Speaker 1: Attorney General Jeff Sessions has taken another step back from
Speaker 1: the policies of the Obama joice department. Sessions announced Monday
Speaker 1: that he's ending the National Commission on Forensic Science, a
Speaker 1: roughly thirty member independent advisory panel of scientists, judges, crime
Speaker 1: lab leaders, prosecutors, and defense attorneys. The Obama administration created
Speaker 1: the partnership to raise the reliability of forensic science used
Speaker 1: in criminal cases across the country. Due to wide ranging
Speaker 1: concerns about problematic forensic techniques and flawed testimony by FBI experts,
Speaker 1: Sessions has said law enforcement needs to return to tough
Speaker 1: on crime enforcement strategies. President of Trump gave us a
Speaker 1: clear direction. He is committed to law and order in
Speaker 1: America and he is a firm supporter of law enforcement.
Speaker 1: Sessions said, in place of the Commission, a senior forensic
Speaker 1: in house advisor will be appointed. Our guests are Brandon Garrett,
Speaker 1: a professor at the University of Virginia School of Law,
Speaker 1: and Christopher Robertson, a professor at the University of Arizona
Speaker 1: College of Law. Brandon has the Commission had an impact
Speaker 1: on the criminal justice system? It absolutely has, and I
Speaker 1: think it's important to have a group of scientists considering
Speaker 1: these questions along with judges and lawyers. Having just a
Speaker 1: single advisor is not a recipe for getting much done
Speaker 1: in this complicated area. But they've recommended changes to improve
Speaker 1: the accuracy of the forensics, the accuracy with which they
Speaker 1: are presented to lawyers and to jurors rules, uh, encouraging
Speaker 1: the use of accredited labs, which will hopefully have make
Speaker 1: make fewer errors. And so I think all of us
Speaker 1: is this really smart on crime type of changes which
Speaker 1: prevent wrongful convictions of the innocent and make sure that
Speaker 1: we actually convict the guilty. I don't see any inconsistency
Speaker 1: between focusing on science in the courtroom and and being
Speaker 1: tough on crime. Chris, what do you see as being
Speaker 1: behind this announcement for the Attorney General yesterday? Is it
Speaker 1: just uh, you know, part of that tough on crime strategy,
Speaker 1: our approach that he's trying to take. I'm not even
Speaker 1: sure it's tough on crime so much as um being
Speaker 1: on the side of the prosecution. Um. The I mean,
Speaker 1: part of the reform effort that's going on in the
Speaker 1: forensic science world is to try to make forensic science
Speaker 1: be science to actually have an independent, objective view of
Speaker 1: the facts in any even case. But in the actual
Speaker 1: criminal litigation process, of course, it's an adversarial process with
Speaker 1: a defendant and a prosecutor. And it looks like um uh,
Speaker 1: the Department of Justice is trying to pull forensics back
Speaker 1: into um one side um of criminal litigation to make
Speaker 1: sure it's actually controlled by one side of the adversaries um,
Speaker 1: rather than being an independent uh scientific um. You know,
Speaker 1: light on the truth and Brandon. Prominent Manhattan federal judge
Speaker 1: Jed Raikoff, who is on the committee, said it's unrealistic
Speaker 1: to expect that truly objective, scientifically sounds standards for the
Speaker 1: use of forensics science can be arrived at by entities
Speaker 1: centered solely within the Department of Justice. Do you agree
Speaker 1: with him? And what kind of problems do you foresee
Speaker 1: if you do, I absolutely agree with Judge Raykoff, and
Speaker 1: you know he is echoing the statements of the National
Speaker 1: Academies of Science. The National Academy is issued a really
Speaker 1: important report in two thousand and nine saying that the
Speaker 1: only way to get forensics on the right path where
Speaker 1: really only DNA evidence can accurately and reliably be used
Speaker 1: to connect evidenced individuals. Nothing else can is to have
Speaker 1: scientific oversight of forensics and not just have prosecutors decided
Speaker 1: to just keep using the stuff that they've been using
Speaker 1: successfully to convict people but also to get wrongful convictions.
Speaker 1: And so, um, you know there there is still important
Speaker 1: work being done by scientists in forensics, and hopefully that
Speaker 1: that work will continue. But I couldn't agree with with
Speaker 1: Chris more that this is this is an effort to
Speaker 1: try to center the problem at the Department of Justice,
Speaker 1: have prosecutors decide what they feel like using and what
Speaker 1: they don't, rather than take scientific concerns into consideration. Chris,
Speaker 1: how big are the problems as you see it with
Speaker 1: forensic science, uh, and the way it's being used in
Speaker 1: the courtroom? I mean we're also used to, uh some
Speaker 1: of us are used to watching you know, TV crime
Speaker 1: shows and it looks pretty reliable. But how does that
Speaker 1: play out in the real world. Well, um, this is
Speaker 1: an area where we only get a glimpse of of
Speaker 1: how big the problems are through DNA evidence, which has
Speaker 1: um exonerated uh, well over a thousand individuals who are
Speaker 1: wrongfully convicted, and we know because sole source DNA evidence
Speaker 1: is the paradigm case of a reliable forensic science, it
Speaker 1: has indisputedly exonerated um uh, these these individuals. But if
Speaker 1: you look back at their cases, we can find that
Speaker 1: over half of those cases had flawed fingerprint analysis, or
Speaker 1: flawed handwriting analysis, or voiceprint analysis or hair analysis, all
Speaker 1: the other forensic sciences have been shown to cause wrong
Speaker 1: for wrongful convictions. Now that's over well over a thousand anecdotes.
Speaker 1: But then if you start digging a little deeper, you
Speaker 1: can figure out why those forensic sciences have gotten it wrong.
Speaker 1: And um it turns out that in many of them,
Speaker 1: there just is no foundational science to support them. It's
Speaker 1: actually a misnomer to call them forensic science. Instead, most
Speaker 1: of these are based on very well intentioned, sometimes very
Speaker 1: well trained individuals who are giving their subjective impression of whether, um,
Speaker 1: one mark looks like another. What we need and what
Speaker 1: this commission was moving us towards and actually a science
Speaker 1: of forensic science, so we could measure how accurate they are,
Speaker 1: We could figure out how accurate different labs are, different
Speaker 1: analysts are, and actually developed the same sort of rigor
Speaker 1: we expect from biomedical science physicians, for example, are backed
Speaker 1: up by a whole team of scientists, and we need
Speaker 1: that same sort of rigor in the forensic sciences. We're
Speaker 1: talking about Attorney General Jeff's Sessions announcing yesterday that he's
Speaker 1: ending the National Commission on Forensic Science. The Obama administration
Speaker 1: created the partnership to re to raise the reliability of
Speaker 1: forensic science used in criminal cases across the country. We
Speaker 1: have been talking with Brandon Garrett, a professor at the
Speaker 1: University of Virginia School of Law, and Christopher Robertson, a
Speaker 1: professor at the University of Arizona College of Law. Chris
Speaker 1: In the FBI reported that nearly every examiner in an
Speaker 1: elite hair analysis unit gave scientifically flawed or overstated testimony
Speaker 1: in nine cases for two decades, but were two thousand
Speaker 1: and the cases included fourteen defendants who were executed or
Speaker 1: died in prison. Now, the Justice Department, in addition to
Speaker 1: what Jeff Session said yesterday, the Justice Department also is
Speaker 1: reconsidering an effort launched last year to review forensics sciences
Speaker 1: practiced by the FBI in light of these glaring problems
Speaker 1: with the forensic science that the FBI is using why
Speaker 1: do this? And you know, I just emphasize that the
Speaker 1: FBI crime labs have been taken as the model for
Speaker 1: the country. They've been the leaders in the forensic science community,
Speaker 1: and if they're having this sort of crisis, um, it's
Speaker 1: really the tip of the iceberg. Nationwide. Most criminal cases,
Speaker 1: you know, proceed in the state and so um it
Speaker 1: really is, uh, the canary in the coal mine for
Speaker 1: much much deeper problems. So and I think that also
Speaker 1: shows how it's really not about being tough one crime,
Speaker 1: because you want to be tough on the actual criminals
Speaker 1: and um, you know, producing bad matches, um, and going
Speaker 1: after the wrong person, uh doesn't really punish or deter
Speaker 1: the right person. Brandon picking up on that. One thing
Speaker 1: I've been wondering is, you know, we've been sort of
Speaker 1: portraying this to some degree as a prosecution versus defense Uh. Issue.
Speaker 1: But um, if somebody is wrongfully convicted, presumably they have
Speaker 1: at least some possibility of getting their conviction overturned. And
Speaker 1: that can't be good for the prosecution. Isn't this you know,
Speaker 1: having accurate forensics science as much in the interest of
Speaker 1: prosecutors as as defense. Well, it is. And you know
Speaker 1: when when DANNA, when dnax hoerations were a new thing
Speaker 1: in the ninet nineties, you sometimes had prosecutors opposed emotions, say,
Speaker 1: you know, you don't deserve a DNA test, what good
Speaker 1: will it do. But in about half of those dnaserations,
Speaker 1: and there have been many hundreds of them, now, the
Speaker 1: real culprit is identified by the DNA test, and so
Speaker 1: prosecutors now realized that that, you know, you had these people,
Speaker 1: some of them were mass murderers who continued to commit
Speaker 1: rapes and murders while an innocent person sat in prison.
Speaker 1: And you know that happened in some of the cases
Speaker 1: that triggered this FBI audit of thousands and thousands of
Speaker 1: haircases around the country. You had several individuals in Washington,
Speaker 1: d c. Who were all freed by DNA, wrongly convicted
Speaker 1: of murders. There was a horrible scandal and a blemish
Speaker 1: on the FBI's reputation, but they did the right thing
Speaker 1: and said, we're gonna work with scientists, We're gonna work
Speaker 1: with defense lawyers, innocence projects, We're gonna work with everyone
Speaker 1: to make sure that these badged forensics cases get corrected.
Speaker 1: And so I hope that the dj and the FBI
Speaker 1: continue to review a whole host of forensics where where
Speaker 1: testimony was given in exactly the same exaggerated ways as
Speaker 1: in hair testimony back in the eighties and nineties. It's
Speaker 1: a it's all, we need to look back and fix
Speaker 1: old cases where the forensics were botched, and we need
Speaker 1: to look forward to make sure it doesn't happen again
Speaker 1: through sound scientifics standards. And it sounds like the you know,
Speaker 1: Sessions is trying to close the door on fixing things
Speaker 1: in the future, which is terrible. We also need to
Speaker 1: make sure we free people who are wrongly convicted based
Speaker 1: on poor forensics. Chris, is this one in a long
Speaker 1: line of anti science decisions made by the Trump administration
Speaker 1: climate change, environment. There aren't many scientists in the Trump administration.
Speaker 1: It does seem to be that way. Although you know,
Speaker 1: I can't imagine why anyone would actually be opposed to
Speaker 1: science per se. It's hard to to to even figure out.
Speaker 1: I mean, that's like being opposed to water or um
Speaker 1: or being opposed to sunlight. Um. You know, science is
Speaker 1: just essential to getting anything else we're trying to do, right,
Speaker 1: if we want to cure cancer or if we want
Speaker 1: to um uh, to put the right person in prison.
Speaker 1: I'll just mentioned one of the alternatives to good science
Speaker 1: is actually bias and and that's one of the things
Speaker 1: that this this commission has been working on is making
Speaker 1: sure that the forensic science are using the actual UM
Speaker 1: data available to them rather than just testifying based on
Speaker 1: what the individual prosecutor happens to prefer based on the
Speaker 1: immediate desire to put this particular guy away. That shift
Speaker 1: to trying to get the objective, the true, the right answer.
Speaker 1: I think it's essential to really a long tradition in
Speaker 1: criminal law. UM. It's not really about science versus anything else,
Speaker 1: it's about justice versus um arbitrary nous. I want to
Speaker 1: thank you both for being on Bloomberg Law. That's Professor
Speaker 1: Christopher Robertson of the University of Arizona College of Law
Speaker 1: and Professor Brandon Garrett of the University of Virginia School
Speaker 1: of Law.