WEBVTT - Sessions Suspends DOJ Forensic Science Commission (Audio) 0:00:00.040 --> 0:00:03.720 Attorney General Jeff Sessions has taken another step back from 0:00:03.760 --> 0:00:07.760 the policies of the Obama joice department. Sessions announced Monday 0:00:07.800 --> 0:00:11.079 that he's ending the National Commission on Forensic Science, a 0:00:11.240 --> 0:00:15.680 roughly thirty member independent advisory panel of scientists, judges, crime 0:00:15.760 --> 0:00:20.480 lab leaders, prosecutors, and defense attorneys. The Obama administration created 0:00:20.480 --> 0:00:24.520 the partnership to raise the reliability of forensic science used 0:00:24.520 --> 0:00:27.960 in criminal cases across the country. Due to wide ranging 0:00:28.000 --> 0:00:33.440 concerns about problematic forensic techniques and flawed testimony by FBI experts, 0:00:33.920 --> 0:00:37.400 Sessions has said law enforcement needs to return to tough 0:00:37.479 --> 0:00:44.080 on crime enforcement strategies. President of Trump gave us a 0:00:44.120 --> 0:00:48.519 clear direction. He is committed to law and order in 0:00:48.560 --> 0:00:52.000 America and he is a firm supporter of law enforcement. 0:00:53.240 --> 0:00:56.360 Sessions said, in place of the Commission, a senior forensic 0:00:56.440 --> 0:01:00.440 in house advisor will be appointed. Our guests are Brandon Garrett, 0:01:00.480 --> 0:01:02.920 a professor at the University of Virginia School of Law, 0:01:03.120 --> 0:01:06.320 and Christopher Robertson, a professor at the University of Arizona 0:01:06.400 --> 0:01:10.360 College of Law. Brandon has the Commission had an impact 0:01:10.440 --> 0:01:14.400 on the criminal justice system? It absolutely has, and I 0:01:14.440 --> 0:01:18.920 think it's important to have a group of scientists considering 0:01:18.920 --> 0:01:21.360 these questions along with judges and lawyers. Having just a 0:01:21.400 --> 0:01:23.960 single advisor is not a recipe for getting much done 0:01:24.000 --> 0:01:27.679 in this complicated area. But they've recommended changes to improve 0:01:27.720 --> 0:01:30.680 the accuracy of the forensics, the accuracy with which they 0:01:30.720 --> 0:01:36.720 are presented to lawyers and to jurors rules, uh, encouraging 0:01:36.720 --> 0:01:39.679 the use of accredited labs, which will hopefully have make 0:01:39.800 --> 0:01:42.080 make fewer errors. And so I think all of us 0:01:42.200 --> 0:01:44.920 is this really smart on crime type of changes which 0:01:45.280 --> 0:01:48.200 prevent wrongful convictions of the innocent and make sure that 0:01:48.240 --> 0:01:51.240 we actually convict the guilty. I don't see any inconsistency 0:01:51.280 --> 0:01:55.040 between focusing on science in the courtroom and and being 0:01:55.080 --> 0:01:58.160 tough on crime. Chris, what do you see as being 0:01:58.280 --> 0:02:01.960 behind this announcement for the Attorney General yesterday? Is it 0:02:02.200 --> 0:02:05.920 just uh, you know, part of that tough on crime strategy, 0:02:06.080 --> 0:02:09.280 our approach that he's trying to take. I'm not even 0:02:09.320 --> 0:02:12.360 sure it's tough on crime so much as um being 0:02:12.400 --> 0:02:15.920 on the side of the prosecution. Um. The I mean, 0:02:16.000 --> 0:02:18.840 part of the reform effort that's going on in the 0:02:18.880 --> 0:02:21.760 forensic science world is to try to make forensic science 0:02:21.840 --> 0:02:25.840 be science to actually have an independent, objective view of 0:02:25.840 --> 0:02:28.959 the facts in any even case. But in the actual 0:02:28.960 --> 0:02:32.400 criminal litigation process, of course, it's an adversarial process with 0:02:32.520 --> 0:02:38.079 a defendant and a prosecutor. And it looks like um uh, 0:02:38.320 --> 0:02:41.880 the Department of Justice is trying to pull forensics back 0:02:41.919 --> 0:02:46.520 into um one side um of criminal litigation to make 0:02:46.560 --> 0:02:50.520 sure it's actually controlled by one side of the adversaries um, 0:02:50.720 --> 0:02:55.040 rather than being an independent uh scientific um. You know, 0:02:55.160 --> 0:02:59.640 light on the truth and Brandon. Prominent Manhattan federal judge 0:02:59.720 --> 0:03:03.919 Jed Raikoff, who is on the committee, said it's unrealistic 0:03:03.960 --> 0:03:08.160 to expect that truly objective, scientifically sounds standards for the 0:03:08.240 --> 0:03:11.800 use of forensics science can be arrived at by entities 0:03:11.919 --> 0:03:15.720 centered solely within the Department of Justice. Do you agree 0:03:15.760 --> 0:03:18.760 with him? And what kind of problems do you foresee 0:03:18.800 --> 0:03:24.280 if you do, I absolutely agree with Judge Raykoff, and 0:03:24.440 --> 0:03:26.639 you know he is echoing the statements of the National 0:03:26.639 --> 0:03:29.919 Academies of Science. The National Academy is issued a really 0:03:29.960 --> 0:03:32.800 important report in two thousand and nine saying that the 0:03:32.880 --> 0:03:36.880 only way to get forensics on the right path where 0:03:36.880 --> 0:03:40.839 really only DNA evidence can accurately and reliably be used 0:03:40.840 --> 0:03:44.400 to connect evidenced individuals. Nothing else can is to have 0:03:44.960 --> 0:03:49.840 scientific oversight of forensics and not just have prosecutors decided 0:03:49.880 --> 0:03:52.160 to just keep using the stuff that they've been using 0:03:52.160 --> 0:03:55.560 successfully to convict people but also to get wrongful convictions. 0:03:55.960 --> 0:03:59.960 And so, um, you know there there is still important 0:04:00.680 --> 0:04:04.520 work being done by scientists in forensics, and hopefully that 0:04:04.520 --> 0:04:08.320 that work will continue. But I couldn't agree with with 0:04:09.360 --> 0:04:12.040 Chris more that this is this is an effort to 0:04:12.080 --> 0:04:16.120 try to center the problem at the Department of Justice, 0:04:16.160 --> 0:04:18.400 have prosecutors decide what they feel like using and what 0:04:18.440 --> 0:04:24.279 they don't, rather than take scientific concerns into consideration. Chris, 0:04:24.279 --> 0:04:28.000 how big are the problems as you see it with 0:04:28.240 --> 0:04:32.400 forensic science, uh, and the way it's being used in 0:04:32.480 --> 0:04:35.560 the courtroom? I mean we're also used to, uh some 0:04:35.600 --> 0:04:37.880 of us are used to watching you know, TV crime 0:04:37.920 --> 0:04:40.560 shows and it looks pretty reliable. But how does that 0:04:40.600 --> 0:04:44.159 play out in the real world. Well, um, this is 0:04:44.160 --> 0:04:47.360 an area where we only get a glimpse of of 0:04:47.400 --> 0:04:52.159 how big the problems are through DNA evidence, which has 0:04:52.320 --> 0:04:56.360 um exonerated uh, well over a thousand individuals who are 0:04:56.360 --> 0:05:01.479 wrongfully convicted, and we know because sole source DNA evidence 0:05:01.640 --> 0:05:04.720 is the paradigm case of a reliable forensic science, it 0:05:04.800 --> 0:05:11.120 has indisputedly exonerated um uh, these these individuals. But if 0:05:11.120 --> 0:05:13.240 you look back at their cases, we can find that 0:05:13.400 --> 0:05:17.000 over half of those cases had flawed fingerprint analysis, or 0:05:17.040 --> 0:05:21.880 flawed handwriting analysis, or voiceprint analysis or hair analysis, all 0:05:21.920 --> 0:05:25.680 the other forensic sciences have been shown to cause wrong 0:05:25.760 --> 0:05:30.760 for wrongful convictions. Now that's over well over a thousand anecdotes. 0:05:30.960 --> 0:05:32.920 But then if you start digging a little deeper, you 0:05:32.960 --> 0:05:36.919 can figure out why those forensic sciences have gotten it wrong. 0:05:37.720 --> 0:05:39.840 And um it turns out that in many of them, 0:05:39.880 --> 0:05:43.040 there just is no foundational science to support them. It's 0:05:43.040 --> 0:05:46.680 actually a misnomer to call them forensic science. Instead, most 0:05:46.680 --> 0:05:50.440 of these are based on very well intentioned, sometimes very 0:05:50.480 --> 0:05:55.839 well trained individuals who are giving their subjective impression of whether, um, 0:05:55.920 --> 0:05:59.080 one mark looks like another. What we need and what 0:05:59.200 --> 0:06:02.320 this commission was moving us towards and actually a science 0:06:02.320 --> 0:06:05.520 of forensic science, so we could measure how accurate they are, 0:06:06.000 --> 0:06:08.960 We could figure out how accurate different labs are, different 0:06:08.960 --> 0:06:12.160 analysts are, and actually developed the same sort of rigor 0:06:12.279 --> 0:06:16.640 we expect from biomedical science physicians, for example, are backed 0:06:16.680 --> 0:06:19.080 up by a whole team of scientists, and we need 0:06:19.120 --> 0:06:22.279 that same sort of rigor in the forensic sciences. We're 0:06:22.279 --> 0:06:25.720 talking about Attorney General Jeff's Sessions announcing yesterday that he's 0:06:25.839 --> 0:06:30.599 ending the National Commission on Forensic Science. The Obama administration 0:06:30.680 --> 0:06:34.080 created the partnership to re to raise the reliability of 0:06:34.120 --> 0:06:37.479 forensic science used in criminal cases across the country. We 0:06:37.520 --> 0:06:39.920 have been talking with Brandon Garrett, a professor at the 0:06:40.040 --> 0:06:43.320 University of Virginia School of Law, and Christopher Robertson, a 0:06:43.360 --> 0:06:47.520 professor at the University of Arizona College of Law. Chris 0:06:47.520 --> 0:06:52.280 In the FBI reported that nearly every examiner in an 0:06:52.320 --> 0:06:57.280 elite hair analysis unit gave scientifically flawed or overstated testimony 0:06:57.320 --> 0:07:00.800 in nine cases for two decades, but were two thousand 0:07:01.120 --> 0:07:05.680 and the cases included fourteen defendants who were executed or 0:07:05.960 --> 0:07:09.840 died in prison. Now, the Justice Department, in addition to 0:07:09.920 --> 0:07:14.600 what Jeff Session said yesterday, the Justice Department also is 0:07:14.640 --> 0:07:18.960 reconsidering an effort launched last year to review forensics sciences 0:07:18.960 --> 0:07:25.520 practiced by the FBI in light of these glaring problems 0:07:25.600 --> 0:07:29.040 with the forensic science that the FBI is using why 0:07:29.120 --> 0:07:33.040 do this? And you know, I just emphasize that the 0:07:33.480 --> 0:07:36.560 FBI crime labs have been taken as the model for 0:07:36.600 --> 0:07:39.960 the country. They've been the leaders in the forensic science community, 0:07:40.120 --> 0:07:42.760 and if they're having this sort of crisis, um, it's 0:07:42.800 --> 0:07:46.800 really the tip of the iceberg. Nationwide. Most criminal cases, 0:07:46.920 --> 0:07:50.400 you know, proceed in the state and so um it 0:07:50.520 --> 0:07:53.520 really is, uh, the canary in the coal mine for 0:07:53.640 --> 0:07:57.520 much much deeper problems. So and I think that also 0:07:57.560 --> 0:08:00.600 shows how it's really not about being tough one crime, 0:08:00.680 --> 0:08:03.000 because you want to be tough on the actual criminals 0:08:03.320 --> 0:08:07.040 and um, you know, producing bad matches, um, and going 0:08:07.080 --> 0:08:10.720 after the wrong person, uh doesn't really punish or deter 0:08:11.400 --> 0:08:16.080 the right person. Brandon picking up on that. One thing 0:08:16.360 --> 0:08:18.520 I've been wondering is, you know, we've been sort of 0:08:18.560 --> 0:08:23.960 portraying this to some degree as a prosecution versus defense Uh. Issue. 0:08:24.200 --> 0:08:29.440 But um, if somebody is wrongfully convicted, presumably they have 0:08:30.320 --> 0:08:34.040 at least some possibility of getting their conviction overturned. And 0:08:34.120 --> 0:08:38.320 that can't be good for the prosecution. Isn't this you know, 0:08:38.400 --> 0:08:41.440 having accurate forensics science as much in the interest of 0:08:41.640 --> 0:08:45.000 prosecutors as as defense. Well, it is. And you know 0:08:45.240 --> 0:08:48.160 when when DANNA, when dnax hoerations were a new thing 0:08:48.160 --> 0:08:51.640 in the ninet nineties, you sometimes had prosecutors opposed emotions, say, 0:08:51.720 --> 0:08:53.719 you know, you don't deserve a DNA test, what good 0:08:53.760 --> 0:08:57.600 will it do. But in about half of those dnaserations, 0:08:57.640 --> 0:09:00.320 and there have been many hundreds of them, now, the 0:09:00.360 --> 0:09:03.520 real culprit is identified by the DNA test, and so 0:09:03.600 --> 0:09:06.640 prosecutors now realized that that, you know, you had these people, 0:09:06.960 --> 0:09:09.560 some of them were mass murderers who continued to commit 0:09:09.640 --> 0:09:12.040 rapes and murders while an innocent person sat in prison. 0:09:12.800 --> 0:09:14.720 And you know that happened in some of the cases 0:09:14.760 --> 0:09:18.440 that triggered this FBI audit of thousands and thousands of 0:09:18.440 --> 0:09:21.720 haircases around the country. You had several individuals in Washington, 0:09:21.800 --> 0:09:25.000 d c. Who were all freed by DNA, wrongly convicted 0:09:25.040 --> 0:09:27.440 of murders. There was a horrible scandal and a blemish 0:09:27.480 --> 0:09:29.520 on the FBI's reputation, but they did the right thing 0:09:29.520 --> 0:09:31.439 and said, we're gonna work with scientists, We're gonna work 0:09:31.440 --> 0:09:34.040 with defense lawyers, innocence projects, We're gonna work with everyone 0:09:34.080 --> 0:09:38.400 to make sure that these badged forensics cases get corrected. 0:09:38.840 --> 0:09:41.480 And so I hope that the dj and the FBI 0:09:41.600 --> 0:09:45.160 continue to review a whole host of forensics where where 0:09:45.200 --> 0:09:48.839 testimony was given in exactly the same exaggerated ways as 0:09:48.880 --> 0:09:51.520 in hair testimony back in the eighties and nineties. It's 0:09:51.520 --> 0:09:53.760 a it's all, we need to look back and fix 0:09:53.840 --> 0:09:56.800 old cases where the forensics were botched, and we need 0:09:56.840 --> 0:09:58.600 to look forward to make sure it doesn't happen again 0:09:58.880 --> 0:10:02.760 through sound scientifics standards. And it sounds like the you know, 0:10:02.800 --> 0:10:05.360 Sessions is trying to close the door on fixing things 0:10:05.360 --> 0:10:07.760 in the future, which is terrible. We also need to 0:10:07.800 --> 0:10:10.320 make sure we free people who are wrongly convicted based 0:10:10.360 --> 0:10:15.360 on poor forensics. Chris, is this one in a long 0:10:15.400 --> 0:10:19.840 line of anti science decisions made by the Trump administration 0:10:20.400 --> 0:10:26.240 climate change, environment. There aren't many scientists in the Trump administration. 0:10:27.559 --> 0:10:29.960 It does seem to be that way. Although you know, 0:10:30.000 --> 0:10:32.560 I can't imagine why anyone would actually be opposed to 0:10:32.640 --> 0:10:35.679 science per se. It's hard to to to even figure out. 0:10:36.040 --> 0:10:39.119 I mean, that's like being opposed to water or um 0:10:39.280 --> 0:10:42.520 or being opposed to sunlight. Um. You know, science is 0:10:42.600 --> 0:10:46.120 just essential to getting anything else we're trying to do, right, 0:10:46.240 --> 0:10:48.760 if we want to cure cancer or if we want 0:10:48.800 --> 0:10:51.600 to um uh, to put the right person in prison. 0:10:52.400 --> 0:10:54.880 I'll just mentioned one of the alternatives to good science 0:10:54.960 --> 0:10:57.800 is actually bias and and that's one of the things 0:10:57.800 --> 0:11:01.319 that this this commission has been working on is making 0:11:01.360 --> 0:11:06.160 sure that the forensic science are using the actual UM 0:11:06.320 --> 0:11:10.000 data available to them rather than just testifying based on 0:11:10.160 --> 0:11:13.679 what the individual prosecutor happens to prefer based on the 0:11:13.760 --> 0:11:17.199 immediate desire to put this particular guy away. That shift 0:11:17.280 --> 0:11:20.120 to trying to get the objective, the true, the right answer. 0:11:20.800 --> 0:11:24.400 I think it's essential to really a long tradition in 0:11:24.480 --> 0:11:28.440 criminal law. UM. It's not really about science versus anything else, 0:11:28.480 --> 0:11:33.559 it's about justice versus um arbitrary nous. I want to 0:11:33.600 --> 0:11:36.880 thank you both for being on Bloomberg Law. That's Professor 0:11:37.000 --> 0:11:40.640 Christopher Robertson of the University of Arizona College of Law 0:11:40.679 --> 0:11:44.240 and Professor Brandon Garrett of the University of Virginia School 0:11:44.280 --> 0:11:44.720 of Law.