Judge Resigns From Forensic Science Committee, Calls Out DOJ's 'Trial By Ambush' Tactics
from the you're-free-to-'discover'-this-evidence-AFTER-it's-been-used-to dept
Law enforcement agencies — including the FBI — haven’t put together the best track record when it comes to forensic evidence. The issues range from fraud to the deployment of junk science. This has led to several wrongful imprisonments. This has also led to the government seeking to address these problems in a very “government” sort of way — by convening a committee to study the issue, headed by the DOJ.
Issues were found, but the DOJ doesn’t want to talk about them. The problems it doesn’t want to talk about were a fundamental part of the committee’s purpose.
The panel was created to improve the overall reliability of forensic evidence after instances of shoddy scientific analysis by federal, state and local police labs helped convict suspects.
Were. But no longer. This change is what prompted the only federal judge (Judge Jed S. Rakoff) on the committee to resign (after learning of it via an evening phone call from the Deputy Attorney General). From his letter of resignation:
Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery — i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court — is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect.
Which is contrary to the committee’s goals. To fix broken forensics, you need to fix the discovery aspects. The government would rather keep both its bad forensics and broken discovery procedures because it gives it an advantage when it comes to prosecution.
Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission — and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth — I have decided to resign from the Commission, effective immediately. I have never before felt the need to resign from any of the many committees on which I have served over the years; but given what I believe is the unsupportable position now taken by the Department of Justice, I feel I have no choice.
Rakoff points out elsewhere in his resignation letter that defendants in criminal cases are perpetually disadvantaged during forensic discovery.
As the federal rules of criminal procedure now stand, prosecutors who intend to call forensic experts to testify do not have to supply the same full pre-trial discovery about those experts and the methodological and evidentiary bases for their opinions that parties calling forensic experts in civil cases are required to supply under federal rules of civil procedure.
The DOJ likes its strategic advantage and doesn’t want Rakoff screwing with it. You say you want due process? Too bad. As a criminal defendant in today’s justice system, you’re little more than a bullet catcher for prosecutorial gunslingers.
The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter… A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush.
There’s supposed to be equitable sharing and access to anything uncovered during discovery. But there obviously isn’t. Rakoff recognized this and made his opinion known to the DOJ. Law enforcement agencies have apparently grown used to dealing from the bottom of the discovery deck and the United States’ Deputy DA wants this privilege to remain intact. (See also: Judge Kozinski’s dissenting opinion, which called out prosecutors for their “epidemic of Brady [exculpatory evidence] violations.” It’s not just junk science and fraud. It’s also the withholding of evidence that could clear a person facing criminal charges.)
Rakoff’s strongly-worded resignation letter (which has been published in full all over the internet) has led to a very minor concession from the DOJ.
However, Acting U.S. Deputy Attorney General Sally Q. Yates invited Rakoff to return, saying she had not been aware the commission had worked openly on its plans for nearly a year.
Yates told the National Commission on Forensic Science that “it seemed only fair” that it “make its determination as to what information should be provided to the Attorney General.”
“This is obviously a critically important issue to the Department,” Yates said. “We take very seriously our obligation to ensure that defendants receive a fair trial.”
Except that its original conversation with Judge Rakoff indicates that it would rather do anything but “ensure… defendants receive a fair trial.” But its “trial by ambush” intentions were exposed by Rakoff’s public resignation and it had no choice but attempt to paper this over with some honorable-sounding words.
While committing to nothing, and mouthing the empty platitudinous “We take very seriously our obligation to ensure that defendants receive a fair trial,” which is a corollary to “we’re from the government, and we’re here to help,” at least one honorable person will sit on the committee to see whether this rises to the level of serious reform.
So, Judge Rakoff is back on the panel. Hopefully, this will lead to a change in the system and a public release of information relating to law enforcement’s forensic failings. This nation seems to have no shortage of zealous prosecutors who are willing to secure convictions at the expense of true due process. The balance needs to shift back to the center. Judge Rakoff’s resignation has brought this long-running problem back out into public eye — along with the DOJ’s apparent desire to keep its ambush tactics from being disrupted.