Last week a federal judge resigned in frustration from a presidential commission on forensic science. That commission is charged with recommending improvements in the criminal justice system’s use of forensic evidence.
I’m not going to go deep into why this commission’s work is so important. Just this: DNA exonerations have shown us not only that the criminal justice system fails, but also some of how it fails. One of the badly broken bits is forensics.
To fix this, we may need better rules of evidence, but we will surely need better adversarial testing, which requires good disclosure of what and who and how. Put simply, not knowing in advance makes it very difficult to prepare to counter the evidence, especially when that evidence requires or purports to require some scientific understanding. And anyone saying, “It’s a match!” can sway a jury, regardless of the validity of the claim.
“Discovery” is the legal process by which evidence is disclosed before trial begins. For some reason, the discovery rules require much more pre-trial disclosure in civil law (where corporations and other businesses are often defendants) than in criminal cases. If the rules allow withholding, then withholding we shall have, and the results will be less reliable.
The details are in Judge Rakoff’s letter, but the bottom line here is that the Deputy Attorney General of the US DOJ decided that examining the discovery rules was off-limits for the commission.
Judge Rakoff then publicly resigned, stating his opinion that the unilateral decision was a mistake reflecting “a determination by the Department of Justice to place strategic advantage over a search for the truth.” This is the heart of the issue.
I’m often frustrated by what I see as typical prosecutorial bullying, and it’s easy to jump to that lens. The more important lens here, however, is that of power over the process. We must learn to differentiate the times when the government fights to win a case, which is reasonable in our system, from the times it fights for advantage in the process, which is an outrage. Our system is, by design, an adversarial one, and in such a system, the parties are necessarily going to fight to win, rather than to seek the truth. We should not expect otherwise.
No defense lawyer worth her salt will (or should) simply go sit at the prosecution table if she believes her client to be guilty. Because it is her role in the system, she will fight to force the State to prove every bit of its case within the rules. She may well advise her client (guilty or not) to accept a plea agreement. If there is a “technicality”in her client’s favor (e.g., the police conducted an illegal search), she will fight to keep evidence out. And if the jury is not convinced beyond a reasonable doubt, yes, a guilty person may go free.
That is a danger, but there is a worse one: that an innocent person may be convicted. This danger is real, as the parade of recent exonerations reminds us. [And yes, that outcome is objectively worse, because it’s a two-fer: every time it happens, a guilty person also goes free.]
Personally, I think it’s a rare prosecutor who intentionally convicts the innocent, but it’s not at all rare for a police officer or a prosecutor to be prematurely and stubbornly wrong about who is guilty. This overconfidence incentivizes walking as closely as possible to (and occasionally stepping over, especially if there are no consequences) every line. Regardless of the State’s high calling to seek justice rather than success, an individual prosecutor in an individual case—having decided to prosecute—will understandably fight like the devil to win.
The only thing that keeps this from being a free-for-all in which the more powerful side (the government) always wins is the process, the rules which protect the right to a fair trial—the defendant’s right: the defendant is the only party with constitutional rights. The founders knew which way the system would go if not carefully constrained. The rules are there to restrain the government.
The jury and judge are really the only truth-seekers, and the process is the only thing that protects their ability to find it. Everything depends on the process being scrupulously fair to the defendant.
So we must pay careful attention when the government attempts to protect or create a strategic advantage. We must notice when the government tries to use its considerable power to protect its considerable power. There’s a difference between fighting to win and fighting the ones who try to level the field.
The day after Judge Rakoff’s widely-circulated resignation letter, the DOJ relented, blaming the decision on a prior office-holder. It is not clear what effect the publicity had, but the DOJ will no longer refuse to consider the commission’s recommendations on their merits.
This doesn’t mean they will be accepted. We would do well to pay attention when the time comes.