Saturday, January 31, 2015

Justice Department Reverses Decision on the Mandate of the National Commission on Forensic Science

The Justice Department reversed its position on the National Commission on Forensic Science's authority to recommend expansive criminal pretrial discovery of the opinions and information held by forensic scientists and criminalists who might testify for either the prosecution or the defense. The full remarks of Deputy Attorney General Sally Q. Yates and Judge Jed Rakoff, whose indignant resignation two days earlier, may have prompted her to reconsider the Department's position, are set out in an Appendix. So are statements from the Commissioners who spoke about the resignation.

According to Washington Post investigative reporter Spencer Hsu, an anonymous source in the Justice Department who "was not authorized to discuss the issue" "said the initial decision that pretrial evidence discovery rules were beyond the commission’s scope was made by Yates's predecessor, James Cole, before his departure Jan. 8." The short article does not explain why the Department did not convey Deputy AG Cole's decision to the judge or (it seems) anyone else on the Commission's Subcommittee on Reporting and Testimony until the eve of the Commission's fifth meeting.

The new decision led Judge Rakoff to rejoin the Commission and to continue as co-chair of the reporting and testimony subcommittee. With the discovery issue within its recognized purview, the subcommittee is free to submit a proposal for the full Commission to consider. In the end, the strongest proposal the Commission can make is a recommendation to the Attorney General.


The following are excerpts from the transcript of the second day of the January 29-30 Commission meeting in Washington, D.C. I have edited them to correct misspellings, remove redundancies, etc. The full transcript is (or at least was) at

[Acting Deputy Attorney General Sally Q. Yates:] First, let me thank all of you for being so flexible today to adjust your schedule so that Judge Jed Rakoff and I could join you together this afternoon. I would like to welcome Judge Jed Rakoff back to the Commission. Late yesterday afternoon, Judge Jed Rakoff and I got to speak at great length, and I was able to hear his concerns about the scope of the responsibilities of the Commission. I will tell you that I believe that reasonable people can differ on whether or not discovery is within the scope of this Commission's charter. I was able to hear Judge Jed Rakoff 's views that he believes it is very much in the scope. I also heard from the Attorney General that the [view] that it is not in the scope was also reasonable. What I heard yesterday afternoon was a game changer. I learned that since the inception of this subcommittee that the subcommittee has been operating with the understanding that discovery was within the scope of the subcommittee's charter. And the subcommittee has been working almost for a year now on discovery and has been working very hard and has been very thoughtful in its approach to these issues. And so it seemed to me that given that it is at least arguable, I know you feel it is more than arguable, but if it is at least arguable that this is in the scope of the charter, and given that the subcommittee has openly been doing this for almost a year with everyone knowing about it and working on the discovery, it seemed fair to me that under the circumstances that this Commission should have an opportunity to hear the subcommittee's views on that issue and that this Commission could make its determination as to what information should be provided to the Attorney General.

And so that is the way that I would like for us to proceed. In connection with that, I have asked Andrew Goldsmith, who some of you may know who is the Department's national discovery coordinator, to be available to the subcommittee if the subcommittee so chooses, to be able to get his perspective on what the impact of what if some of these occasions [recommendations?] might be on the department's practices. Andrew is here with me today and available to talk with any of you -- not just today but when the subcommittee meets going forward.

I don't want us to be in this position again. And so I have directed my staff to get together with the various subcommittees here to make sure we all have a complete understanding of what is on the agenda for each of the subcommittees. And if the Department of Justice or any of you as Commissioners have a problem or believe that any of that is outside the scope of the charter of this Commission, then you should go ahead and say something now rather than waiting until after the subcommittee has done much of its work. That is something that we are going to be doing going forward, and I hope that we can work with you in that regard.

On the discovery issue, this is obviously a critically important issue to the Department. We take very seriously our obligation to ensure that defendants receive a fair trial, and they can only get that fair trial when they receive the appropriate discovery. And so we look forward to hearing whatever information the Commission wants to give us on your perspective on that issue. And so without further droning on, I will turn it over to Judge Jed Rakoff.

[United States District Judge Jed Rakoff:] I am glad to be back. I know you have been working very hard all of these last two days. I tried my best to get out of it, but I didn't fully succeed. [Laughter] It was close. [Laughter]

I wanted to thank Deputy Yates for having the open-mindedness to reconsider and reverse the decision previously made. Like the deputies from the old West, I have learned that she is a straight shooter, and it has been a real pleasure having the chance to interact with her over the last two days. The bad side for you folks is you are stuck with me again. Bear with me as best you can. What I look forward to is having this Commission now give the fullest consideration to discovery views, discovery recommendations if there are such. These are matters of great importance, but they need to be discussed on the merits. Now thanks to Deputy Yates, we will have the ability to discuss the merits. I am also glad that we now have Mr. Goldsmith on board as well to help us with that.

My subcommittee will be at least available telephonically and have the reviews available for the next meeting. This is one area. I feel very strongly about this area. I don't want to minimize that this wonderful Commission has so many important areas that it is working on, and so for me, it is a great pleasure for me to rejoin this Commission. I thank Deputy Yates for making this possible. [Laughter]

[Commissioner (John Fudenberg?):] Dr. Mae and Deputy Yates, thank you for your time and support. I'd like to begin saying something briefly that doesn't have to do with our subcommittee. It's important to be said. I wanted Judge Rakoff to be here. [Note: By this point, Judge Rakoff had left: "With some embarrassment, when I didn't think I would be attending this meeting, I scheduled some things in New York ... I'm going to have to get a plane back, so I apologize.] I don't know him well enough to insult him, so I'm trying not to. I am personally embarrassed by what has happened the last couple of days. I think if we have disagreement, whether or not we are working on something for a year or something for a week, I think we should be mature about it, and talk to each other about it, and have open communication rather than packing up quitting, and I don't think that's appropriate. I think we as Commissioners should take the time and take a deep breath and talk issues through rather than having, I understand, newspaper articles today, which I think is embarrassing to this Commission, and I'm sure embarrassing to the Department. It was disappointing, and I think we should rise above those petty issues, and we should as a Commission commit to each other that we are going to try to work through issues before we start quitting. I don't know that he went to the media about it, but somebody did. I think as a member of the Commission, I want to apologize because I'm embarrassed for that.

[Commissioner ?:] Given that John talked about the judge, I'd like to go on record that I supported Judge Rakoff's action in resigning at the committee. I was the chair of the legal group that worked for months and months and went through 10 different drafts that we shared with everybody. I think it would have been (?) resignations next week if this had [not been] resolved as well as (?)

[Commissioner ?:] I also have tremendous respect for what Judge Rakoff did. I'm confident none of us know all the communications that were delivered from the Commission to both your predecessor and to you, and I'm sure we don't all the communications that went back and forth, but I'm confident there were sources of misunderstanding, and I'm really impressed both sides came back together to address that, and I trust both sides did that in good faith.

It's not uncalled for (?) stand up for (?) what the judge did. Whether I would've done it or not, it was an act of principle. But having said that, I am truly committed. I so appreciate the commitment to go forward to respect our charter and our independence. I just want to say thanks.

[Commissioner (Hon. Barbara Hervey?):] I want to echo some of their comments. I respect your right to have an opinion. I don't appreciate an apology on behalf of the Commission because I am sure that everyone has their thoughts and reasons and beliefs. On behalf of the judge, he is not here to defend himself, I think he had some very principled ideas. I am just grateful that all of you would sit down and maturely discuss all of these decisions and come to some conclusions that were helpful to all of us. I appreciate that.

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