BILL ANALYSIS                                                                                                                                                                                                    







                          SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 239 (Ammiano)                                            
          As Amended April 27, 2011 
          Hearing date:  June 21, 2011
          Penal Code
          MK:mc

                             CRIME LABORATORIES: OVERSIGHT  

                                       HISTORY

          Source:  California Public Defenders Association

          Prior Legislation: AB 1079 (Richardson) - Chapter 405, Stats. 
          2007

          Support: Unknown

          Opposition:Sheriff-Coroner of San Bernardino County

          Assembly Floor Vote:  Ayes 79 - Noes 0



                                         KEY ISSUE
           
          SHOULD THE CRIME LABORATORY REVIEW TASK FORCE BE RECONVENED TO 
          SUBMIT A REPORT MAKING RECOMMENDATIONS REGARDING A STATEWIDE 
          OVERSIGHT BODY TO OVERSEE AND PERFORM TASKS RELATING TO CRIME 
          LABORATORIES IN CALIFORNIA?


                                       PURPOSE





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          The purpose of this bill is to reconvene the Crime Laboratory 
          Review Task Force to make recommendations regarding a statewide 
          oversight body and to perform specified tasks relating to crime 
          laboratories in California.
          
           Existing law  requires the California Department of Justice (DOJ) 
          to establish and chair the Crime Laboratory Review Task Force 
          (CLRTF), comprising of representatives from DOJ, the California 
          Association of Crime Laboratory Directors; California 
          Association of Criminalists; International Association for 
          Identification; American Society of Crime Laboratory Directors; 
          Department of the California Highway Patrol; California State 
          Sheriffs' Association, from a department with a crime 
          laboratory; California District Attorneys Association, from an 
          office with a crime laboratory; California Police Chiefs 
          Association,  from a department with a crime laboratory; 
          California Peace Officers' Association; California Public 
          Defenders Association; a private criminal defense attorney 
          organization; the Judicial Council, to be appointed by the Chief 
          Justice; Office of the Speaker of the Assembly; Office of the 
          President pro Tempore of the Senate; and two representatives to 
          be appointed by the Governor.  (Penal Code  11062(a) and (b).)

           Existing law  requires the CLRTF to review and make 
          recommendations as to best configure, fund, and improve the 
          delivery of state and local crime laboratory services in the 
          future.  To the extent feasible, the review and recommendations 
          shall include, but are not limited to, the following issues:

                 With respect to organization and management of crime 
               laboratory services, consideration of whether the 
               existing mix of state and local crime laboratories is 
               the most effective and efficient means to meet 
               California's future needs; whether laboratories should 
               be further consolidated, and who should have oversight; 
               if some management for some laboratories should be 
               transferred; whether all laboratories should provide 
               similar services; and how other states have addressed 
               similar issues;




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                 With respect to staff and training, consideration of 
               how to address recruiting and retention problems of 
               laboratory staff; whether educational and training 
               opportunities are adequate to supply the needs of fully 
               trained forensic criminalists in the future; whether 
               continuing education is available to ensure that 
               forensic science personnel are up to date in their 
               field of expertise; if crime laboratory personnel 
               should be certified and if so, the appropriate agency 
               to assume this responsibility; and the future 
               educational role if any for the University of 
               California or the California State University;
                 With respect to funding, consideration of whether 
               the current method of funding laboratories is 
               predictable, stable and adequate to meet future growth 
               demands and to provide timely and accurate testing 
               results; and, the adequacy of salary structures to 
               attract and retain competent analyst and examiners; 
               and,
                 With respect to performance standards and equipment, 
               consideration of whether workload demands are being 
               prioritized properly and whether there are important 
               workload issues not being addressed; if existing 
               laboratories have necessary capabilities, staffing and 
               equipment; and if statewide standards should be 
               developed for the accreditation of forensic 
               laboratories, including minimum staffing levels; if so, 
               a determination regarding what entity should serve as 
               the sanctioning body.  (Penal Code  11062(c).):

           Existing law  requires the CLRTF to seek input from specialized 
          law enforcement disciplines, other state and local agencies, 
          relevant advocacy groups, and the public.  The final report also 
          shall include a complete inventory of existing California crime 
          laboratories.  This inventory shall contain sufficient details 
          on staffing, workload, budget, major instrumentation, and 
          organizational placement within the controlling agency.  (Penal 
          Code  11062(d).)





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           Existing law  requires the CLRTF to submit a final report of its 
          findings to the Department of Finance and the Budget and Public 
          Safety Committees of both houses of the Legislature.  
          (Penal Code  11062(f).)
           
          This bill  requires CLRTF to reconvene to prepare a supplemental 
          report by July 1, 2013, which includes recommendations regarding 
          the composition of a statewide body to oversee crime 
          laboratories.

           This bill  provides that the oversight body shall perform the 
          following tasks:

                 Implement federal legislation or guidelines imposed 
               directly on crime laboratories or imposed indirectly as 
               a requirement for receiving a grant;
                 Oversee investigations into acts of misconduct or 
               negligence committed by any employee or contractor of a 
               crime laboratory;
                 Collect data generated by investigations in order to 
               determine the root causes of crime;
                 Identify systemic failures and make recommendations 
               for preventing future problems;
                 Study methods to facilitate communication between 
               laboratories and stakeholders and draft guidelines for 
               disclosure and discovery of crime laboratory documents; 
               and, 
                 Make recommendations to the Legislature and local 
               governmental entities regarding the allocation of 
               resources to crime laboratories throughout the state to 
               ensure that taxpayers' funds are maximized and 
               distributed in a more equitable manner.  

           This bill  states that the reporting requirements, as specified, 
          are to be inoperative by July 1, 2017, and the report shall be 
          submitted to the Legislature in compliance with provisions of 
          the Government Code, as specified. 

           This bill  makes the following declarations:




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                 The State of California has benefited from having a 
               large number of publicly operated crime laboratories, 
               some operated by the state and others by local 
               government.
                 The state is also served by a number of forensic 
               units housed in local law enforcement agencies.
                 Currently there is no statewide oversight of 
               publicly operated crime laboratories in California.
                 The Crime Laboratory Review Task Force was 
               established by the Department of Justice and made 
               recommendations to the Department of Finance and the 
               Legislature regarding the role a statewide oversight 
               body would play in California. The task force did not, 
               however, make a recommendation regarding the 
               composition of that oversight body.

                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 




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          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  
            
          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.


                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

              Criminal laboratories play an integral role in the 
              criminal justice system, however cases of serious 
              misconduct, neglect, and poor practices cast doubt and 
              mistrust in criminal cases and the justice system.  AB 
              239 seeks to address the critical need of statewide 
              crime laboratory oversight in California to ensure that 
              all criminal cases are handled fairly and appropriately. 


              In 2010, San Francisco's criminal laboratory was hit 
              with a scandal involving stolen drug evidence, 
              contaminated DNA samples, destroyed records, and sample 
              switching.  This scandal alone prompted hundreds of 
              narcotics cases to be thrown out or not charged because 
              of possible evidence tampering, and the review of over 




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              1,400 more for possible dismissal.

              While the charges of misconduct are shocking, they are 
              not unique to San Francisco. In recent years, 
              laboratories in Santa Clara and the Central Valley have 
              had similar problems of stolen drug evidence, and 
              misconduct.  These cases raise serious red flags about 
              the management, and integrity of criminal laboratories, 
              which not only affects public perception of the criminal 
              justice system, but also the numerous people who 
              potentially might be wrongfully convicted due to serious 
              neglect. 

              AB 239 seeks to not only improve California's criminal 
              justice system through an increased dialogue, but also 
              garner public trust.  By reinstating the Crime 
              Laboratory Review Task Force, experts from the criminal 
              justice, forensics, and law enforcement fields will have 
              a voice in reviewing and making recommendations as to 
              how to improve state and local crime laboratory services 
              through the creation of a supplemental report that 
              includes a proposal to establish a statewide body to 
              oversee crime laboratories.

              Specifically, AB 239 provides the California Crime 
              Laboratory Review Task Force be reconvened for the sole 
              purpose of making recommendations by July 1, 2013, on 
              how to best configure a state-wide oversight body whose 
              responsibilities will include but not be limited to (1) 
              implementing federal legislation and/or guidelines 
              imposed directly on crime labs or indirectly as a 
              requirement of accepting a grant; (2) oversee 
              investigations into acts of misconduct or negligence; 
              (3) collect data generated by investigations in order to 
              determine root causes of misconduct or negligence; (4) 
              identify systemic failures and make recommendations for 
              preventing future problems (5) study means to facilitate 
              communication between labs and stakeholders and draft 
              guidelines for disclosure and discovery of crime lab 




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              documents; and (6) make recommendations to the State 
              Legislature and local governments regarding the 
              allocation of resources to crime laboratories throughout 
              the state to ensure that taxpayers' funds are not wasted 
              and are distributed in a more equitable manner.

              In a 2007 bi-partisan effort, the Legislature created 
              the California Crime Laboratory Review Task Force to 
              review and make recommendations as to how to improve the 
              delivery of state and local crime laboratory services 
              for the future.  (Pen. Code
               1106(c).)  In November 2009, the Task Force issued an 
              initial report that called for the creation of a state 
              oversight or advisory body to review forensic science 
              and crime laboratory issues, and that the specifics of 
              this proposal, including the composition and functions 
              of this body, would be described in a supplemental 
              report published in one year of the initial report.  
              Despite the growing problems in San Francisco, Santa 
              Clara and San Joaquin Counties' crime labs, the Task 
              Force voted to terminate itself.  Consequently, a follow 
              up report was never produced.  

              According to the Task Force's initial report, states 
              across the nation, as many as 16 such as New York, 
              Texas, Washington State, have created an entity charged 
              with some degree of oversight responsibility over crime 
              laboratories.  While the scope of these entities ranges 
              from make up to the purpose, they all are concerned 
              about the challenges facing crime laboratories, and 
              believe that crime laboratory oversight is essential in 
              creating high quality forensics testing and a just 
              criminal justice system. California must follow in suit.

          2.    Background  

          AB 1079 (Richardson), Chapter 405, Statutes of 2007, established 
          the California Crime Laboratory Review Task Force to review and 
          make recommendations on how to improve the delivery of state and 




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          local crime laboratory services in California.  After issuing a 
          report, the Task Force disbanded before making recommendations 
          on an ongoing oversight body:

               O]n June 3, 2010, a seemingly inexplicable thing 
               happened.  In the midst of the scandal in San 
               Francisco that illustrates the importance of its work, 
               certain members of the task force suddenly voted to 
               disband.  This is particularly surprising given that 
               the task force itself, in a report issued only last 
               November, called for the creation of a state oversight 
               or advisory body to review forensic science issues and 
               was authorized to continue deliberations up to one 
               year (commencing in February 2010) regarding what type 
               of advisory body would best meet the state's needs.  
               Having neither completed this review nor issued any 
               recommendations, the task force, by a majority vote, 
               effectively terminated itself.

               The demise of the task force comes just over a year 
               after the National Academy of Sciences (NAS) panel 
               issued a scathing report for the overhaul of forensic 
               science in the United States.  The NAS report found 
               that the entire disciplines of forensic sciences rest 
               on deficient scientific foundations; that procedures 
               routinely used for interpretation are lacking in 
               rigor; that analysts routinely take inadequate 
               measures to avoid error and bias; and that testimony 
               is offered with unwarranted certainty.  The NAS report 
               found that these problems are systemic-rooted in the 
               institutional structure of forensic science-and 
               therefore called for sweeping changes in how forensic 
               science is administered.  The NAS report cited growing 
               evidence that forensic science has contributed to 
               wrongful arrests and convictions. There is no question 
               that crime laboratories in California routinely engage 
               in the very practices that NAS has challenged and that 
               forensic scientists in California routinely testify in 
               ways that NAS has condemned.  As California's crime 




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               labs struggle to address these longstanding problems, 
               the need for advice and guidance is palpable.  
               (Thompson, William and Friedman, Jennifer, "Statewide 
               Oversight of Forensic Science Needed in California" 
               Daily Journal, Perspective June 22, 2010.)

          The need for continued oversight and the ability to address 
          continued problems by an oversight body or some other group that 
          is made up of a balanced representation of scientists, lawyers, 
          law enforcement and forensic science administrators was also 
          expressed in a letter by four of the members of the Crime 
          Laboratory Review Task Force, who did not vote to disband the 
          Task Force, as well as by a letter from the Attorney General 
          representative to the Task Force. 





























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          3.            Report by the California Commission on the Fair 
          Administration of Justice  

          The California Commission on the Fair Administration of Justice 
          was established by California State Senate Resolution No. 44, 
          "to study and review the administration of criminal justice in 
          California, determine the extent to which that process has 
          failed in the past, examine safeguards and improvements, and 
          recommend proposals to further ensure that the administration of 
          criminal justice in California is fair, just, and accurate." 

          In a February 20, 2007, report the Commission made a number of 
          recommendations to address the problem of DNA testing backlogs, 
          as well as other problems in California.  These included:

                 The DOJ should immediately ascertain the staffing 
               levels required for the State Laboratory to reduce the 
               backlog in DNA profiles to 30 days or less both now and 
               when the future demands of Proposition 69 take effect.
                 Emergency budget appropriations should be 
               immediately introduced to provide state funding to 
               staff the State Laboratory at the levels ascertained 
               pursuant to the first recommendation.  
                 The California Attorney General should immediately 
               commence consultation with state and local public 
               laboratories, criminalists, law enforcement, 
               prosecutor's offices, public defenders and private 
               defense lawyers, victim representatives and judges to 
               address the problems of DNA forensic technology 
               resources in California.  The following concerns should 
               be urgently addressed:
                  o         Identify the nature and scope of current 
                    capacity problems, backlogs of unprocessed 
                    evidence and systems issues that impede 
                    utilization of DNA forensic technology to its 
                    fullest potential;
                  o         Identify the best practices that enhance 
                    collection and timely processing of DNA evidence 
                    to meet the needs of the criminal justice system;




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                  o         Make recommendations for eliminating the 
                    current backlogs and preventing future backlogs of 
                    unprocessed evidence in state and local public 
                    laboratories;
                  o         Evaluate the efficiency and effectiveness 
                    of the current organization of resources in the 
                    State of California, to determine what strategies 
                    and systems will most effectively serve the needs 
                    of California;
                  o         Recommend strategies for training and 
                    educational programs to address the shortages of 
                    trained personnel to meet the staffing needs of 
                    crime labs;
                  o         Assess the impact of 'cold hits' upon 
                    local investigative, prosecution and defense 
                    resources; and,
                  o         Report to the Legislature and the Governor 
                    regarding the legislative or administrative steps 
                    that must be taken to ensure timely processing of 
                    evidence in California's criminal justice system.
                 The Legislature and the Governor should provide 
               adequate support to quickly respond to the needs 
               identified by the Attorney General.  
               (http://www.ccfaj.org/documents/reports/problems/officia
               l/Report%20on%20DNA%20Backlogs.pdf)

          4.    Further Statewide Oversight  

          This bill reconvenes the Criminal Laboratory Review Task Force 
          so that the Task Force can create a supplemental report to make 
          recommendations regarding the composition of a statewide 
          oversight body to oversee crime labs and perform specified tasks 
          including implementing federal legislation and guidelines in 
          order to be eligible for federal grants; collet data to 
          determine root causes of crimes; identify systemic failures in 
          crime labs in order to make recommendations to fix the problems 
          and make recommendations to legislative bodies regarding the 
          allocation of lab resources.












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          SHOULD THE CRIMINAL LABORATORY REVIEW TASK FORCE BE RECONVENED 
          TO MAKE RECOMMENDATIONS REGARDING AN OVERSIGHT BODY, AS WELL AS 
          OTHER TASKS?

          5.    California Association of Criminalists  

          The California Association of Criminalists recommends that this 
          bill be amended to allow the Task Force "to make recommendations 
          regarding both the functions and composition of a statewide body 
          dealing with forensic issues."   

          6.    Technical Amendment  

          The appointment on page 3, line 4, by the President pro Tempore 
          of the Senate needs to read instead, "The Senate Rules 
          Committee."


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