"A Bump in the Road" for the National Commission on Forensic Science

Yesterday, U.S. District Court judge Jed Rakoff resigned from the National Commission on Forensic Science (NCFS). His resignation letter, placed on the web by the Washington Post, begins as follows:

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 ... 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.

According to Judge Rakoff,

The notion that improved discovery, going beyond what is minimally required by the federal rules of criminal procedure (which were drafted without any consideration of the difficulties unique to forensic science), is somehow outside the scope of the Commission’s work thus runs counter to both the mandate of the Commission’s Charter and the Commission’s overall purpose.

At today's Commission meeting, which is still in progress, several commissioners indicated frustration over this eleventh-hour ruling. Paul Giannelli, who drafted the "views" document for the subcommittee, noted that it went through some seven iterations with no indication from the Justice Department that it was beyond the "jurisdiction" of the NCFS and that the initial written instruction from a Department of Justice liaison stated that the subcommittee should consider “legal issues inherent in reporting and testimony, such as discovery.” (Emphasis added.) Peter Neufeld asked to see the internal memorandum to the Deputy Attorney General and noted the absence of any written statement from the Deputy AG.

My guess is that the topic of access to information from forensic science laboratories will not be deemed off-limits to the Commission but that no recommendations regarding possible amendments to the rules of discovery will be permitted. The Deputy Attorney General is expected to appear before the Commission tomorrow afternoon. The Department of Justice's co-chairman of the Commission referred to the matter as a bump in the road on which the Commission is traveling.

Postscript (added 1 Feb. 2015): My guess was wrong.See Justice Department Reverses Decision on the Mandate of the National Commission on Forensic Science, Jan. 31, 2015.

Reference: Spencer Hsu, U.S. Judge Quits Commission to Protest Justice Department Forensic Science Policy, Wash. Post, Jan. 29, 2015.