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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: attorney general, doj, forensic evidence, forensics, jed rakoff


Reader Comments

Subscribe: RSS

View by: Thread


  1. icon
    GEMont (profile), 6 Feb 2015 @ 9:27pm

    Re: Re: Re: Chutzpah

    "...then the United States ceases to exist and the next revolutionary war begins."

    Ye know, I'm beginning to think that it just may come to that - in fact that it may have to come to that.

    It appears as though the very wealthy men and women who reign supreme at the top of the food chain today, have over the years of planning, come to the conclusion that the only way to create an environment where they can break any law they want to break whenever they want to break it, is to alter the very laws themselves in such a way as to literally legally promote the very once-criminal acts the laws were written to protect against, as long as it was the very wealthy who perpetrated the crime and the not-very-rich who were the victim.

    In this way, when the public rebels and tries to find those who are responsible, the perps can all proudly claim that they have broken no laws and that everything they did was completely legal and by the book.

    We have heard this refrain a dozen times already from just the NSA alone. The laws of the land have been rewritten, or at least, the government and its agencies are no longer affected by the laws of the land as We The People know them, because the "authorities" now have a second set of laws which they wrote for themselves - a set of interpretations of the laws of the land which grant them extraordinary powers over their civilian charges and immunity from all possible consequences of their actions.

    In fact, any attempts to bring public justice down upon the people who are now tearing the USA into nice retail blobs they can sell on the international market, will be seen as, itself, a breech of law, allowing the perps to utilize every police and military asset they control to quell such an illegal uprising, with the law firmly at their back.

    Some of these interpretations of the law also make it legal for the perps to prevent the public from knowing the form and content of these secret laws, so that the public may not analyse the new wording and possibly determine a loophole through which to prosecute the perps.

    It may in fact be that in many cases, new interpretations have not yet been made concerning certain aspects of law, and the very act of preventing the public from knowing what laws have been rewritten also prevent them from knowing what laws have not yet been rewritten.

    This was not a spur of the moment thing - this had to be in planning for a generation or more.

    The USA has not been taken over by force, but by force of law, and the enemy is not a foreign power, but the very people that American Society has always looked up to and seen as the pillars of the community - what were once called Tycoons and Kings of Industry and Finance.

    These were the men and women who personified the American Capitalist Ideal, and they now do everything in their power, using the tax payer's dollar, to pull that ladder of possible success out from under any new contenders to the throne.

    You cannot take back the country from these people because the new interpretations of the laws, states clearly that even discussing the notion of doing that is considered to be among the highest of crimes under the new interpretations of the law, and can easily get you listed as a terrorist and summarily executed - after a year or so of torture of course. They probably even sell million dollar tickets to these torture sessions for the enjoyment of the rich and depraved.

    The enemy did not take over the country. It simply decided that the way to defeat the "Land of Law and Order", was to change the law of the land to suit the order they desired.

    There may indeed be no legal means of restoring the old laws and thus no legal way to defeat your conquerors and over lords, short of heads on pikes.

    ---

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.