WEBVTT 2 00:00:04.699 --> 00:00:09.464 GOOD AFTERNOON, YOUR HONORS, AS WE CONTINUE THIS, AND I'LL BE HONEST, I 3 00:00:09.464 --> 00:00:22.021 DON'T HAVE A LOT TO ADD, I THOUGHT, THIS CASE CONCERNS A LEGAL QUESTION ABOUT THE 4 00:00:22.021 --> 00:00:28.110 INTERPRETATION OF A STATUTE OF LIMITATIONS, AND THIS COURT HAS PREVIOUSLY 5 00:00:28.110 --> 00:00:31.722 HELD THAT STATUTES IN THIS CASE EVEN THE EXEMPTION OF A STATUTE ARE SUPPOSED 6 00:00:31.722 --> 00:00:39.207 TO BE READ NARROWLY TO PROTECT DEFENDANTS, AND THIS STATUTE WAS READ VERY BROADLY, 7 00:00:39.207 --> 00:00:43.032 WHICH IS AGAINST THAT HOLDING OF LIMITED EXEMPTIONS TO THE STATUTE, AND 8 00:00:43.032 --> 00:00:46.982 THAT'S REALLY ALL I KIND OF WANTED TO REITERATE AND WHAT WE BELIEVE THIS COURT 9 00:00:46.982 --> 00:00:53.004 SHOULD FOCUS ON, BUT IF YOU HAVE ANY QUESTIONS, I'M HAPPY TO DRAESZ 10 00:00:53.004 --> 00:00:55.211 ANYTHING ELSE. CHIEF JUSTICE RABNER: THANK YOU COUNSEL, MISS 11 00:00:55.211 --> 00:01:03.363 BONIFIGLIO. MS. BONIFIGLIO: THANK YOU YOUR HONORS AND MAY 12 00:01:03.363 --> 00:01:08.730 IT PLEASE THE COURT, IN CREATING THE DNA TOLLING PROVISION THE LEGISLATURE COULD HAVE 13 00:01:08.730 --> 00:01:13.198 EASILY SAID FOR EXAMPLE THE TIME STARTS WHEN THE STATE POSSESSES TWO THINGS, 14 00:01:13.198 --> 00:01:21.327 THE PHYSICAL EVIDENCE AND THE ACTOR'S DNA SAMPLE, INSTEAD IT INCLUDED VERY SPECIFIC 15 00:01:21.327 --> 00:01:25.289 LANGUAGE, EVIDENCE NECESSARY TO ESTABLISH THE IDENTITY OF THE ACTOR BY MEANS 16 00:01:25.289 --> 00:01:29.017 OF COMPARISON TO THE PHYSICAL EVIDENCE. OUR ARGUMENT IS THAT THOSE ARE THE WORDS 17 00:01:29.017 --> 00:01:33.548 THE LEGISLATURE CHOSE AND THEY MEAN WHAT THEY SAY. NOW BEFORE THE ACTUAL 18 00:01:33.548 --> 00:01:38.171 MATCH IS MADE BETWEEN THE SUSPECT AND THE PHYSICAL EVIDENCE THE STATE ONLY HAD 19 00:01:38.171 --> 00:01:46.055 A POSSIBLE INVESTIGATIVE LEAD UNCONFIRMED BY A SAMPLE TAKEN FROM THE NEWLY 20 00:01:46.055 --> 00:01:50.045 IDENTIFIED SUSPECT BE AND THEREFOR THEY WERE NOT IN POSSESSION OF THE EVIDENCE 21 00:01:50.045 --> 00:01:54.954 TO ESTABLISH THE IDENTITY OF THE ACTOR. NOW MR. KIRSCH STOOD HERE AND 22 00:01:54.954 --> 00:01:58.738 REPEATEDLY SAID THEY MESSED UP AND IT WAS THEIR MISUNDERSTANDING BUT THAT IS NOT 23 00:01:58.738 --> 00:02:03.485 TRUE. AT THE TIME THE SAMPLE WAS ENTERED IN 2002, WHEN THIS PARTICULAR SCIENCE 24 00:02:03.485 --> 00:02:08.964 WAS STILL IN ITS INFANCY, OATH 5 LOCI WERE ENTERED. PER THE LAB'S INTERPRETATION 25 00:02:08.964 --> 00:02:18.553 GUIDELINES, 100 R F U WAS THE PEEK HEIGHT IN A DNA PROFILE THAT COULD BE CONSIDERED 26 00:02:18.553 --> 00:02:23.680 CONCLUSIVE FOR MATCH PURPOSES. ANYTHING BELOW THAT WAS CONSIDERED INCONCLUSIVE 27 00:02:23.680 --> 00:02:30.970 AND DID NOT GET REPORTED ON THE DNA LAB AND WAS NOT INCLUDED ON THE CODIS ENTRY. 28 00:02:30.970 --> 00:02:35.473 IN FACT BACK THEN THE ANALYSTS DIDN'T EVEN KNOW THAT THAT INFORMATION COULD BE 29 00:02:35.473 --> 00:02:41.295 INCLUDED AND EVEN IF IT COULD, THEY FEARED IT WOULD BE VIOLATING POLICY. I WANT 30 00:02:41.295 --> 00:02:48.208 TO GIVE NECESSARY CONTEXT ON END DID I SAY, IN ORDER TO MAINTAIN ITS ACCESS 31 00:02:48.208 --> 00:02:56.750 TO CODIS, THE LAB IS REQUIRED TO COMPLY WITH ALL ENTSDZ PROCEDURES AND STATE LAWS, THESE 32 00:02:56.750 --> 00:03:03.867 LAWS ARE STRICT, THEY DEAL WITH PRIVACY REQUIREMENTS AND THESE RESTRICTIONS, 33 00:03:03.867 --> 00:03:08.010 THESE REQUIREMENTS RESTRICT INTRUSIONS ON INDIVIDUALS. NOW, 34 00:03:08.010 --> 00:03:16.438 THE PORTION OF THE 2010 HE KNOW DID I SAY MANUAL THE DEFENDANT IS FOCUSING ON AS 35 00:03:16.438 --> 00:03:23.826 ALTERNATIVE ARGUMENT IS VERY IMPORTANT, I INCLUDED IT IN MY APPENDIX AND 36 00:03:23.826 --> 00:03:30.809 IT'S IN THE RECORD, THIS IS THE LANGUAGE OF THE ACTUAL N DIS MANUAL, IT'S SECTION 37 00:03:30.809 --> 00:03:35.733 4.2.1.1, IT SAYS IN ACCORDANCE WITH THE VALIDATION STUDIES PERFORMED BY AND 38 00:03:35.733 --> 00:03:42.983 THE STANDARD OPERATING PROCEDURES OF THE N DIS PARTICIPATORY LABORATORY, ANY DATA 39 00:03:42.983 --> 00:03:49.467 USED TO MAKE AN EXCLUSION CAN BE INCLUDED IN THE DNA RECORD SUBMITTED TO N 40 00:03:49.467 --> 00:03:55.271 DIS, AND THAT LANGUAGE HAS NOT CHANGED EVEN UP TO TODAY, AND WHAT IT MEANS IS THE 41 00:03:55.271 --> 00:04:00.113 EXCLUSIONARY INFORMATION CAN BE ADDED, IT'S NOT REQUIRED TO BE AND IT'S UP TO THE 42 00:04:00.113 --> 00:04:04.936 LAB AND THEIR STANDARD OPERATING PROCEDURES TO DO SO. NOW THE LAB'S 43 00:04:04.936 --> 00:04:08.638 CHIEF CONCERN THEN AND NOW IS THE INTEGRITY OF THE LAB, THEY ARE SCIENTISTS, THEY ARE 44 00:04:08.638 --> 00:04:12.131 NOT PROSECUTORS, THEY HAVE NO STAKE IN THE GAME, THEIR PROCESSES AND PROCEDURES 45 00:04:12.131 --> 00:04:17.752 ARE NOT DICTATED BY THE STATE POLICE OR ANY COUNTY PROSECUTOR. IN FACT THE COUNTY 46 00:04:17.752 --> 00:04:23.773 PROSECUTOR HAS NO CONTROL OVER THE STATE POLICE LAB. THE LAB IS ONLY CONCERNED 47 00:04:23.773 --> 00:04:30.652 WITH PROCESSING DATA AND REACHING ACCURATE CONCLUSIONS AND THE WAY THEY DO THAT 48 00:04:30.652 --> 00:04:34.510 AND MY UNDERSTANDING OF THAT IS THEY TAKE A CONSERVATIVE APPROACH, BECAUSE OF 49 00:04:34.510 --> 00:04:39.384 ALL THESE REGULATIONS THAT THEY HAVE TO FOLLOW IN ORDER TO EVEN MAINTAIN ACCESS 50 00:04:39.384 --> 00:04:44.126 TO CODIS AND ITS ACCREDITATION, THEY TAKE A CONSERVATIVE APPROACH WITH ALL 51 00:04:44.126 --> 00:04:47.156 OF THESE THINGS, IF THERE'S A QUESTION ON WHETHER SOMETHING SHOULD BE INCLUDED 52 00:04:47.156 --> 00:04:51.482 OR NOT THEY'RE NOT GOING TO INCLUDE IT BECAUSE THEY HAVE -- VERY CERTAIN 53 00:04:51.482 --> 00:04:56.040 THINGS EITHER CAN OR CANNOT BE INCLUDED IN CODIS AND THEY'RE VERY CAREFUL WITH WHAT 54 00:04:56.040 --> 00:05:00.447 THEY INCLUDE AND WHAT THEY DON'T, THERE WAS NO DELIBERATE DELAY IN TESTING 55 00:05:00.447 --> 00:05:08.118 HERE AND THEY CERTAINLY DIDN'T SIT ON THEIR HANDS OR CHOOSE NOT TO TEST THE SAMPLES, 56 00:05:08.118 --> 00:05:17.144 THE STATE URGES THE COURT TO FIND AS IT WAS FOUND BELOW THAT BEHAVED ON THE 57 00:05:17.144 --> 00:05:21.885 PLAIN LANGUAGE OF THE STATUTE, THE TIME WAS TOLLED UNTIL THERE WAS A MATCH. 58 00:05:21.885 --> 00:05:25.818 CHIEF JUSTICE RABNER: HAVE YOU REPEATED YOUR OPENING STATEMENT. 59 00:05:25.818 --> 00:05:27.835 MS. BONIFIGLIO: YES, YOUR HONOR. CHIEF JUSTICE RABNER: SO YOU'RE 60 00:05:27.835 --> 00:05:33.362 SAYING THAT THE CLOCK DOESN'T TOLL UNTIL YOU HAVE THE PHYSICAL EVIDENCE 61 00:05:33.362 --> 00:05:38.368 AND THE MATCH. THAT'S THE ESSENCE OF YOUR ARGUMENT. MS. 62 00:05:38.368 --> 00:05:40.110 BONIFIGLIO: YES. THE COURT: CAN YOU HAVE A MATCH WITHOUT THE 63 00:05:40.110 --> 00:05:43.837 PHYSICAL EVIDENCE? NOT A TRICK QUESTION, I THINK THE ANSWER IS OF COURSE NOT. 64 00:05:43.837 --> 00:05:45.641 MS. BONIFIGLIO: I DON'T KNOW, I DON'T THINK YOU CAN, I THINK 65 00:05:45.641 --> 00:05:49.240 YOU -- IN ORDER TO GET THE MATCH YOU NEED THE PHYSICAL EVIDENCE. 66 00:05:49.240 --> 00:05:52.461 CHIEF JUSTICE RABNER: SO LET'S TAKE YOUR READING OF THE STAGE AND LOOK AT THE WORDS 67 00:05:52.461 --> 00:05:57.405 THEN. HOW COULD THE LEGISLATURE HAVE MEANT WHAT YOU'RE SUGGESTING IF YOU 68 00:05:57.405 --> 00:06:06.988 SIMPLY SUBSTITUTE MATCH FOR THE PHRASE ABOUT DNA IT WOULD SAY THE COURT CLERK DOES 69 00:06:06.988 --> 00:06:11.117 NOT START UNTIL THE STATE IS IN POSSESSION OF BOTH THE PHYSICAL EVIDENCE AND THE 70 00:06:11.117 --> 00:06:15.021 MATCH. DOES THAT MAKE ANY SENSE? MS. BONIFIGLIO: SO I MEAN THE 71 00:06:15.021 --> 00:06:18.337 LEGISLATURE COULD HAVE SAID THAT BUT I THINK THE REASON THAT THE LEGISLATURE 72 00:06:18.337 --> 00:06:24.128 CHOSE SUCH SPECIFIC WORDS IS TO ACCOUNT FOR THESE -- FOR THE SCIENCE AND THE FACT 73 00:06:24.128 --> 00:06:26.862 THAT SCIENCE CHANGES AND OUR UNDERSTANDING MIGHT CHANGE. CHIEF 74 00:06:26.862 --> 00:06:32.051 JUSTICE RABNER: BUT YOUR READING OF THE PLAIN LANGUAGE REPRESENTS SUPERFLUOUS THE 75 00:06:32.051 --> 00:06:36.230 REFERENCE TO THE PHYSICAL EVIDENCE, AND THAT'S NOT THE RIGHT WAY TO READ 76 00:06:36.230 --> 00:06:39.275 A STATUTE. AGREED? MS. BONIFIGLIO: THAT'S NOT THE RIGHT WAY TO 77 00:06:39.275 --> 00:06:42.385 READ THE STATUTE BUT I DON'T THINK THAT'S WHAT OUR READING DOES, I THINK 78 00:06:42.385 --> 00:06:45.781 THE WHOLE STATUTE NEEDS TO BE RED TOGETHER AND IN RELATION TO THE STATUTE OF 79 00:06:45.781 --> 00:06:50.174 LIMITATIONS, OTHER PARTS OF THE STATUTE, AND WHAT IT SAYS IS WHAT IT IDENTIFIES 80 00:06:50.174 --> 00:06:56.119 THE ACTOR, AND THIS COURT SAID IN TWIGGS, IDENTIFICATION MEANS TO ESTABLISH THE 81 00:06:56.119 --> 00:07:01.532 IDENTITY OF. SO WHEN IT ESTABLISHES THE ACTOR, WE NEED THE WHOLE SENTENCE 82 00:07:01.532 --> 00:07:06.272 AND IT SAYS BY MEANS OF COMPARISON TO THE PHYSICAL EVIDENCE. 83 00:07:06.272 --> 00:07:10.216 CHIEF JUSTICE RABNER: IT SAYS NECESSARY TO ESTABLISH, IT DOESN'T SAY ACTUALLY ESTABLISH, 84 00:07:10.216 --> 00:07:19.388 RIGHT? NEED BOTH FORMS OF EVIDENCE, THE SECOND THE DNA EVIDENCE IS NEEDED 85 00:07:19.388 --> 00:07:25.117 TO ESTABLISH BY MEANS OF COMPARISON. MS. BONIFIGLIO: YES. SO -- 86 00:07:25.117 --> 00:07:29.341 BUT IF WE WERE TO LOOK AT DEFENDANT'S INTERPRETATION THE PLAIN MEANING HE 87 00:07:29.341 --> 00:07:34.061 SAYS IT JUST MEANS TWO THINGS, THE SAMPLE AND THE PHYSICAL EVIDENCE, BUT THAT'S 88 00:07:34.061 --> 00:07:42.562 NOT WHAT THE LEGISLATURE SAID, IF WE LOOK AT THE COMMITTEE REFERENCE, THE 89 00:07:42.562 --> 00:07:48.524 LEGISLATURE SPECIFICALLY REFERENCED THE BACK LOGS AND IT MENTIONED THAT THE LAW 90 00:07:48.524 --> 00:07:54.242 HAS SIGNIFICANTLY INCREASED THE SAMPLES TO BE COLLECTED AND THAT THIS IS I KNOW 91 00:07:54.242 --> 00:08:00.334 UNDATING THE LABS AND CAUSING SIGNIFICANT BACK LOGS. IN THOSE CASES THE 92 00:08:00.334 --> 00:08:04.028 STATE WOULD NOT BE BARRED FROM PROSECUTION. BUT IN THOSE CASES UNDER DEFENDANT'S 93 00:08:04.028 --> 00:08:09.587 INTERPRETATION THE STATE HAD BOTH SAMPLES. SO THAT ALONE RENDERS DEFENDANT'S 94 00:08:09.587 --> 00:08:15.623 INTERPRETATION WRONG AND THE OTHER PARTS OF THE LEGISLATIVE HISTORY THEY MENTION 95 00:08:15.623 --> 00:08:20.653 A SUSPECT. WELL UNTIL WE HAVE THE CODIS HIT THERE IS NO SUSPECT. 96 00:08:20.653 --> 00:08:24.459 CHIEF JUSTICE RABNER: TAKE A SITUATION WHERE YOU HAVE EVIDENCE, YOU HAVE PHYSICAL 97 00:08:24.459 --> 00:08:29.599 EVIDENCE, A SAMPLE FROM THE VICTIM OR FROM THE CRIME SCENE, AND THE STATE 98 00:08:29.599 --> 00:08:35.223 HAS OBTAINED A SWAB FROM THE SUSPECT. THE CLOCK IS NOT RUNNING AT THIS POINT ACCORDING 99 00:08:35.223 --> 00:08:38.130 TO YOUR CALCULATION. IS THAT RIGHT? MS. BONIFIGLIO: THAT'S 100 00:08:38.130 --> 00:08:41.861 OUR PRIMARY ARGUMENT, THAT THE EVIDENCE NECESSARY TO ESTABLISH THE 101 00:08:41.861 --> 00:08:46.349 IDENTIFICATION IS THE ACTUAL MATCH. HOWEVER, OUR. CHIEF JUSTICE RABNER: 102 00:08:46.349 --> 00:08:50.353 SO COULD THE STATE UNDER THOSE CIRCUMSTANCES SIMPLY CHOOSE, AND LET'S 103 00:08:50.353 --> 00:08:55.916 ASSUME FOR GOOD FAITH REASONS, THEY WAFRNLT WANTED TO HAVE MORE TIME TO INVESTIGATE A 104 00:08:55.916 --> 00:09:00.478 COMPLICATED MAT, COULD THEY CHOOSE NOT TO SEND THE MATERIAL TO THE LAB FOR A 105 00:09:00.478 --> 00:09:04.615 YEAR OR MORE AND EXTENDS THE STATUTE OF LIMITATIONS BAY DOING SO? 106 00:09:04.615 --> 00:09:07.574 MS. BONIFIGLIO: IF THERE WAS A VALID REASON FOR THEM TO DO IT, FOR 107 00:09:07.574 --> 00:09:11.147 INVESTIGATIVE PURPOSES, I DON'T SEE WHY THEY COULDN'T, BUT THE OTHER THING I WANT 108 00:09:11.147 --> 00:09:14.833 TO KNOW IS -- CHIEF JUSTICE RABNER: THE REASON 109 00:09:14.833 --> 00:09:17.190 POTENTIALLY MIGHT BE THAT YOU HAVE A FIVE YEAR STATUTE OF LIMITATIONS AND YOU'VE 110 00:09:17.190 --> 00:09:23.353 JUST EXTENDED IT TO 7 YEARS THROUGH YOUR CHOICE. IS THAT NOT A CONCERN. 111 00:09:23.353 --> 00:09:26.015 MS. BONIFIGLIO: IF THE COURT IS CONCERNED WITH THAT SITUATION, WELL THEN 112 00:09:26.015 --> 00:09:30.075 UNDER A REASONABLE INTERPRETATION OF THE STATUTE YOU COULD SAY THAT THE CLOCK 113 00:09:30.075 --> 00:09:37.510 STARTS WHEN WE OBTAIN THE BUICK KAL SAMPLE AND THERE WOULD ALLEVIATE ANY POSSIBLE 114 00:09:37.510 --> 00:09:43.444 CONCERNS THAT WE WOULD SIT ON OUR HANDS AND LET A KNOWN RAPE PIVOT AND 115 00:09:43.444 --> 00:09:48.796 VIOLATED HOME INVADER -- PUTTING ASIDE THE STATUTE OF LIMITATIONS, THE DEFENDANT 116 00:09:48.796 --> 00:09:54.673 HAVE PLENTY OF POKESES, EVEN IF THERE WAS IS A DELIBERATE DELAY TO GAIN AED A VANTAGE 117 00:09:54.673 --> 00:10:00.644 AND THE DEFENDANT WAS PREJUDICED, THEY HAVE A DUE PROCESS RIGHT, SO EVEN 118 00:10:00.644 --> 00:10:05.528 IF THE STATUTE OF LIMITATIONS IS VIOLATED THEY COULD CLAIM THEIR DUE PROCESS RIGHTS. 119 00:10:05.528 --> 00:10:10.103 CHIEF JUSTICE RABNER: DIDN'T THE STATE OBTAIN A BUCCAL SAMPLE 120 00:10:10.103 --> 00:10:15.325 IN 2004. MS. BONIFIGLIO: IT WAS A BUCCAL SAMPLE ON A HE'LL 121 00:10:15.325 --> 00:10:19.460 OF UNRELATED MATTER, IT WASN'T ENTERED UNTIL 2006. CHIEF JUSTICE 122 00:10:19.460 --> 00:10:29.375 RABNER: I WAS FOLLOWING UP ON YOUR EARLIER DISCUSSION WHEN YOU SAID ONCE A BUCCAL 123 00:10:29.375 --> 00:10:34.538 SAMPLE IS -- MS. BONIFIGLIO: I DIDN'T MEAN THAT ONE, I 124 00:10:34.538 --> 00:10:38.708 MEANT FOLLOWING UP, OUR AT TESTIFY ARGUMENT IS THAT THE COURT COULD HOLD THE STATUTE 125 00:10:38.708 --> 00:10:44.343 RUNS AT THE TIME WHEN WE OBTAIN THE CONFIRMATORY BUCCAL SAMPLE FROM THE SUSPECT. 126 00:10:44.343 --> 00:10:48.121 JUSTICE ALBIN: I'M TRYING TO UNDERSTAND YOUR -- I THINK I 127 00:10:48.121 --> 00:10:55.579 UNDERSTAND YOUR ARGUMENT. SO IF THERE IS A DNA SAMPLE FROM THE CRIME SCENE, AND 128 00:10:55.579 --> 00:11:03.254 DNA SAMPLE OF THE SUSPECT, AND THERE IS A CODIS HILT, AND YOU KNOW THERE'S 129 00:11:03.254 --> 00:11:18.161 A CODIS HIT, BUT FOR SOME REASON, SOME LACKADAISICAL TECHNICIAN DECIDES NOT TO 130 00:11:18.161 --> 00:11:22.224 TRANSFER THAT INFORMATION AROUND FOR 6 YEARS YOU'RE SAYING IT DOESN'T MAKE 131 00:11:22.224 --> 00:11:27.164 A DIFFERENCE BECAUSE WE DIDN'T GET THE CONFIRMATORY SAMPLE. CORRECT? 132 00:11:27.164 --> 00:11:30.860 MS. BONIFIGLIO: NOT NECESSARILY, BECAUSE EVEN THE LAB, N DIS REQUIRES 133 00:11:30.860 --> 00:11:38.123 THAT THEY HAVE CERTAIN TIMEFRAMES, THEY HAVE TO MAKE GOOD FAITH EFFORTS -- 134 00:11:38.123 --> 00:11:40.565 JUSTICE ALBIN: I'M TALKING ABOUT THE PURPOSES OF THE STATUTE, YOUR 135 00:11:40.565 --> 00:11:45.631 INTERPRETATION OF THE STATUTE IS THAT IT DOESN'T MAKE A DIFFERENCE BE IF 136 00:11:45.631 --> 00:11:50.199 THERE'S A CODIS HIT, NOTHING STARTS RUNNING UNTIL WE GET -- WE DO A CONFIRMATORY 137 00:11:50.199 --> 00:11:58.968 SAMPLE AND IF WE DON'T GO FOR A CONFIRMATORY SAMPLE, THEN THE STATUTE DOESN'T 138 00:11:58.968 --> 00:12:01.323 BEGIN TO RUN. CORRECT? MS. BONIFIGLIO: THAT IS GENERALLY 139 00:12:01.323 --> 00:12:05.543 OUR ARGUMENT, HOWEVER, THAT CASE, I MEAN -- JUSTICE ALBIN: 140 00:12:05.543 --> 00:12:09.441 I KNOW YOU DON'T LIKE THE IMPLICATIONS OF IT, BUT THAT'S YOUR ARGUMENT. 141 00:12:09.441 --> 00:12:12.828 MS. BONIFIGLIO: BUT DEFENDANT COULD STILL ARGUE THAT THAT WAS AN UNREASONABLE 142 00:12:12.828 --> 00:12:15.505 DELAY. JUSTICE ALBIN: I'M TALKING ABOUT YOUR INTERPRETATION 143 00:12:15.505 --> 00:12:22.338 OF THE STATUTE, I'M NOT MOVING ON TO WHETHER OR NOT THEY HAVE A DUE PROCESS 144 00:12:22.338 --> 00:12:25.581 ARGUMENT, I UNDERSTAND YOU'RE TRYING TO SAY THEY MAY HAVE SOME OTHER ARGUMENT 145 00:12:25.581 --> 00:12:31.360 TO FORESTALL SOME CRAZY APPLICATION OF THE STATUTE. MS. BONIFIGLIO: 146 00:12:31.360 --> 00:12:34.772 BEING ON, FAIR ENOUGH, UNDER OUR INTERPRETATION OF THE STATUTE, EVIDENCE 147 00:12:34.772 --> 00:12:38.430 NECESSARY TO ESTABLISH THE IDENTIFICATION IS VERY SPECIFIC, AND WHEN THE LAB SENDS 148 00:12:38.430 --> 00:12:42.831 OUT THE HIT NOTIFICATION IT'S VERY SPECIFIC, THIS IS A POSSIBLE 149 00:12:42.831 --> 00:12:49.593 INVESTIGATIVE LEAD, NO CONCLUSION CAN BE DRAWN OF WHETHER THIS PROFILE MATCHES THE 150 00:12:49.593 --> 00:12:54.502 SAMPLE WITHOUT THE CONFIRMATORY BUCCAL SAMPLE. JUSTICE ALBIN: 151 00:12:54.502 --> 00:13:03.089 YOU HEARD YOUR WERE ADVERSARY SAY THAT WHEN THERE IS A COVID -- WHETHER THERE 152 00:13:03.089 --> 00:13:10.144 IS A HIT, WHEN YOU HAVE THE SUSPECT'S SAMPLE AND YOU HAVE THE CRIME SN SAMPLE AND 153 00:13:10.144 --> 00:13:18.240 YOU HAVE AN ACTUAL CODIS HIT, 7, 8, 10 LOCI, HE'S SAYING THAT'S SUFFICIENT 154 00:13:18.240 --> 00:13:21.123 FOR YOU TO PRESENTER THE EVIDENCE BEFORE A GRAND JURY, PROBABLE CAUSE, HEARSAY, 155 00:13:21.123 --> 00:13:25.057 AND GET AN INDICTMENT. ARE YOU DENYING THAT? MS. BONIFIGLIO: 156 00:13:25.057 --> 00:13:31.185 I TOTALLY AGREE AND I APPRECIATE THAT CONCESSION, AND IF THE COURT WERE TO 157 00:13:31.185 --> 00:13:36.256 FIND THAT REASONABLE, WE CERTAINLY -- I'M NOT GOING TO -- 158 00:13:36.256 --> 00:13:39.782 JUSTICE ALBIN: SO IT'S GOOD ENOUGH -- YOU'RE CONCEDING IT'S GOOD ENOUGH TO GET 159 00:13:39.782 --> 00:13:46.571 AN INDICTMENT? EVEN WITHOUT THE CONFIRMATORY SAMPLE, THE CONNECTION 160 00:13:46.571 --> 00:13:53.121 WITH CODIS IS SUFFICIENT FOR YOU TO PRESENTER R PRESENT THE CASE TO THE GRAND JURY 161 00:13:53.121 --> 00:13:56.023 AND GET AN INDICTMENT. YES? MS. BONIFIGLIO: IF HE SAYS IT, I'M 162 00:13:56.023 --> 00:13:59.299 NOT GOING TO AGREE, I DON'T THINK THAT'S BEEN BRIEFED IN THIS CASE, BUT 163 00:13:59.299 --> 00:14:04.893 I WOULD CERTAINLY AGREE THAT THAT WOULD BE PROBABLE CAUSE, AT THAT POINT. 164 00:14:04.893 --> 00:14:07.912 JUSTICE ALBIN: WELL IF IT IS THEN IT'S SUFFICIENT TO GET AN INDICTMENT. 165 00:14:07.912 --> 00:14:10.125 YES. MS. BONIFIGLIO: YES. JUSTICE ALBIN: IT'S 166 00:14:10.125 --> 00:14:14.979 SUFFICIENT TO GET AN INDICTMENT BUT NOT SUFFICIENT TO TRIGGER THE STATUTE OF 167 00:14:14.979 --> 00:14:18.962 LIMITATIONS. ISN'T THAT A LITTLE STRANGE? YOU CAN GET AN INDICTMENT BUT IT WON'T 168 00:14:18.962 --> 00:14:21.895 TRIGGER THE STATUTE OF LIMITATIONS. MS. BONIFIGLIO: SO YOU 169 00:14:21.895 --> 00:14:27.149 JUST MEAN THE CODIS HIT. JUSTICE ALBIN: YEAH, YEAH. 170 00:14:27.149 --> 00:14:29.670 MS. BONIFIGLIO: THAT IS A TOTALLY REASONABLE INTERPRETATION UNDER THE STATUTE, 171 00:14:29.670 --> 00:14:34.479 IF THE COURT IS INCLINED TO AGREE WITH THAT, THEN I UNDERSTAND IT, BUT OUR 172 00:14:34.479 --> 00:14:40.806 ARGUMENT IS THE IDENTITY IS NOT NECESSARILY ESTABLISHED AT THAT POINT, WE STILL 173 00:14:40.806 --> 00:14:45.282 NEED THE CONFIRMATORY BUCCAL SWAB. JUSTICE ALBIN: NOT FOR 174 00:14:45.282 --> 00:14:51.639 A CONVICTION PERHAPS BUT ENOUGH TO GET AN INDICTMENT GOING. RIGHT? 175 00:14:51.639 --> 00:14:53.865 JUSTICE PIERRE-LOUIS: AND DOESN'T THE STATUTE, THE STATUTE TALKS ABOUT THE 176 00:14:53.865 --> 00:14:56.543 COMMENCEMENT OF THE PROSECUTION, THAT'S GETTING AN INDICTMENT. 177 00:14:56.543 --> 00:14:59.806 MS. BONIFIGLIO: RIGHT. JUSTICE PIERRE-LOUIS: SO IF THE CODIS HIT 178 00:14:59.806 --> 00:15:04.598 IS SUFFICIENT TO COMMENCE THE PROSECUTION, AS IT SAYS IN THE STATUTE, HOW 179 00:15:04.598 --> 00:15:10.658 DOES YOUR ARGUMENT THAT THE CONFIRMATORY HIT IS WHAT THE LEGISLATURE INTENDED IN THE 180 00:15:10.658 --> 00:15:14.169 STATUTE. MS. BONIFIGLIO: WELL, OUR ARGUMENT IS THE 181 00:15:14.169 --> 00:15:17.181 NECESSARY TO ESTABLISH IDENTIFICATION. I MIGHT HAVE GOTTEN CONFUSED WITH THE 182 00:15:17.181 --> 00:15:24.542 HYPOTHETICALS, OUR PRIMARY ARGUMENT IS THAT IT IS AT THE SECOND SAMPLE ONCE THERE 183 00:15:24.542 --> 00:15:27.815 IS A -- JUSTICE PIERRE-LOUIS: WHERE DOES IT SAY THAT 184 00:15:27.815 --> 00:15:32.686 IN THE STATUTE? WHERE IN THE STATUTE ARE YOU BASING YOUR ARGUMENT THAT IT WAS 185 00:15:32.686 --> 00:15:38.009 THE LEGISLATURE'S INTENT THAT THE SECONDARY, THE SECOND CONFIRMATORY 186 00:15:38.009 --> 00:15:44.579 SAMPLE IS WHAT SHOULD TRIGGER THE STATUTE OF LIMITATIONS? MS. 187 00:15:44.579 --> 00:15:48.109 BONIFIGLIO: OUR ARGUMENT IS THAT BASED ON THE EXTRA LANGUAGE THAT THEY COULD HAVE 188 00:15:48.109 --> 00:15:53.792 SAID THE ACTOR'S SAMPLE, THEY DIDN'T, THEY SAID A LOT OF EXTRA WORDS THAT ARE 189 00:15:53.792 --> 00:15:56.995 VERY SPECIFIC, AND THEY SAY EVIDENCE NECESSARY TO ESTABLISH THE IDENTIFICATION 190 00:15:56.995 --> 00:16:00.534 OF THE AKD BY MEANS OF COMPARISON TO THE PHYSICAL EVIDENCE, AND THAT IS 191 00:16:00.534 --> 00:16:05.074 OUR POSITION THAT IT TAKES INTO ACCOUNT THE CHANGING SCIENCE, THAT THE SCIENCE 192 00:16:05.074 --> 00:16:09.786 ADVANCES, SO THEY COULD HAVE EASILY SAID THE ACTOR SAMPLE AND THEY DIDN'T, THEY 193 00:16:09.786 --> 00:16:13.227 SAID ALL OF THESE EXTRA WORDS. JUSTICE PIERRE-LOUIS: BUT 194 00:16:13.227 --> 00:16:21.454 THIS ISN'T A CASE THAT SCIENCE HAD ADD ENHANCED TO WHERE SUDDENLY THE DNA 195 00:16:21.454 --> 00:16:25.984 EVIDENCE AND THE PHYSICAL EVIDENCE THERE WAS A HIT, SNTH IT THE CASE THAT THE 196 00:16:25.984 --> 00:16:31.515 EVIDENCE TAKEN AT THE CRIME SCENE WAS SUFFICIENT TO MATCH WITH THE DEFENDANT'S DNA. 197 00:16:31.515 --> 00:16:34.438 MS. BONIFIGLIO: THEY HAD THE EVIDENCE FROM THE CRIME SCENE 198 00:16:34.438 --> 00:16:40.297 AND THE DEFENDANT'S DNA IN 2006 BUT THE SCIENCE DID NOT MATCH UP AT THAT TIME, 199 00:16:40.297 --> 00:16:45.934 AND I NEED TO MAKE CLEAR AT THAT TIME THE DNA SCIENCE WAS IN ITS INFANCY, 200 00:16:45.934 --> 00:16:50.138 THE SCIENCE CHANGES, OUR UNDERSTANDING OF IT IS VERY CLEAR, AND WE MAY KNOW IN 201 00:16:50.138 --> 00:16:54.598 20 YEARS THINGS WE DON'T KNOW NOW, THE SOOEFRNGS IS ALWAYS GOING TO CHANGE AND 202 00:16:54.598 --> 00:16:57.761 WE'RE GOING TO HAVE A BETTER UNDERSTANDING OF IT AND THE TESTIMONY WAS CLEAR 203 00:16:57.761 --> 00:17:01.960 -- JUSTICE PIERRE-LOUIS: SO EVEN IN 2010, EVEN IF YOU MAKE 204 00:17:01.960 --> 00:17:07.063 THE ARGUMENT THAT 2010 SHOULD BE THE TRIGGERING DATE, THE SOERL HAS RUN BY THE 205 00:17:07.063 --> 00:17:09.580 TIME THE INDICTMENT HAPPENS IN THIS CASE. MS. BONIFIGLIO: 206 00:17:09.580 --> 00:17:16.770 NO, BECAUSE THE 2010 LANGUAGE IS FROM THE N DIS PROCEDURES MANUAL, UP UNTIL 207 00:17:16.770 --> 00:17:20.644 TODAY IT STILL SAYS THE SAME THING, IT IS NOT REQUIRED, UP TO THE LAB WITH THEIR 208 00:17:20.644 --> 00:17:25.559 INTERPRETATION POLICIES IT CAN BE INCLUDED, IT WAS ALLOWABLE, AND NOW IT'S BEEN 209 00:17:25.559 --> 00:17:29.448 IN FOR AWHILE, THEY UNDERSTOOD NOW WE CAN INCLUDE THIS INFORMATION, WE'RE 210 00:17:29.448 --> 00:17:36.843 GOING TO INCLUDE IT, BUT THEY HAVE TO BE VERY CAREFUL BECAUSE IF THEY INCLUDE THINGS 211 00:17:36.843 --> 00:17:41.045 THEY'RE NOT SUPPOSED TO THEY COULD LOSE THEIR ACCESS TO CODIS, SO THEY HAVE 212 00:17:41.045 --> 00:17:45.650 TO TAKE A CONSERVATIVE APPROACH, THEY HAVE TO ERR ON THE SIDE OF CAUTION WHICH 213 00:17:45.650 --> 00:17:49.596 PROTECTS THE DEFENDANTS. CHIEF JUSTICE RABNER: I WANT TO 214 00:17:49.596 --> 00:17:54.573 COME BACK TO YOUR READ OF THE STATUTE, YOUR PRIMARY ARGUMENT I THOUGHT WAS 215 00:17:54.573 --> 00:17:58.328 THAT IT MEANT THE ACTUAL MATCH ITSELF. MS. BONIFIGLIO: IT IS. 216 00:17:58.328 --> 00:18:02.656 CHIEF JUSTICE RABNER: AND THAT THE PLAIN LANGUAGE CLEARLY TELLS US THAT'S 217 00:18:02.656 --> 00:18:08.498 WHAT IT MEANS, AND YET YOU'RE ALSO ARGUING THAT THE PLAIN LANGUAGE TELLS US THAT 218 00:18:08.498 --> 00:18:14.051 IT MEANS CONFIRMATORY SWAB, WHICH IS VERY DIFFERENT. NO? MS. 219 00:18:14.051 --> 00:18:18.820 BONIFIGLIO: IT COULD BE DIFFERENT, BUT I MEAN DEFENDANT HAS ALTERNATIVE ARGUMENTS 220 00:18:18.820 --> 00:18:25.971 TOO BASED ON THE PLAIN LANGUAGE BECAUSE THE PLAIN LANGUAGE MAYBE COULD BE 221 00:18:25.971 --> 00:18:30.373 UP TO INTERPRETATION, BUT YOU LOOK AT THE LEGIS LAIF HISTORY. CHIEF 222 00:18:30.373 --> 00:18:34.566 JUSTICE RABNER: AND WHAT DOES THAT TELL US ABOUT CONFIRM TOWER SWABS. 223 00:18:34.566 --> 00:18:38.472 MS. BONIFIGLIO: IT DOESN'T MENTION CONFIRMATORY SWABS BUT IT DOES SAY EVIDENCE 224 00:18:38.472 --> 00:18:43.315 TAKEN FROM THE SUSPECT, AND THAT MEANS HE HAS TO BE A SUSPECT AND UNTIL 225 00:18:43.315 --> 00:18:48.560 WE HAD THE CODIS HIT HE'S NOT A SUSPECT. CHIEF JUSTICE RABNER: 226 00:18:48.560 --> 00:18:53.415 YOU TOOK EVIDENCE FROM THIS SUSPECT OR YOU CAN CORRECT THAT TERM IN 2004. 227 00:18:53.415 --> 00:18:57.421 MS. BONIFIGLIO: HE WAS NOT A SUSPECT AT THAT TIME, THAT WAS AN UNRELATED 228 00:18:57.421 --> 00:19:02.808 MATTER, HE COMMITTED SOME OTHER CRIME AND WAS THEREFORE ELIGIBLE FOR THAT AND 229 00:19:02.808 --> 00:19:06.403 THEN IT WAS UPLOADED A FEW YEARS LATER. CHIEF JUSTICE RABNER: 230 00:19:06.403 --> 00:19:11.945 WHY DOES THE PERSON HAVE TO BE A SUSPECTS IN ORDER TO ESTABLISH IDENTIFICATION 231 00:19:11.945 --> 00:19:15.599 AS THE ACTOR. MS. BONIFIGLIO: WELL THE LEGISLATIVE 232 00:19:15.599 --> 00:19:20.089 HISTORY SPEAKS OF TAKEN FROM A SUSPECT SO THAT'S WHY I SAID THAT BUT BASED ON THE 233 00:19:20.089 --> 00:19:23.581 PLAIN LANGUAGE OF THE STATUTE IT SAYS NECESSARY TO ESTABLISH THE IDENTIFICATION 234 00:19:23.581 --> 00:19:31.604 AND BOTH ENDZ AND OUR COURTS REQUIRE THAT THE BUCCAL SWAB BE TAKEN BECAUSE 235 00:19:31.604 --> 00:19:36.435 UP UNTIL THEN IT'S JUST AN INVESTIGATORY LEAD AND NO CONCLUSION COULD BE MADE WHETHER 236 00:19:36.435 --> 00:19:40.631 THIS PERSON MATCHES THE DNA PROFILE. JUSTICE ALBIN: DO YOU KNOW 237 00:19:40.631 --> 00:19:49.783 OF A SINGLE INSTANCE WHERE A MATCH WITH CODIS WAS CONTRADICTED BY A SAMPLE 238 00:19:49.783 --> 00:19:56.555 TAKEN FROM THE ACTUAL VICTIM AND DNA PROFILE. MS. BONIFIGLIO: I 239 00:19:56.555 --> 00:20:01.624 PERSONALLY DO NOT KNOW OF A CASE. JUSTICE ALBIN: OKAY. THE 240 00:20:01.624 --> 00:20:07.371 REASON WRY I ASK THAT QUESTION IS CAN WE ASSUME THAT THE STUFF THAT'S IN CODIS 241 00:20:07.371 --> 00:20:10.584 IS RELIABLE AND I THINK THE ANSWER IS YES. MS. BONIFIGLIO: THAT WOULD 242 00:20:10.584 --> 00:20:14.862 BE FAIR, I MEAN WE COULD CERTAINLY -- AND THIS IS WHAT IT COMES DOWN TO AGAIN 243 00:20:14.862 --> 00:20:19.235 IS THE LAB IS VERY CAREFUL IN WHAT THEY INCLUDE AND WHAT THEY ADOPT AND THEY'RE 244 00:20:19.235 --> 00:20:23.919 ALWAYS DOUBLE CHECKING. JUSTICE ALBIN: WHEN DID THE NEW JERSEY 245 00:20:23.919 --> 00:20:28.610 SCIENTIST SAY WHY ADOPT WE INCLUDE THIS INFORMATION, THIS IS GOOD, THIS IS 246 00:20:28.610 --> 00:20:33.367 RELIABLE, THIS IS SCIENCE, THIS MAKES SENSE, WHEN DID THEY MAKE THAT DECISION? 247 00:20:33.367 --> 00:20:36.478 MS. BONIFIGLIO: SO IN THIS CASE, IN 2002 THEY UNDERSTOOD 248 00:20:36.478 --> 00:20:40.734 IT AS INCONCLUSIVE AND THEY WEREN'T ENTERING IT. JUSTICE 249 00:20:40.734 --> 00:20:44.579 ALBIN: RIGHT, START AT 2010. MS. BONIFIGLIO: 2010 THE RELEVANT MANUAL 250 00:20:44.579 --> 00:20:50.036 SAID THIS INFORMATION COULD BE INCLUDED AND I'LL POINT YOU TO THE RECORD 251 00:20:50.036 --> 00:20:54.116 IF YOU WANT THE BEST EXPLANATION FROM WHAT WE HAVE HERE, THEY SAID WELL THERE WAS 252 00:20:54.116 --> 00:20:59.055 A POINT WHERE ANALYTICAL THRESHOLD AND REPORTING THRESHOLD WERE 1 IN THE 253 00:20:59.055 --> 00:21:04.083 SAME, I'M NOT SURE THE EXACT DATE OF THAT BUT BY THE TIME THAT VERBIAGE MADE IT 254 00:21:04.083 --> 00:21:08.126 INTO THE ENDZ PROCEDURE IT MIGHT NOT HAVE BEEN APPLICABLE TO US OR MAYBE 255 00:21:08.126 --> 00:21:11.989 IT DIDN'T OCCUR TO US THAT WE COULD DO IT, MAYBE WE DIDN'T NEED TO, BUT WITH THE 256 00:21:11.989 --> 00:21:17.652 DATA WE WERE LOOKING AT FROM OUR OLD CAN IT WE HAD A LOT OF THIS SKWLUGS NAER 257 00:21:17.652 --> 00:21:24.327 DATA BUT NOW IT WAS WRITTEN DOWN IN THE ENDZ PROCEDURES AND WE KNEW IT WAS 258 00:21:24.327 --> 00:21:30.909 ALLOWABLE THAT WE COULD, BECAUSE OF, NOW WE COULD. SO IT WAS WRITTEN DOWN IN 2010 259 00:21:30.909 --> 00:21:34.712 AND THEN SOMETIMES IT TAKES SOMETIME TO UNDERSTAND, YOU KNOW WHAT, IT'S 260 00:21:34.712 --> 00:21:39.346 BEEN WRITTEN DOWN, WE CAN DO THIS. JUSTICE ALBIN: WHAT'S SO DIFFICULT 261 00:21:39.346 --> 00:21:42.588 TO UNDERSTAND YOU CAN INCLUDE THIS INFORMATION, DO YOU HAVE TO BE A 262 00:21:42.588 --> 00:21:48.776 SCIENTIST TO FIGURE THAT OUT, WHY WOULD THE FEDERAL AUTHORITIES SAY YOU CAN INCLUDE 263 00:21:48.776 --> 00:21:53.042 IT UNLESS YOU SHOULD PROBABLY BE INCLUDING IT. MS. BONIFIGLIO: 264 00:21:53.042 --> 00:21:57.739 WELL IF IT SHOULD HAVE BEEN INCLUDED THEN THE ENDZ WOULD HAVE SAID IT'S REQUIRED 265 00:21:57.739 --> 00:22:01.703 TO, BUT IT DOESN'T SAY TSDZ REQUIRED TO, IT SAYS IT CAN, IN ACCORDANCE WITH 266 00:22:01.703 --> 00:22:07.525 YOUR OWN, THE ERNDZ PARTICIPATING GUIDELINES, IT'S UP TO THE LAB. 267 00:22:07.525 --> 00:22:14.111 JUSTICE ALBIN: SO YOUR POSITION IS DESPITE THIS 2010 TROOETS OR MANUAL FROM 268 00:22:14.111 --> 00:22:20.653 THE FEDERAL AUTHORITIES THAT EVEN TODAY, IF THE STATE DECIDED YEAH, THEY SAID 269 00:22:20.653 --> 00:22:25.808 YOU CAN DO IT BUT WE DON'T WANT TO DO IT, THEN YOU WOULDN'T BE INCLUDING 270 00:22:25.808 --> 00:22:30.723 THAT INFORMATION, YOU'RE SAYING -- ARE YOU SAYING EVEN TODAY IF YOU DIDN'T WANT 271 00:22:30.723 --> 00:22:34.694 TO DO IT, YOU WOULDN'T HAVE TO INPUT THAT INFORMATION? MS. 272 00:22:34.694 --> 00:22:37.935 BONIFIGLIO: HONESTLY THAT REALLY GETS INTO THE SCIENCE THAT I'M NOT PREPARED TO 273 00:22:37.935 --> 00:22:43.579 GET INTO. BUT THE THING IS THE SCIENTISTS AND THE MEMBERS OF THE LAB, THEY ARE 274 00:22:43.579 --> 00:22:49.649 VERY CAREFUL IN WHAT THEY INCLUDE AND WHATNOT, AND IT'S REALLY FOR THE RELIABILITY 275 00:22:49.649 --> 00:22:54.074 FOR THE RESULTS, THE INTEGRITY OF THE LAB AND TO MAKE SURE THEY ARE FOLLOWING 276 00:22:54.074 --> 00:22:58.394 ALL QUALITY STANDARDS, PRIVACY REQUIREMENTS, IT'S VERY SPECIFIC, AND 277 00:22:58.394 --> 00:23:03.625 EVEN THE ENDZ MANUAL, IT'S ALMOST A HUNDRED PAGES, IT'S VERY COMPLICATED SO THEY HAVE 278 00:23:03.625 --> 00:23:07.802 TO FOLLOW THAT IN ADDITION TO ALL THE FEDERAL RULES, REGULATIONS AND STATE 279 00:23:07.802 --> 00:23:13.687 LAWS, SO IT'S NOT AS EASY TO SAY IT SAYS CAN, YOU SHOULD HAVE DID IT, THAT'S NOT 280 00:23:13.687 --> 00:23:17.411 AT ALL FAIR AND IT'S NOT THE QUESTION WE SHOULD BE ASKING. 281 00:23:17.411 --> 00:23:20.669 JUSTICE SOLOMON: WHEN DID YOU FIRST GET A FIRST CODIS HIT IN THIS CASE. 282 00:23:20.669 --> 00:23:25.586 MS. BONIFIGLIO: THE FIRST HIT WAS IN APRIL OF 2016, AFTER THE LOCI WAS ENTERED. 283 00:23:25.586 --> 00:23:31.233 JUSTICE SOLOMON: AND YOUR CONTENTION IS THAT'S WHEN THE STATUTE 284 00:23:31.233 --> 00:23:33.789 OF LIMITATIONS STARTED TO RUN. MS. BONIFIGLIO: NOT EXACTLY, OUR POSITION 285 00:23:33.789 --> 00:23:38.276 IS ONCE THEY GOT THE HIT, THERE WAS A COUPLE OF WEEKS IN BETWEEN THAT, THEY 286 00:23:38.276 --> 00:23:41.790 HAVE TO CONFIRM, THEY CAN'T JUST ISSUE HITS. JUSTICE SOLOMON: 287 00:23:41.790 --> 00:23:49.343 LOOK, IN TWLT 16, I'M NOT ASKING APRIL 1ST, SECOND, FIFTH, IN 20 SKOORN YOU GET 288 00:23:49.343 --> 00:23:55.091 A CODIS HIT AND HE WAS INDICTED IN 2017 TO YOUR ARGUMENT IS WE'RE WITHIN 289 00:23:55.091 --> 00:23:59.542 THE STATUTE OF LIMITATIONS, CORRECT? 82 YES. JUSTICE SOLOMON: 290 00:23:59.542 --> 00:24:08.261 FORGET DAYS, LET'S TALK ABOUT ERAS OF TIME, YOU WERE NOT ENTERING THIS DATA FROM 291 00:24:08.261 --> 00:24:12.969 THIS CRIME SCENE IN 2002, CORRECT. MS. BONIFIGLIO: UM HMM. 292 00:24:12.969 --> 00:24:17.431 JUSTICE SOLOMON: YOU WERE NOT ENTERING IT IN 2004. 293 00:24:17.431 --> 00:24:21.018 MS. BONIFIGLIO: UM HMM. JUSTICE SOLOMON: YOU COULD HAVE ENTERED 294 00:24:21.018 --> 00:24:24.661 IT IN 2010, I'M NOT SAYING YOU HAD TO, YOU COULD HAVE. MS. 295 00:24:24.661 --> 00:24:27.627 BONIFIGLIO: THEY COULD HAVE. JUSTICE SOLOMON: NOW SOMETIME IN 20 296 00:24:27.627 --> 00:24:37.375 10 MY UNDERSTANDING THERE WAS A AUD DITD CONDUCTED AS A RESULT OF THE NEW 297 00:24:37.375 --> 00:24:40.550 ENDZ RULES. MS. BONIFIGLIO: YES, 2014. JUSTICE 298 00:24:40.550 --> 00:24:45.159 SOLOMON: SO THEY GET THE NEW RULES AND THEY CONDUCT THE AUDIT, AT WHAT POINT DID YOU 299 00:24:45.159 --> 00:24:48.343 RESUBMIT THE 2002 SAMPLE. MS. BONIFIGLIO: WHEN THE AUDIT 300 00:24:48.343 --> 00:24:54.660 WAS INITIATED IN 2014 THAT WAS FOR REASONS UNRELATED TO THIS. 301 00:24:54.660 --> 00:24:58.725 JUSTICE SOLOMON: IT WAS PURELY POST ENDZ CHANGES, AND YOU HAD A LOT OF BACKED 302 00:24:58.725 --> 00:25:03.997 UP SAMPLES AND YOU WERE TRYING TO SUPPLEMENT YOUR FINDINGS BASED ON THE NEW 303 00:25:03.997 --> 00:25:06.924 ENDZ RULES. CORRECT. MS. BONIFIGLIO: YES, SO IN 2014 WHEN THEY 304 00:25:06.924 --> 00:25:11.260 CAME BACK TO DO IT THEY NOW KNEW MORE INFORMATION. JUSTICE 305 00:25:11.260 --> 00:25:15.397 SOLOMON: I UNDERSTAND, THAT'S NOT WHAT I'M ASKING. SO IN 2014 YOU SUBMIT THIS 306 00:25:15.397 --> 00:25:18.638 2002 SAMPLE. MS. BONIFIGLIO: BY THE TIME THAT PARTICULAR 307 00:25:18.638 --> 00:25:27.183 SAMPLE WAS IT WAS 2016. JUSTICE SOLOMON: 2014 YOU POST AUDIT 308 00:25:27.183 --> 00:25:31.871 START ENTERING THESE OLD SAMPLES THAT PREVIOUSLY WERE OF NO USE TO YOU. 309 00:25:31.871 --> 00:25:33.644 MS. BONIFIGLIO: YES. JUSTICE SOLOMON: AND YOU 310 00:25:33.644 --> 00:25:36.452 GET TO THIS ONE IN 2016. MS. BONIFIGLIO: YES. 311 00:25:36.452 --> 00:25:41.950 JUSTICE SOLOMON: AND BY THAT TIME YOU HAD THIS SECOND BUCCAL SWAB FROM ALSO HAD 312 00:25:41.950 --> 00:25:45.519 I THINK THE SECOND -- YOU DID NOT, FORGET IT. MS. BONIFIGLIO: 313 00:25:45.519 --> 00:25:48.637 THAT'S WHY WE GOT THE SECOND BUCCAL SWAB. JUSTICE SOLOMON: 314 00:25:48.637 --> 00:25:52.822 OKAY. SO YOU GET THE HIT AND YOU AGREE THAT SOMEWHERE AROUND THAT TIME THE 315 00:25:52.822 --> 00:25:55.064 STATUTE OF LIMITATIONS STARTS TO RUN. CORRECT. MS. BONIFIGLIO: 316 00:25:55.064 --> 00:25:57.654 ABSOLUTELY. JUSTICE SOLOMON: AND YOUR CONTENTION IS CONTRARY 317 00:25:57.654 --> 00:26:04.915 TO WHAT YOUR ADVERSARY SAYS THAT THE KEY DATE IS NOT WHEN YOU HAD THAT 2004 SECOND 318 00:26:04.915 --> 00:26:09.536 SAMPLE TO MATCH IT TO, IT'S WHEN YOU HAD THE INFORMATION THAT WOULD ENABLE YOU 319 00:26:09.536 --> 00:26:12.370 TO MAKE THE MATCH. MS. BONIFIGLIO: YES. 320 00:26:12.370 --> 00:26:15.103 JUSTICE SOLOMON: AND THAT WAS IN 2016. MS. BONIFIGLIO: YES. 321 00:26:15.103 --> 00:26:18.935 JUSTICE SOLOMON: HOWEVER, IF WE AGREE WITH DEFENSE COUNSEL THAT THE STATUTE 322 00:26:18.935 --> 00:26:24.713 SPECIFICALLY SAYS YOU'RE IN POSSESSION OF THE EVIDENCE, AND YOU'RE IN POSSESSION 323 00:26:24.713 --> 00:26:34.067 OF THE DNA SAMPLE, MEANING THE STUFF FROM 2004, IF WE ACCEPT THAT, THE #10E8 STARTED 324 00:26:34.067 --> 00:26:42.173 TO RUN IN 2004 OR AT THE LATEST 2010, BUT IF WE ACCEPT WHAT YOU SAY AND 325 00:26:42.173 --> 00:26:50.002 IT'S NOT THAT SECOND STUFF WITH DNA FROM 2004 BUT RATHER THE DNA READING THAT READ 326 00:26:50.002 --> 00:26:56.277 OUT FROM THE WHATEVER THAT MICRO WHATEVER ANALYSIS IS, THAT TELLS YOU ALL 327 00:26:56.277 --> 00:27:02.001 THE POINTS OF IDENTIFICATION, UNTIL YOU HAVE THAT, NECESSARY TO MATCH TO THE 2002 328 00:27:02.001 --> 00:27:06.394 EVIDENCE, THE STATUTE DOESN'T BEGIN TO RUN. MS. BONIFIGLIO: 329 00:27:06.394 --> 00:27:08.796 YES. JUSTICE SOLOMON: OKAY, SO THAT'S BASICALLY WHERE THE 330 00:27:08.796 --> 00:27:11.206 DISPUTE IS. MS. BONIFIGLIO: THAT'S THE DISPUTE. 331 00:27:11.206 --> 00:27:15.160 JUSTICE SOLOMON: AND YOUR CONTENTION IS THAT PERTAINS -- THAT'S WHAT YOU'RE TALKING 332 00:27:15.160 --> 00:27:19.550 ABOUT WHEN YOU SAY CODIS MATCH, YOU HAVE INFORMATION NECESSARY TO MATCH 333 00:27:19.550 --> 00:27:25.595 THE CODIS READING, THE READING OF CODIS, AND THAT DIDN'T OCCUR UNTIL 2016. 334 00:27:25.595 --> 00:27:27.375 MS. BONIFIGLIO: RIGHT, ABSOLUTELY. JUSTICE SOLOMON: I GOT 335 00:27:27.375 --> 00:27:31.772 YOU, OKAY, I'M JUST MAKING SURE BECAUSE MY HEAD WAS STARTING TO EXPLODE. 336 00:27:31.772 --> 00:27:35.562 MS. BONIFIGLIO: NO I APPRECIATE IT, IT'S VERY CONFUSING AND IT'S VERY SCIENTIFIC 337 00:27:35.562 --> 00:27:39.410 AND I DON'T WANT TO GET INTO THE SCIENCE BUT THAT'S WHAT WE'RE BEING ASKED 338 00:27:39.410 --> 00:27:43.517 TO DO AND THAT'S WHAT THE DEFENDANT IS ASKING THIS COURT TO DO. 339 00:27:43.517 --> 00:27:47.482 JUSTICE SOLOMON: I UNDERSTAND, I'M JUST CLARIFYING SO MY HEAD DOESN'T EXPLODE. 340 00:27:47.482 --> 00:27:49.890 JUSTICE PIERRE-LOUIS: I THOUGHT YOU SAID EARLIER IN RESPONSE 341 00:27:49.890 --> 00:27:55.029 TO JUSTICE SOLOMON MONDAY THAT THE DNA FROM THE CRIME SCENE WASN'T ENTERED BACK 342 00:27:55.029 --> 00:27:58.539 IN 2002, THAT'S INCORRECT. MS. BONIFIGLIO: IT WAS ENTERED, 343 00:27:58.539 --> 00:28:03.522 THERE WAS -- JUSTICE PIERRE-LOUIS: OKAY, I WANT TO MAKE 344 00:28:03.522 --> 00:28:07.174 SURE IT WAS ENTERED BUT IT WAS ENTERED IN A MANNER THAT DID NOT GENERATE 345 00:28:07.174 --> 00:28:11.419 THE HIT WHEN DEFENDANT'S DNA WAS ALSO INTERD INTO CODIS. MS. 346 00:28:11.419 --> 00:28:17.446 BONIFIGLIO: YES, AND I APPRECIATE THAT CLARIFICATION IT'S BECAUSE CERTAIN LOCI 347 00:28:17.446 --> 00:28:23.139 WAS CONSIDERED INCONCLUSIVE AND THEY DIDN'T INCLUDE IT, THEY ONLY WANT TO 348 00:28:23.139 --> 00:28:27.147 CONSIDER WHAT'S CONSIDERED CONCLUSIVE AND MOVE ON. JUSTICE 349 00:28:27.147 --> 00:28:31.298 PIERRE-LOUIS: BECAUSE THE TWO SAMPLES THAT WERE NEEDED IN ORDER TO GENERATE THIS 350 00:28:31.298 --> 00:28:35.277 HIT WERE IN CODIS IN 2004. MS. BONIFIGLIO: THEY WERE IN 2006. 351 00:28:35.277 --> 00:28:38.737 JUSTICE PIERRE-LOUIS: THE TWO SAMPLES THAT WERE NEEDED WERE 352 00:28:38.737 --> 00:28:43.078 BOTH WHERE THEY NEEDED TO BE IN 2006. MS. BONIFIGLIO: YES, THE PHYSICAL 353 00:28:43.078 --> 00:28:48.446 SAMPLES WERE IN CODIS, BUT I WANT TO POINT TO A BRIEF PART OF THE STATUTORY 354 00:28:48.446 --> 00:28:55.127 HISTORY WHERE THE LEGISLATURE ACCOUNTS FOR THE BACKLOG IN DELAY OF PROCESSING AND 355 00:28:55.127 --> 00:29:00.082 IN THOSE SITUATIONS THE LEGISLATURE MADE CLEAR THE STATUTE WOULD NOT START 356 00:29:00.082 --> 00:29:05.597 TOLLING, THE STATE WOULD HAVE POSSESSED BOTH PHYSICAL SAMPLES AND THAT'S WHY THAT 357 00:29:05.597 --> 00:29:09.974 INTERPRETATION IS TOO NARROW. I BELIEVE THAT'S ALL UNLESS YOUR HONORS HAVE 358 00:29:09.974 --> 00:29:12.898 ANY OTHER QUESTIONS. CHIEF JUSTICE RABNER: YOUR POSITION, AS I 359 00:29:12.898 --> 00:29:17.504 UNDERSTAND IT, IS IF THE STATE HAD IN ITS POSSESSION THE SAMPLE FROM THE 360 00:29:17.504 --> 00:29:25.125 VICTIM OR THE CRIME SCENE AND A SAMPLE FROM THE SUSPECT, WHO IS IDENTIFIED AS A 361 00:29:25.125 --> 00:29:30.400 SUSPECT, THE CLOCK DOES NOT BEGIN. MS. BONIFIGLIO: THAT'S 362 00:29:30.400 --> 00:29:36.007 OUR ALTERNATIVE ARGUMENT. OUR MAIN ARGUMENT IS THAT WE HAVE THE EVIDENCE 363 00:29:36.007 --> 00:29:41.410 NECESSARY TO ESTABLISH THE IDENTIFICATION ONCE WE HAVE THE CONCLUSIVE MATCH FROM 364 00:29:41.410 --> 00:29:45.652 THE KNOWN SUSPECT. BUT OUR ALTERNATIVE ARGUMENT IS THAT THE CLOCK COULD START 365 00:29:45.652 --> 00:29:50.125 RUNNING FROM THE TIME YOU GET THE BUCCAL SAMPLE BECAUSE AT THAT POINT YOU HAVE 366 00:29:50.125 --> 00:29:54.110 THE EVIDENCE -- CHIEF JUSTICE RABNER: YOU THOUGHT YOU SAID 367 00:29:54.110 --> 00:29:59.223 IT WAS THE CONFIRMATORY BUCCAL SAMPLE THAT STARTS THE CLOCK, SO IF THE STATE HAS 368 00:29:59.223 --> 00:30:05.753 IN ITS POSSESSION, AND LET'S ASSUME THIS IS UNDISPUTED, THE SAMPLE FROM THE SUSPECT 369 00:30:05.753 --> 00:30:10.130 AND THE SAMPLE FROM THE CRIME SCENE, THE CLOCK IS NOT RUNNING UNDER YOUR 370 00:30:10.130 --> 00:30:16.237 ARGUMENT, UNDER YOUR READING OF THE STATUTE. IS THAT CORRECT. 371 00:30:16.237 --> 00:30:20.543 MS. BONIFIGLIO: NOT UNDER OUR PRIMARY ARGUMENT, BUT THAT IS OUR -- 372 00:30:20.543 --> 00:30:23.805 CHIEF JUSTICE RABNER: WELL NOT UNDER ANY OF YOUR ARGUMENTS, TELL ME WHAT I'M 373 00:30:23.805 --> 00:30:26.789 GETTING WRONG. MS. BONIFIGLIO: SO OUR PRIMARY ARGUMENT IS 374 00:30:26.789 --> 00:30:31.847 THAT AT THE TIME AFTER A CODIS HIT WHEN THE LAW ENFORCEMENT AGENCY IS NOTIFIED 375 00:30:31.847 --> 00:30:36.340 THAT YOU HAVE A POTENTIAL HIT AND THAT THEY NEED TO GO FOLLOW-UP, THEY GET A 376 00:30:36.340 --> 00:30:43.278 BUCCAL SWAB FROM A KNOWN OFFENDER, THE SUSPECT, THEY HAND DELIVER IT TO THE LAB, 377 00:30:43.278 --> 00:30:48.676 WHEN THE LAB IS ABLE TO COMPARE THAT AND CONCLUSIVELY LOOK AT IT AND SAY THIS 378 00:30:48.676 --> 00:30:53.039 MATCHES, THAT'S OUR PRIMARY ARGUMENT. OUR ALTERNATIVE ARGUMENT IS AT THE TIME 379 00:30:53.039 --> 00:30:58.091 THEY KNOW HE'S A SUSPECT, THESE TOLD YOU HAVE TO GET A CONFIRMATORY BUCCAL SWAB, 380 00:30:58.091 --> 00:31:00.708 THAT'S THE -- CHIEF JUSTICE RABNER: ALL RIGHT, SO THE 381 00:31:00.708 --> 00:31:05.363 EXAMPLE THAT I'VE GIVEN YOU IS NOT COVERED BY EITHER OF THOSE SITUATIONS, AN OFFICER 382 00:31:05.363 --> 00:31:09.278 INVESTIGATING THE CRIME IDENTIFIES SOMEONE AS A SUSPECT AND GETS A SAMPLE, THAT'S 383 00:31:09.278 --> 00:31:14.473 NOT A CONFIRMATORY SAMPLE, THIS IS EARLY ON, SO THEY NOW HAVE THE SAMPLE FROM THE 384 00:31:14.473 --> 00:31:19.481 CRIME SCENE AND THE SAMPLE FROM THE SUSPECT. YOUR POSITION IS THE CLOCK FOR 385 00:31:19.481 --> 00:31:24.619 PURPOSES OF STATUTORY LIMITATIONS HAS NOT YET BEGUN. IS THAT CORRECT? 386 00:31:24.619 --> 00:31:28.309 MS. BONIFIGLIO: NOT IN THIS SITUATION UNTIL IT'S ENTERED AND COMPARED. 387 00:31:28.309 --> 00:31:31.596 CHIEF JUSTICE RABNER: THANK YOU. MS. BONIFIGLIO: 388 00:31:31.596 --> 00:31:33.888 YES, THANK YOU. CHIEF JUSTICE RABNER: ANYTHING YOU'D LIKE 389 00:31:33.888 --> 00:31:38.035 TO ADD? MS. BONIFIGLIO: I THINK THAT'S IT, THANK YOU F. 390 00:31:38.035 --> 00:31:45.039 MR. KIRSCH: REALLY QUICKLY, YOUR HONORS, JUSTICE SOLOMON, 391 00:31:45.039 --> 00:31:51.044 YOU ASKED A QUESTION THAT 21 POINT I THINK I HEARD A MISSTATEMENT AND I WANT TO 392 00:31:51.044 --> 00:31:55.903 MAKE SURE I'M RIGHT, I JUST WANT TO MAKE SURE WE'RE CLEAR ON THE FACTS, 393 00:31:55.903 --> 00:32:01.007 YOU TALKED ABOUT THE TIME THEY GOT THE PEEKS AND VALLEYS AND ALL OF THAT, THAT WAS 394 00:32:01.007 --> 00:32:06.924 2002, THEY DID NO NEW TESTING ON THAT CRIME SCENE SAMPLE, AND I JUST WANT TO 395 00:32:06.924 --> 00:32:11.410 GIVE YOU TWO CITES FROM THE TRANSCRIPT, FROM THE MOTION TRANSCRIPT, PAGE 26 LINES 396 00:32:11.410 --> 00:32:19.733 2 TO 24 AND PAGE 81 LINES 1 TO 9, THE STATE BOTH SCIENTISTS ARE CRYSTAL CLEAR, 397 00:32:19.733 --> 00:32:25.175 WE DID NOTHING ADDITIONAL, WE HAD EVERYTHING WE EVER COULD HAVE HAD. 398 00:32:25.175 --> 00:32:27.696 JUSTICE SOLOMON: I UNDERSTAND, I WAS NOT POINTING TO THAT. 399 00:32:27.696 --> 00:32:30.589 MR. KIRSCH: OKAY, JUST MAKING SURE OF THAT. THE ONLY OTHER THING I WILL 400 00:32:30.589 --> 00:32:36.823 MENTION TO YOU IS IF YOU AT ALL GET INTO THE LEGISLATIVE HISTORY HERE THERE WAS 401 00:32:36.823 --> 00:32:41.688 SOME MENTION OF BACK LOGS BEING DISCUSSED IN THE LEGISLATURE ISSUE, BE REALLY 402 00:32:41.688 --> 00:32:46.919 CAREFUL, I DIDN'T NOTICE THIS WHEN I WROTE THE BRIEF BUT I NOTICE IT PREPARING 403 00:32:46.919 --> 00:32:51.080 THE ARGUMENT, PAGE 18 OF THE APPELLATE DIVISION OPINION HAS A BLOCK QUOTE 404 00:32:51.080 --> 00:32:56.531 FROM THE LEGISLATIVE HISTORY, ALLEGEDLY, IT'S THE LEGISLATIVE HISTORY FROM THE 405 00:32:56.531 --> 00:33:01.125 WRONG STATUTE, THAT'S THE ONE TAUB GO ABOUT BACK LOGS, IF YOU GO THROUGH THE 406 00:33:01.125 --> 00:33:06.281 LEGISLATIVE HISTORY ON THE LEGISLATURE CITE, THE VERY FIRST COUPLE ENTRIES ARE FROM 407 00:33:06.281 --> 00:33:10.651 A STATUTE THAT WAS NOT PASSED, IT'S A STATUTE THAT ACTUALLY COMPLETELY 408 00:33:10.651 --> 00:33:14.965 ELIMINATED THE STATUTE OF LIMITATIONS IN ALL DNA CASES. THE LEGISLATIVE HISTORY 409 00:33:14.965 --> 00:33:27.834 THAT I'M CITING TO YOU IS. JUSTICE LAVECCHIA: SENATE 1516? 410 00:33:27.834 --> 00:33:32.276 MR. KIRSCH: SENATE 1516, THE LEGISLATIVE HISTORY TO THAT SAYS THEY MEAN 411 00:33:32.276 --> 00:33:38.378 GETTING THE DNA SAMPLE AS THE TRIGGERING EVENT ONCE THEY HAVE THE PHYSICAL 412 00:33:38.378 --> 00:33:42.485 EVIDENCE AND THERE IS NO MENTION IN THERE ABOUT BACK LOGS AND ALL THAT STUFF, THAT 413 00:33:42.485 --> 00:33:46.450 DISCUSSION CAME FROM A VERSION OF THE STATUTE THAT WAS ULTIMATELY REJECTED. 414 00:33:46.450 --> 00:33:50.212 IT'S A MINOR POINT BUT I WANTED TO MAKE SURE THAT THAT CITATION IN THE APPELLATE 415 00:33:50.212 --> 00:33:54.153 DIVISION OPINION DOESN'T HOLD ANY WATER HERE BECAUSE IT WASN'T ADOPTED. 416 00:33:54.153 --> 00:33:59.486 JUSTICE ALBIN: MR. KIRSCH, WAS ANY FINDING BY THE COURT THAT THE SCIENCE 417 00:33:59.486 --> 00:34:08.465 AS OF 2010 AND BASED UPON THE FEDERAL MANUAL REQUIRED THE STATE TO BE PUTTING IN 418 00:34:08.465 --> 00:34:14.427 THOSE -- THE OTHER LOCI. MR. KIRSCH: REQUIRED? NO, NOT REQUIRED, 419 00:34:14.427 --> 00:34:23.211 THE 2010 MANUAL MADE CLEAR WHAT ND I S THOUGHT EVERYONE UNDERSTOOD BEFORE 420 00:34:23.211 --> 00:34:27.189 THAT. THE TESTIMONY IS VERY CLEAR THAT THE UNDERSTANDING OF THE SCIENTISTS BACK 421 00:34:27.189 --> 00:34:34.953 FROM 2002 UNTIL 2010 WAS BASED ENTIRELY ON ANECDOTAL UNDERSTANDING, IT WAS 422 00:34:34.953 --> 00:34:39.944 COMING FROM THE TOP BUT IT WAS ALL UNWRITTEN. I CAN GIVE YOU A COUPLE OF CITES 423 00:34:39.944 --> 00:34:48.974 ON THAT, PAGE 64 LINE 21 TO 22, THIS IS SCIENTIST SAMUEL, I DON'T BELIEVE 424 00:34:48.974 --> 00:34:54.089 THERE WAS ANYTHING THAT WAS WITH THE WRITTEN DOWN, PAGE 68 LINES 11 TO 15, I DON'T THINK 425 00:34:54.089 --> 00:34:58.111 OUR CODIS MANUAL WAS VERY DETAILED REGARDING THAT SORT OF THING, THIS WAS 426 00:34:58.111 --> 00:35:02.004 JUST WHAT CAME DOWN FROM THE CODIS ADMINISTRATOR AT THE TIME, THAT'S JUST HOW WE 427 00:35:02.004 --> 00:35:07.944 DID THINGS I YOU HEARD YOUR ADVERSARY BASICALLY SUGGESTING THAT IT WAS LIKE 428 00:35:07.944 --> 00:35:14.178 OPTIONAL FOR THE STATES WHETHER OR NOT TO INCLUDE THE -- WHAT EXCLUSIONARY LOCI. 429 00:35:14.178 --> 00:35:18.042 MR. KIRSCH: IT'S OPTIONAL IF THEY WANT TO MISS THE STATUTE OF 430 00:35:18.042 --> 00:35:23.268 LIMITATIONS, BUT THEY HAVE, AT THAT POINT THEY POSSESS THE TWO THINGS THE STATUTE 431 00:35:23.268 --> 00:35:27.891 SAYS YOU NEED TO POSSESS, THE CLOCK IS RUNNING. NOW, IN 2010 THE MANUAL 432 00:35:27.891 --> 00:35:35.409 MAKES CLEAR WHAT WAS UNDERSTOOD ALL ALONG, THEY STILL WAITED UNTIL 2014 TO EVEN 433 00:35:35.409 --> 00:35:45.776 AUDIT THEIR SYSTEM. JUSTICE ALBIN: YOU HEARD YOUR ADVERSARY QUOTE 434 00:35:45.776 --> 00:35:54.003 THE CAN PROVISION, AND SAID THAT JUST SAYS CAN, IT DOESN'T SAY HAD TO BE INCLUDED. 435 00:35:54.003 --> 00:35:58.518 MR. KIRSCH: BUT WHAT CHANGED, WHY DID THEY AUDIT THEMSELVES 436 00:35:58.518 --> 00:36:04.568 IN 2014, THEY AUDITED THEMSELVES BECAUSE OF THIS MANUAL CHANGE, THEN IT TOOK THEM 437 00:36:04.568 --> 00:36:09.285 TWO YEARS TO ENTER THIS SAMPLE. IT WASN'T SOME GREAT REVELATION THAT THE 438 00:36:09.285 --> 00:36:16.306 SCIENCE CHANGED, THEY JUST DIDN'T KNOW IN 2002 THAT THEY COULD HAVE BEEN ENTERING 439 00:36:16.306 --> 00:36:22.651 THIS STUFF, THEY GOT A CLEAR MESSAGE IN 2010 THAT THEY COULD AND THEY STILL 440 00:36:22.651 --> 00:36:26.714 WAITED ANOTHER 5 YEARS. JUSTICE LAVECCHIA: IS IT YOUR POSITION 441 00:36:26.714 --> 00:36:30.642 THAT THE SCIENCE OPENING THAT YOU ACKNOWLEDGE IS AVAILABLE IN THIS 442 00:36:30.642 --> 00:36:38.869 LANGUAGE RELATES MORE TO THE ABILITY TO EXTRACT DNA OR FINGER PRINTS FROM AN ITEM 443 00:36:38.869 --> 00:36:43.502 THAT THE LAW ENFORCEMENT MAY ALREADY HAVE BUT DIDN'T KNOW BEFORE THAT THEY COULD 444 00:36:43.502 --> 00:36:48.587 GET A SAMPLE THAT WOULD BE CAPABLE OF PROVIDING DNA OR FINGER PRINT 445 00:36:48.587 --> 00:36:51.211 EVIDENCE. MR. KIRSCH: RIGHT, BECAUSE THE WAY -- I'M TRYING 446 00:36:51.211 --> 00:36:55.319 TO READ THE STATUTE IN A REASONABLE WAY TO ACCOMPLISH THE LEGISLATIVE GOAL WHICH IS 447 00:36:55.319 --> 00:36:59.288 WHEN YOU'RE TALKING ABOUT POSSESSING THE PHYSICAL EVIDENCE AND THE DNA SAMPLE, 448 00:36:59.288 --> 00:37:03.833 YOU'RE TALKING ABOUT WHAT CAN BE USED TO MAKE A MATCH. JUSTICE 449 00:37:03.833 --> 00:37:07.791 LAVECCHIA: OR MY POINT OF MY QUESTION IS THAT YOUR ARGUMENT I THINK WOULD APPLY 450 00:37:07.791 --> 00:37:11.688 EQUALLY TO FINGER PRINT EVIDENCE BECAUSE IT'S USED IN THE SAME PART OF THE 451 00:37:11.688 --> 00:37:16.600 SENTENCE, SO AS METHODS OF EXTRACT PG FINGER PRINT EVIDENCE IMPROVED, IT'S NOT 452 00:37:16.600 --> 00:37:22.399 THEN THE MATCH OR TIME LATER, IT'S THE ABILITY TO EXTRACT IT THAT YOU'RE 453 00:37:22.399 --> 00:37:28.670 ACKNOWLEDGING ALLOWS FOR THE GROWTH IN SCIENTIFIC KNOWLEDGE AND ABILITY. 454 00:37:28.670 --> 00:37:32.302 MR. KIRSCH: RIGHT, BECAUSE IT'S WHEN YOU HAVE THE ABILITY TO EXTRACT THAT 455 00:37:32.302 --> 00:37:35.748 EVIDENCE THAT YOU BECOME IN POSSESSION OF THAT EVIDENCE, NOT NECESSARILY -- 456 00:37:35.748 --> 00:37:40.647 LIKE IF YOU JUST HAVE THE SOCK, THE MASK, WHATEVER AND YOU CAN'T GET ANY DNA OUT OF 457 00:37:40.647 --> 00:37:45.191 IT, THE CLOCK DOESN'T START RUNNING THEN, IT'S THE FIRST PART OF THAT IS 458 00:37:45.191 --> 00:37:49.876 THE ABILITY TO ACTUALLY GET IT, AND THAT'S WHERE THE ADVANCE IN TECHNOLOGY COME 459 00:37:49.876 --> 00:37:53.119 ALONG. JUSTICE SOLOMON: COULD I JUST CLARIFY ONE THING? 460 00:37:53.119 --> 00:37:58.748 YOU SAID PRETTY SPECIFICALLY WHEN YOU HAVE THE EVIDENCE RELATED TO THE CRIME AND 461 00:37:58.748 --> 00:38:03.855 THE EVIDENCE CONTAINING THE DNA MATCH, THAT'S WHEN THE STATUTE STARTS TO 462 00:38:03.855 --> 00:38:12.736 RUN. CORRECT? THE EVIDENCE -- YOU'VE GOT THE SKI CAP, BUT YOU EXTRACT THE SWEAT 463 00:38:12.736 --> 00:38:18.603 OR IT'S THE SWEAT OR THE FIBER OR WHATEVER, WHEN THE STATE HAS THAT, AND THEY 464 00:38:18.603 --> 00:38:23.844 HAD THE ORIGINAL WHATEVER THE STUFF IS FROM WHICH THEY GET A DNA READ OUT 465 00:38:23.844 --> 00:38:28.756 FROM THE ORIGINAL CRIME, THE STATUTE STARTS TO RUN. MR. KIRSCH: 466 00:38:28.756 --> 00:38:33.144 WELL, I THINK YOU JUST SAID TWO OF THE SAME THING, THEY HAVE THE ITEM FROM THE 467 00:38:33.144 --> 00:38:36.752 CRIME SCENE -- JUSTICE SOLOMON: YES, YOU'RE RIGHT, I DID, 468 00:38:36.752 --> 00:38:40.883 THE BHU KAL SWAB WAS THE SECOND ONE, THEY HAVE THE STUFF FROM THE HAT FROM 469 00:38:40.883 --> 00:38:46.882 WHICH THEY CAN DO A DNA READ OUT, THEY GET THE BUCCAL SWAB, WHEN THEY HAVE THOSE 470 00:38:46.882 --> 00:38:50.081 TWO THINGS THE STATUTE STARTS TO RUN. MR. KIRSCH: YES. 471 00:38:50.081 --> 00:38:53.530 JUSTICE SOLOMON: THE STATE SEEMS TO BE CONTENDING THAT WHEN THEY'VE GOT 472 00:38:53.530 --> 00:38:58.213 THE READ OUT FROM THE CRIME SCENE WHICH THEY CAN USE TO MATCH A SUBSEQUENT 473 00:38:58.213 --> 00:39:06.456 BUCCAL SWAB AND THEY HAVE THE READ OUT FLF SUBSEQUENT BUCCAL SWAB. 474 00:39:06.456 --> 00:39:09.332 MR. KIRSCH: FROM THE SECOND ONE. JUSTICE SOLOMON: WELL ANYONE 475 00:39:09.332 --> 00:39:13.628 OF THEM, THEY HAVE BOTH, AND THEY MAKE THE MATCH, THAT'S WHEN IT'S STATUTE 476 00:39:13.628 --> 00:39:17.002 STARTS TO RUN. MR. KIRSCH: RIGHT, THEIR PRIMARY ARGUMENT IS 477 00:39:17.002 --> 00:39:21.333 THE SECOND THING IS THE MATCH, RATHER THAN -- JUSTICE SOLOMON: OR 478 00:39:21.333 --> 00:39:26.247 IT COULD BE THE FIRST THING IF THERE'S ENOUGH IN THE DNA ANALYSIS TO MATCH THE 479 00:39:26.247 --> 00:39:29.654 OTHER THING THEY ALREADY HAVE. IN OTHER WORDS THEY HAVE THE FIRST BUCCAL 480 00:39:29.654 --> 00:39:37.141 SWAB AND THEY HAVE THE DNA READ OUT THAT CONTAINED THE 7 POINTS, THE STATUTE WOULD 481 00:39:37.141 --> 00:39:43.733 START TO RUN, BUT UNTIL THEY HAD THE 7 POINTS THEY COULDN'T DO THE MATCH. 482 00:39:43.733 --> 00:39:46.392 MR. KIRSCH: NO, THEY COULD -- JUSTICE SOLOMON: 483 00:39:46.392 --> 00:39:50.458 I UNDERSTAND YOU'RE SAYING THAT BUT THEY'RE SAYING THE STATUTE DOESN'T RUN AT 484 00:39:50.458 --> 00:39:53.007 THAT POINT. MR. KIRSCH: BUT EVEN IF YOU WERE TO ACCEPT 485 00:39:53.007 --> 00:40:00.951 THAT ARGUMENT FROM THEM, 2010 WOULD BE WHEN THAT RT STAED TO RUN. 486 00:40:00.951 --> 00:40:04.046 JUSTICE SOLOMON: BECAUSE THEN THEY COULD SUBMIT IT. BUT JUST UNDERSTAND WHAT I'M 487 00:40:04.046 --> 00:40:09.042 SAYING, UNTIL THEY DID THAT THE CONTENTION IS AND THEY SENT THOSE 7 POINTS 488 00:40:09.042 --> 00:40:14.869 TO COMPARE, THEY DON'T HAVE THE EVIDENCE TO MAKE THE MATCH, AND THE EVIDENCE TO 489 00:40:14.869 --> 00:40:19.400 MATCH IT UP WITH, THAT'S WHAT THEIR CONTENTION SEEMS TO BE. 490 00:40:19.400 --> 00:40:23.867 MR. KIRSCH: THAT'S WHERE THEIR CONTENTION IS, WHERE THEY'RE WRONG IN THIS PARTICULAR 491 00:40:23.867 --> 00:40:28.721 CASE IS BECAUSE THEY'RE UNDERSTANDING OF WHY THEY DIDN'T SUBMIT ALL THE 492 00:40:28.721 --> 00:40:31.566 EVIDENCE RATHER THAN JUST THE 5 WAS WRONG. JUSTICE SOLOMON: I UNDERSTAND, 493 00:40:31.566 --> 00:40:33.988 I UNDERSTAND. MR. KIRSCH: OKAY. I DON'T HAVE ANYTHING 494 00:40:33.988 --> 00:40:35.872 ELSE. CHIEF JUSTICE RABNER: THANK YOU COUNSEL, WE'LL TAKE 495 00:40:35.872 --> 00:40:38.872 THE MATTER UNDER ADVISEMENT,