The sole federal judge appointed to the NIST/DOJ  National Commission on Forensic Science has resigned in protest, according to his reported email, over what he feels is inappropriate attempt by the Department of Justice to restrict the scope of the Commission. In the resignation, Judge Rakoff makes very apt observations that highlight the defect in the discovery process in criminal law when it comes to forensic science and contrasts that with what happens in civil practice. This is a very important point.  Obviously, this is a very strong signal that there may be something quite amiss with the NIST led effort. With such a strong and seemingly insurmountable veto power placed in the DOJ’s hands, many fear that the DOJ will use NIST and the Commission in an effort to benefit prosecutors. What is worse is that the otherwise pristine and great scientific reputation of NIST will be used to give the veneer of science over what in reality is DOJ’s advocacy. This is the fear that many had when it was announced that DOJ would take such a prominent role in the NIST OSAC structure.

We have obtained the text of his resignation. It sure doesn’t paint a very good picture of the efforts to date. I know several of the Commissioners on the Commission. Sadly, several (not all of them) have commented to me prior to this email these very sentiments as captured below in the Judge’s resignation:

Dear Fellow Commissioners:

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. 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.

This issue first arose last October when the Subcommittee on Reporting and Testimony, which I have the honor to co-chair along with Wyoming prosecutor Matt Redle, presented to the full Commission for discussion a draft report, authored by Prof. Paul Giannelli, recommending, in essence, 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. The Commission then debated the draft report on the merits, and many helpful suggestions were offered, reflecting the broad composition of the Commission and its ability, unlike judicial rule-making bodies or the like, to ascertain what makes sense in the specialized area of forensic science. However, the Department’s co-chair of the Commission, having expressed his view that the entire discussion was beyond the Commission’s scope, then determined that the issue, not of the merits but of whether such discovery matters could even be considered by the Commission, would be put to the Deputy Attorney General for decision. Matt Redle and I then requested the opportunity to submit a memorandum stating our views; this was permitted (a copy is here attached), and, as I understand, was attached as one of several appendices to a memorandum taking the opposite view that was submitted to the Deputy Attorney General in late November but never shared with Matt, me, our Subcommittee, or the Commission. 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.

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. That Charter specifies six duties that the Commission is commanded to fulfill. The third of these duties is “To develop proposed guidance concerning the intersection of forensic science and the courtroom.” 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. Indeed, from the standpoint of improving forensic science and making its application to criminal prosecutions more accurate (which were key reasons for the very creation of the Commission), discovery is probably the most important area of intersection between forensic science and the courtroom, because it is only through adequate discovery that forensic science can be meaningfully scrutinized in any specific case. 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.

One might add that it seems unlikely that the Commission, at its very first meeting, would have created a Subcommittee on “Reporting and Testimony” if it were not concerned with how information about a forensic expert’s opinions was reported in advance of his testifying, i.e., discovery. And the written instruction that was sent by the Department of Justice’s liaison to the Subcommittee expressly stated that the Subcommittee should consider, inter alia, “legal issues inherent in reporting and testimony, such as 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. 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. That is why this Commission, which has such a broad range of participants in the field, is so well suited to consider whether, under the circumstances, greater pre-trial discovery, even though not required, should be embraced by the Department of Justice, both as a matter of fairness and also to help insure the determination of the truth. Does the Department have to be reminded of the many cases of grossly inaccurate forensic testimony that led to the creation of the Commission?

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

Here is an article that provides comments by DOJ and others:

U.S. judge quits commission to protest Justice Department forensic science policy

By Spencer S. Hsu January 29 at 12:02 PM

The sole federal judge on a commission appointed by President Obama to improve forensic science in the criminal justice system has resigned in protest, criticizing the U.S. Department of Justice for muzzling its work to benefit prosecutors.U.S. District Judge Jed S. Rakoff of New York said he quit because the Justice Department had barred it from recommending an expansion of the exchange of pre-trial information to include more evidence from forensic experts. Prosecutors routinely share evidence with defense lawyers. Rakoff said in his resignation letter that the ban contradicts the panel’s charter and voids months of work.The proposed change would address a major criticism of the nation’s top scientific organization and many legal experts, who have warned in recent years that police and prosecutors exercise too much control over crime labs, which suffer from weak standards over research, testimony and examinations. The failings that have led to dozens of lab scandals and hundreds of exonerations over the past two decades.“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,” Rakoff wrote in an e-mail late Wednesday to fellow commissioners that spread rapidly in legal circles overnight.

“It is hard to escape the conclusion [that the decision] is chiefly designed to preserve a courtroom advantage by avoiding even the possibility that Commission discussion might expose it as unfair,” Rakoff added.

Rakoff’s email came on the eve of the commission’s Thursday meeting, where the evidence discovery proposal was to be discussed. Rakoff wrote that the decision was made by Sally Q. Yates, the department’s acting deputy attorney general since James Cole’s departure Jan. 8, after objections by the commission’s co-chair, Nelson Santos, head of the U.S. Drug Enforcement Agency’s Office of Forensic Sciences.

Santos did not respond to a request for comment.

In a statement, Justice Department spokeswoman Emily Pierce said, “While the department is disappointed in Judge Rakoff’s decision, this was a basic disagreement about the scope of the commission’s work.”

A department official said its experts found that many of the commission’s proposals were covered by existing rules and guidelines, and encouraged the panel to keep working on evidence retention policies and transparency.

Nevertheless, Rakoff’s departure poses a blow to the credibility of the Obama administration’s effort, announced nearly two years ago, to commit scientists and a new presidentially appointed panel to address recurring concerns about the quality of forensic evidence used in criminal courts across the country.

Rakoff, a 1995 Clinton judicial nominee, made headlines in 2010 and 2011 when he criticized the U.S. Securities and Exchange Commission’s treatment of banks involved in the financial crises as too lenient. He has also been an influential voice from the bench for science, helping revise the 2011 edition of the federal judiciary’s reference manual on scientific evidence and serving on the board of the MacArthur Foundation’s Law & Neuroscience Project.

After meeting for more than a year, the forensic commission has prepared draft recommendations for Attorney General Eric H. Holder, Jr., or his nominated successor, Loretta Lynch, to improve evidence discovery and expert testimony, training, and certification practices. It also reorganized the scientific governing organizations for individual forensic techniques.

The commission’s efforts to improve research, training and standards will likely take years and new resources to bear fruit, however, while participants said Rakoff’s subcommittee on reporting and testimony could immediately help judges and juries make clearer sense of questioned forensic techniques.

Rakoff noted that the commission’s charter explicitly calls for it to develop proposals concerning “the intersection of forensic science and the courtroom.”

“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.” he wrote.

Matthew F. Redle, chief prosecutor for Sheridan County, Wyoming, and co-chair of Rakoff’s subcommittee, said the proposal appeared to have majority support, but Rakoff held it for more discussion to build greater consensus.

“I respect and admire Judge Rakoff a great deal. His letter can speak for itself,” Redle said.