Sessions Suspends DOJ Forensic Science Commission (Audio)

in criminal cases across the country. Due to wide ranging concerns about problematic forensic techniques and flawed testimony by FBI experts, Sessions has said law enforcement needs to return to tough on crime enforcement strategies. President of Trump gave us a clear direction. He is committed to law and order in America and he is a firm supporter of law enforcement. Sessions said, in place of the Commission, a senior forensic

in house advisor will be appointed. Our guests are Brandon Garrett, a professor at the University of Virginia School of Law, and Christopher Robertson, a professor at the University of Arizona College of Law. Brandon has the Commission had an impact on the criminal justice system? It absolutely has, and I think it's important to have a group of scientists considering these questions along with judges and lawyers. Having just a single advisor is not a recipe for getting much done

in this complicated area. But they've recommended changes to improve the accuracy of the forensics, the accuracy with which they are presented to lawyers and to jurors rules, uh, encouraging the use of accredited labs, which will hopefully have make make fewer errors. And so I think all of us is this really smart on crime type of changes which prevent wrongful convictions of the innocent and make sure that

we actually convict the guilty. I don't see any inconsistency between focusing on science in the courtroom and and being tough on crime. Chris, what do you see as being behind this announcement for the Attorney General yesterday? Is it just uh, you know, part of that tough on crime strategy, our approach that he's trying to take. I'm not even sure it's tough on crime so much as um being

on the side of the prosecution. Um. The I mean, part of the reform effort that's going on in the forensic science world is to try to make forensic science be science to actually have an independent, objective view of the facts in any even case. But in the actual criminal litigation process, of course, it's an adversarial process with

a defendant and a prosecutor. And it looks like um uh, the Department of Justice is trying to pull forensics back into um one side um of criminal litigation to make sure it's actually controlled by one side of the adversaries um, rather than being an independent uh scientific um. You know,

light on the truth and Brandon. Prominent Manhattan federal judge Jed Raikoff, who is on the committee, said it's unrealistic to expect that truly objective, scientifically sounds standards for the use of forensics science can be arrived at by entities centered solely within the Department of Justice. Do you agree with him? And what kind of problems do you foresee if you do, I absolutely agree with Judge Raykoff, and you know he is echoing the statements of the National

Academies of Science. The National Academy is issued a really important report in two thousand and nine saying that the only way to get forensics on the right path where really only DNA evidence can accurately and reliably be used to connect evidenced individuals. Nothing else can is to have scientific oversight of forensics and not just have prosecutors decided to just keep using the stuff that they've been using successfully to convict people but also to get wrongful convictions.

And so, um, you know there there is still important work being done by scientists in forensics, and hopefully that that work will continue. But I couldn't agree with with Chris more that this is this is an effort to try to center the problem at the Department of Justice, have prosecutors decide what they feel like using and what

they don't, rather than take scientific concerns into consideration. Chris, how big are the problems as you see it with forensic science, uh, and the way it's being used in the courtroom? I mean we're also used to, uh some of us are used to watching you know, TV crime shows and it looks pretty reliable. But how does that

play out in the real world. Well, um, this is an area where we only get a glimpse of of how big the problems are through DNA evidence, which has um exonerated uh, well over a thousand individuals who are wrongfully convicted, and we know because sole source DNA evidence is the paradigm case of a reliable forensic science, it

has indisputedly exonerated um uh, these these individuals. But if you look back at their cases, we can find that over half of those cases had flawed fingerprint analysis, or flawed handwriting analysis, or voiceprint analysis or hair analysis, all the other forensic sciences have been shown to cause wrong for wrongful convictions. Now that's over well over a thousand anecdotes. But then if you start digging a little deeper, you can figure out why those forensic sciences have gotten it wrong.

And um it turns out that in many of them, there just is no foundational science to support them. It's actually a misnomer to call them forensic science. Instead, most of these are based on very well intentioned, sometimes very well trained individuals who are giving their subjective impression of whether, um,

one mark looks like another. What we need and what this commission was moving us towards and actually a science of forensic science, so we could measure how accurate they are, We could figure out how accurate different labs are, different analysts are, and actually developed the same sort of rigor we expect from biomedical science physicians, for example, are backed up by a whole team of scientists, and we need

that same sort of rigor in the forensic sciences. We're talking about Attorney General Jeff's Sessions announcing yesterday that he's ending the National Commission on Forensic Science. The Obama administration created the partnership to re to raise the reliability of forensic science used in criminal cases across the country. We have been talking with Brandon Garrett, a professor at the University of Virginia School of Law, and Christopher Robertson, a

professor at the University of Arizona College of Law. Chris In the FBI reported that nearly every examiner in an elite hair analysis unit gave scientifically flawed or overstated testimony in nine cases for two decades, but were two thousand and the cases included fourteen defendants who were executed or

died in prison. Now, the Justice Department, in addition to what Jeff Session said yesterday, the Justice Department also is reconsidering an effort launched last year to review forensics sciences practiced by the FBI in light of these glaring problems with the forensic science that the FBI is using why do this? And you know, I just emphasize that the FBI crime labs have been taken as the model for

the country. They've been the leaders in the forensic science community, and if they're having this sort of crisis, um, it's really the tip of the iceberg. Nationwide. Most criminal cases, you know, proceed in the state and so um it really is, uh, the canary in the coal mine for

much much deeper problems. So and I think that also shows how it's really not about being tough one crime, because you want to be tough on the actual criminals and um, you know, producing bad matches, um, and going after the wrong person, uh doesn't really punish or deter the right person. Brandon picking up on that. One thing I've been wondering is, you know, we've been sort of portraying this to some degree as a prosecution versus defense Uh. Issue.

But um, if somebody is wrongfully convicted, presumably they have at least some possibility of getting their conviction overturned. And that can't be good for the prosecution. Isn't this you know, having accurate forensics science as much in the interest of prosecutors as as defense. Well, it is. And you know when when DANNA, when dnax hoerations were a new thing in the ninet nineties, you sometimes had prosecutors opposed emotions, say, you know, you don't deserve a DNA test, what good

will it do. But in about half of those dnaserations, and there have been many hundreds of them, now, the real culprit is identified by the DNA test, and so prosecutors now realized that that, you know, you had these people, some of them were mass murderers who continued to commit rapes and murders while an innocent person sat in prison. And you know that happened in some of the cases that triggered this FBI audit of thousands and thousands of

haircases around the country. You had several individuals in Washington, d c. Who were all freed by DNA, wrongly convicted of murders. There was a horrible scandal and a blemish on the FBI's reputation, but they did the right thing and said, we're gonna work with scientists, We're gonna work with defense lawyers, innocence projects, We're gonna work with everyone to make sure that these badged forensics cases get corrected.

And so I hope that the dj and the FBI continue to review a whole host of forensics where where testimony was given in exactly the same exaggerated ways as in hair testimony back in the eighties and nineties. It's a it's all, we need to look back and fix old cases where the forensics were botched, and we need to look forward to make sure it doesn't happen again through sound scientifics standards. And it sounds like the you know, Sessions is trying to close the door on fixing things

in the future, which is terrible. We also need to make sure we free people who are wrongly convicted based on poor forensics. Chris, is this one in a long line of anti science decisions made by the Trump administration climate change, environment. There aren't many scientists in the Trump administration. It does seem to be that way. Although you know, I can't imagine why anyone would actually be opposed to science per se. It's hard to to to even figure out.

I mean, that's like being opposed to water or um or being opposed to sunlight. Um. You know, science is just essential to getting anything else we're trying to do, right, if we want to cure cancer or if we want to um uh, to put the right person in prison.

I'll just mentioned one of the alternatives to good science is actually bias and and that's one of the things that this this commission has been working on is making sure that the forensic science are using the actual UM data available to them rather than just testifying based on what the individual prosecutor happens to prefer based on the immediate desire to put this particular guy away. That shift to trying to get the objective, the true, the right answer.

I think it's essential to really a long tradition in criminal law. UM. It's not really about science versus anything else, it's about justice versus um arbitrary nous. I want to thank you both for being on Bloomberg Law. That's Professor Christopher Robertson of the University of Arizona College of Law and Professor Brandon Garrett of the University of Virginia School of Law.