1 00:00:00,040 --> 00:00:03,720 Speaker 1: Attorney General Jeff Sessions has taken another step back from 2 00:00:03,760 --> 00:00:07,760 Speaker 1: the policies of the Obama joice department. Sessions announced Monday 3 00:00:07,800 --> 00:00:11,079 Speaker 1: that he's ending the National Commission on Forensic Science, a 4 00:00:11,240 --> 00:00:15,680 Speaker 1: roughly thirty member independent advisory panel of scientists, judges, crime 5 00:00:15,760 --> 00:00:20,480 Speaker 1: lab leaders, prosecutors, and defense attorneys. The Obama administration created 6 00:00:20,480 --> 00:00:24,520 Speaker 1: the partnership to raise the reliability of forensic science used 7 00:00:24,520 --> 00:00:27,960 Speaker 1: in criminal cases across the country. Due to wide ranging 8 00:00:28,000 --> 00:00:33,440 Speaker 1: concerns about problematic forensic techniques and flawed testimony by FBI experts, 9 00:00:33,920 --> 00:00:37,400 Speaker 1: Sessions has said law enforcement needs to return to tough 10 00:00:37,479 --> 00:00:44,080 Speaker 1: on crime enforcement strategies. President of Trump gave us a 11 00:00:44,120 --> 00:00:48,519 Speaker 1: clear direction. He is committed to law and order in 12 00:00:48,560 --> 00:00:52,000 Speaker 1: America and he is a firm supporter of law enforcement. 13 00:00:53,240 --> 00:00:56,360 Speaker 1: Sessions said, in place of the Commission, a senior forensic 14 00:00:56,440 --> 00:01:00,440 Speaker 1: in house advisor will be appointed. Our guests are Brandon Garrett, 15 00:01:00,480 --> 00:01:02,920 Speaker 1: a professor at the University of Virginia School of Law, 16 00:01:03,120 --> 00:01:06,320 Speaker 1: and Christopher Robertson, a professor at the University of Arizona 17 00:01:06,400 --> 00:01:10,360 Speaker 1: College of Law. Brandon has the Commission had an impact 18 00:01:10,440 --> 00:01:14,400 Speaker 1: on the criminal justice system? It absolutely has, and I 19 00:01:14,440 --> 00:01:18,920 Speaker 1: think it's important to have a group of scientists considering 20 00:01:18,920 --> 00:01:21,360 Speaker 1: these questions along with judges and lawyers. Having just a 21 00:01:21,400 --> 00:01:23,960 Speaker 1: single advisor is not a recipe for getting much done 22 00:01:24,000 --> 00:01:27,679 Speaker 1: in this complicated area. But they've recommended changes to improve 23 00:01:27,720 --> 00:01:30,680 Speaker 1: the accuracy of the forensics, the accuracy with which they 24 00:01:30,720 --> 00:01:36,720 Speaker 1: are presented to lawyers and to jurors rules, uh, encouraging 25 00:01:36,720 --> 00:01:39,679 Speaker 1: the use of accredited labs, which will hopefully have make 26 00:01:39,800 --> 00:01:42,080 Speaker 1: make fewer errors. And so I think all of us 27 00:01:42,200 --> 00:01:44,920 Speaker 1: is this really smart on crime type of changes which 28 00:01:45,280 --> 00:01:48,200 Speaker 1: prevent wrongful convictions of the innocent and make sure that 29 00:01:48,240 --> 00:01:51,240 Speaker 1: we actually convict the guilty. I don't see any inconsistency 30 00:01:51,280 --> 00:01:55,040 Speaker 1: between focusing on science in the courtroom and and being 31 00:01:55,080 --> 00:01:58,160 Speaker 1: tough on crime. Chris, what do you see as being 32 00:01:58,280 --> 00:02:01,960 Speaker 1: behind this announcement for the Attorney General yesterday? Is it 33 00:02:02,200 --> 00:02:05,920 Speaker 1: just uh, you know, part of that tough on crime strategy, 34 00:02:06,080 --> 00:02:09,280 Speaker 1: our approach that he's trying to take. I'm not even 35 00:02:09,320 --> 00:02:12,360 Speaker 1: sure it's tough on crime so much as um being 36 00:02:12,400 --> 00:02:15,920 Speaker 1: on the side of the prosecution. Um. The I mean, 37 00:02:16,000 --> 00:02:18,840 Speaker 1: part of the reform effort that's going on in the 38 00:02:18,880 --> 00:02:21,760 Speaker 1: forensic science world is to try to make forensic science 39 00:02:21,840 --> 00:02:25,840 Speaker 1: be science to actually have an independent, objective view of 40 00:02:25,840 --> 00:02:28,959 Speaker 1: the facts in any even case. But in the actual 41 00:02:28,960 --> 00:02:32,400 Speaker 1: criminal litigation process, of course, it's an adversarial process with 42 00:02:32,520 --> 00:02:38,079 Speaker 1: a defendant and a prosecutor. And it looks like um uh, 43 00:02:38,320 --> 00:02:41,880 Speaker 1: the Department of Justice is trying to pull forensics back 44 00:02:41,919 --> 00:02:46,520 Speaker 1: into um one side um of criminal litigation to make 45 00:02:46,560 --> 00:02:50,520 Speaker 1: sure it's actually controlled by one side of the adversaries um, 46 00:02:50,720 --> 00:02:55,040 Speaker 1: rather than being an independent uh scientific um. You know, 47 00:02:55,160 --> 00:02:59,640 Speaker 1: light on the truth and Brandon. Prominent Manhattan federal judge 48 00:02:59,720 --> 00:03:03,919 Speaker 1: Jed Raikoff, who is on the committee, said it's unrealistic 49 00:03:03,960 --> 00:03:08,160 Speaker 1: to expect that truly objective, scientifically sounds standards for the 50 00:03:08,240 --> 00:03:11,800 Speaker 1: use of forensics science can be arrived at by entities 51 00:03:11,919 --> 00:03:15,720 Speaker 1: centered solely within the Department of Justice. Do you agree 52 00:03:15,760 --> 00:03:18,760 Speaker 1: with him? And what kind of problems do you foresee 53 00:03:18,800 --> 00:03:24,280 Speaker 1: if you do, I absolutely agree with Judge Raykoff, and 54 00:03:24,440 --> 00:03:26,639 Speaker 1: you know he is echoing the statements of the National 55 00:03:26,639 --> 00:03:29,919 Speaker 1: Academies of Science. The National Academy is issued a really 56 00:03:29,960 --> 00:03:32,800 Speaker 1: important report in two thousand and nine saying that the 57 00:03:32,880 --> 00:03:36,880 Speaker 1: only way to get forensics on the right path where 58 00:03:36,880 --> 00:03:40,839 Speaker 1: really only DNA evidence can accurately and reliably be used 59 00:03:40,840 --> 00:03:44,400 Speaker 1: to connect evidenced individuals. Nothing else can is to have 60 00:03:44,960 --> 00:03:49,840 Speaker 1: scientific oversight of forensics and not just have prosecutors decided 61 00:03:49,880 --> 00:03:52,160 Speaker 1: to just keep using the stuff that they've been using 62 00:03:52,160 --> 00:03:55,560 Speaker 1: successfully to convict people but also to get wrongful convictions. 63 00:03:55,960 --> 00:03:59,960 Speaker 1: And so, um, you know there there is still important 64 00:04:00,680 --> 00:04:04,520 Speaker 1: work being done by scientists in forensics, and hopefully that 65 00:04:04,520 --> 00:04:08,320 Speaker 1: that work will continue. But I couldn't agree with with 66 00:04:09,360 --> 00:04:12,040 Speaker 1: Chris more that this is this is an effort to 67 00:04:12,080 --> 00:04:16,120 Speaker 1: try to center the problem at the Department of Justice, 68 00:04:16,160 --> 00:04:18,400 Speaker 1: have prosecutors decide what they feel like using and what 69 00:04:18,440 --> 00:04:24,279 Speaker 1: they don't, rather than take scientific concerns into consideration. Chris, 70 00:04:24,279 --> 00:04:28,000 Speaker 1: how big are the problems as you see it with 71 00:04:28,240 --> 00:04:32,400 Speaker 1: forensic science, uh, and the way it's being used in 72 00:04:32,480 --> 00:04:35,560 Speaker 1: the courtroom? I mean we're also used to, uh some 73 00:04:35,600 --> 00:04:37,880 Speaker 1: of us are used to watching you know, TV crime 74 00:04:37,920 --> 00:04:40,560 Speaker 1: shows and it looks pretty reliable. But how does that 75 00:04:40,600 --> 00:04:44,159 Speaker 1: play out in the real world. Well, um, this is 76 00:04:44,160 --> 00:04:47,360 Speaker 1: an area where we only get a glimpse of of 77 00:04:47,400 --> 00:04:52,159 Speaker 1: how big the problems are through DNA evidence, which has 78 00:04:52,320 --> 00:04:56,360 Speaker 1: um exonerated uh, well over a thousand individuals who are 79 00:04:56,360 --> 00:05:01,479 Speaker 1: wrongfully convicted, and we know because sole source DNA evidence 80 00:05:01,640 --> 00:05:04,720 Speaker 1: is the paradigm case of a reliable forensic science, it 81 00:05:04,800 --> 00:05:11,120 Speaker 1: has indisputedly exonerated um uh, these these individuals. But if 82 00:05:11,120 --> 00:05:13,240 Speaker 1: you look back at their cases, we can find that 83 00:05:13,400 --> 00:05:17,000 Speaker 1: over half of those cases had flawed fingerprint analysis, or 84 00:05:17,040 --> 00:05:21,880 Speaker 1: flawed handwriting analysis, or voiceprint analysis or hair analysis, all 85 00:05:21,920 --> 00:05:25,680 Speaker 1: the other forensic sciences have been shown to cause wrong 86 00:05:25,760 --> 00:05:30,760 Speaker 1: for wrongful convictions. Now that's over well over a thousand anecdotes. 87 00:05:30,960 --> 00:05:32,920 Speaker 1: But then if you start digging a little deeper, you 88 00:05:32,960 --> 00:05:36,919 Speaker 1: can figure out why those forensic sciences have gotten it wrong. 89 00:05:37,720 --> 00:05:39,840 Speaker 1: And um it turns out that in many of them, 90 00:05:39,880 --> 00:05:43,040 Speaker 1: there just is no foundational science to support them. It's 91 00:05:43,040 --> 00:05:46,680 Speaker 1: actually a misnomer to call them forensic science. Instead, most 92 00:05:46,680 --> 00:05:50,440 Speaker 1: of these are based on very well intentioned, sometimes very 93 00:05:50,480 --> 00:05:55,839 Speaker 1: well trained individuals who are giving their subjective impression of whether, um, 94 00:05:55,920 --> 00:05:59,080 Speaker 1: one mark looks like another. What we need and what 95 00:05:59,200 --> 00:06:02,320 Speaker 1: this commission was moving us towards and actually a science 96 00:06:02,320 --> 00:06:05,520 Speaker 1: of forensic science, so we could measure how accurate they are, 97 00:06:06,000 --> 00:06:08,960 Speaker 1: We could figure out how accurate different labs are, different 98 00:06:08,960 --> 00:06:12,160 Speaker 1: analysts are, and actually developed the same sort of rigor 99 00:06:12,279 --> 00:06:16,640 Speaker 1: we expect from biomedical science physicians, for example, are backed 100 00:06:16,680 --> 00:06:19,080 Speaker 1: up by a whole team of scientists, and we need 101 00:06:19,120 --> 00:06:22,279 Speaker 1: that same sort of rigor in the forensic sciences. We're 102 00:06:22,279 --> 00:06:25,720 Speaker 1: talking about Attorney General Jeff's Sessions announcing yesterday that he's 103 00:06:25,839 --> 00:06:30,599 Speaker 1: ending the National Commission on Forensic Science. The Obama administration 104 00:06:30,680 --> 00:06:34,080 Speaker 1: created the partnership to re to raise the reliability of 105 00:06:34,120 --> 00:06:37,479 Speaker 1: forensic science used in criminal cases across the country. We 106 00:06:37,520 --> 00:06:39,920 Speaker 1: have been talking with Brandon Garrett, a professor at the 107 00:06:40,040 --> 00:06:43,320 Speaker 1: University of Virginia School of Law, and Christopher Robertson, a 108 00:06:43,360 --> 00:06:47,520 Speaker 1: professor at the University of Arizona College of Law. Chris 109 00:06:47,520 --> 00:06:52,280 Speaker 1: In the FBI reported that nearly every examiner in an 110 00:06:52,320 --> 00:06:57,280 Speaker 1: elite hair analysis unit gave scientifically flawed or overstated testimony 111 00:06:57,320 --> 00:07:00,800 Speaker 1: in nine cases for two decades, but were two thousand 112 00:07:01,120 --> 00:07:05,680 Speaker 1: and the cases included fourteen defendants who were executed or 113 00:07:05,960 --> 00:07:09,840 Speaker 1: died in prison. Now, the Justice Department, in addition to 114 00:07:09,920 --> 00:07:14,600 Speaker 1: what Jeff Session said yesterday, the Justice Department also is 115 00:07:14,640 --> 00:07:18,960 Speaker 1: reconsidering an effort launched last year to review forensics sciences 116 00:07:18,960 --> 00:07:25,520 Speaker 1: practiced by the FBI in light of these glaring problems 117 00:07:25,600 --> 00:07:29,040 Speaker 1: with the forensic science that the FBI is using why 118 00:07:29,120 --> 00:07:33,040 Speaker 1: do this? And you know, I just emphasize that the 119 00:07:33,480 --> 00:07:36,560 Speaker 1: FBI crime labs have been taken as the model for 120 00:07:36,600 --> 00:07:39,960 Speaker 1: the country. They've been the leaders in the forensic science community, 121 00:07:40,120 --> 00:07:42,760 Speaker 1: and if they're having this sort of crisis, um, it's 122 00:07:42,800 --> 00:07:46,800 Speaker 1: really the tip of the iceberg. Nationwide. Most criminal cases, 123 00:07:46,920 --> 00:07:50,400 Speaker 1: you know, proceed in the state and so um it 124 00:07:50,520 --> 00:07:53,520 Speaker 1: really is, uh, the canary in the coal mine for 125 00:07:53,640 --> 00:07:57,520 Speaker 1: much much deeper problems. So and I think that also 126 00:07:57,560 --> 00:08:00,600 Speaker 1: shows how it's really not about being tough one crime, 127 00:08:00,680 --> 00:08:03,000 Speaker 1: because you want to be tough on the actual criminals 128 00:08:03,320 --> 00:08:07,040 Speaker 1: and um, you know, producing bad matches, um, and going 129 00:08:07,080 --> 00:08:10,720 Speaker 1: after the wrong person, uh doesn't really punish or deter 130 00:08:11,400 --> 00:08:16,080 Speaker 1: the right person. Brandon picking up on that. One thing 131 00:08:16,360 --> 00:08:18,520 Speaker 1: I've been wondering is, you know, we've been sort of 132 00:08:18,560 --> 00:08:23,960 Speaker 1: portraying this to some degree as a prosecution versus defense Uh. Issue. 133 00:08:24,200 --> 00:08:29,440 Speaker 1: But um, if somebody is wrongfully convicted, presumably they have 134 00:08:30,320 --> 00:08:34,040 Speaker 1: at least some possibility of getting their conviction overturned. And 135 00:08:34,120 --> 00:08:38,320 Speaker 1: that can't be good for the prosecution. Isn't this you know, 136 00:08:38,400 --> 00:08:41,440 Speaker 1: having accurate forensics science as much in the interest of 137 00:08:41,640 --> 00:08:45,000 Speaker 1: prosecutors as as defense. Well, it is. And you know 138 00:08:45,240 --> 00:08:48,160 Speaker 1: when when DANNA, when dnax hoerations were a new thing 139 00:08:48,160 --> 00:08:51,640 Speaker 1: in the ninet nineties, you sometimes had prosecutors opposed emotions, say, 140 00:08:51,720 --> 00:08:53,719 Speaker 1: you know, you don't deserve a DNA test, what good 141 00:08:53,760 --> 00:08:57,600 Speaker 1: will it do. But in about half of those dnaserations, 142 00:08:57,640 --> 00:09:00,320 Speaker 1: and there have been many hundreds of them, now, the 143 00:09:00,360 --> 00:09:03,520 Speaker 1: real culprit is identified by the DNA test, and so 144 00:09:03,600 --> 00:09:06,640 Speaker 1: prosecutors now realized that that, you know, you had these people, 145 00:09:06,960 --> 00:09:09,560 Speaker 1: some of them were mass murderers who continued to commit 146 00:09:09,640 --> 00:09:12,040 Speaker 1: rapes and murders while an innocent person sat in prison. 147 00:09:12,800 --> 00:09:14,720 Speaker 1: And you know that happened in some of the cases 148 00:09:14,760 --> 00:09:18,440 Speaker 1: that triggered this FBI audit of thousands and thousands of 149 00:09:18,440 --> 00:09:21,720 Speaker 1: haircases around the country. You had several individuals in Washington, 150 00:09:21,800 --> 00:09:25,000 Speaker 1: d c. Who were all freed by DNA, wrongly convicted 151 00:09:25,040 --> 00:09:27,440 Speaker 1: of murders. There was a horrible scandal and a blemish 152 00:09:27,480 --> 00:09:29,520 Speaker 1: on the FBI's reputation, but they did the right thing 153 00:09:29,520 --> 00:09:31,439 Speaker 1: and said, we're gonna work with scientists, We're gonna work 154 00:09:31,440 --> 00:09:34,040 Speaker 1: with defense lawyers, innocence projects, We're gonna work with everyone 155 00:09:34,080 --> 00:09:38,400 Speaker 1: to make sure that these badged forensics cases get corrected. 156 00:09:38,840 --> 00:09:41,480 Speaker 1: And so I hope that the dj and the FBI 157 00:09:41,600 --> 00:09:45,160 Speaker 1: continue to review a whole host of forensics where where 158 00:09:45,200 --> 00:09:48,839 Speaker 1: testimony was given in exactly the same exaggerated ways as 159 00:09:48,880 --> 00:09:51,520 Speaker 1: in hair testimony back in the eighties and nineties. It's 160 00:09:51,520 --> 00:09:53,760 Speaker 1: a it's all, we need to look back and fix 161 00:09:53,840 --> 00:09:56,800 Speaker 1: old cases where the forensics were botched, and we need 162 00:09:56,840 --> 00:09:58,600 Speaker 1: to look forward to make sure it doesn't happen again 163 00:09:58,880 --> 00:10:02,760 Speaker 1: through sound scientifics standards. And it sounds like the you know, 164 00:10:02,800 --> 00:10:05,360 Speaker 1: Sessions is trying to close the door on fixing things 165 00:10:05,360 --> 00:10:07,760 Speaker 1: in the future, which is terrible. We also need to 166 00:10:07,800 --> 00:10:10,320 Speaker 1: make sure we free people who are wrongly convicted based 167 00:10:10,360 --> 00:10:15,360 Speaker 1: on poor forensics. Chris, is this one in a long 168 00:10:15,400 --> 00:10:19,840 Speaker 1: line of anti science decisions made by the Trump administration 169 00:10:20,400 --> 00:10:26,240 Speaker 1: climate change, environment. There aren't many scientists in the Trump administration. 170 00:10:27,559 --> 00:10:29,960 Speaker 1: It does seem to be that way. Although you know, 171 00:10:30,000 --> 00:10:32,560 Speaker 1: I can't imagine why anyone would actually be opposed to 172 00:10:32,640 --> 00:10:35,679 Speaker 1: science per se. It's hard to to to even figure out. 173 00:10:36,040 --> 00:10:39,119 Speaker 1: I mean, that's like being opposed to water or um 174 00:10:39,280 --> 00:10:42,520 Speaker 1: or being opposed to sunlight. Um. You know, science is 175 00:10:42,600 --> 00:10:46,120 Speaker 1: just essential to getting anything else we're trying to do, right, 176 00:10:46,240 --> 00:10:48,760 Speaker 1: if we want to cure cancer or if we want 177 00:10:48,800 --> 00:10:51,600 Speaker 1: to um uh, to put the right person in prison. 178 00:10:52,400 --> 00:10:54,880 Speaker 1: I'll just mentioned one of the alternatives to good science 179 00:10:54,960 --> 00:10:57,800 Speaker 1: is actually bias and and that's one of the things 180 00:10:57,800 --> 00:11:01,319 Speaker 1: that this this commission has been working on is making 181 00:11:01,360 --> 00:11:06,160 Speaker 1: sure that the forensic science are using the actual UM 182 00:11:06,320 --> 00:11:10,000 Speaker 1: data available to them rather than just testifying based on 183 00:11:10,160 --> 00:11:13,679 Speaker 1: what the individual prosecutor happens to prefer based on the 184 00:11:13,760 --> 00:11:17,199 Speaker 1: immediate desire to put this particular guy away. That shift 185 00:11:17,280 --> 00:11:20,120 Speaker 1: to trying to get the objective, the true, the right answer. 186 00:11:20,800 --> 00:11:24,400 Speaker 1: I think it's essential to really a long tradition in 187 00:11:24,480 --> 00:11:28,440 Speaker 1: criminal law. UM. It's not really about science versus anything else, 188 00:11:28,480 --> 00:11:33,559 Speaker 1: it's about justice versus um arbitrary nous. I want to 189 00:11:33,600 --> 00:11:36,880 Speaker 1: thank you both for being on Bloomberg Law. That's Professor 190 00:11:37,000 --> 00:11:40,640 Speaker 1: Christopher Robertson of the University of Arizona College of Law 191 00:11:40,679 --> 00:11:44,240 Speaker 1: and Professor Brandon Garrett of the University of Virginia School 192 00:11:44,280 --> 00:11:44,720 Speaker 1: of Law.