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

Thu, Feb 5th 2015 2:43pm — Tim Cushing

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.

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

24 Comments

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Anonymous Coward, 5 Feb 2015 @ 3:33pm

It's good to know there's still one judge who's willing to pursue justice and due process, over high conviction rates via pseudoscience ambushes.
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Anonymous Coward, 5 Feb 2015 @ 3:39pm

I don't have high expectations for the panel being open and forthcoming about results. So I hope Rakoff leaks the full report
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justme, 5 Feb 2015 @ 3:59pm

Attaboy!
Somebody need's to buy the judge a cold one!

If the justice department had more people that cared about integrity, more then just putting one in the win column, it would be an big improvement.
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ambrellite (profile), 5 Feb 2015 @ 4:59pm

Thank you, Judge Rakoff, for being one of the few voices of sanity within the justice system.

It's sad to think that so many judges and prosecutors have abandoned the search for truth which lies at the heart of the word "justice." Too many believe the justice system's purpose is only to arrive at a result, so it may as well be the result they want.
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MrTroy (profile), 5 Feb 2015 @ 4:59pm

Except that its original conversation with Judge Rakoff indicates that it would rather do anything but "ensure… defendants receive a fair trial."

I think you're both misreading and misquoting Ms Yates's comment here, Tim. I would have thought it was easy to see just how seriously the DoJ takes their obligations, by the lengths to which they will go to try to remove them!

I mean, why bother trying to get out of something that you don't take seriously? In that case you'd just ignore it.
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Pixelation, 5 Feb 2015 @ 5:14pm

Re:
"I mean, why bother trying to get out of something that you don't take seriously? In that case you'd just ignore it."

They only take their own image seriously.
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Peter, 5 Feb 2015 @ 7:12pm

This is why I love Rakoff.
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Anonymous Anonymous Coward, 5 Feb 2015 @ 8:40pm

Chutzpah
The shear arrogance of the Justice department just boggles the mind. They pretend to be out for justice, but really are just out for 'brownie points'. Hey look, I got him, they, it and it does not matter how I did it (thinking about future political fortunes I guess).

On the other hand, there is the Constitution, and what it means, that gets left in the dust of righteousness when the only goal is to win, rather than be right (with regard to the people),(serious rolling in the grave of founding fathers taking place, but since they are long entered, no-one notices).
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Anon E. Mous (profile), 5 Feb 2015 @ 9:53pm

" In a criminal trial, the burden of proof is on the government. Defendants do not have to prove their innocence. Instead, the government must provide evidence to convince the jury of the defendant's guilt. "

Yes this is what is supposed to take place, but it hasn't been like this for a long long time now. Now it's your guilty until you can prove your innocent.

We have the U.S. Government and State prosecutors who routinely hide and fail to disclose how evidence was obtained, fail to provide full disclosure to defendants and their counsel, and Law Enforcement who right out mislead the court to get warrants for searches and surveillance.

Their is no right to a fair trial anymore, the Government obliterated that years ago. Judge Rakoff knows this is becoming more prevalent and didn't like that the committee he was on to ignore what the DOJ didn't want coming to light.

That just proves what most of us already know is that the deck is stacked against your from the start. It's amazing how people's rights are being eroded further and further.
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andyroo, 6 Feb 2015 @ 12:52am

criminals
When the prosecutors have become the worst type of criminals , which is what they have become, then the court must find them guilty of a felony and sentence the prosecutors and their assistants to jail time, serious jail time of over 20 years.

They have been given the responsibility to prosecute criminals and that responsibility is something that must be protected from those that seek to hurt innocent people, knowing they are innocent.

This should be a crime that is treated as though they have killed those people they have falsely allowed to be sentenced wrongly.
Damn if it was up to me i would probably want to have them sentenced to death, which they have done to many innocents over the years.
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Anonymous Coward, 6 Feb 2015 @ 2:19am

so, it is far more important for the DoJ to get a win, get someone, anyone locked up, rather than get to the truth and ensure justice is done so the actual guilty party receives due punishment! sounds about right! yet another example of the security forces running things rather than the government of the people, for the people!!
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Anonymous Coward, 6 Feb 2015 @ 2:40am

Everyone at the top of the DOJ needs to be removed. With polonium, if necessary. They are enemies of the democratic ideals of America, and they are shitting all over the idea of justice in the system.

They are not arbiters of what evidence can be presented. They are supposed ot be there for judicial purposes, in order to assist the discovery of truth. But no, that's too fucking hard for these chimps and dingoes.

It's nearly time to take the Viking route.
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That Anonymous Coward (profile), 6 Feb 2015 @ 5:09am

Because if you can't win with the truth, baffle them with a wall of impenetrable bullshit.
More people would take plea deals, simply because trying to fight against "science" (pseudo & otherwise) is costly and stacking charges so that the plea looks better is the way the system works.
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Anonymous Coward, 6 Feb 2015 @ 5:30am

How else will for-money prisons make ends meet?!
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Anonymous Coward, 6 Feb 2015 @ 10:11am

going to need a lot of rope when all is said and done
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Anonymous Coward, 6 Feb 2015 @ 10:12am

Re:
they learned well from history. Dam shame the citizenry apparently has not.
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Anonymous Coward, 6 Feb 2015 @ 10:15am

Re: Chutzpah
your constitution might as well not exist at this point. Your government ignores it, your police forces ignore it, 50/50 if the military is ignoring it.

99% of those stupidly entrusted with protecting every other American ignores the rights it grants all Americans simple because they have the power to.

You only have constitutional rights until the point someone with power decides they no longer apply to you, then no one will defend your rights. save the vocal few on boards like this.
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John Fenderson (profile), 6 Feb 2015 @ 1:11pm

Re: Re: Chutzpah
"your constitution might as well not exist at this point. Your government ignores it, your police forces ignore it, 50/50 if the military is ignoring it"

That's overstating the case, but I don't completely disagree with you. Of course, if the Constitution actually did become inoperable, then the United States ceases to exist and the next revolutionary war begins.
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Lorenzo, 6 Feb 2015 @ 1:22pm

Trial by Ambush
Remember this article if you're ever called to jury duty. I certainly will.
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Deserttrek, 6 Feb 2015 @ 1:29pm

the government is the criminal
the government is the gangster, the criminal the danger to our lives
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MarkJ, 6 Feb 2015 @ 2:14pm

"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."

Would I be untoward if I suspected that Sally Q. Yates' claim of ignorance was galactic-scale prevaricating bulls***?
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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.

---
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Anonymous Coward, 8 Feb 2015 @ 3:58am

When children play a game
When children play a game, they add extra rules to make the game more fair for everyone, or as a challenge to make it more difficult. Or as a way to get ahead of the other players.

Often this lead to a fight about the rules at which point a parent had to arbitrate.

As adults we still behave like children, but where are our elders?
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nasch (profile), 8 Feb 2015 @ 7:20am

Re:
It would be interesting if juries started acquitting everyone until we felt confident the prosecution wasn't messing with stuff like "parallel construction" and such tricks.
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