive. It doesn't go to his behavior and what the checks were.

CHIEF STATE'S ATTY. KEVIN KANE: I agree.

REP. DILLON: I know people in the prosecutor's office. I used to be one of the people that tortured them because they didn't bring enough charges on domestics and on rape because I thought they were too reluctant, back when I was a much more, whatever.

But so that you could very well have a prosecutor who, in their zeal, believes, well, if they didn't do this, they did something else.

Or, this is the bad guy that hangs out in that neighborhood, and I've got them on this. Their motive doesn't have to be as corrupt as the Carolina prosecutors, where it's clearly going beyond because he's attempting to reach a particular political constituency.

It could be someone who simply believes in their job. And some of it goes to how much we trust government. In my town, we have, you know, basically about a quarter of the population with their phones tapped.

I know people who had their phones tapped in the '60s. I wasn't here. And I know people who have tapped their phones.

The police department people who ran that operation [inaudible] well, most of them passed on. They're my parents' generation, but I know them. I knew them.

The people at the phone company who installed the taps, I knew them too. I knew everyone on every side. And one thing I can say, first of all, the people who did that believed that what they were doing is right.

When you get a call from the Office of the President of the United States, and you're told to form a red squad because they believe that these anti-war people are communists, and you trust government if you're a particular generation, then you do it.

And what happens is that once you have power, you use it. And one of the things that we learned with the wire tap, and I ended up almost quasi litigating it because I shared the budget committee in New Haven that had to decide how much money to set aside for a settlement and who would get it.

I didn't want to decide that, but that was what I had to do, so I ended up meeting with everyone. And one of the things that I learned was that once they had that power to do that, they just used it.

And it was a couple of guys in a room, who I counted as friends, well, you know, to the extent that we were different generations, but they were, once they could do that, they tapped the phones of their friends.

They tapped the phones of politicians that they thought were rivals to the mayor. It just spread and spread and spread. It's human behavior.

And so what I always think about now, and that's not odd, by the way. When we're worried about trolling records and whether somebody can hack into records, if you look at our federal system or a state system, very often, the bridges of security turn out to be state or federal employees who are checking on their own friends or their coworkers.

It's a natural, human thing to do. And so what I always think about when we start gathering more information, this year, I'm worried about money.

But I'm always worried about checks and balances, always, not just because of prosecutors but because of human nature.

And I'm going to think about that, maybe because I was so much influenced by the wire tap case and the way that it consumed our town and how much work it took to unwind that and to build trust.

But also, I think it's just a good thing. You know, the longer I'm in government, sometimes the less I trust sometimes what we do. We can get carried away with our own power. We're always aware of the power we don't have.

And sometimes, we don't respect the power we have and how much damage we can do. So I want to think about that very carefully.

And because, apparently, the language you're discussing on DNA is different from the language that I read, that originally came out, I'll reserve judgment until I read it. But that's always, I'm going to be guided by a certain amount of skepticism.

CHIEF STATE'S ATTY. KEVIN KANE: I'm not taking a position one way or another as to whether or not, I said it's more practical and preferable to be done at the time of arrest, but the state would like to see it done one way or the other.

I certainly wouldn't want to cause a debate about which way to go. We do need to take samples appropriately and expand the pool as quickly as we can.

That remark I made about elected DAs is probably unfortunate. Thinking about it, there are wonderful elected DAs all around the country. I see some of them. I talk to them. It's a system that works good.

I just think, I happen to think in Connecticut, and maybe I am biased, that we've had a wonderful system in Connecticut that really has been free of the kind of incidences that you sometimes see in other areas, and I was only comparing that.

I hope nobody would overreact to my remark, which I'm wishing I hadn't made now about elected DAs, because I think many of them are very wonderful, and it works well in other states.

REP. LAWLOR: Thank you. Representative O'Neill?

REP. O'NEILL: Yes. I don't see anything on the Internet yet from the Elected DA's Association, but perhaps your [inaudible] will alleviate any problems you might have the next time you go to a National Association of Prosecuting Attorneys.

I did have a question though relating to this, what we're talking about with respect to the collection of the DNA.

And as we walk through the mechanics of it, as we did with State's Attorney Sedensky, some thoughts occurred to me.

And I think Senator Kissel asked some really important questions that initially was presented, well, we'll do it after conviction but before sentencing.

It occurred to me that, well, sometimes, sentencing is going to happen pretty quickly after a guilty plea is entered. So then the discussion got to, well, after the guilty plea is agreed to but before you go before the judge, we'll do the swabbing and that sort of thing.

And it was sort of, and, again, I think Senator Kissel did an important thing by sort of recognizing that, in effect, this is going to start to seem like part of the plea negotiation.

It's, well, your fellow is going to plead guilty. He's going to get, you know, two years' probation, and he's going to have to have his swab done.

I'm wondering, is it possible that if this is at the point of time that we would be considering doing this, that the defense attorney, or the defendant himself, says, well, look, I'll take the deal, but I don't want to get swabbed.

And the state's attorney would say, well, okay, we'll waive the swabbing. Is it possible that it, in effect, will become part of the plea negotiation that he won't get swabbed at this early stage but will have, especially if he never goes into prison.

Many people are on probation. I'm wondering how that would work. Can you explain to me why that wouldn't happen?

CHIEF STATE'S ATTY. KEVIN KANE: It depends entirely, I think, on the wording of the statute.

If the statute made it mandatory that anybody who is convicted or pleads guilty to certain crimes must provide a swab before sentencing, I would think it could not become part of the plea negotiations.

It could cause some delays when the defendant has decided, if the defendant were to just decide to refuse to swab it or become uncooperative.

It could also cause delays in finding the right person and the kit there. Not every courthouse is, for instance, in the GAs, we don't have inspectors. I'm not sure who would be taking the samples.

It would depend on the word of the statutes is what I'm saying. I think it could be worded in such a way that it wouldn't be part of the plea negotiation, unless that were to cause a prosecutor to say, well, I'll change the charge to a charge other than is required.

But I don't think we would want to do that. I think prosecutors, especially if somebody decided they would refuse to swab a DNA, provide a DNA swab. You'd start wondering why.

And the suspicious nature, at least my own suspicious nature, would make me think that the reasons why weren't very good, and I'd be inclined to want it more than others.

But depending on how the statute is worded, it could cause problems. I don't think they would be great in that area though. I'm just a little concerned about the mechanics of doing it in the courthouse.

That's why my preference would have been to do it by the police at the time of the arrest during the booking process.

I know there are people who are concerned with taking samples though at the time of arrest, which is a legitimate concern, and, given the debate, it might not be something that could get through this Committee or this session [inaudible] privacy.

The other answer as to who's doing it and when it should be done is, I think we have an appropriate change now.

For instance, people submitted to the Commissioner of Corrections in our suggestion, and as we refer to it in the written testimony, is they must do it when the Commissioner of Corrections orders it done.

That prevents them from waiting until the end of the sentence, which may be 10, 15 years. The commissioner can order the sample done right then and there, and the person will have to take it or be subject to being prosecuted for a crime.

We also, at that time, could, I'm not sure if we could get a search warrant or not. I don't know that we could. I'd be happy to talk a little. If we had more time, I'd love to work this through.

I think we could do it, and I think we could do it practically, at least with regard to the actual collection process. I know we could work that through and come to some reasonable solutions.

And I don't have an answer right now off the top of my head. I'd even stay around for a few hours and think this out. And I think we could do that.

REP. O'NEILL: And we had all that time outside the building, right in fresh air to invigorate our thought process, and still we haven't got there yet.

My concern though, to some extent, was, because we've had lengthy discussions recently about prosecutorial discretion and the fact that prosecutors get to make the decision about what pleas they're going to take and that sort of thing.

But I want to be sure that we can draft a statute so that if we do it at this stage, when it's in the hands of the prosecutors, as it were, that we can draft a statute that says that it will be done, and the prosecutor can't waive, as part of the plea negotiation, that you feel that we can do that?

CHIEF STATE'S ATTY. KEVIN KANE: Allowing the prosecutor to waive it, you mean?

REP. O'NEILL: No. I think [inaudible] not allow the prosecutor to waive it. I just want to be sure we're not going to be intruding on the prosecutorial discretion if, in effect, this is, because I think Senator Kissel really walked us through it and the practical reality of how it's probably going to happen if we try to do it from the point of conviction rather than at the point of arrest, or in the area of conviction instead of the area around the time of arrest.

What we're going to have is, because of the way the court system works and the way pleas are taken and that sort of thing, there is going to be plea negotiations as part of that.

There's going to be, okay, plead guilty today. We'll sentence you, go out in the court this afternoon, and when we come back from lunch, the judge will take a plea.

Oh, and by the way, you have to have your swabbing done before you go out there. And at that point, it sort of sounds like, it has the look and feel as if it could become part of the plea negotiation.

I just want to be sure that you're comfortable that we can write the statute in such a way that it will not intrude on the prosecutorial discretion, that they won't start, in effect, trading swabbing for three years' probation instead of, or two years' probation instead of one year's probation or something like that.

CHIEF STATE'S ATTY. KEVIN KANE: Well, I think the Legislature could write a statute very well that would say anybody convicted, meaning convicted, pleads guilty, or convicted after a jury trial, must provide a sample prior to being sentenced. I don't see how a prosecutor could agree to waive that provision.

REP. O'NEILL: Okay. Thank you. Thank you, Mr. Chairman.

REP. FOX: Thank you. Representative Adinolfi?

REP. ADINOLFI: Thank you. Just a quickie, I'm in favor of, there's a few bills doing the same thing, and I'm in favor of whatever we can get.

Naturally, I'd like to see it done at arrest, but I would accept it upon conviction. But I'm wondering what happens, let's say we arrest somebody for a minor burglary, the lowest level of burglary, and he's convicted.

And we take a DNA test. Do we then go further with that DNA test? What if that DNA test shows that he could be connected to a sexual assault and murder, what do we do, go back and retry him and so on and start from the beginning again?

CHIEF STATE'S ATTY. KEVIN KANE: No. What we do is, that would be a new case. Let's say the sample is submitted to CODIS, and they get a match. They match it with, say, a sample submitted from a crime scene or victim from which no arrest has been made.

The police department that had that original case, the unsolved case, would then investigate, would have to conduct an investigation.

We get what's called a confirmatory sample from the person who submitted it. The police would go and take what's called a confirmatory sample from him that would itself would be tested to confirm the initial CODIS hit, also to ensure the identification that that did come from the suspect.

But the police would have to also do a complete investigation of the original case. And if there was sufficient evidence, they would apply for an arrest warrant, and there would be a prosecution for the new case. The old case wouldn't be reopened.

REP. ADINOLFI: Okay. My concern there is that, I'm starting to think a little differently now. If we took it upon arrest and we didn't have the results and everything yet and the individual got a suspended sentence, or the judge slapped him on the hand and sent him home, this individual would know that he's going to be caught, that there should be a match somewhere else for crime he's convicted.

He's the only one that's going to know that. He might just disappear from the scene. There's just a lot of complications with it.

CHIEF STATE'S ATTY. KEVIN KANE: There are, and some of them are manageable. Some of them are workable, and some of them aren't.

REP. FOX: Thank you. Representative Walker?

REP. WALKER: Good afternoon, Sir.

CHIEF STATE'S ATTY. KEVIN KANE: Good afternoon, Representative Walker.

REP. WALKER: How you doing? I have two questions. You talk about this being done at the arrest. I'm sorry, I didn't hear the debate. I was coming in from the outdoors, and it took a long time.

The idea of taking the DNA sample at arrest, before somebody is convicted, before they've had a right for trial or any opportunities to talk to a lawyer, is that any way, in your mind, a violation of their personal rights?

CHIEF STATE'S ATTY. KEVIN KANE: It goes to what I said before. With regard to the physical taking of the sample, the opening of the mouth and taking the swab, done at the time of the arrest, I think the nature of that intrusion, forget about what's taken, but just the nature of that intrusion, I don't think that's any greater intrusion than is done during the normal book-making process, the normal process.

I think the opening, no, I don't have a problem. I don't, the courts wouldn't have a problem with that being an intrusion.

The question would be with regard to the information that can be learned from the DNA that's in the swab that is taken.

And what the courts have done, the Supreme Court of Virginia ruled on this because Virginia does have a statute, and many other states have enacted statutes, permitting samples to be taken at the time of arrest.

The key about that was the portion of the DNA that is used and that is tested is limited solely to the portion which goes to the identification. It's a matching of the genes.

And I can't explain it, the science, well enough now to be helpful in that area, but it's a limited portion.

There's no way in which the forensic lab tester has the capacity to do tests right now for anything going beyond that.

There's a lot of private, personal information in people's DNA that certainly goes to privacy and health and other reasons and predispositions, which probably should be, I mean, insurance companies could use it to say, we're not going to provide insurance or raise premiums, things like that.

But the lab doesn't want it for that. As long as we're not using it for those purposes, I don't see that it's any different from fingerprinting your mug shots.

If all the testing we're doing is for the limited identification of the sequence, the CODIS for identification purposes, it's just like fingerprinting and mug shots. I don't see that as a privacy issue.

REP. WALKER: If you do it at the time of arrest, who would have access to this information?

CHIEF STATE'S ATTY. KEVIN KANE: At the time of arrest, when the swab is taken, the police don't know anything. Nobody knows anything, except the swab is taken from the cheek. It's sent to the lab.

The lab then tests it. And what they do is when it's matched, they have numbers that they can give in a sequence, which will be unique just to that.

The numbers, as I said, are only for the identification sequence. They establish what that is so that if another sample comes in with those same numbers, there will be a match.

Those numbers are sent in to the CODIS databank, just the numbers, not the name of the person submitting the sample, nothing else, just those group of numbers.

If there's another sample in the databank with that same group of numbers, there's a hit, what we call a hit, and that's a match.

The Connecticut Forensic Lab would be notified there's a match, and they'd be notified of the police department that submitted the other sample.

REP. WALKER: But they would be the only people that would have access. Nobody else would have access to any of it.

CHIEF STATE'S ATTY. KEVIN KANE: Nobody else would have access. And then what would happen is the lab would notify the police department.

The Connecticut lab would notify the Connecticut Police Department that submitted the known sample to the lab and tell them there's a hit that came from Birmingham, Alabama or wherever.

The Connecticut police would call there and say, this is the number we have matched to yours. Who is that person? What is that person?

And then they'd launch a traditional investigation to see if that person could have been the person who committed the crime or whatever.

REP. WALKER: So you're saying that it's not any different than fingerprinting or mug shots.

CHIEF STATE'S ATTY. KEVIN KANE: No. And it's even less different because in fingerprinting, when the fingerprint is submitted, the name and identification of the person is right on that fingerprint record.

So that's sitting somewhere in the FBI database with a fingerprint and the name of the person who produced it.

The only information in the database, with regard to DNA, is a number from an unknown sample. And there's no way for anybody else to connect that number to a person.

REP. WALKER: Okay. We just passed Senate Bill 1700, and there were a lot of things in there. This was one of them.

I believe this one was about $725,000 between the correctional budget and Court Supportive Services, the judicial budget for this.

But unfortunately, a lot of the things that we passed in Senate Bill 1700 were not funded. So now we have to make a choice, do a lot of different things, just like we have to do in everything else.

CHIEF STATE'S ATTY. KEVIN KANE: I know.

REP. WALKER: So we look at this, and we say, okay, which one is more important, the psychiatric services that was not funded? The number of correctional officers that we say we need that was not funded?

The number of prosecutors that we need to do this that are not funded? I mean, the list goes on.

So we look at which things are really going to aid in what we're supposedly trying to do with this reform, to choose which one is more important.

If you look at it from our standpoint, which one of them do you think is the most important? Should we have the psychiatric services? Absolutely. Should we have prosecutors? Absolutely.

Should we have public defenders? Absolutely. Should we have correctional officers because of overcrowding? Absolutely. Is this in that same category?

CHIEF STATE'S ATTY. KEVIN KANE: I know. You have the toughest job, to divide up money, and I have never envied you, and I've thought, how do you do this?

And it's even more worrisome because right now, and you'd have to get this information from the Department of Public Safety, which runs the laboratory, because I don't know the dollar amounts.

REP. WALKER: I can tell you because I know the dollar amounts, $725,000.

CHIEF STATE'S ATTY. KEVIN KANE: I'm sure you do. There's a federal grant that has enabled the forensic lab work through a pretty big backlog here, and they've done a remarkable job getting through that backlog.

I believe that federal grant is due to expire. I don't know when, but that would be important to know.

REP. WALKER: Yes, it would because that makes it even more critical.

CHIEF STATE'S ATTY. KEVIN KANE: Okay. Now how important is it to have this information? Well, I can give you an example.

There was a case where we just, and I don't want to disclose the names, but we were able to arrest a person for a very serious sexual assault, based on a sample that was obtained from another state that allowed the sample to be taken at the time of arrest.

Had we not had that sample from that other state, we wouldn't have been able to make that arrest. It's a serious crime. Now we have had the cases, okay, well, James Tillman was acquitted.

REP. WALKER: But that's not at arrest, that's not at arrest. The James Tillman was after he'd been arrested and incarcerated, so, I mean, that's down the pike. So that's a different scenario.

I agree, but had we done that, you know, if we do everybody in that case, the thing that's going to happen, besides the fact that we might be able to identify people, but they, according to the Commissioner, she does do it once they're incarcerated.

So we still have that option to protect those people who, despite our great justice system, were convicted and everything like that, so we still have the ability to protect and save those and try to limit the amount of time.

But the other issue is we're going to use this, and that means we're going to have circumstances where people might be, more people might be under suspicion and other things.

So we're going to expand that universe that we have to provide correctional officers for, provide more public defenders for, provide more prosecutors for, provide more probation for.

So I'm looking at this, and I'm saying, and even the other one is the GPS, which is passive.

I mean, that doesn't even say that we're really keeping [inaudible] we got to figure out, what do we fund to make us through this process until we get out of the recession that we're in and we start to have the money flow?

I just don't see this as, I see what you're saying, but the idea is if we're trying to make places safer, we've got to make places safer in all avenues.

And having more correctional officers really might have a higher level than this. And providing more prosecutors to address those cases that we can catch has a higher level.

And providing the public defenders so they have some money to defend them, I think, has a higher level.

So that's just my opinion, but I just look at this, and I hear your debate, and I think we should have this debate and start to talk with several people about it.

But the concern that I have is that $725,000 has so much more effect in some other areas than using it on this. So thank you, Sir.

CHIEF STATE'S ATTY. KEVIN KANE: Can I try to give you my best answer to your question? Then I know.

And it's not about, initially, the bill that I saw, that we had supported, was a bill that was submitted by the Department of Public Safety or the Governor.

I'm not sure which, the Governor, that would have permitted the taking of samples from people arrested for A and B felonies prior to their conviction.

That, I think, the numbers of the people arrested for A and B felonies, there's a number, but not such a number that it would overwhelm the lab. That's one of the reasons we submitted it.

I think I said, in Public Safety, when that bill came up for a hearing, that the two things we have to worry about, the two things that people need to think about are the degree to which we would intrude on privacy, and I gave an answer what I thought to that, and not overwhelming the forensic lab and taking it beyond the resources it has.

I think if we limit the samples, if we expand it, but don't expand it so much as to overwhelm the, I think we need to expand it beyond what we do today. The question is how far can we expand it without overwhelming the lab?

That you need to know from the Department of Public Safety. I do think the A and B felonies would be a small enough sample, so it wouldn't require that additional expense there.

REP. WALKER: The A and B felonies, I believe, was $125,000 or $150,000. I can't remember exactly what. The one that was proposed at arrest and was about $510,000.

So, you know, looking at all those, I just, I understand, and I think we should have the debate.

But right now, I think we have to decide, how do we address a bill that was underfunded to make it at least try and provide some sort of safety for everybody concerned? Thank you.

CHIEF STATE'S ATTY. KEVIN KANE: I agree. And I don't know what Public Safety said they'd need to do it, and I agree.

You have to decide how much they can do within the resources we have. But we should, I think it's one of these things that we should try to expand it.

REP. WALKER: Okay. Thank you.

REP. FOX: Thank you. Are there any other questions from Members of the Committee? If not, Attorney Kane, I do have one question, and it goes back to, it seems like a long time ago, when you first started here, pre-fire drill.

We were discussing the disclosure of police reports and what's going to be accessible on the database. And I recognize your concerns but also your support of that proposal.

But you mentioned what the rule is now in the various state's attorneys' offices, I'm not sure if you called it a rule, but what the policy is with respect to access to police reports.

And I've heard varying responses that different assistant state's attorneys have given when defense counsel have asked for copies of police reports or information in a file.

And I thought I would ask you, is there a rule or a policy with respect to what information defense counsel can get from a state's attorney's file?

CHIEF STATE'S ATTY. KEVIN KANE: There's clear and absolute policies about what they're entitled to under the practice book and by rules of disclosure. They're entitled to that, absolutely, by all of that. You mean going beyond those?

REP. FOX: Well, I've heard situations where some offices, they'll hand you the police report and say, here's your copy, and that's, I think, the ideal situation for information.

Some situations, we have an open policy. We're not going to give you any reports, but you can sit here in this office and write it all down, which is not as ideal, given the length of some of the police reports. Is the policy to get a copy of everything?

CHIEF STATE'S ATTY. KEVIN KANE: I think the policy is, from all the offices, is to endeavor, and in most cases, defense attorneys are certainly allowed to see the file.

I believe in most cases, most offices, if not all offices, are allowing or providing copies to defense counsel at some point. [Gap in testimony. Changing from Tape 1B to Tape 2A.]

--morning when the defense attorney wants it because the clerical staff are busy in some offices.

I believe that every office is ultimately attempting to provide copies, in those cases in which they are going to provide copies of the entire police report, to defense counsel.

I heard a complaint the other day. I checked with the state's attorney, and he said, no. In that particular case, there was an issue with regard to that particular case, at least the one I called about.

And it wasn't provided when the defense attorney wanted it. I'm not too sure whether the particular issue that applied to that case was one that meant that that particular defense attorney wasn't going to get the entirety of that report or not.

But the effort around the state has been to provide copies to defense counsel as soon as practically possible.

REP. FOX: Okay. I'm not saying it has to be the first day you file an appearance in a case, but the objective is shortly thereafter to be able to have defense counsel have a copy.

CHIEF STATE'S ATTY. KEVIN KANE: Yes.

REP. FOX: Okay.

CHIEF STATE'S ATTY. KEVIN KANE: Not a hard and fast rule that it will be done like that, but the idea is to give defense counsel copies of police reports.

And there are some cases when that's not appropriate to do, or it's appropriate only to give a portion of the police report.

But by and large, it helps best when defense counsel will have access to and copies of the whole file.

REP. FOX: And in cases where it's not appropriate, would that be situations where, to protect the identity of witnesses?

CHIEF STATE'S ATTY. KEVIN KANE: That's the normal thing, and in those cases, we can get protective orders and other things, but, yes.

REP. FOX: Okay. Well, thank you. I think that's it. Oh, sorry, Representative Gonzalez.

REP. GONZALEZ: Thank you, and thank you for coming. My question is why the process, if this is the same process with the DNA, when they arrest a person, and now the DNA is going to be after, the Governor and the other [inaudible] they request it after they been convicted, for the DNA, why the process, if it is the same process, why do you think that this is going to cost more, or is something new, you know, with, if it is something new in the system?

CHIEF STATE'S ATTY. KEVIN KANE: The process in collecting the samples is minimal. I don't think that's a major expense at all. It's buying the kits to collect.

And that's a certainly relatively minor expense when we think, and it is a minor expense, the process of testing.

And the lab personnel required to do the testing and the numbers in the lab, that's where the expense would occur. And the Department of Public Safety are the people that have the answers to that. I don't.

REP. GONZALEZ: But is the same process, in the [inaudible] or when you get it, is the same process?

CHIEF STATE'S ATTY. KEVIN KANE: Yes. It's just increasing the volume. The question is how much can we increase the volume to go beyond the capacity of the laboratory to test within a reasonable time?

REP. GONZALEZ: Okay. Thank you.

REP. FOX: Thank you, and thank you, Attorney Kane.

CHIEF STATE'S ATTY. KEVIN KANE: Thank you.

REP. FOX: We now turn to the members of the public portion of our list. We will then alternate from that list back to the elected officials. Joe Mirione is first on this list.

JOE MIRIONE: Good afternoon. Hi, my name is Joe Mirione. I'm the President of the Connecticut Trial Lawyers Association. I'm here in support of House Bill 5935.

We support this bill. It's an act concerning the disclosure of police reports and other public records and a tolling of the statute of limitations while the police are still investigating.

We believe that this is a vitally important bill for the protection of individual rights and that it allows for the collection of information that's necessary in order to satisfy certain notice requirements and also the statute of limitations.

In Connecticut, there is a time limitation associated with most circumstances where there's been a harm. It's called the statute of limitations, in which the client must bring a lawsuit to protect their rights.

Moreover, there's many other causes of action that require notices within either 90 days, within 6 months, or 120 days in order to be able to maintain your rights.

What we have found is that the need for the police report is vitally important. There's information within the police report that is critical for giving appropriate notice to the right individuals, knowing the bar or tavern that may be involved, and very complicated and serious cases involving collisions.

All of that information is vitally important in order to properly protect your rights. And what we've learned is that the State Police who created the Accident Reconstruction Team, for example, and we applaud the efforts of the State Police in creating this unit.

Their reports are detailed and of a Professional Accident Reconstruction quality. However, most of these kinds of reports take an extended period of time to obtain.

The investigations are lengthy. And during that period, plaintiff or harmed person is without a remedy because the information that they would need doesn't exist. Or in certain situations, they may be dead.

And we find that also with dram shop matters, where a third party is harmed by a person, that they're not going to want to cooperate with the plaintiff's attorney or the plaintiff themselves.

They've often in a collision where there's insurance coverage, the insured is told not to cooperate and give information. And it's only through the police investigation that important information is gathered.

So what this bill provides for is that while the police report is still in the works and hasn't been released to the public, we seek that there be a tolling of the statute of limitations and the notice requirements until that information is gathered.

Now what's the importance of that public policy? Well, if somebody has been harmed, don't we believe that those who may be accountable should stand up for that and that if it's only because of a police report not being done, that why not allow that person to have their full plate of rights upon release of that police report?

And it also well facilitates knowing the right facts and having the right facts available at the time of the commencement of an action.

So we would ask that you support this bill. It's a bill that helps those that have been harmed and I don't believe creates a real detriment to those who may have caused that harm. Thank you.

REP. FOX: Thank you. Representative Walker?

REP. WALKER: Thank you, Sir, for your testimony. Approximately how long does it take before you actually get access to a police report currently now?

JOE MIRIONE: In a normal environment, it might not be very long. It is when you have a death or serious collision, multiple cars. The processing of that police report and the accident reconstruction can take a while.

It can take in excess of several months. It can take a year for a multi-death collision, where the accident reconstruction is being done by the State Police.

And there are notice requirements under our state scheme of 90 days, 6 months that have to be given.

And without that information, the measurements, some of the critical data, you can't give the appropriate notice. And so we're kind of in that box. This looks to remedy that box.

REP. WALKER: The person is going to be, if somebody is charged or there's a situation where somebody is going to be accused of certain crimes and stuff, they can do that before the police report has been released?

JOE MIRIONE: Well, now you raise a good question. You know, whether or not it can become public as a result of an investigation may indeed by delayed because there's a criminal element to it.

And it's not then subject to Freedom of Information and not open to the public. And you see that in cases where there may be drunk driving, and somebody is killed, and that you can't get access to that critical data until that case has gone through the cycle. And you're kind of left without a remedy.

REP. WALKER: All right. Thank you.

JOE MIRIONE: Thank you.

REP. FOX: Thank you. Are there any other questions? Representative Taborsak?

REP. TABORSAK: Hi, thank you for your testimony. Question I have here, first of all, to get a little background on what other states are doing on the issue of tolling rights, as related to those charged with crimes, are there any other states that we can look to that have similar tolling rights, related to obtaining police reports? Is there anything else out there?

JOE MIRIONE: I don't know. I will get back to you. We did examine that, and I can't, I don't want to, I will respond to you--

REP. TABORSAK: I'm just curious what other states are doing, if that's something that's been addressed.

JOE MIRIONE: When we were proposing this legislation, we did look into it. We didn't see a consensus, if that's the word I want to use, to say that this is how other states have handled it.

REP. TABORSAK: Okay. And the second question I have, as related to dram shop actions, is there a history there of plaintiffs, I guess we would say, having trouble meeting the statute of limitations?

Is that something that's, I mean, that we're seeing often? I haven't dealt with many of these cases.

JOE MIRIONE: It's a good question. And it is a real big problem because there's a 120-day notice requirement, aside from the statute of limitations.

So you have to give notice. You have to comply with the notice requirement. And you have to do it within the two-year statute of limitations. You have 120 days, and you have to file it within 2 years.

And especially in dram shop cases, and if there's a death, the person accused, where he was, where he may have been drinking, what conduct, the plaintiffs don't have access to that, especially if there's a criminal pending matter.

You're just not going to get it through your own private investigators. It's really within the hands of the police department. And that's a real big, big problem.

And you can't comply with the notice requirements without that information, and the notice is very, very specific, what bar, what time, what conduct.

Those are all kind of the requirements. So it puts you at a real disadvantage, and it's a big problem with our membership.

REP. TABORSAK: Is it your thought that this new tolling right should toll both the 120-day notice provision and the 2-year statute?

JOE MIRIONE: The notice, yeah, it does. The way the statute is presented, it goes to notices and also the statute of limitations.

REP. TABORSAK: Thank you. Thank you, Mr. Chairman.

REP. FOX: Thank you. I have a question on this. I've experienced, in my own practice, the difficulty in obtaining a police report, especially in a wrongful death action, where I'm thinking specifically of a highway accident that it took about 20 months to get the report.

And it was very complicated. There were a number of different vehicles involved. But towards the end of that, you know, towards that period, you're realizing there's a two-year statute of limitations that you're pressing up against.

And so I understand the objective. And then I also though wondered, will this then change the statute of limitations date for every case if we toll it for two years from the date of the report?

Because what if one town doesn't release, doesn't get the reports done for a month, one gets them done in 24 hours?

So I could see confusion. I think there may be a solution somewhere. I don't know if you've thought of that.

JOE MIRIONE: Well, we have. And your question is now will the statute of limitations arguably be extended almost indefinitely?

And in a theoretical case, you could have that because this bill proposes that it tolls until the document is made public. Is that a reality? Very unlikely.

I mean, this really looks to those matters where there's active police investigation but the cases are not yet closed, that there's reconstruction going on.

So you're not looking at an infinite amount of time. You're looking at something that may take two years to collect.

But more importantly, there's a notice requirement. If there's, for example, a municipality involved or there is a defect in the highway, and that gets, that's a really pressing time because you may only have 6 months to give that notice, or 90 days.

REP. FOX: But I'm just thinking of rather than have a different statute of limitations for every negligence case, which this could realistically do, does it make sense maybe to try to think of a way to seek court, not necessarily intervention, but at least a notice to the court that, in a timely manner, that you have, you know, this is the claim that you intend to make?

The report is not available. You've made good efforts to obtain the report, you know, maybe by some form of an affidavit.

I'm just thinking it through as you're testifying. I understand the goal, and I'm just trying to come up with a solution.

JOE MIRIONE: Sure. And unfortunately, that scheme doesn't exist in Connecticut, where you can petition in advance, saying, we don't have all the information, but please protect the rights of the harmed person.

That doesn't exist for us. This actually seems to be a pretty reasonable tool because it may affect only a very small percentage of cases.

And you generally see it in cases where there have been significant injuries and that requires the resources of the State Police and their Accident Reconstruction Team. So the frequency of it I don't think opens the door for a lot of cases being in this category.

REP. FOX: Okay. Well, thank you.

JOE MIRIONE: Thank you.

REP. FOX: Thanks for your testimony. Next, we have Robert Farr.

ROBERT FARR: Representative Fox and Members of the Committee, I'm Robert Farr, Chairman of the Board of Pardons and Parole. I'm also speaking today as the Acting Chairman of the Sentencing Taskforce.

I've submitted written testimony, but let me give you the shortened version of it. The taskforce was created in 2006.

And the taskforce is a useful form to allow key members of the criminal justice system to discuss various proposals and changes in our criminal laws.

To date, the taskforce has supported two bills that were subsequently approved through the Judiciary Committee.

The first was the act that created a diversionary program for persons with mental disabilities, that was adopted in the January session.

The second was a bill that was entitled probation terms and offender behavior that allows for review and early termination of probation based on successful supervision.

It's my understanding that that particular act has been heard by the Committee and favorably reported out by it.

The taskforce has an interim report that has been submitted to the Committee. I don't know if it's yet been distributed, but it's an interim report dated March, 2008, that spells out the various activities that the taskforce has participated in since its creation.

We set up four subcommittees. The subcommittees have had outreach meetings. We've had a number of various meetings to date.

This bill, if passed, would create a permanent, would establish a permanent sentencing commission, which is what the majority of states in this country have.

In creating permanent commissions, different states have different models as to who serves on those commissions and also what the charge of the commission is.

In some states, there are sentencing guidelines that have to be adhered to by the judges, and the commission makes recommendations on those.

Some states have no guidelines, and the commission is a commission that merely examines their statutes and makes recommendations for changes.

In some states, there are requirements that before any formal criminal statute is considered by the Legislature, it's first vetted through the commission.

And other states, when the commission makes a recommendation, they, and I believe in one state, it actually becomes law unless the Legislature does not take any action to reject that proposal.

The taskforce has not had an opportunity to really discuss the particulars of this bill that's before you today.

It was our hope that what we would do is essentially continue to make the taskforce continue beyond next December when it's charged with completing its work and have the taskforce actually come back with a recommendation as to the shape that this commission could take.

And we would, I'd look forward to answering any questions from anybody here about this taskforce. I know a number of people have attended some of those meetings.

REP. FOX: Thank you, Chairman Farr. Are there any questions from Members of the Committee? Senator Kissel?

SEN. KISSEL: Do you want to say nice words about anybody that's attended all those meetings?

ROBERT FARR: Well, one of the subcommittee Chairman has been Senator Kissel. He's done an outstanding job. And Representative Walker has been there, and other Members of this Committee have attended various meetings.

And I think everybody would concur that it's been a very, very useful forum because it's an opportunity to discuss a lot of these bills.

And the two bills that were, the two that I mentioned, the one on the diversionary program was an example of how this commission can be very helpful because when that was first proposed by the probation department, there were a number of concerns raised about it.

One of them, I think Senator Kissel raised, was that in its original format, it was going to allow multiple opportunities, an unlimited number of opportunities, to take advantage of the program.

The police that were on the, representatives of the various police departments that were there had concerns about their inability to get information about the first crime if the person comes back a second time.

The bill that was actually submitted to the Legislature corrected both of those and ultimately had the support of people who were concerned about that.

So it is a great opportunity to shape a lot of this legislation. I think it hopefully will take some of the burden off of the Legislature, and certainly the Judiciary Committee, of having to go through that process.

REP. FOX: Thank you very much.

ROBERT FARR: Can I make one other comment?

REP. FOX: Of course.

ROBERT FARR: Attorney Kane had testified on the erasure of criminal records bill, I believe it's Senate Bill 694, and did comment that it would present problems for parole. And I just wanted to concur that that is a problem.

In my capacity as Chairman of the Board of Pardons and Parole, it would present serious problems.

I don't know how you would erase part of a police report. If an individual was charged with three different charges and, say, included a sexual assault and ultimately was stipulated down to a less serious charge of a simple assault, I don't know how you go back and erase the various parts of the police report when it's all in one incident.

And if it meant that we didn't get information that we currently get, then I think that it would be a real mistake to pass that bill in that form.

REP. FOX: Okay, thank you. Senator Kissel?

SEN. KISSEL: Yeah. Along those lines, I mean, I was listening in my office as I was scrambling to have a banana, at least get some food today.

And is there any discussions going on between proponents of that particular bill and yourself or other folks that--

ROBERT FARR: I don't know who the proponent is. I haven't been told. I saw that bill for the first time on the agenda the other day, and I read it in detail today.

SEN. KISSEL: Mr. Chairman, did not that President of the Trial Lawyers just come and speak on that bill?

REP. FOX: No. That was the tolling of the statute for the civil claims.

ROBERT FARR: That was a different one. The bill that's the erasure of criminal records, I don't know who's the father of that bill, or the mother of that bill.

SEN. KISSEL: Does perhaps either yourself or Chairman Lawlor know? I just think with our JF deadline being Monday, and if there's a chance to have people work out their differences, I always think that's good to try to do, as opposed to that bill's probably going to die.

REP. FOX: I don't specifically know who the generator of that bill was. I do recognize what Chairman Farr and Assistant State's Attorney Kane testified to. It's difficult.

How do you decide which part of the police report indicates the crime that they ultimately plead guilty to, as opposed to some other crimes that they may have been charged with? So I can understand the difficulty. We'll try to look into where it came from.

SEN. KISSEL: We'll do it this way. We're making an announcement that if you like Senate Bill 694, let us know. Thank you, Mr. Chairman.

REP. FOX: Chairman Lawlor?

REP. LAWLOR: Thank you. Good afternoon, Mr. Chairman.

REP. FOX: Good afternoon.

REP. LAWLOR: I missed the first part, so I apologize. But I just wanted to underscore the one bill I think was, I'm assuming, on the top of your list, or near the top. It was the Sentencing Commission.

ROBERT FARR: Yes.

REP. LAWLOR: And you may be aware of this, but I just wanted to report to you that the other day, we voted on a bill involving terms of probation, the length of the probation period.

And I think it was unanimously approved in this Committee, and I think the main reason was that it came to us as the result of lengthy discussions by the Sentencing Taskforce, which you Chair.

And the idea that it came here with everyone's approval, the police and the prosecutors and the public defenders, and the list goes on, the victims' groups, and I think that's a great model for dealing with what are usually kind of technical changes that would make an important public safety difference.

And the idea that we can ask a group consisting of all the various points of view to take a look at things and to come back to us with unanimous recommendations would really help in the future as we kind of work our way through these complicated criminal justice problems. So I'm grateful for all the work you've done on that one.

ROBERT FARR: Thank you. And I just, during my testimony, I expressed some concerns. We didn't have a chance to go through the particulars of the bill that's before you.

And there's some concern on the, with the members of the commission, if this makeup of this bill is too large or not.

And what I had suggested is it may be that you give us a charge to come back and recommend a more formal structure in the future, going forward, because I think that that, you know, different states have different models.

In some cases, you know, the original taskforce was chaired by the Chairs of the Judiciary Committee. And that's a model that's used in some states.

And other states, they actually have, the chief justice of the Supreme Court, I believe, Chairs in some states. In other states, there's somebody from the Governor's office that Chairs it.

So there's a lot of different models in terms of how you formulate it. And I would hope that we could have the opportunity to get some input into the permanent structure so that whatever you pass this year is not going to be permanent.

REP. LAWLOR: Okay. That makes sense. And the only way this stuff is going to work is if there's a true consensus about every aspect of it.

And so if what you're asking for is authorization to figure out what the permanent [inaudible] should look like, it seems like that's very reasonable, and we'll try to do that.

ROBERT FARR: Okay. Thank you very much.

REP. LAWLOR: Next is Chief Strillacci.

CHIEF JIM STRILLACCI: Mr. Chairman, Members of the Committee, good afternoon. I'm Jim Strillacci. I'm the Police Chief from West Hartford, and I'm speaking on behalf of Connecticut Police Chiefs Association on several bills.

I'll speak briefly on them, and if you want me to amplify anything, I'd be happy to. There are two bills regarding DNA before you.

The Connecticut Police Chiefs have, for a number of years, since March, 2000, I believe, testified in favor of expanding DNA testing because it's the best scientific method currently available to identify people.

Two bills before you, House Bill 5034 and Senate Bill 692, would each require pre-conviction collection of DNA for people arrested for A and B felonies. These are serious offenders.

We like it because the change recognizes that people often do re-offend after arrests and while on bond, between the arrest and conviction.

It's also axiomatic among police that we don't usually arrest people for their first offense. People who are arrested for serious crimes frequently have other crimes that they've committed and have not been caught for.

This bill would allow sampling of DNA, which may lead to solutions of these unsolved crimes. It will save investigatory time and will help resolve cases for victims who are waiting for solutions as well.

The Governor's Bill, House Bill 5034, provides for taking a sample at arraignment by core officials. Senate Bill 692 would have police take them at the time of arrest and before the subject's release. We can do either.

We're certainly open to either suggestion. The Governor's bill would be cheaper for us because we wouldn't pick up the expense. But the actual collection is not very expensive.

It's essentially a high-tech Q-Tip that you're using, and it's pretty easy to administer to testing. That makes a difference.

The Governor's bill also expands the post-conviction testing to a handful of misdemeanors, which may be suitable for testing.

Expanding the DNA database increases the odds that we both convict the guilty and absolve the innocent.

The identification by DNA has released a number of people who have been convicted or suspected wrongly, and it's really our best tool for that.

As we're familiar, many people were arrested and give false identifications, phony names. Having another way of checking their identity would prevent some innocent person from being arrested or rearrested further down the line for that person's offense.

So we support these bills. The State's Attorney testified on House Bill 5832, eyewitness identification. A couple of years ago, we did adopt some measures to eliminate suggestion from the eyewitness identification.

I think your package includes the New Haven's form. It's identical to the form that my department uses. I think actually, I drafted it on my computer, so they all look alike.

We work together on that taskforce to try and come up with pre-identification instructions for the witnesses, to make sure that they knew they were under no obligation to identify somebody, that the person may or may not be in that lineup, and also instruction for the officer who is doing the identification, to eliminate the possibility that you'd steer a witness one way or the other.

The double blind id is a little difficult for small department to administer because we may not have somebody available that's not familiar with the case.

So these measures have been adopted to try to speak to that aspect of the concerns. The other aspect is on the sequential identification. And frankly, it doesn't matter to us what particular way.

We can do sequential almost as easily as a simultaneous array. Simultaneous is a little easier to preserve for evidence.

You can take a picture of the lineup with six or eight or ten pictures in it, and you know exactly what the witness saw. Sequential is a little harder to capture.

However, we want to make sure before we legislate a particular method that it's the right one. And the jury is really still out on this.

The proponents have spoken to a number of academic studies on sequential lineups, and we'd like to point out that there haven't really been field studies of this that have supported it.

There was a notable study in Illinois, which there was a report on it in 2006, which actually found the opposite, that the sequential lineups had a higher error rate than the simultaneous.

Now there have been people who have objected to the methodology there, and I don't claim to be a scientist and really know how they came about that.

But the most recent professional literature on this has said that, really, there's no consensus as to which method is better. The NIJ Journal from October, 2007, had a very complete discussion of it.

And they really recommended against jumping the gun legislatively until scientists rate on this, to choose one or the other.

And we're quite happy to embrace whatever the best mousetrap is, once science determines what that mousetrap is.

I'd be happy to answer questions on these or any other bills before the Committee if you wish.

REP. LAWLOR: Are there questions? Did you submit written testimony?

CHIEF JIM STRILLACCI: We will submit something. My counterpart, I thought he was going to bring it, but he's absent today. We'll get something to you.

REP. LAWLOR: Are there additional questions? If not, thanks again. Next is Representative Kalinowski. Is he still here?

REP. LAWLOR: And we're alternating back and forth now between the state officials and the members of the public. But I think we should be done here in a relatively short amount of time for those of you concerned about timing, probably two, three more hours all together.

REP. KALINOWSKI: Good afternoon, Chairman Lawlor, Committee Members. I'm Ray Kalinowski here to testify in support of Raised Senate Bill 692.

Kevin Kane was very comprehensive in his explanation of some of the various facets of this bill, so I'll really kind of condense my testimony here. You do have my written testimony.

But I would like to underscore some very important points concerning this bill, which will provide law enforcement with the tools they need to properly identify serious repeat criminals.

Earlier this session, we saw a bill similar to this bill passed through the Public Safety Committee, of which I'm Ranking Member.

Unfortunately, that bill did not pass out of Committee. Some of those opposed to the concept have stated that obtaining DNA sampling from an individual is a very intrusive violation of one's right to privacy.

And a government body has no right to maintain such a database because it is the exclusive property of the individual.

Actually, there are four states in the country who have statutes that proclaim indeed that DNA is the exclusive rights of individuals. They are Alaska, Colorado, Florida, and Georgia.

However, the courts have held that the state may create and store a photographic and fingerprint record that established a permanent record of the identity of all arrested individuals.

If the police are allowed to keep fingerprints or a photograph as a biometric identifier, it is hard to see why they cannot keep a DNA profile properly limited to the identifiable characteristics of that individual.

The DNA profile is a series of numbers, I believe there are 13 numbers, that have no meaning, other than being a molecular sequence.

I think State's Attorney Kane explained that well. It's very much like a social security number or a passport number.

And access would be limited to law enforcement personnel investigating specific crimes where DNA trace evidence has already been found.

You know, we all have, in recent months, as legislators, heard from our constituents about things that happened in the recent past in Connecticut and that we should make our laws better so that individuals feel safer in their homes.

So allowing DNA testing of persons who have been arrested for Class A and B felonies is a step in the right direction, although it was made known to me earlier today that the Governor's bill, House Bill 5034, they are agreeable to removing the arrest language and pleading it upon conviction.

And they are going to propose some JFS language to that effect. In summation, let me just say that 11 states have enacted legislation requiring DNA sampling for felony arrests.

DNA sampling upon the arrest of individuals will aid crime victims and bring closure to cold cases.

The longer the Legislature waits to pass this important measure, the longer the trail may be of crimes which could have been prevented.

So I strongly urge this Committee to pass Raised Senate Bill 692. If there are any questions, I'd be glad to answer them.

REP. LAWLOR: Thank you, Ray. Are there questions? Senator Meyer?

SEN. MEYER: Representative Kalinowski, I don't think there's any legal issue about DNA, and you're suggesting that in your testimony.

The courts have indicated that the taking of a DNA sample is, there's nothing unconstitutional about that action.

Indeed, I remember as far back as the 1950s, aging myself, where the United States Supreme Court, in the case called Irvine v. California, permitted a stomach pump of a defendant for purposes of identification.

So I don't think we have a legal problem. I think we have a policy issue in Connecticut. Are we going to take what I think should be the step forward in requiring DNA samples to be given?

And I think it's good for both people who have committed crimes and those who have not committed crimes to get that as early as possible.

I do recognize you said that the Governor has changed her bill to make it at the time, I guess, of conviction instead of arrest. So I just want to concur with your statement about the fact that we don't have a legal constitutional issue in this.

REP. KALINOWSKI: Yes. Let me add that, you know, we, as individuals, routinely shed DNA on an everyday basis as we move throughout this world.

We leave it on coffee cups, drinking straws, cigarette butts. If we cut ourselves and bleed in the street, that's DNA, and it's not properly thought to be private property.

If I got in an accident in the street, and I bled on the sidewalk, would that prevent someone from coming and keeping that DNA for other reasons? Is it mine? Who does it belong to?

But I think that's been well established. We've all heard of police exploits, maybe on surveilling a suspected individual and waiting until he gets through with his coffee or smoking a cigarette and retrieving that piece of evidence and using that to analyze his DNA to match it up with the possible crime. So your comments are well taken, and I think we're pretty comfortable in that regard.

REP. LAWLOR: Representative Adinolfi and then Representative Dillon and then Representative Gonzalez.

REP. ADINOLFI: Thank you, Representative Kalinowski. Thank you, Mr. Chairman. It's been interesting to note, we've been hearing a lot about DNA today, and there's an organization out there that runs a child identification program.

It's called the CHIP program. Maybe you had it, or it's been in your town at your firehouse or police station.

And one of the things they do is they take a DNA sample of the children that the parents can keep in the refrigerator.

And one of the things they also do, and I'll say we because I'm involved with the problem, is we teach the children how to spit, or expectorate, if you will.

And we tell them, if you're ever apprehended or someone picks you up in the car, expectorate and spit all over the place.

And we had a case in Massachusetts where some kid was abducted and did use this. The driver drove about a mile and let him out because of all the DNA evidence there.

So DNA could go two ways. Here, when we want to do it with possible arrestees that could be convicted, it works that way too.

It works where it could help a criminal that really thinks he's innocent, and he might even volunteer to have his DNA taken, especially if it's a rape case or something like that.

Where he knows in his own mind that he's innocent and this would prove it, he might even volunteer for it.

But there has been some concern about some of the privacy of this. It's my understanding, from the literature I've been reading, that once the DNA testing is made, that the statistics taken, they could actually remove the genetic and family history portion of genetics from that DNA file and only remain and hold for records the part of the DNA that identifies that specific individual individually.

So I wanted to make that statement to put that to, you know, to rest, that we might not be interfering with the person family of the individual that the DNA is taken.

REP. KALINOWSKI: Yes. As Kevin Kane, indicated, limited to just identifiable characteristics and on file that way.

REP. ADINOLFI: As a matter of fact, while I've got the mic here, in Chicago, they did a case study there of serial killers and rapists.

And they showed that 60 violent crimes, including 53 murders and rapes, would have been prevented with DNA taken upon arrest. So there's a lot of value to what we're trying to do here.

And like I said before, I'll accept any compromise that puts us in the direction of getting us in the position where we're able to arrest or find more criminals that are out there than we are now. Thank you.

REP. KALINOWSKI: If I may, we have a bit of a dichotomy here because most people favor the broadening of the database itself. However, how is that accomplished?

If you want to expand that particular database to be broadened upon arrest, that could do it. In fact, we could have the whole population of the United States submit DNA samples somewhere in their lives, but that would be a huge undertaking.

But I think it would go a long way. Well, it may or may not, but it would be certainly a database we could draw upon to exonerate people and solve crimes faster and easier. But that's a totally different question.

REP. LAWLOR: I think Representative Dillon was next.

REP. DILLON: Thanks so much for coming today, and I respect your opinion a lot. Without piling on, I know it's a different kind of fact pattern, but I think on the question of ownership, I was mentioning to Senator Kissel, but I think it was a 1990 case that was Moore v. the Board of Regents in California, where he had a patient at the state hospital whose DNA was taken by the physicians who operated on him who then used his DNA to create a cell line and patented his DNA.

And when he sued to get it back, and they created a line of profit, the courts ruled that basically, he didn't own his DNA, even though his doctor had taken his DNA.

So I'm not thrilled with that particular, it's not really just in terms of Fourth Amendment, or what's left of the Fourth Amendment, but in terms of the case law, I think you're absolutely right that the issue of ownership, and if you were in Holland, for example, I think your blood still belongs to you when it leaves your body.

You know, different countries have different laws about who owns what. I could be wrong about that, but I actually wrote about that on another matter.

So I don't think the ownership is really the question. I guess the issue of, part of the point of this is to get it into the federal database, and my concern is about the potential abuses of government.

I don't know what control, I mean, we might put language in that restricts the state. Let's say, I could say some future Governor cannot sell our DNA the way that, for example, they're selling the lists of nurses or doctors who are licensed to private vendors so that they can raise money.

I mean, you know, a lot of publicly gathered information is sold for profit by our own government, and that's controversial in some areas. And in some, it's settled practice.

I suppose that we could put language in that would prevent our own state government from selling that information. But getting back to, and I don't know if you were here when I talked about the wiretapped cases in New Haven.

Because I knew the people who were tapping people's phones who were in my parents' generation, and I also knew the people whose phones were tapped, who were my generation, and one of the people tapped, as a threat to the government, was Senator Lieberman. So, you know, we're not, it just expanded because they could do it.

REP. KALINOWSKI: That was in the late 1960s, wasn't it, in New Haven?

REP. DILLON: That's right because they got a call from the President's office, and they formed a red squad, and they trusted the government, and they believed what they were doing.

And they were not in bad actors, except in retrospect because they did what they could do because they could do it.

And it expanded to political enemies, neighbors, people who you thought were cheating on their husbands, whatever. It just expanded because somebody controlled the machine.

But they were people who acted in good faith. They did. And there are bad actors, and I mentioned them in another setup, but it's always [inaudible] the question is who controls it and what kinds of checks and balances.

Let's say I were going to go crazy on JF Day and say, we have to put language, well, everybody goes crazy on JF Day, and insist on language that prevents the State of Connecticut, in the future, from selling any of that data.

Let's say some researcher wants to come in 20 years from now and look at the length between genetics and proclivity to crime and decides that they want to go around to the different states and start buying up DNA and do research on that.

In my view, that would be tainted research for a number of reasons, but times change. Once you have it, you have it, and the climates can change.

If we were to put that language in when we take up this bill on Monday, which I expect we will, that still wouldn't really deal with the issue of what the federal government would do because the whole point of this is to get it into the federal database. Am I right on that?

REP. KALINOWSKI: Yes, correct. You referred to a period in New Haven. In the late '60s, I worked in law enforcement in New Haven during that period and am familiar with the individuals involved and that process used and the information that was elicited through wire tapping, etc.

And it was a period disgraceful, if I may say. And I've carried that lesson with me as I've went through my career in law enforcement for many, many years. But I do understand what you're saying and sympathize with most of your concerns.

REP. DILLON: Thanks.

REP. LAWLOR: Next is Representative Gonzalez.

REP. GONZALEZ: Good afternoon. Right now, the process, as far as I know, is when they're going to release you, they will do the DNA [Gap in testimony. Changing from Tape 2A to Tape 2B.]

--DNA to go with me. But now, as they arrest you, and they will do the DNA. And let's say they will do the DNA when they arrest you, but then your case got dismissed.

REP. KALINOWSKI: Dismissed or nolled or you're acquitted, yes.

REP. GONZALEZ: Okay. Then what's going to happen with my DNA?

REP. KALINOWSKI: Then it will be expunged from the databank.

REP. GONZALEZ: How can we prove that that's going to happen?

REP. KALINOWSKI: Well, that's for the Committee to draw rules and regulations and statutes to make that happen, if I'm correct in that assumption. Any Committee Member, please feel free.

REP. GONZALEZ: Okay. Thanks.

REP. LAWLOR: Further questions? If not, thanks, Ray. Next is Lynn Warner. Is Lynn here? Rich Deparle, is he here? Okay. Paul Rosow?

Following Paul will be Brian Carlow and Karen Goodrow together, and then we'll go back to the state official list and Colleen Murphy.

PAUL ROSOW: Hello, my name is Paul Rosow, and I'm here in support of House Bill 5920. I'm here representing the Connecticut Coalition of Property Owners, which is the state's largest landlord property owner organization.

We have chapters in Hartford, Bridgeport, Stamford, East Hartford, Manchester, as well as the Connecticut Association of Real Estate Investors.

Collectively, our members own over 20,000 rental units throughout the State of Connecticut. This May, it will be two years since the Judicial Department centralized the small-claims division.

Small claims is a very important piece of our membership's business. It gives us the ability to recoup some of our losses that occur due to nonpayment of rent, eviction, or damages.

The backlog is tremendous, and the time to get to trial is unacceptable. I would like to share with you some statistics.

There are approximately 90,000 small claims cases filed per year. Each filing is handled at least four times.

There are approximately 20 people in the small claims department to handle these 360,000 transactions and also answer phone calls and work at the window.

Additionally, there are 40,000 wage executions annually that need to be reviewed and signed. Each wage execution has to have at least four copies signed.

A typical small claims case today takes between 230 to 312 days to get to trial, not judgment, just to get to trial. Before centralization, it took 36 to 114 days to get to trial.

A typical wage execution today, to be signed, takes four to five months. Before centralization, you could get it signed the same day or there days later at the most.

At least six times, we have met with the Judicial Department across the street, and we always were told, it will get better. This May, it will be two years since centralization, and the delays are worse than ever.

Chief Court Administrator Judge Lavery, in one of his meetings, told me that small claims is their lowest priority.

This situation not only hurts landlords, but it also hurts tenants who are, for example, suing for their security deposit.

Small claims was put in place so that all Connecticut residents could get into court for a low fee and get their opportunity for their day in court.

Three options have been discussed. Number one, 100 more personnel could be funded and assigned to the small claims court system to make the existing centralized system work.

Number two, small claims filings could be decentralized, and the Judicial Department could go back to the old system.

And number three, housing-related small claims filings could be moved back to the Housing Courts.

Number three, moving back to the Housing Courts, is the easiest and most cost-effective way of handling this problem.

We have tried to work with the Judicial Department for almost two years, six different times, and they just cannot get it done.

This is why I'm here today in front of you to ask you to favorably report on House Bill 5920. Thank you very much.

REP. LAWLOR: Thank you, Paul. Are there any questions? Senator Handley?

SEN. HANDLEY: Thank you. Good afternoon. Much of what you've said, I live in Manchester, and I've been hearing from both sides of the situation, tenants and owners of property, that this is a problem.

Do you have any sense of what the cost would be? Because this is always something we have to, we don't, in this Committee, have to be concerned about it.

But down the road, we're going to have to be concerned about it. Do you have any sense of what the cost would be to reestablish the court somewhere close to what it was?

PAUL ROSOW: Well, there's six housing sessions in the State of Connecticut. And before the centralization, the Housing Courts handled the small claims issues for housing.

They still have the same staff that they had before the decentralization. So I don't believe it's going to be that big of a cost to flip it right back to them.

I'm sure that you're going to maybe hear from that that, you know, we can't do it. We're overwhelmed.

But the bottom line is that the number of housing cases, at least in the Hartford housing session, for evictions, is at the same amount as it was five years ago, and they have the same personnel.

So I don't see it costing that much money to bring it back to the Housing Courts and relieve the stress from the entire small claims system.

SEN. HANDLEY: Thank you.

PAUL ROSOW: You're welcome.

REP. LAWLOR: Are there further questions? If not, thank you very much.

PAUL ROSOW: Thank you very much.

REP. LAWLOR: Next is Brian Carlow and Karen Goodrow, and they'll be followed by Colleen Murphy. Is Colleen still here? Then we'll go back to, is Jane Murphy here, Jane Murphy here? Okay. She'll be coming up shortly, and then LaResse Harvey. Is LaResse here?

BRIAN CARLOW: Chairman Lawlor and other Members of the Committee, thank you for allowing us the opportunity to be heard. My name is Brian Carlow. I'm the Deputy Chief Public Defender.

We are here on behalf of the Division of Public Defender Services. And Susan Storey, the Chief Public Defender, who's over my right shoulder and I'm sure is taking notes as to how well I do before you folks today.

Also sitting with me at the table today is Karen Goodrow, which, thanks to this Legislature last year, we were able to have a full-time innocence project as part of our division.

And Karen, subsequent to that being created, was appointed by our commission as Director of that project.

She's here principally to speak with respect to issues about the eyewitness identification. It's an area which, obviously, she knows quite a bit about because that's central to that line of work.

And I'm going to be speaking about some other issues as well. We did submit written testimony, and just very, very briefly with respect to that, Raised House Bill 5919 is a bill that has to do with access to police reports and witness statements.

We don't have an objection to that, just so long as there's language that makes it abundantly clear that that in no way restricts defense lawyers' ability to obtain discovery, pursuant to our rules of practice and pursuant to our laws both constitutional and those passed by this Legislature.

And I would just note that in terms of our testimony today, we are here really presenting in a somewhat different manner.

Generally, over the years, Karen and I were both advocates in the courtroom, and we were fighting battles, you know, the defense lawyers against the prosecutors.

This year, I think, in terms of what we've got to say, is a little bit different because the focus in this Legislature, I think it's fair to say, is based upon, or a lot of it has to do with the driving force of public safety.

And I would submit to you that the positions we're taking today are not Democratic or Republican, are not criminal justice or Division of Public Defender Services.

They really are all to enhance public safety and to get to the bottom line through this process, which I would submit to you is to identify the true perpetrator in the context of criminal activity.

So with that sort of overview in mind, we did submit some testimony, or we will on taped confessions. We understand that Criminal Justice is going to be doing a pilot program. We absolutely encourage that.

We think that's a very appropriate way to go. And we would hope by the time this Legislature convenes next year, that they will be able to report back and tell us what they think in terms of what would be best practices.

In terms of the bill that has to do with child witness in the sexual assault cases or assault cases, some of the language talks about an exception to the sequestration rule, which basically allows for someone who's known and with who the child feels comfortable to actually sit with them during their court testimony.

On the first level, we don't have an objection to that, but we think there should be a finding that if that person is a witness, or going to be a witness at trial, there should be a finding that there really is no one else who's available.

And again, that's to try to honor that time-honored idea that witnesses should not be hearing other witnesses testifying. The idea there is to try to get to the most truthful and accurate testimony.

I want to talk just a little bit now, and I'm here to answer whatever questions there may be, in terms of the DNA issue.

The law, as it stands today, is that anyone in the State of Connecticut convicted of a felony has to submit a DNA sample. That is well-established law. It has no constitutional barrier.

Court after court after court across this country has found that that is fine, that those folks have a lesser expectation of privacy.

The flaw in the law, we would suggest, and I think it's been identified, is that the law, as it's written now, does not require those samples to be taken until prior to discharge from probation or prior to discharge from the Department of Corrections.

That, to us, makes absolutely no sense. So the general idea of expanding the database, because DNA is an incredible tool, we absolutely agree with that, and we would certainly join in and would submit that that language makes sense.

Make it mandatory. I'm not saying that the law, as it's written now, requires them to wait. It allows them to wait. And we would submit they shouldn't be allowed to wait.

The A or B felony piece does create, certainly arguably, and according to the Supreme Court in the State of Minnesota, an absolute constitutional bar.

There are two states in the country that have decided this issue as to whether arrestees can be forced to give samples. Virginia, which says it's okay, Minnesota, which says it's unconstitutional.

I want to talk about the Virginia piece just for a second because we've heard mention even today that the Virginia example is a perfect example of why you [inaudible] arrestees, because Mr. Foster, the person who now a warrant has been sworn out for in the James Tillman case, is sitting in Virginia.

And the argument is but for the arrestees' provision in Virginia, Mr. Foster is never identified. That's not accurate.

Mr. Foster, pursuant to our laws, as they are on the books today, not only was obligated but in fact gave a DNA sample. So the question would be, well, why wasn't that match made?

Our understanding is the match wasn't made because that sample at that time was one of the approximately 28,000 samples that are sitting on a shelf somewhere waiting to be tested and waiting to be put into the databank.

So the idea that somehow Virginia is what found Mr. Foster, I guess on one level is true. It's because of the backlog.

And let me, I've worked with the lab for a long time, and let me in now way, I don't want any of my comments to be taken to mean that I think the lab isn't doing the work that they're doing in a very prompt fashion.

It's a resource question. So before we expand to A and B felons, arrestees, which I would suggest has constitutional barriers, I would submit why don't we focus on the 28,000 that are there, that the law has decided are appropriate?

One other point on the A or B arrestees, you keep hearing said to you that it expands the database greatly. That's a fallacy. It doesn't.

Anyone charged with an A or B felony, under our law, as it exists today, if they are convicted of any felony when their case is over, classified or unclassified, is required under our law to give a sample.

So all those folks are going through the databank anyhow. And of those folks charged with A or B felonies whose cases are nolled, dismissed, or there's an acquittal are expunged.

They're not going to be in the databank. So this huge expansion we keep hearing about, who are those folks? Those are people who are charged with the most serious felonies we have, A and B felonies, who are ultimately, when their cases are over, are convicted of only a misdemeanor.

I have this wonderful listserv where I could then send around to all our lawyers in the State of Connecticut, basically asking the question, because I was in the courtroom for a very long time, and I can't remember the last A or B felony that I had that resolved ultimately for a misdemeanor, I asked, how often does this happen? It's exceedingly rare.

So what you're doing with that piece is a minimal expansion of the database to people, I would add, ultimately through the court process.

These A or B felonies are the most serious of the serious cases resolved for misdemeanors, which suggests that there was something problematic in that case, that's the expansion.

Balanced against that is the idea that these folks are giving up a huge privacy interest. The biological sample is kept in the lab forever, unless, under the law, expunged. It's kept there.

The information, it's an incredible amount of information. You've heard said to you that the identifiers, and there are 15 of them that are presently used in DNA. You've heard them referred to junk DNA, or they don't respond to anything medical.

That, at one point, was believed to be the case. That is no longer the case. There is medical information even involved in those 15 particular locations on particular chromosomes.

So to somehow suggest that this is not an important privacy issue, I would submit to you the literature flatly rejects that.

So we have no objection at all to an expansion of the process to get those samples in as early as possible and that there would be funding so that there's not this backlog where samples are sitting on a desk or on a table or in a room somewhere.

The problem we have is we think the arrestees expands it very minimally, does not get to what I think folks are trying to get to, and runs into, I would submit, significant constitutional problems.

Now I would, with your indulgence, would turn over to Karen to speak about the eyewitness identification issue, and then we're more than happy to answer whatever questions there may be.

KAREN GOODROW: Good afternoon, thank you for having us here. I would like to, before I jump into the id bill, just speak briefly about Raised House Bill 5933, which is the compensation act.

The Connecticut Innocence Project does support that bill, AN ACT CONCERNING THE COMPENSATION OF WRONGFULLY INCARCERATED INDIVIDUALS. As you all know, of course, you passed an individual act for Mr. Tillman.

And I think what this raised bill tends to do is to start with some sort of base standard by which we can work for the next time around.

I think there was some discussion about having an expedited process through the claims commissioner.

And again, our office would support that, a way in which an individual who has been incarcerated wrongfully could be fairly and equitably and efficiently, if you will, compensated.

I know that this body is aware of all the pro bono work that was done on Mr. Tillman's behalf, long beyond me, Brian, and Suzanne in the public defender's office.

And McCarter & English, who graciously has been housing us for the last two years, spent enormous, and continues, frankly, to spend enormous amounts of pro bono hours assisting.

But there are things, basic things, like housing, food, clothing, employment skills, that individuals have to face when they get released. So I would encourage you to seriously consider this act.

With regard to the identification bill, I did miss Mr. Dearington's presentation this morning, although I understand some of what he has said we have discussed in the past.

I've also had an opportunity, because of our fire drill, frankly, to speak with State's Attorney Kane outside, and it seems as though, echoing a little bit of what Brian just said, we actually do have a consensus with regard to a large portion of this proposed bill.

And the consensus would be with regard to allowing, or ensuring, if you will, the best practice, not with regard to sequential, although we support sequential, but double blind.

And speaking to Kevin outside, I don't want to speak for him, especially since he's not here, but he said, yes, you can quote me on this. He is actually in support of that where practical.

And the proposed bill does include that language, where practical, the police officers should ensure that a double blind procedure is utilized.

We've also heard, and I think Chief Strillacci just mentioned this, that the Chief State's Attorney's office has promulgated, if you will, some of their own best practices.

But I think that was specifically in response to the Connecticut Supreme Court case of State v. Ledbetter.

And I believe attached to Mr. Dearington's testimony is the one-page instruction that the New Haven Police Department gives to eyewitnesses.

And essentially, it says it's just as important to protect the innocent. Just because we're asking you to look at these photos doesn't mean that somebody who we think committed the crime is in here, etc. You have it before you.

But those are precisely the best practices, if you will, that were articulated in the Ledbetter decision.

And essentially, if in fact a police department does not follow that, the Supreme Court says at a trial, the jury has to be told that these procedures weren't followed.

What we propose, I think, is just a logical and common sense extension of Ledbetter. And again, it's important to note that the Chief State's Attorney's office is on the same page with regard to double blind when practical.

And the sequential issue, I think our colleague, Steve Saloom, is here from the Innocence Project in New York, and he will speak to this.

It seems as though that when this issue has arisen at various states, folks have gotten bogged down. And we certainly don't want to lose what we think is the meet of the proposal if we get bogged down on the issue of sequential.

I would like to respond briefly to the Illinois report, also referred to sometimes as the Mickenburg Report. Again, Chief Strillacci mentioned this.

I believe when Mr. Dearington was here, he may have mentioned a Philadelphia study. With due respect to him, I think he's actually thinking about the Chicago study.

And that was, as I understand it, an attempt by the Chicago Police Department to put it into place under real-live circumstances. The studies of Gary Wells, the professor who's been studying id issues now, golly, for about 30 years.

There is, and we will provide a written copy of this after our testimony, a very cohesive response from the attorney general's office from the State of Wisconsin, essentially indicating why the Chicago report is inconsistent with what actually occurred there.

If I could just briefly mention, in that study in Chicago, there was no use of instructions to the eyewitnesses. There was no assessment with regard to confidence levels.

I don't know if you know what I mean when I say confidence levels. That's the point at which the eyewitness looks at the photographs and does or does not give a statement about his or her level of confidence.

There was no mention of this, no attempt to utilize this in the Chicago report. Multiple procedures were not addressed.

Oftentimes, if a police officer is trying to see if there's an identification that can be effectuated, there is a multiple procedure utilized.

And the notion is of course that that can influence, if you will, the eyewitness's testimony. And perhaps most importantly, there was no information in the Chicago report with regard to the selection of non-suspect fillers.

In other words, how many times did the individual who was asked to look at the photo array pick out somebody other than the suspect? And that is a key piece. So I would encourage you to read through that.

We would ask that the bill be passed as it's written. But we understand that, as a compromise, in reflecting consensus, we certainly could live with, if you will, it's a good start, to live with the protocol that's been adopted in Ledbetter and the notion of double blind. Thank you. I'll take any questions that you may have.

REP. LAWLOR: Thanks to you both. And, Brian, I'm glad you underscored at the outset that the role of the public defender oftentimes is to help us understand the practical impact of decisions we make here.

And it's not even inconsistent with public safety the vast majority of the time. And you guys were the ones who came up with some ideas of how we could think through this DNA sampling process that might make a lot more sense.

For example, what I was discussing earlier with some of the prosecutors, moving that to the beginning of the process rather than the end, even though you'd think common sense would tell you under the current law, they could just do that anyways.

But that would certainly add a lot. And since you mentioned it, the backlog on the cataloging of these DNA samples, my understanding, and correct me if I'm wrong, is that there is actually federal money available to pay for the testing.

And the Department of Public Safety has actually contracted with private providers that are going to do this. And it's supposedly going to be completed in a relatively short amount of time, and that as long as we have a backlog, there will be some federal money available to pay for it. But in any event, hopefully, we'll catch up on that relatively soon.

BRIAN CARLOW: Yeah. That is my understanding, and we certainly think that's a good thing. Getting those resources in to get those samples into the databank we are absolutely supportive of.

REP. LAWLOR: Because it does cut both ways, right? There's innocent people who will be exonerated. There's guilty people who will be apprehended.

And in the cases where the wrong guy got convicted it the first place, you can now go out and find the right guy, because for every wrong guy convicted, it means some guilty guy is out there committing more crimes.

BRIAN CARLOW: And that's exactly right. And that really goes to all of our bills here again, which I would submit, really get to sort of the truthfulness and accuracy of the process.

And that is exactly the other piece. I mean, certainly, we are advocating for our clients, but every time there is a wrong person incarcerated, someone who in fact committed the crime is still out there.

So that's absolutely correct. And, you know, when we're in the courtroom, I'm fighting for the person sitting next to me. But now, in my new world, taking a step back, you can see it a little broader, and I think that's absolutely true.

REP. LAWLOR: Further questions? Representative Gonzalez, then Senator Kissel.

REP. GONZALEZ: If we pass this, this DNA bill, what do you think that is going to be the process with the ones that are already in jail? What's going to happen?

If they're going to do the DNA when they get arrested, so that means the ones that we have already there, and they are supposed to do the DNA when they're released, so what's going to happen?

BRIAN CARLOW: It's really two groups of folks. You would have folks who have been convicted of a crime, convicted of a felony, who are in corrections.

And I would think it would probably make the most sense to some language in saying, for any folks who have been convicted of a crime, who are now doing their sentence, the DOC is mandated to, within 30 days, 60 days, whatever the number is, to take those samples and get those over to the Department of Public Safety immediately.

REP. GONZALEZ: And those are going to be done by corrections.

BRIAN CARLOW: That would be done by the Department of Corrections, which does, as the process is right now. They're the ones taking them now. They're just, and I don't want to speak for the Department of Corrections.

Certainly, they have the ability to do that. My understanding is, anecdotally, from what I'm hearing from former clients, is that they tend to take it at the end.

And the idea is just don't allow that. Force them to take it up front to get that information in as early as possible.

REP. GONZALEZ: Okay. Thank you.

REP. LAWLOR: Senator Kissel?

SEN. KISSEL: Thank you very much. I want to thank Chairman Lawlor. He just answered my first question regarding the taking of the DNA.

And just to confirm because, clearly, apparently, it was your idea, but as part of the plea negotiations, and then if someone cops a plea, then the DNA can be taken at that time, as part and parcel of the whole transaction?

BRIAN CARLOW: Yeah. I'm really not sure that it needs to be part of the plea negotiation but at the point in time when an agreement is reached.

I mean, we've all known, part of our discussion with clients today is if you plead to this felony, and the judge asks them at the canvas, have you been told that as a result of this conviction, you're going to have to give a DNA sample?

So we have those discussions. But whatever the plea negotiation is, if ultimately it results in the enter of a plea to a felony, the idea would be that it's taken then.

I know there's some concerns with waiting until after they're sentenced. And I think they're sort of, to come up with an example, you get someone who was just given a 30-year sentence or 20-year sentence.

When they're walking in to corrections, they're probably, in some circumstances, not in the most cooperative of moods. I recognize that. We absolutely recognize that.

That's why we also discussed the possibility of having that sample be taken prior to the plea but before sentencing takes place.

UNIDENTIFIED SPEAKER: After the plea.

BRIAN CARLOW: I'm sorry, yes, thank you very much, after the plea but before sentencing takes place. Because the point in time where the conviction is final is upon sentencing.

So the way that that could happen is the sample is taken after the plea is entered, but before sentencing, and given to the Department of Public Safety and held until the judgment becomes final.

And then it is, well, now it's probably put in that line of 28,000, so as a practical matter, there's not going to be any delay at all.

SEN. KISSEL: Right. But, again, on the whole, the mechanics of it, because my recollection of the way it would work is there's a plea offer. You go back to your client. You talk about it. He or she says okay.

Then they say, all right, we'll do it this afternoon. And in that intermediate period of time, while the individual has not officially, they've said, yes, we'll take the plea, although they have no officially gone before the judge and said, yes, I'm guilty, and I've been, and the judge enters the sentence, that DNA sample could have been gotten in that little period running up to that.

BRIAN CARLOW: Yeah, but I don't think it needs to happen then. They walk into court. They're in front of the judge. They're given the entire canvas. They plead guilty.

Now they are going somewhere that day. They are either, A, going home or, B, going into corrections. At that point in time, before they leave the building that day, they give the swab.

SEN. KISSEL: But do you think they'll be as cooperative prior to that?

BRIAN CARLOW: Here's why they would be then. Because they're not sentenced yet. So the incentive for them to cooperate and give the sample, the judge ultimately at sentencing date does not have to accept the deal.

One of the factors the judge could consider in terms of that would be whether or not the person complied with the giving of the sample.

SEN. KISSEL: Well, I'm confused because a lot of, well, maybe I just wasn't dealing with the A and B felonies. Most of them were lesser charges. But usually, it's like boom, boom.

In other words, there's a plea agreement. You talk it over with your client. They've accepted it. Now you get in the line to get your case finally disposed of.

The state's attorney's office will be notifying the victims, see if they want to come in and chime in.

And at that point in time, the canvas and the agreed-upon sentence is all done at the same time. You're saying that's not how it works?

BRIAN CARLOW: Well, no, in some cases it does. But you still got a, would it require, okay, someone goes in and enters the plea. And would it require a 15-minute break between plea and sentencing? Sure.

But I don't really see a downside to that if the benefit is getting the samples into the data bank earlier.

So, yes, I agree with you. In court, every day, people go in. They enter the plea. They're given a sentence. The idea that you would then slow that down just a little bit, in terms of that day, I don't think it's a particularly bad thing.

I don't think it's a costly thing in terms of resources. It's you've now entered your plea, report to the department or CSSD, which is probation, who are in the building. Go give your swab.

You could have a little form that they bring back to court, that they've now submitted, and sentencing goes forward.

So it's not going to delay the process. It's not going to require other court dates. But it's at a point in time which is going to ensure that it's early post-conviction as opposed to later.

SEN. KISSEL: How about something where we sort of tell you it's got to be mandatory. These are the terms. And let you folks all figure out exactly the timing of it all. That will probably work?

BRIAN CARLOW: Only because--

SEN. KISSEL: It sort of seems like a little herky-jerky of go, plead, stop, 15 minutes, and, you know, during that 15 minutes, what happens? Someone goes and pleads. They don't get sentenced.

I mean, if I was the judge, it's like, I just saw this person 15 minutes ago. You're breaking how that day's business is going to be done.

And I think when you jam all that into very busy courthouses, I think it might get a little, it doesn't sound, theoretically, like a problem.

But I think that taking cases sequentially and just getting rid of them, here we are, and so do you see philosophically, as a public defender, a problem with if there's a meeting of the minds between defense counsel and the state's attorney's office, and then the swab is then taken prior to walking in the courtroom so that's just a done deal? I mean, are you against that?

BRIAN CARLOW: If that is, I mean, the reality is anyone could give a sample by consent anytime, so, yeah, as long as that's part of it, and the client is indicating that's what they're willing to do, and as long as the sample, which, as a practical matter wouldn't be, is not put into any system until the judgment becomes final, which, in your example, is going to be 15 minutes from now.

SEN. KISSEL: Right.

BRIAN CARLOW: I don't have a problem with that.

SEN. KISSEL: Okay. And I think, as a practical matter, the realities of the technology, we have many years to wait before some quick analysis is done, and it's like, ah-hah, that way.

I just think that practically, that's probably how it would roll forward. On the other matter, when you were talking about the cases, and I have to be honest, I don't have that kind of familiarity with the cases that you cited.

But you had stated you'd prefer the bill as presented to us. Clearly, there are some folks that have some concerns regarding that. And you had said that there's a common ground.

And I'm just wondering if there's, I don't want you to negotiate against yourselves, but is there language that would be the common denominator between you folks and the other folks such that on Monday, it's not real controversial? And maybe down the road, we can make it better. But I think your part--

KAREN GOODROW: [inaudible - microphone not on]

SEN. KISSEL: Now I'm talking about the double blind and all that stuff.

KAREN GOODROW: The double blind. And I see, oh, I thought I saw, yeah, Mr. Kane is actually back in the room. Now he can actually speak for himself, and I'll stop speaking for him, which I think makes him nervous.

As proposed in our bill, the language says, when practical, the police should, and I'm paraphrasing, but the police should utilize double blind procedure.

It's my understanding that Mr. Kane does not object to that. The issue is with regard to sequential. We stand by our belief that sequential is appropriate.

And again, the Illinois study, there are issues with that. But I think, as written, in fact, that gives the police actually more leeway than my understanding of other state statutes, where it does not include that language, when practical.

SEN. KISSEL: I guess my concern is a very practical one, given the fact that it's Thursday, and our JF deadline is Monday, and knowing how things have operated in the many years that I've served here is that if we get a talker on our hands on Monday, after a half hour, it's going to be yanked, and nothing is going to happen.

And if there's some sort of half a loaf is better than none, and while everybody may not be real happy with it, then my guess is that given short session, one day to go, take what you can. And that's what I would--

KAREN GOODROW: Sure. And maybe what we'll try to do is take a walk down the sidewalk again with Mr. Kane and, because we got a lot of information out of him on that occasion. So we'll try to do that.

SEN. KISSEL: And maybe the police chiefs too and whoever has to sort of sign off on this, only because, again, we do really good things when we take a step back and work incrementally.

When people sort of doggedly just want the whole enchilada, it just never really happens, and the years go by. I find that unfortunate. I'd rather do a little bit of good in a short session than nothing at all regarding that.

KAREN GOODROW: Agreed, thank you. I appreciate it.

REP. LAWLOR: Representative Walker?

REP. WALKER: Thank you. Good afternoon. You drew my attention when you said that we have approximately 28,000 backlogged in the DNA labs.

The reason why you drew my attention is because we don't have 28,000 people that are incarcerated in our correctional facilities.

So that means that some of those were not processed when they, you know, at the end of their conviction.

Once the swabbing was done and everything, that means that we've got people that are no longer, you know, anywhere around us, that we haven't even processed. Is that true?

BRIAN CARLOW: Well, and those are the numbers that I've heard from the lab. But let's assume those numbers are accurate. I have no reason to believe that they're not.

And you're correct, I think the number is about 20,000 incarcerated. But that number would also include folks who never went to prison and just had felony convictions.

REP. WALKER: Oh, okay. I forgot about that, yup.

BRIAN CARLOW: But sort of the bottom line is does that mean that there are several thousands of folks who are not incarcerated now whose samples are on a shelf and really ought to be processed? We would certainly agree with that.

But I think that's where that difference in numbers, the people that get probation for maybe a D felony, first time, C felony, maybe some drug offenses, who are convicted of felonies, had to give the samples, but are still on probation and never went into prison.

REP. WALKER: Well, then the next thought that I would have is that, okay, probably the 28,000, because it is when they're leaving or just before they're leaving or etc., and we're talking about an additional 20,000 that are incarcerated that we have to do catch up on for whatever reasons.

Economically, I'm looking at it from the dollars' perspective. Economically, is it feasible for the lab to actually process all of these in this time frame to warrant us to rush to change the way we're doing it now?

And too, the value of what we would be doing it for makes me concerned also. So I don't know if you have any thoughts on that.

BRIAN CARLOW: I do. And that's really exactly kind of the position we're coming from, that the expansion should be much more, a sort of expansion of what we've already got, to get them done, rather than expanding to a whole new group of folks.

My understanding in terms of dealing with that backlog, because the staff at the lab does not have the person power to be able to do that, that they are going to be receiving federal money to outsource those, not evidentiary samples, known samples, which are much easier to process, much easier to double check to make sure that ultimately, the genetic profile that's determined is an accurate one.

What I think their plan is, again, I don't want to speak for them, but what I've heard is they plan to outsource lots of those to catch up over the course of the next few years.

REP. WALKER: In that case, I know everybody says the accuracy is 100%, 100%. But if we outsource these, I guess I'd be also concerned about the accuracy of all of the results.

I don't know that, again, I don't know. This is not, I don't know that much about forensics and all that, but if we're outsourcing, I've seen outsourcing.

I mean, we've had people diagnosed with cancer when they've outsourced their tests, and then they've found out, oops, my bad, you know. It wasn't your swab. It was somebody else's. So I'm just a little concerned about that.

BRIAN CARLOW: Here's the way they do it, and I think that is much less of a concern of mine. The way that they do it is this. They will outsource them, and they will get back a genetic profile.

Whether they do it themselves or they outsource it, it comes back to the lab. Now there is a hit, either through the feds or through the state.

The next thing that they do, as I understand it, is go to the original biological sample, which is why they keep them, and that's the area where sort of all that genetic information is.

And by number, they check it again to make sure that the outsource, or to make sure that their original test matches up. Once they have that, they're still not done.

They then go to get a warrant to go to the suspect to get a sample, and that's the sample. The databank sample is not the one used in any subsequent prosecution.

It's the one that's pursuant to the warrant that's really three steps removed. So the check to the outsourcing, and why I don't have a major concern, A, because the areas of DNA where you hear there's questions or that aren't that clear are virtually never known sample.

They're virtually never the mouth swab or the blood taken. The samples that are much more difficult to interpret are the one that are at a crime scene that are degraded. There may not be very much.

Those are the ones that I think you have to be much more careful. And outsourcing of those would present incredible problems to me and have throughout the country.

That's where states have gotten into a lot of trouble, outsourcing the evidence. The knowns are much easier, and ultimately, as a lawyer, now I have a client who's had the original match databank.

They've checked it. They've gone and got a warrant. Well, I always have the ability to go swab my client's mouth, send it to my own lab, and check to see what his profile is. So that's one piece that's much less of a concern.

REP. WALKER: How much did it cost you to get yours done?

BRIAN CARLOW: Mine? Or--

REP. WALKER: No, not yours, your clients'. Are you in the database?

BRIAN CARLOW: What am I supposed to say? Senator, I don't recall? Is that--

REP. WALKER: Well, thanks for the promotion, but, yeah.

BRIAN CARLOW: It's about $1,500 for us to go get someone to test a sample, that we can send a sample up for them to go give us a genetic profile. Some labs will do it less. I think we can get some places that's probably as little as $500.

REP. WALKER: $500? I'm going to go cross check that with DOC's cost to make sure they're not charging us too much. Thank you.

REP. LAWLOR: Well, just to clarify, when we sent out these knowns to be catalogued, it doesn't cost $500 per sample, I don't believe.

BRIAN CARLOW: Oh, no, I'm talking about, oh, no, I have no idea [inaudible] it's when I, as a lawyer, call up one of these labs and say, hi, I'm Brian Carlow from Connecticut, and I'd like you to run this sample for me.

And they say, well, how many do you have? I got one. They say, okay. So that's probably the retail-plus price. I would be willing to bet it is much, much less expensive for them to do it in the group that they're talking about putting out to.

REP. LAWLOR: I think, if I recall, it's like in the $20 or $30 range, maybe not even that high. But just to underscore one thing that maybe was discussed before you came in, Representative Walker.

The feds do reimburse us for the cost of having this backlog catalog, that's for sure. And I believe, it's not that they're going to contract it out. I think they've already done it.

And much of it might have already been completed in the last six months or so. So I think that's well underway. And one concern is the federal money may disappear in the relatively near future.

So they're trying to get as much done as possible right now. That's the current situation, as I understand it, so just to be clear.

Oh, and on a couple other statistics, since they came up, last time we checked, I think it's somewhere between 35,000 and 40,000 felony convictions per year in the state, the vast majority of whom are not going to prison.

So I think you can imagine how quickly that piles up. So I just recall those statistics. But in any event, that's the scale of it. Representative Gonzalez, I think, was next.

REP. GONZALEZ: You already answered half of my question. But the other one is can anybody tamper or make a mistake with those results?

BRIAN CARLOW: Well, I mean, certainly, if anyone is inclined to do that, they certainly can, although, you know, sort of the, you're talking about the outsourcing?

REP. GONZALEZ: Right.

BRIAN CARLOW: I think their probably incentive would be not to do that because they don't have a vested interest in what happens in the criminal justice system, I wouldn't think, in the State of Connecticut.

Their vested interest is continuing to get the contracts. So I think the last thing that they would want to do is have one of their samples come back which turned out to be wrong.

And then I think that would probably be a, if they can't process a known sample, I think the folks in our lab, with the time I've spent with them, would be very concerned about letting them do anything else.

So I can't imagine where there would be a real incentive. And these are all out-of-state places. I think their vested interest is getting more contracts.

REP. GONZALEZ: Thank you.

REP. LAWLOR: And I just want to offer, because I remember having extensive discussions with the State Police how they actually do this, I believe even the samples that are sent out to private contractors, the State Police routinely, 1 out of 100 or something like that, double check what the contractors are doing just to keep quality control.

So I think they go to great extents even for the stuff they've contracted out, even before someone is identified as a suspect, just to make sure the results they're getting are accurate.

So I do think they're doing a pretty effective job in that department. Any other questions? If not, thanks to both of you, and thanks again.

People may have forgotten, but you were the two involved in the exoneration of Mr. Tillman, and we continue to be grateful to you for that work. And I'm sure he is as well.

KAREN GOODROW: Our honor to do it, thank you.

REP. LAWLOR: Next is Jane Murphy. Is Jane still here? LaResse Harvey, then? And Colleen Murphy will be next. Oh, I'm sorry, Marty, I forgot about that. Go ahead. I forgot the Majority Leader of the State Senate, that's the other part of the Legislature, is here.

LARESSE HARVEY: It is afternoon, so good afternoon, Judiciary Committee, Leadership, and Members. My name is LaResse Harvey, and I am the Policy Director at A Better Way Foundation.

We use research, public education, advocacy, and organizing in order to create progressive drug policy and criminal justice reform in Connecticut.

A Better Way Foundation is a statewide advocacy organization with more than 3,000 members throughout the State of Connecticut.

A Better Way Foundation organizes a coalition of more than 50 groups and 4,000 supporters across the state.

Thank you for the opportunity to address the Judiciary Committee and its Distinguished Members.

Today, I'm here to speak in opposition of Raised Senate Bill 692 and House Bill 5034. Our forefathers did not agree with Britain's term of guilty until proven innocent.

They believed it was the state's responsibility to prove someone's guilt of a crime. The basic presumption of innocence until proven guilty is an American citizen's right.

DNA taken from people who are arrested but not yet convicted or proven guilty is in clear violation of the Fourth Amendment right.

The Fourth Amendment states, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall be issued but upon probable cause.

The amendment guards against unreasonable searches and seizures. It specifies that judicially sanctioned search and arrest warrants must be supported by probable cause.

This bill will allow the search of and collection of a person's most intimate part of their being, their DNA. [Gap in testimony. Changing from Tape 2B to Tape 3A.]

--DNA is really found at a crime scene, and testing is not foolproof. Mistakes have been made in the collection, breakdown, and reporting process.

Though DNA has been used to rectify thousands of wrongful convictions, the collection of DNA does nothing to protect a person's charge of a crime but not yet convicted of that crime.

As law enforcement investigate cases, they may arrest many people that ultimately are not convicted of a crime, and these laws will force people only suspected of doing something that in the end may be found to be not connected to a crime they are accused of.

Recent Connecticut history shows that this Committee has not only led the State of Connecticut but served as an example to other states' criminal justice reform.

The Distinguished Leadership and Members of this Committee have worked to ensure that the unintended consequences suffered by Connecticut residents are stemmed and eliminated.

The efforts to reform Connecticut's criminal justice system are not all hype. We know we have a flawed criminal justice system, and to give that system more power over a person who has yet been convicted of a crime is not the correct direction voters, this Committee, and the state should go in.

DNA is not like a fingerprint. DNA contains the most private information about a person. DNA determines our genetic code, what diseases we are susceptible to, and our family history.

Police, forensics, scientist services, and researchers using the database will have access to people's DNA without their consent.

Fingerprints is a primary method of identifying a person, outperforms DNA and all other human identification systems to identify more murderers, rapists, and other serious offenders.

Fingerprints solve ten times more unknown suspect cases than DNA in most jurisdictions. Fingerprints remain the most commonly used forensic evidence worldwide.

A Better Way Foundation does not agree with Public Act 04-188, AN ACT CONCERNING DNA TESTING, passed and signed in 2004, but it does state any person that has been convicted of a crime, a criminal offense against a victim who was a minor, a nonviolent sexual offense, or a sexually violent offense, or a felony and has been sentenced on the convictions shall, prior to release from custody, submit to the taking of blood or other biological sample for DNA analysis to determine identification, characteristics specific to that person, including those on probation and parole.

Public Act 04-188 appears to accomplish what advocates of this legislation here today are trying to accomplish without violating a person's Fourth Amendment rights.

There is no reason for a new law that ultimately will damage and abuse innocent citizens in this state. Thank you.

REP. LAWLOR: Thank you very much for your testimony today. I just want to, just so the Ambassador of the United Kingdom doesn't get angry at us, just to be clear that one of the good things we got from the British was the presumption of innocence.

It was the continental countries, where there's a criminal code without the common law. They have the presumption of guilt oftentimes.

But the British system, the English system, is that you were presumed innocent. So they'll get angry at us, you know.

Speaking as an Irishman, right, Marty, we can say that you got to watch out for those English when they get angry at you. In any event, are there questions? Senator Kissel.

SEN. KISSEL: Thank you very much, Chairman Lawlor. Hi, great to see you. A Better Way Foundation, regarding the proposal that had been bandied about recently that, it sounds to me you're not real keen about the DNA. But if it was upon conviction, is that something your organization could live with?

LARESSE HARVEY: Well, it's currently the law now, and if there was some talk to, or you wanted to meet with some of our members, then we could have a discussion.

But it's up to our community groups that we work with and the organizations that we work with. So you'd have to sit and talk with us as a group to get that response.

SEN. KISSEL: Okay. Well, if it does leave this Committee, which I couldn't predict right now, but if something does leave the Committee, and, granted, it's the law that it's upon conviction, but as a practical matter, it also states that, or it's not occurring until people are actually leaving the Department of Corrections, and it's at the tail end.

And we're trying to get it at the front end. But still, the trip wire would be the conviction.

LARESSE HARVEY: Well, under the current law, they could take the DNA at any time. They just choose to do it at the end. When you're a ward of the state, you're a ward of the state.

SEN. KISSEL: Right. So I'm saying that if we made a statute that said they had to take it at the front end upon conviction, you still would have to talk to your members?

LARESSE HARVEY: Correct.

SEN. KISSEL: Okay. Thank you.

REP. LAWLOR: If not, thanks again. Senator Looney, my apologies, and then we'll finally get to Colleen Murphy.

SEN. LOONEY: Good afternoon, Chairman Lawlor and Members of the Judiciary Committee. I do note here that Senator Kissel seems to be outnumbered by ten to one right now on the Committee.

And for that purpose, I just want to note that I was a House Member for 12 years before moving to the Chamber with a more comfortable chair. So I just wanted to put that on the record first.

I'm Martin Looney, Senate Majority Leader, representing New Haven and Hamden. And I'm here to express my support for several bills on today's agenda, first of which is Senate Bill 608, AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.

Secondly, House Bill 5832, AN ACT CONCERNING EYEWITNESS IDENTIFICATION, Senate Bill 694, AN ACT CONCERNING ERASURE OF CRIMINAL RECORDS, and Senate Bill 704, AN ACT CONCERNING THE RELEASE, SALE AND ACCURACY OF CONVICTION INFORMATION.

First, I wanted to speak about Senate Bill 608, AN ACT CONCERNING THE VIDEOTAPING OF INTERROGATIONS.

I've long been an advocate for the taping of custodial confessions and believe that this procedure protects both the police and the suspects in the interrogation process, while historically, we know that law enforcement officers have viewed required taping of confessions with some skepticism and trepidation.

Once they begin the process, many of them become advocates for it. And if you'd like more information on the taping of confessions and the positive response from law enforcement, I'd be pleased to share with you a report from the Northwestern University School of Law that was entitled Police Experiences with Recording Custodial Interrogation.

Taping of confessions would ensure greater accountability in our judicial system. Secondly, House Bill 5832, AN ACT CONCERNING EYEWITNESS IDENTIFICATION, would represent another improvement in the accuracy of our system by addressing the notorious conundrum posed by eyewitness identification.

Everyone involved with the criminal justice system is aware that eyewitness identification can be a double-edged sword. It is prone to stunning inaccuracy.

In fact, even sometimes victim testimony, as was the unfortunate case in the case with Mr. Tillman, it is prone often to stunning inaccuracy but is at the same time perhaps the most compelling testimony in a courtroom.

Therefore, we have an obligation to ensure that this testimony is as accurate as possible. And House Bill 5832 would reduce the probability of error or of undue influence by law enforcement but, among other things, requiring that the lineup or photographs be shown in sequential order rather than simultaneously and that when possible, the person conducting the identification procedure should not know who in the lineup or photographs is the suspected perpetrator and that the fillers in the lineup generally fit the description of the suspected perpetrator.

This proposal would increase confidence in the investigative techniques used by our criminal justice system.

Thirdly, Senate Bill 694, AN ACT CONCERNING ERASURE OF CRIMINAL RECORDS, would resolve inequity in our current system.

In general, whenever a charge in a criminal case is nolled, as we know, after 13 months, the police and court records, as well as the records of the state's attorney, are erased. That nolle is converted into a dismissal.

However, if the nolle charges contained in an information with other charges that are not nolled, the record is not erased, and this diminishes the value of the nolle.

Senate Bill 694 would require that a charge deemed nolled be erased after 12 months regardless of the disposition of other charges on the same information.

The current situation is unfair to defendants. There is not a logical distinction between a nolled charge, which is on an information alone, and one that is on an information with other charges.

The current system may create extra work for the court system as in order to protect their clients.

Defense attorneys may begin requesting that nolled charges be placed on a separate information from those with the different dispositions.

So I believe that Senate Bill 694 would create a sensible and practical change that is fair to defendants and would enhance overall deficiency in our system.

Also, Senate Bill 704, AN ACT CONCERNING THE RELEASE, SALE AND ACCURACY OF CONVICTION INFORMATION, would fix a technical problem in Public Act 07-243, passed last year, that dealt with the release, sale, and accuracy of conviction information, among other things.

One part of this act addressed the fact that when the Judicial Branch sells conviction information to private entities, who are performing background checks for employers, generally for a fee, the records are not updated when a pardon has been granted or charges have been nolled.

After passage, it became apparent that a technical problem in the act would make compliance by consumer reporting agencies difficult. And Senate Bill 704 would rectify this situation.

This measure is extraordinarily important because producing background checks with outdated information can have a devastating consequence for residents who have straightened out their lives and are making every attempt to be productive citizens of our state.

The language of this bill, I believe, reflects an agreement among all of the parties involved. And I believe it is a solution which will have a positive impact, both for individuals and for the society in general.

Finally, it recently came to my attention that while a board of pardons and paroles is required to provide reasons for denying a petitioner's request for an absolute or full pardon, the statutes do not require the same when a petitioner who applied for an absolute pardon is granted instead a provisional pardon.

The board could choose to provide these petitioners with the reasons for the denial, but it is does not.

This is really counter to common sense than a petitioner for a full pardon, who is granted a provisional pardon, should be supplied with the reasons for this position so that that petitioner might make an educated and informed choice as to whether to apply for an absolute pardon at a later time or what the particular deficiency was in his application that resulted in only a provisional pardon.

So I would urge that you include language that will accomplish this in one of these bills that's passed by the Judiciary Committee in this session.

So thank you for raising all of these extraordinarily important bills, and look forward to working with you on all of them in coming weeks. Thank you, Mr. Chairman.

REP. LAWLOR: Thank you, Senator. Are there questions? If not, thank you very much.

SEN. LOONEY: Thanks very much.

REP. LAWLOR: Next is Colleen Murphy. And Ms. Murphy will be followed by Raphael Podolsky and then Tim Phelan.

COLLEEN MURPHY: Good afternoon, Representative Lawlor and Members of the Judiciary Committee. I'm Colleen Murphy, and I'm the Executive Director and General Counsel of the Connecticut FOI Commission.

I'm here today to talk to you about one bill and one section of that bill because it impacts the Freedom of Information Act.

And the bill is House Bill 5935, AN ACT CONCERNING THE DISCLOSURE OF POLICE AND OTHER PUBLIC RECORDS AND THE TOLLING OF TIME PERIODS FOR BRINGING A CIVIL ACTION WHILE POLICE INVESTIGATIONS ARE PENDING.

The FOIC takes no position on Section 2, which is the section that deals with the tolling provisions. With respect to Section 1 however, the Commission has some concerns.

And we were very interested to see if we could ascertain what the purpose of this introduction of this bill was, but so far, I haven't gleaned that.

When the gentleman from the Trial Lawyers Association spoke, I believe he was just directing his comments to Section 2.

So here's what we have to say about Section 1, that there's no need for the change proposal in this section.

Current law contained in 1-213(b)1 provides that nothing in the FOI Act shall be deemed in any manner to limit the rights of litigants under the laws of discovery of this state.

The proposal seeks to remove and replace one word from this section, the word limit, and replace it with the word affect.

The stated purpose of this amendment is to provide that the FOI Act does not affect the rights of litigants in criminal or civil proceedings.

The Commission doesn't know what is meant by that statement of purposes since the law concerning FOI requests and its relationship to discovery request is crystal clear at this point in time.

The current language that I reference in 1-213(b)1 has been interpreted in a positive way that ensures that FOI requests will not be denied on account of the fact that a person may be involved, at present or some time in the future, in litigation.

I'd like to just direct the Committee's attention to a 2000 Supreme Court decision entitled Chief of Police Hartford Police Department v. FOIC, and I referenced this more in my written testimony to you at length.

In that case, Justice Borden made clear that the provisions of the FOI Act do not affect or limit discovery rights, and discovery rights do not affect or limit the provisions of the FOI Act.

Thus, discovery can't be used as a mechanism to stop FOI requests. Each request must be considered under the applicable disclosure and exemption provisions set forth in the act.

And conversely, the act cannot be used as a shield or as a basis to take records out of the discovery process.

It should be noted that if the Legislature changes the language with that one word change, it will revert to language that previously existed in the statute but was changed from affect back then to limit in 1994, following another Supreme Court decision.

That case was Gifford v. FOI Commission, which, at the time, caused quite a stir. And it was decided on other grounds, but referenced to the discovery provision contained in the FOI Act in dictum and indicated that public access to arrest records, the subject of that case, during a pending prosecution would affect the rights of litigants and was not permissible.

Following Gifford, the Legislature inserted the word limit in the place of affect. Justice Borden later stated in Chief of Police that such dictum was ill advised and that the purpose of the language in the FOI Act concerning discovery was to ensure that the two processes are independent of one another.

One is guided by the rules under the FOI Act, and one is guided by court rules. So as indicated, we are not clear what the intent of the bill is.

If it's just to clarify, we think there's no need. If however, the intent is to reverse the current state of the law, the Commission would like to voice an even louder object, for doing so would prohibit people from exercising their rights under the FOI Act if they're involved in current or possible future litigation.

This would truly be a giant step backward and would, for the first time, make someone's motives or status for requesting public records inappropriate inquiry and basis for denial.

For these reasons, the FOIC urges rejection of Section 1 of the bill. And I'm happy to answer any questions.

REP. LAWLOR: Thank you. Are there any questions? If not, thanks very much. Next is Raphael Podolsky. Is Tim Phelan still here? There you are, okay. You're next and then Commissioner Danaher.

RAPHAEL PODOLSKY: Thank you, Mr. Chairman. My name is Raphael Podolsky. I'm with the Legal Assistance Resource Center, and I'm here to speak on House Bill 5920.

The bill addresses a problem that persists and will not go away. I know you've heard from a representative of a property owner group. And it's a problem that needs to be fixed.

This bill proposes one way of doing it, which I think is probably the most practical way, although there may be other ways to address it as well.

The problem is when the Judicial Branch switched to a centralized small claims system that was designed to make maximum use of computer technology, I think it greatly underestimated the number of people it would take in order to do all the work involved.

And the result has been a very massive backup in the small claims system. It appears that without a significant increase in staff, it's really not fixable from Judicial.

It's something you should explore with Judicial, but I think that's the case. What this bill proposes to do is deal with housing separately. And there's reasons for doing that that I think are sensible reasons.

The housing cases make up about 3.5% of all the small claims cases, but they have their own very different profile. There's a much lower default rate in housing. People actually show up and appear and defend.

The housing cases, by the way, are things like security deposits and property damage and bad ground.

There are a lot more pro se litigants. It has much of the feel of kind of a People's Court rather than the rest of small claims, which is essentially a Collection Court with a very, very high default rate. Very few people respond.

In addition, in landlord/tenant matters, you cannot decide cases on the [inaudible] you always have to have a hearing, even if it's a default case.

And there are historic links to the Housing Court. The small claims, until two years ago, housing small claims was part of the Housing Court.

So there's legitimate reason why you might want to take the housing cases in small claims and treat them in a different way than you treat all the other small claims cases.

It seems to me there's sort of two possibilities here, and I would hope the Committee would make sure that at least one of these happens.

The one that's in the bill is to move the cases back to the Housing Court. And the thing you should just make sure happens is make sure that there's adequate, if you do this, that there's adequate staff in the Housing Court to take the return of the cases.

Another possible way of doing it would be to actually create sort of a separated-out, designated unit within the centralized small claims that is going to pull all the housing cases out as soon as they get them, put them on an entirely different timing track, and move them very, very quickly.

I'm not sure if that's practical within Judicial, but it's another possible way of doing it.

But I think it's really important that something be done so that the situation changes because it becomes very, very discouraging. I'm actually Chairperson of the Citizens Advisory Council for Housing Matters, which has received many complaints, on both the landlord and the tenant side, about sort of the major, major slowdown that has occurred.

So it's something that's very much worth fixing or getting Judicial to fix. Thank you very much.

REP. LAWLOR: Thank you very much. Are there questions? If not, thanks. Next is Tim Phelan. And Tim will be followed by Commissioner Danaher and then Steve Saloom and Kevin Hennessy.

TIM PHELAN: Thank you, Chairman Lawlor, other Members of the Judiciary Committee. My name is Tim Phelan. I'm the President of the Connecticut Retail Merchants Association.

As many of you know, CRMA is a statewide trade association that represents some of the world's largest retailers and many of the states' mainstream merchants.

Also included among our members are various companies that provide background screening reports to employers.

I'm here today to testify in favor of Senate Bill 704, AN ACT CONCERNING THE RELEASE, SALE AND ACCURACY OF CONVICTION INFORMATION.

We are very pleased and appreciate very much this Committee's willingness to raise this bill for drafting and now holding a public hearing.

We are also very pleased to report that we worked very closely with the various parties involved in this issue to see that all our goals are met.

In particular, we'd like to thank Dina Berlyn from Senator Looney's office and various members of the Judicial Department that worked with us and helped us craft this legislation, or this compromise.

The bill before you today is the result of those meetings and a very healthy give and take between the private sector, advocacy groups, and the Judicial Department to clarify the processes that take place so that we can accomplish what the sponsor of the original bill, Senator Looney, intended.

From our perspective, all we wish to accomplish on this issue is to be able to provide accurate and timely reports to many employers who rely on background screening while reviewing applications for employment.

We think this bill before you accomplishes that, and we urge your continued support. Thank you very much.

REP. LAWLOR: Thank you, Tim. Are there questions? If not, thanks. Next is Commissioner Danaher. And Commissioner will be followed by Steve Saloom, Kevin Hennessy, and then the last public official is Representative Williams, who is going to testify together with Maureen Fonti.

COMM. JOHN DANAHER: Good afternoon, Representative Lawlor, Members of the Judiciary Committee. My name is John Danaher. I'm Commissioner of Department of Public Safety.

I come before you today to testify regarding 3 bills, 1, House Bill 5034, AN ACT CONCERNING DNA COLLECTION FROM CERTAIN ARRESTEES, Senate Bill 35, the registration of sexual offenders, and House Bill 5033, AN ACT PROHIBITING SEXUAL OFFENDER NAME CHANGES.

With regard to the first bill, AN ACT CONCERNING DNA COLLECTION FROM CERTAIN ARRESTEES, House Bill 5034, this is a bill supported by the Department of Public Safety.

We have found that there has been a substantial increase in hits on the basis of DNA evidence in recent years, as recently as the Year 2006, where we would have two to three databank matches every week.

In 2007, we would have nearly one hit per day. We expect that to continue to increase. What we are particularly interested in in Section 1 of the proposed bill is that it changes the existing procedure for DNA samples to be collected from felons in the custody of the Commissioner of Corrections.

Right now, I know the Committee has heard today, the sample is taken prior to release. This bill would require that the sample be taken once the person is in the custody of the Commissioner of Corrections.

This will allow for the identification matches at a much earlier date and for the commencement of criminal proceedings while the person is in custody.

Similarly, Section 1(b) provides an important change, in that those individuals who are not sentenced to a term of confinement would have to give their sample at the time of sentencing, rather than at some future date.

Equally important would be the proposed increase in penalty for an individual who refuses to submit to a sample. That would increase from an A misdemeanor to a D felony.

We currently have a 3,000-individual backlog of those who were not sentenced to imprisonment, presumably ordered at the time of sentencing to give a sample, said, yes, Judge, I'll do that, and received a sentence of time served or did not receive a sentence of probation, left the courthouse, and never provided the sample.

Those individuals may be dead, may be out of state. We don't know where they are. And it is, with the work that is before law enforcement now, we don't have available personnel to track down these 3,000 individuals.

This change in the legislation will eliminate any increase of that backlog, and then we will be able to address it as best we can going forward.

Those are the reasons that the Department supports this legislation. I don't know if you'd like me to proceed to the other bills or if you'd like to address this one right now.

REP. LAWLOR: Why don't you go through all of them, and then we'll take questions.

COMM. JOHN DANAHER: Okay. The bill involving the registration of sexual offenders, Senate Bill 35, provides a number of important changes. It brings us into compliance of the Adam Walsh Act, which is a federal act, and it's necessary for us to comply with that act by July of 2009 in order to ensure that there is no loss of federal funding as a result.

But it's also, in addition to the need to maintain necessary funding, it performs a variety of important functions.

There are holes in our system right now that particularly plague us involving registrants who move from state to state.

Individuals are required to register when they come into Connecticut, but the don't do that, in numbers that are troubling.

What this would require is that people who are on a sex offender registry from another state notify us 48 hours before they enter our state.

This will permit us to capture those individuals and bring them into the system. The bill also changes the term for which an individual is registered, and it's based upon the nature of the offense that caused the individual to be registered in the first place.

They would be registered for graded periods of 15 years, 25 years, and life, depending upon the nature of the offense that caused them to be in the registry.

Our system also does not currently give us the ability to maintain control over those individuals who are transient, or who claim to be transient, or homeless.

A sexual offender who does not claim to have a permanent residence, or claims that he doesn't, is not someone whose movements we can monitor effectively right now. This is a growing population within the group of registrants.

Right now, we're trying to track over 100 registrants who say they are homeless. There is no place, obviously, to mail the 90-day address verification letter we would normally sent out.

Nor does a registrant have any obligation to maintain any form of ongoing communication with us.

The proposed legislation would require transients to advise the Department of Public Safety that they are transient within three days of assuming that status.

They would then be required to report to a location designated by our department at a period of no less than 10 or more than 15 days that they report that they are transient.

And they would have to continue to report until they are no longer transient. We also, through this legislation, would capture those individuals, as I said, who do come into the state, who should register but don't.

Sometimes, individuals come into the state. They won't sign a lease. They collect wages under the table. They take steps to avoid coming into the system.

And its those individuals we're particular concerned about bringing into the system. We also, through this bill, would be able to assemble a sex offender registry policy advisory committee.

This is Section 15 of the bill. This would bring together all the agencies that play roles in the management and registration and supervision of sexual offenders.

I think this is a particularly desirable provision of the bill. It creates an entity that will be able to pick up any other holes that might exist in our system.

It would make recommendations of how to address them, how to fix them. It would be an available resource that would permit the state guidance on public policy issues relating to the registration of sex offenders.

This bill also criminalizes, in Section 8, aiding a registered sex offender in violating the registry requirements.

We know of one instance in which a family member would receive the verification letters from the sex offender registry unit and would FedEx them to the person who was supposed to report, who was living many states away, would FedEx the documentation back, and it would come back to Public Safety.

And so we thought we knew where the individual was. But in fact, he was somewhere else. So there would have to be some teeth to prevent family members from helping people to go under the radar.

Another provision of the bill that we believe is important and would address a deficiency in the current system is one that would permit local police departments to establish policies and procedures to verify the accuracy of information provided by registrants.

Our department would support the local agencies with a software application that would give the local agencies direct access to the registry database, and that would allow them to view the current list of registrants in their jurisdiction, identify who's in violation of the registry requirements, and allow the departments to receive the investigative reports that we have, track the progress of arrest warrant applications, and aid in tracking transients.

In summary, and I have submitted written testimony that goes on in more detail than I have provided, but I do want to emphasize the summary portion of that written testimony, which makes clear that our Department of Public Safety Sex Offender Registry is made up of individuals who work very hard and take this job very seriously.

They look for shortcomings in the system, and they propose ways to address them, and they do this constantly.

In 2007, this unit completed 356 investigative reports that were made available to local law enforcement.

That saved local officers hundreds and hundreds of hours that they would have spent determining whether violations had taken place and documenting them.

The result of this effort, and this is an effort that began in 2003, is reflected in the growth of the number of arrests and convictions since the program was started.

And this is not in my testimony, but I would just give you this, if I may, briefly. In 2003, we generated 55 reports to help local law enforcement find violators.

The next year was 110 reports, the year after that 196 reports, and in 2006, 258 reports. And we're still compiling the data for 2007, but we expect that the number will be higher still.

So this, we think, is a major step forward in helping us monitor effectively sex offenders who are in our registry.

Finally, House Bill 5033 is a bill that would prohibit a sex offender from obtaining a name change. Right now, we're not aware of anything in the law that would prevent a sex offender from doing so.

I can think of no good purpose for a sex offender to be permitted to make a name change, except that the individual has a wish to remain anonymous or to avoid being associated with the Sex Offender Registry, and that is not a positive purpose.

And so we stand in support of House Bill 5033. If you have any questions, I'd be happy to answer them. And I have individuals with me who will answer those questions that I can't answer.

REP. LAWLOR: Thanks, Commissioner. And my understanding is the Governor's proposal to require a marking on driver's licenses, which I think is part of this bill, has been withdrawn, right? Is that correct?

COMM. JOHN DANAHER: I believe that's correct, that is.

REP. LAWLOR: So the Governor is no longer asking us to do that?

COMM. JOHN DANAHER: Not at this time.

REP. LAWLOR: Do you have any idea why that is?

COMM. JOHN DANAHER: I do not.

REP. LAWLOR: Okay. In the bill itself, people point out a couple of technical things to me, so I just thought I'd bounce them off of you.

The provision that requires people who are convicted sex offenders coming into the state, it requires them to give us notice 48 hours prior to their entry into the state. This is a legal question, by the way.

Someone has raised the question of can a Connecticut law punish somebody for something they did in another state? And I don't think that's the case.

And I'm wondering, since the crime is committed 48 hours prior to the entry, technically, can we have a criminal statute that punishes you for doing that if it didn't happen in Connecticut?

I mean, you could say, if you enter, things they do or fail to do after they enter, obviously, is within the State of Connecticut.

I suppose there could be a federal law that governs this. But I just wonder, if we had such a law, how would we enforce it?

COMM. JOHN DANAHER: I would argue that it's a continuing offense and that the offense is consummated when the individual steps over the Connecticut line without having completed the necessary act prior to doing so.

And individual knowing that they have to provide advance registration and not doing so and enters the state anyway, as I said, I would argue that it's a continuing offense.

And that individual should be on notice, shouldn't be coming into Connecticut. But once they've crossed the state line, they have completed the offense.

They only began it. In other words, the offense is not completed when they don't notify us before they come here. They haven't done anything.

They've living in Rhode Island, and they're planning, and it's Wednesday, and they're planning to come to Connecticut on Saturday, they haven't committed an offense by not notifying us.

The offense is committed when they cross the state line without having given a notification. That's the last piece of the crime. The crime is not committed elsewhere.

It's committed when all the elements are concluded. And the last one is concluded when they cross that state line without having given prior notification.

REP. LAWLOR: Right. And I think it would be a safe bet if it weren't the reference to the 48 hours.

I think if you said that if anyone enters the state without having notified, if you didn't mention the 48 hours, I think you could totally avoid that particular problem.

I think it's, because it sounds like the actual crime is committed the minute you, you know, it's that 48-hour period, I think.

It's an interesting argument. By the way, do any other states have such a provision, as far as you know?

SAM IZZARELLI: Mississippi has a requirement that prior to entering a county, that you make notification to them prior to coming into the county.

And it is a piece of model legislation that we talk with with registry heads across the country.

Currently, the requirements for all the 49 states, with exception of Mississippi, talk about allowing kind of a grace period for registrants.

And where that becomes a problem is when we find an individual that we've been trying to track for over a year, he's an absconder from Massachusetts that's living in the State of Connecticut, and when we catch up with him, he says, I've only been here for a couple of days.

As the Commissioner mentioned, these are very difficult cases to be able to prove because these are not individuals that are paying taxes, collecting wages, signing leases. They're living under the radar.

And as a result of that, what we want to send out is a clear message that if you come into our state, and you don't let us know ahead of time that you're coming into the state as a registered sex offender, that we have an issue with that.

And it's not a part of public policy that we haven't gone down the road with before. We do it already. We say to operators of tractor trailers that drive hazardous loads, you'd better have a permit before you enter the State of Connecticut to drive along.

And I think that if you look at the number of people that are victimized by sexual offenders, they're far greater than the number of people that are offended by hazardous loads on trucks in the State of Connecticut.

So I think it's something that we should come out as a lead in the country to say that this is an important issue to us.

If you don't do it, if you don't fulfill that requirement, if you're a carnival worker and want to come into this state, let us know that you're coming in ahead of time.

We will then, the 48 hours comes down to notifying local police agencies because they actually bear the burden of that responsibility of being able to try to track that individual and make decisions what they need to do.

REP. LAWLOR: And I don't think it's a policy argument. It's a technical legal thing. It's the 48 hours.

And I gather from what you said, you're talking about entering different counties in Mississippi or whatever, which we could certainly do that, that you can't enter a municipality, because theoretically, that would be committed within the State of Connecticut.

I think you could have a proposal that said you may not enter the State of Connecticut without having first notified. I think it's the 48 hours that gets you the problem because it seems to me that--

SAM IZZARELLI: And the crime is not actually that 48 hours before. It's the fact that if we locate you here in the State of Connecticut and you haven't given us prior notification--

REP. LAWLOR: I know, but you don't understand my, the problem is a constitutional problem. Whether the state law can punish somebody for something that arguably was done in another state, which is the failure to notify 48 hours ahead of time.

COMM. JOHN DANAHER: Well, I guess I would revert back to the, the offense [inaudible] has multiple elements.

One is that there be notification prior to 48 hours and, two, that there be an entry into the State of Connecticut.

If I could, I don't know if it's a good analogy, but if a person is planning to engage in mail fraud and they write up a fraudulent document, it's not a crime--

REP. LAWLOR: But there's no state crime for mail fraud.

COMM. JOHN DANAHER: It's not a crime until they actually mail the document. They have to do part two of the offense. In this case, there are two parts to the offense.

One is to plan to come into the State of Connecticut, to not give the notification 48 hours before.

But under my prior example, if the person is going to come here from Rhode Island and changes their mind and doesn't come here, they haven't committed any offense.

The offense only happens when, A, they don't give the notification two days in advance, and then B has to happen. They actually have to come here.

So once they step over the line, they're within our jurisdiction, and they have only then completed the offense.

That's when they've committed the crime. There's no crime until then. They actually have to come here. And so I don't, I guess I don't, it would appear to me that they have not committed a crime in another state.

They have taken a step toward a crime in another state, but the prosecutable offense occurs the minute they step over the line.

REP. LAWLOR: Okay. And how would it deal with someone who's like living in New York, and they want to see the Yankees play in Boston.

They're driving through Connecticut. Would that be a crime to drive through Connecticut without the notification?

COMM. JOHN DANAHER: I think under the statute, it would not. It contemplates people who work here, who are students here, or who reside here, as I recall.

SAM IZZARELLI: Actually, throughout the statute, we've used that as a consistent mark. We believe that if you start to provide exceptions for the individuals, that they're going to take advantage with those situations.

If we said, for instance, that under an emergency situation, if you had to come into Connecticut, we'd make an exception carved out for that, we'd like to think that the courts are the conscious of the state, and they would understand situations that would be applicable to an emergency, that they would choose not to prosecute--

REP. LAWLOR: But, you know, there's this constitutional principle called void for vagueness.

And if it's not clear what you're supposed to do to conform your conduct with the law, then the whole statute is going to get tossed out. And that's my concern now.

So just so I can understand it, if in fact you're driving through the state, transiting the state, and you're stopped at the McDonald's wherever, in Stamford, and you're apprehended, would you be guilty under this language or not?

SAM IZZARELLI: I believe so, yeah.

REP. LAWLOR: Okay. So even people just driving through the state would have to notify us that they're coming 48 hours ahead of time.

SAM IZZARELLI: I would say not just people. These are sex offenders. And there's significant risk that they potentially place on people of the State of Connecticut. And that's what this law is about.

It's letting us know ahead of time that they're here so that we can then let police departments and citizens know that they're here.

REP. LAWLOR: Is there any state that has a law like that so far, that sex offenders driving through the state have to notify everybody for transiting, just out of curiosity?

COMM. JOHN DANAHER: One second, please. Not that we're aware of.

REP. LAWLOR: Now on the homeless thing, that's what we're talking about [inaudible] I guess maybe not so surprisingly, to find out in the last six months or so, an awful lot of people who are registered sex offenders are actually living in homeless shelters, especially after their being released from prison.

And so I'm trying to understand in the definition section here, the definition of transient.

And so would someone who is living in a homeless shelter be a transient under this definition?

SAM IZZARELLI: No, not necessarily. Where we can identify them by a fixed address, that would not constitute necessarily that they are in fact transient.

We supervise, currently, about 100 individuals that either have no fixed address or that live at a homeless shelter.

And the problem with many of those shelters is that they don't know from day to day whether or not they're going to be there.

We have one trooper that works with the transient or homeless registrants to be able to keep them in compliance.

Currently, there's no provision within the statute that allows them to stay in compliance. And this would give them an opportunity to do that.

REP. LAWLOR: So the definition of transient here means person who has no residence.

SAM IZZARELLI: Correct.

REP. LAWLOR: So would a homeless shelter qualify as a residence, knowing that all homeless shelters I'm aware of, it's a day-to-day decision of, whether or not you're going to get in depends on standing in a line and stuff like that.

So if that's the case, like six days out of seven, you end up being able to get in, but on the seventh day, you don't get in, are you a transient or not a transient?

COMM. JOHN DANAHER: Section 15 defines a residence and includes individuals who live or stay at a temporary residence or at a homeless or emergency or other shelters.

So those individuals would be considered to be at a resident. That's the location where the notification could be made.

And that's to separate them out from the individual who simply is living under a bridge or in the woods and has no identifiable residence.

REP. LAWLOR: Well, I don't claim to be an expert on the homeless population, but I think it's fair to assume that quite a few of them most of the time are, or at least a fair amount of the time, are staying in what we would call a homeless shelter but other times don't get in or don't choose to get in.

I'm just thinking of the, because if you qualify as a transient, you're going to have an enhanced responsibility for reporting somewhere once every 15 days.

And so, as you point out, people find ways to get around the rules. So does that mean if you stayed in a homeless shelter once every 14 days, you don't have to report? How would that work? I don't understand.

COMM. JOHN DANAHER: Well, the definition, I think, that makes a homeless shelter a residence is if the person habitually lives at one.

So that would be a word that's going to have to be developed, the interpretation would have to be developed by the courts. That doesn't mean as yo