Most people who serve on committees are “joiners,” the types of people who desire to be on boards, or committees, or groups so they can say they are and feel as if they must be very important people because they are part of the in-group. Most committees, because of the nature of group dynamics combined with the nature of joiners, are at best a waste of time and at worst dangerous. As the saying goes, a camel is a horse designed by committee.
But Southern District of New York Judge Jed Rakoff doesn’t need to be on a committee. He was, because the president appointed him, but only as long as he wasn’t wasting his time or worse. As it turned out, it was worse. Judge Rakoff’s letter of resignation from the Justice Department’s Commission on Forensic Science:
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. 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.
The question of disclosing forensic evidence arose in a subcommittee co-chaired by Judge Rakoff, which submitted a report to the main commission. The report proposed:
that federal prosecutors go beyond what is presently required by federal criminal rules and make available in cases in which they intend to call forensic experts the same particularized information that forensic experts are required to provide in federal civil cases.
For non-criminal defense lawyers, this will seem awkward. After all, non-lawyers presume all manner of discovery, and civil litigators have always enjoyed such obvious disclosure. To learn that the rights of litigants are far greater in civil practice than criminal, where lives are on the line, is pretty shocking. It’s the sort of thing criminal defense lawyers shake our heads over, amazed at how clueless everyone else is at our near-total lack of discovery in federal criminal prosecutions.
Mind you, Judge Rakoff’s issue wasn’t with the wholesale lack of substantive discovery (see Rule 16), nor was it a change in the Federal Rules of Criminal Procedure, but it was just the puny putting the issue of forensic discovery on the table. You know, subject matter and qualifications of experts stuff, the sort that is so routine otherwise that it wouldn’t evoke a blink.
But in criminal law, the government has vehemently opposed any expansion of discovery of anything, forensics included, as that would make the process unfair to the government. After all, if the defense came into possession of information in advance of trial, it would allow the defense to prepare, which would in turn make the government’s job hard. That, the government claims, would prejudice their position by allowing the defense a fair opportunity to rebut their evidence. They want trial by ambush, and they want it bad.
Judge Rakoff’s effort to put disclosure of forensic evidence on the table was met with a loud, one-handed smack by the DoJ.
After a substantial delay, the Deputy Attorney General adopted the view that any discussion of discovery changes was entirely outside the Commission’s purview, and this decision, without further explanation, was telephonically conveyed to me last night.
As in, “no.” Move along, Judge. And by this, the government means to assure that its tactical advantage remains unchallenged.
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. But none of these rules focuses on the unique problems presented by forensic science, where there is much greater variance in standards, credentials, testing, and the like than in other scientific disciplines.
But then, since the government need not reveal anything about their forensic experts before trial, and by the time the defense learns, they are already on trial and can’t investigate or research to challenge the expert, bad forensic science persists unabated. Just the way the government likes it.
It is hard to escape the conclusion, therefore, that the Department’s determination that pre-trial discovery relating to forensic expert testimony is beyond the “scope” of the Commission is chiefly designed to preserve a courtroom advantage by avoiding even the possibility that Commission discussion might expose it as unfair. Prior to this decision, I have felt privileged to have been part of the Commission, not least because of the many wonderful fellow Commissioners with whom I have had a chance to work. I have also felt that, as the sole federal judge on the Commission, I could perhaps provide a useful perspective. But I cannot be a party to this maneuver by the Department to cabin the Commission’s inquiries, and I therefore must resign in protest.
Jed S. Rakoff
Sometimes, a choice presents itself, where one can either turn a blind eye to a scheme “designed to preserve a courtroom advantage” of the government’s, or one can refuse to put one’s name and integrity to such a “maneuver.” Judge Rakoff chose the latter.
And by resigning, Judge Rakoff sufficiently embarrassed the government into a tiny, itty-bitty, change in position:
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.”
Yates’ spiel is little more than face-saving pap, but it was enough to get Judge Rakoff back on the committee. 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.
And if, as one might suspect, disclosure of forensic evidence gets lip service and little else, I hope Judge Rakoff will show the same fortitude and resign again. We’re still a million miles away from meaningful change, but at least there is one guy on the committee who has the voice to call the government’s disingenuousness out. Sometimes, you just have to resign to make it heard.
H/T Cristian Farias