Wednesday, April 26, 2017

The Justice Department’s Explanation for the End of the National Commission on Forensic Science

The decision of the Department of Justice to let the NCFS expire — a decision that was as predictable as the date of the next solar eclipse — was presented to the Commission at its final meeting on Monday, April 10. Everyone present knew that the NCFS was not intended to be an indefinite fixture. New administration or not,  a decision to continue operating the Commission and its subcommittees had to come by April 23, 2017. 1/ After all, the NCFS charter of April 23, 2013, asked it “to provide recommendations and advice to the Department of Justice” for two years. Former Attorney General Eric Holder renewed the charter once, on April 23, 2015. 2/ The new Attorney General, Jeff Sessions, elected not to renew the charter a second time.

No reasons for this discretionary action were provided. An Associate Deputy Attorney General graciously thanked the Commission for its work, stated that the new Attorney General had decided to use alternative mechanisms for developing departmental policy, described some aspects of what those would be, indicated that a press release was in the works, and thanked the Commission again.

Below I describe the written documents (an Executive Order and press releases) related to the sunsetting of the Commission and reproduce an abridged version of the (slightly garbled) computer-generated transcript. I made corrections to the extent I was confident about what actually was said, and I edited out some material that was not important to seeing where the Department of Justice (DOJ) may be headed.

I. The DOJ Press Release and the Task Force on Crime Reduction and Public Safety

A press release of April 10, 2017,  announced “a series of actions the Department will take to advance forensic science and help combat the rise in violent crime.” A new “Task Force on Crime Reduction and Public Safety” within the DOJ “will spearhead the development of [a] strategic plan” to “increase the capacity of forensic science providers, improve the reliability of forensic analysis, and permit reporting of forensic results with greater specificity.”

Nothing in the creation of the Task Force specifically suggested forensic science was of any concern. It emanated from an Executive Order signed on February 9, 2017. Harking back to the rhetoric of the Nixon Administration but placing illegal immigration at the top of the list of crimes to combat, this order declared that
It shall be the policy of the executive branch to reduce crime in America. ... A focus on law and order and the safety and security of the American people requires a commitment to enforcing the law and developing policies that comprehensively address illegal immigration, drug trafficking, and violent crime.
Within three weeks, Attorney General Sessions outlined the membership of the task force. The President’s order did not specify who or what types of people should comprise the Task Force. The Attorney General designated his Deputy Attorney General as its chair and “relevant Department components” to supply its members. He named “the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Administrator of the Drug Enforcement Administration (DEA), the Director of the FBI and the Director of the U.S. Marshals Service (USMS)” as key members.

This group might not possess the immediate knowledge for devising a plan to “increase the capacity of forensic science providers, improve the reliability of forensic analysis, and permit reporting of forensic results with greater specificity,” although the membership could be supplemented. Along with the membership, the stated objectives seem limited to investigative matters instead of the widely ranging interests pursued by NCFS and reflected in its recommendations.

In fact, the list of objectives itself is a little puzzling. No one would argue with the ambition of improving reliability (in the sense of trustworthy results) and laboratory capacity, but what does it mean to be able to report “forensic results with greater specificity”? Reporting that one finger is the source of a latent print, that one gun is the source of given bullet, and that one set of teeth are the source of a bitemark are already as specific as one can possibly get. One might question the scientific status of such claims, as the last President’s Council of Advisers on Science and Technology did, but the Obama DOJ rejected much of the PCAST critique. Surely, the new President and Attorney General are not expressing newfound doubts about the ability of forensic-science practitioners to make specific source attributions.

II. The Associate Deputy Attorney General’s Remarks to the Commission
Good morning, everyone. Let me say it's an honor to be here on behalf of the acting Deputy Attorney General and be able to address this group. My name is Andrew Goldsmith, I'm an Associate Deputy Attorney General and the Department’s National Criminal Discovery Coordinator. ... As some of you know, about two years ago the then Deputy Attorney General asked me to work with you on the criminal discovery recommendation, and in that role I had the pleasure of working with a number of you.
Before I go further I’d like to talk about the Attorney General's firm commitment to forensic science. On Friday, Attorney General Sessions and I spoke in his office, and he made clear to me in his view good forensics is not only important because it enables us to convict the guilty, but also to clear the innocent. He stressed to me we need to focus on the integrity of the process where we have prompt access to high-quality forensics technology. He found troubling the backlog in forensics analysis, and as I will discuss in more depth later, as part of the Task Force on Crime Reduction and Public Safety, he established a forensic science subcommittee to that task force. Moreover, and I also plan to address this as well later on, he is authorized me to announce here today a series of forward-looking actions that will conform to forensic science subcommittee's development of a strategic plan on forensics.
The Department and NIST created the Commission as a commitment to strengthening forensic science. Our justice system depends on reliable, scientifically valid evidence to solve crimes, identify wrongdoers, and ensure innocent people are not wrongly convicted. This Department. like every other Department that has come before it, remains committed to these principles. Over the past three years, the Commission has played a role in this effort, and we are grateful for your contributions. I'd like to highlight two contributions I am certain will have long-lasting effect. As you know, we announced new department-wide guidance on criminal discovery in cases with forensic evidence at the last Commission meeting. From my vantage point as the national criminal discovery coordinator, the recommendation on pretrial discovery will have long-lasting and important effects. ... 3/

... [A]s part of my training efforts including my discussion and training of forensic examiners, I have learned there is no single Commission recommendation more important for the practice of forensic science than the recommendation regarding universal accreditation. I have been told the Department's decision to publicly announce the policy on accreditation and to mandate our prosecutors to rely on accredited labs when practicable has made a difference in laboratories and moving to accreditation. These recommendations and the Department's review and implementation are a demonstration of the measurable impact of the work of this Commission over the past three years, and for that as well as many other products of this Commission, the Department thanks you.

To identify the elephant in the room, everyone knows the Commission’s charter is expiring this month, and it probably won't be a surprise to learn the charter will not be renewed. As part of any transition, it is critical to re-evaluate and realign resources to achieve a new administration’s priority. Attorney General Sessions has announced his commitment to reducing violent crime in America particularly in our cities, and he has identified the troubling rise in crime as a focus of the Department when he formed the Task Force on Crime Reduction and Public Safety and established a Forensic Science Subcommittee to the Task Force to fight against this increase in crime.

The Task Force and its various subcommittees including the subcommittees on hate crime and on forensic science advise our internal Department working groups with representation for relevant components including laboratories and prosecuting entities. Although these are internal in nature, they are each seeking relevant external stakeholder input. The forensic science subcommittee in particular has been tasked with considering how we will continue to advance the purposes of this Commission in a manner consistent with the Department’s forensics priorities and its policy to reduce crime in America and develop a strategic plan. We plan to consider all options and closely review the Commission’s summary report and secure feedback from the Commissioners and other stakeholders. We will consider all the information before we decide how to move forward.

Today I'm announcing three actions that will inform the Forensic Science Subcommittee's development of a strategic plan on forensics. First, in the coming week the Department will appoint a senior forensic advisor to interface with forensics science stakeholders, advise Department leadership and work with the Subcommittee to develop a strategic plan. The strategic plan will consider questions critical to increasing capacity and ensuring access to high-quality forensic analysis. Some of the questions that will be considered include the following: What are the biggest needs in forensic science inside the Department and outside the Department? Is there more for a body like the Commission to accomplish, or would next steps be better undertaken by some other body? What specific support do Department laboratories and prosecutors need? What does the partner community need? What is required to improve practices? What are the barriers, legal practical or otherwise, and what resources do we need to overcome those barriers? Is the structure sufficient to set standards, or is some other body needed? What is needed to improve capacity so every prosecutor can be assured he or she will receive prompt results when he or she submits evidence for testing? What resources and relationships can the Department best draw on to get thoughtful advice? What is the Department currently doing to advance this issue? Are their better ways to support state and local practitioners?

The second major part of this initiative I announce is that we are publishing an issue for comment in the Federal Register seeking broad stakeholder input on just those questions I went through and what the Department should consider after the expiration of the Commission. That notice will be open until June 9th. We invite you to submit comments and encourage you to share this notice broadly.

Third, the Department is conducting a needs assessment of forensic laboratories. As you know, in December 2016, Congress passed the Justice for All Authorization Act which has several mandates to improve and advance forensic science. The needs assessment will examine serious issues of capacity and backlog at public crime labs and in the medical-legal investigation community. It will consider other topics such as research and coordination necessary when developing a strategic plan to address the needs of the forensic science community.

At the same time, the Department is considering the previously announced projects of forensic sciences of the review and the uniform language for testimony in reports and identifying where they may fit in the subcommittees’ work. We expect this process to develop a strategic plan to be deliberate and thorough but not an endless one by any means. We have every expectation of announcing how we will continue to meet these goals in the coming months.

I know the expiration of the Commission’s charter does not impact the — and the Department supports the work — and is coordinating with NIST in whether the MOU [Memorandum of Understanding] needs to be amended. I want to emphasize at the Department we recognize our responsibility to work tirelessly, improve the work we do, and enhance the administration of justice. Part of that responsibility is to ensure we are regularly coordinating with the right people on these issues and acting in a manner that demonstrates our commitment to fair play and honest dealings in every matter we handle. We will work to understand lessons of this Commission and continue to advance our goals.

Again, the Department thanks you for your contributions and emphasizes we are not finished relying on you yet. Please expect to work with us in the coming months and review, share and respond to any public inquiries. The commitment of people in this room, the time and participation over the last three years was exemplary and represents what we are capable of doing when we work together towards a single unified goal. There is no question forensic sciences one of the most critical tools we have to reduce crime, increase public safety and it will remain a priority in the Department. In order to turn back rising crime, we need to rely on you working together. The federal government intends to use its money, research and expertise to help us figure out what your needs are and determine the best ways to ensure forensic science is accurate, reliable and available to law enforcement and prosecutors to fight crime and the Department of Justice intends to do that.

The new challenge of violent crime in our nation is real and the task in front of us is clear. We need to resist temptation to ignore this or downplay it. We need to tackle it head-on to ensure justice and safety for all Americans. The Department's pledge to identify strategic plans going forward reflects this commitment to justice and the rule of law. In maintaining the public’s confidence in the accurate and reliable forensic science analyses, we need to clear the innocent and convict the guilty. On behalf of the Attorney General, the acting Deputy Attorney General, and the men and women of the Department of Justice, I thank you once again for your efforts.
  1. The Federal Advisory Committee Act of 1972 limits such commissions to two-years of operations unless renewed.
  2. The renewed charter described the duration as “indefinite” but added that "[t]he Commission's termination date is two years from the date this Charter is filed with Congress, and is subject to renewal in accordance with Section 14 of FACA [the Federal Advisory Committee Act]."
  3. The reference is to the Supplemental Guidance for Prosecutors Regarding Criminal Discovery Involving Forensic Evidence and Experts, Jan. 5, 2017.  The encomium judiciously pretermits the friction with DOJ that NCFS’s work on pretrial discovery initially generated. The Commission produced nothing of much substance until 2015. That year began on a low note when DOJ tried to block NCFS from voting on a draft recommendation to have DOJ laboratories open their files in criminal cases to defense lawyers even when the Federal Rules of Criminal Procedure did not demand such access. The one federal judge on the Commission resigned in protest; newly appointed Deputy Attorney General Sally Yates rescinded the ruling that the NCFS was exceeding its mandate; Judge Jed Rakoff rejoined the group; NCFS approved the draft recommendations; and DOJ responded by issuing the Supplemental Guidance. See

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