In a dramatic turn of events as covered here in Federal Judge resigns from National Commission on Forensic Science and The Jed Rakoff and Matt Redle, co-chairs, Subcommittee on Reporting and Testimony Memo, US Senior District Judge Jed Rakoff resigned in protest from the National Commission on Forensic Science over the DOJ veto wielded by James Cole (DAG) to promptly end all discussion on the broken discovery system in America when it comes to criminal law and in forensic science.

DAG James Cole

Today, after the DOJ re-evaluated its position and announced that it would no longer veto talks on discovery in the National Commission on Forensic Science, Judge Rakoff has rejoined the commission. It is sad to see the tremendous amount of power that the DOJ has over this discussion. Even though DOJ ultimately withdrew its objection, it makes many wonder about how truly transparent, open and balanced any discussions are. If it takes the resignation of a federal judge to have DOJ listen what hope does another commissioner have?

Judge Rakoff returns to forensic panel after Justice Department backs off decision

January 30 at 11:58 AM

A federal judge Friday returned to a presidential commission on forensic science after the U.S. Justice Department reversed a decision to bar the panel from discussing changes that would give criminal defendants more information about forensic evidence before their trials, a federal official said.

U.S. District Judge Jed S. Rakoff of the Southern District of New York had resigned in protest Wednesday from the Obama administration panel, accusing the department of placing “strategic advantage [for prosecutors] over a search for the truth.”

However, Acting U.S. Deputy Attorney General Sally Q. Yates invited Rakoff to return, saying she had not been aware the commission had worked openly on its plans for nearly a year.

Yates told the National Commission on Forensic Science that “it seemed only fair” that it “make its determination as to what information should be provided to the Attorney General.”

“This is obviously a critically important issue to the Department,” Yates said. “We take very seriously our obligation to ensure that defendants receive a fair trial.”

A Justice Department official said the initial decision that pretrial evidence discovery rules were beyond the commission’s scope was made by Yates’s predecessor, James Cole, before his departure Jan. 8. The official, who spoke anonymously because he was not authorized to discuss the issue publicly, added that Yates may not agree with the panel’s suggestions.

Rakoff, the commission’s only federal judge, thanked Yates and said he looks forward to a discussion “on the merits.”

Prosecutors routinely share evidence with defense lawyers, but Rakoff and other commissioners propose that criminal defendants be allowed the same access before trial to government forensic evidence as defendants in federal civil court cases.

In an e-mail to colleagues, Rakoff wrote that it is only through disclosure of scientific results and methods “that forensic science can be meaningfully scrutinized in any specific case” and that “trial by ambush” can be avoided.

The panel began work last year in response to growing criticism by scientists and many legal experts about the quality of forensic evidence used in criminal cases. Citing lab scandals and exonerations, critics have said that police and prosecutors exercise too much control over crime labs, which suffer from weak standards over research, testimony and examinations.

The commission is preparing recommendations for Attorney General Eric H. Holder Jr. or his nominated successor, Loretta Lynch.

 

Policy_Recommendation

Breaking news

I just received a copy of the joint memorandum that was co-authored by the Honorable Jed S. Rakoff and Matt Redle, co-chairs, Subcommittee on Reporting and Testimony that was forwarded to Brette Steele, ‎Senior Advisor on Forensic Science and Senior Counsel to the Deputy Attorney General.

What strikes me on my first reading is who the authors are. Far from the Ivory Tower types, the authors are people that should be listened to and their perspective strongly considered.

U.S. District Judge Jed S. Rakoff

U.S. District Judge Jed S. Rakoff

Honorable Jed S. Rakoff is a sitting senior status Judge for the Southern District of New York.  According to Wikipedia page that features his background, the Judge spent seven years as a federal prosecutor with the United States Attorney for the Southern District of New York. For the last two of those years, he was Chief of the Business and Securities Fraud Prosecutions Unit. He then returned to private practice where he was a partner first with Mudge, Rose, Guthrie, Alexander & Ferdon, and then with Fried, Frank, Harris, Shriver & Jacobson. He headed both firms’ criminal defense and civil Racketeer Influenced and Corrupt Organizations Act (RICO) sections. So, in this author we have experience and a perspective that should be listen to by all.

DA Matt Redle

Matt Redle is the elected County and Prosecuting Attorney for Sheridan County since 1987 is District Attorney in Sheridan, Wyoming. Prior to his election he was a Deputy County and Prosecuting Attorney for 6 years in that office. He is a member of the Wyoming Supreme Court, Permanent Rules Advisory Committee, Criminal Division. He was the Vice President of the National District Attorneys’ Association, having been a member of the board since 2000. He has been a member of the National District Attorneys Association DNA Legal Assistance Advisory Group since 1995. Mr. Redle was the National District Attorneys Association liaison to the ABA Criminal Justice Standards Committee. He was co-chair of the ABA Criminal Justice Section’s Legislative and Policy Committee. He is a past president of the Wyoming County and Prosecuting Attorneys Association. Certainly, this is someone who has front-line experience in state court.

You should read the memorandum: You can download and read it here: November 6, 2014 memorandum to Brette Steele, DAG; from Jed Rakoff and Matt Redle, co-chairs, Subcommittee on Reporting and Testimony

Key quotes from the joint memorandum:

  • At the October meeting of the National Commission on Forensic Science, the Subcommittee on Reporting and Testimony presented a draft report on discovery that, reduced to essentials, recommends that the Attorney General direct his prosecutors to require that forensic science experts testifying on behalf of the Government make considerably fuller disclosure of their data, methodology, experience, and results than is presently disclosed.
  • Indeed, from the standpoint of improving forensic science and making its application to criminal prosecutions more accurate (which were key reasons for the very creation of the Commission), discovery is probably the most important area of intersection between forensic science and the courtroom, because it is only through adequate discovery that forensic science can be meaningfully scrutinized in any specific case.

And just what is so offensive in the idea that trial by ambush does not promote justice? What is in the National Commission on Forensic Science, the Subcommittee on Reporting and Testimony Pretrial Discovery in Forensic Evidence Cases-Policy Recommendations that is too radical for DOJ to handle? Looking at the members of the subcommittee and the work product at the end of the process is instructive.

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From the work product:

1. Pretrial disclosure of forensic evidence should be comprehensive and reciprocal — subject to the U.S. Constitution and the law of privilege. The prosecution’s disclosure obligation should apply whether or not the information will be used at trial. The defense obligation should apply to evidence that is intended for use at trial, including the opinions of testifying experts who have not performed any testing.
2. The results of all forensic examinations and all expert opinions should be recorded; oral reports should be reduced to writing. The results of examinations and expert opinions should be recorded at the time the examination is conducted or an opinion is formed — or promptly thereafter.
3. The results of all forensic examinations, expert opinions, and related case documents (e.g., bench notes, graphs, electropherograms, calibration reports, etc.) should be subject to disclosure.
4. An expert witness’s qualifications should be subject to disclosure, including a list of publications authored and a list of recent cases in which the witness testified as an expert at trial.
5. Disclosure should be timely, although all items need not be disclosed at the same time:
a. Disclosure of initial laboratory reports should occur as soon as practicable after completion of the examination so that counsel has sufficient time to consult with an expert — which may require applying for funds to retain an expert — and to permit retesting.
b. Disclosure of all other items should occur as requested and no later than 90 days before the scheduled trial date.
6. There should be a continuing duty to disclose throughout the trial until sentencing. For exculpatory evidence, the duty to disclose should apply after sentencing.4
7. Information, such as laboratory testing protocols, quality assurance procedures, accreditation and audit reports, proficiency testing results, and internal validation studies, should be readily accessible — preferably by posting on the internet or electronically upon request.
8.Forensic evidence should be preserved both before and after trial — until appeals are exhausted and sentences served. Jurisdictions should promulgate procedures concerning the preservation and retention of evidence. Evidence should not be unnecessarily consumed during testing, and consumptive testing should not be done without notice to the defense if a defendant has been charged.
9. The defense has the right to inspect and retest forensic evidence that is under the custody or control of the prosecution. The prosecution has the right to inspect and retest forensic evidence that is under the custody or control of the defense and that the defense intends to use at trial.

Who in their right mind can object to any of this?

 
U.S. District Judge Jed S. Rakoff

U.S. District Judge Jed S. Rakoff

The sole federal judge appointed to the NIST/DOJ  National Commission on Forensic Science has resigned in protest, according to his reported email, over what he feels is inappropriate attempt by the Department of Justice to restrict the scope of the Commission. In the resignation, Judge Rakoff makes very apt observations that highlight the defect in the discovery process in criminal law when it comes to forensic science and contrasts that with what happens in civil practice. This is a very important point.  Obviously, this is a very strong signal that there may be something quite amiss with the NIST led effort. With such a strong and seemingly insurmountable veto power placed in the DOJ’s hands, many fear that the DOJ will use NIST and the Commission in an effort to benefit prosecutors. What is worse is that the otherwise pristine and great scientific reputation of NIST will be used to give the veneer of science over what in reality is DOJ’s advocacy. This is the fear that many had when it was announced that DOJ would take such a prominent role in the NIST OSAC structure.

We have obtained the text of his resignation. It sure doesn’t paint a very good picture of the efforts to date. I know several of the Commissioners on the Commission. Sadly, several (not all of them) have commented to me prior to this email these very sentiments as captured below in the Judge’s resignation:

 

Dear Fellow Commissioners:

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery — i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court — is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect. Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission — and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth — I have decided to resign from the Commission, effective immediately. I have never before felt the need to resign from any of the many committees on which I have served over the years; but given what I believe is the unsupportable position now taken by the Department of Justice, I feel I have no choice.

This issue first arose last October when the Subcommittee on Reporting and Testimony, which I have the honor to co-chair along with Wyoming prosecutor Matt Redle, presented to the full Commission for discussion a draft report, authored by Prof. Paul Giannelli, recommending, in essence, that federal prosecutors go beyond what is presently required by federal criminal rules and make available in cases in which they intend to call forensic experts the same particularized information that forensic experts are required to provide in federal civil cases. The Commission then debated the draft report on the merits, and many helpful suggestions were offered, reflecting the broad composition of the Commission and its ability, unlike judicial rule-making bodies or the like, to ascertain what makes sense in the specialized area of forensic science. However, the Department’s co-chair of the Commission, having expressed his view that the entire discussion was beyond the Commission’s scope, then determined that the issue, not of the merits but of whether such discovery matters could even be considered by the Commission, would be put to the Deputy Attorney General for decision. Matt Redle and I then requested the opportunity to submit a memorandum stating our views; this was permitted (a copy is here attached), and, as I understand, was attached as one of several appendices to a memorandum taking the opposite view that was submitted to the Deputy Attorney General in late November but never shared with Matt, me, our Subcommittee, or the Commission. After a substantial delay, the Deputy Attorney General adopted the view that any discussion of discovery changes was entirely outside the Commission’s purview, and this decision, without further explanation, was telephonically conveyed to me last night.

The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter. That Charter specifies six duties that the Commission is commanded to fulfill. The third of these duties is “To develop proposed guidance concerning the intersection of forensic science and the courtroom.” A primary way in which forensic science interacts with the courtroom is through discovery, for if an adversary does not know in advance sufficient information about the forensic expert and the methodological and evidentiary bases for that expert’s opinions, the testimony of the expert is nothing more than trial by ambush. Indeed, from the standpoint of improving forensic science and making its application to criminal prosecutions more accurate (which were key reasons for the very creation of the Commission), discovery is probably the most important area of intersection between forensic science and the courtroom, because it is only through adequate discovery that forensic science can be meaningfully scrutinized in any specific case. The notion that improved discovery, going beyond what is minimally required by the federal rules of criminal procedure (which were drafted without any consideration of the difficulties unique to forensic science) , is somehow outside the scope of the Commission’s work thus runs counter to both the mandate of the Commission’s Charter and the Commission’s overall purpose.

One might add that it seems unlikely that the Commission, at its very first meeting, would have created a Subcommittee on “Reporting and Testimony” if it were not concerned with how information about a forensic expert’s opinions was reported in advance of his testifying, i.e., discovery. And the written instruction that was sent by the Department of Justice’s liaison to the Subcommittee expressly stated that the Subcommittee should consider, inter alia, “legal issues inherent in reporting and testimony, such as discovery.”

As the federal rules of criminal procedure now stand, prosecutors who intend to call forensic experts to testify do not have to supply the same full pre-trial discovery about those experts and the methodological and evidentiary bases for their opinions that parties calling forensic experts in civil cases are required to supply under federal rules of civil procedure. But none of these rules focuses on the unique problems presented by forensic science, where there is much greater variance in standards, credentials, testing, and the like than in other scientific disciplines. That is why this Commission, which has such a broad range of participants in the field, is so well suited to consider whether, under the circumstances, greater pre-trial discovery, even though not required, should be embraced by the Department of Justice, both as a matter of fairness and also to help insure the determination of the truth. Does the Department have to be reminded of the many cases of grossly inaccurate forensic testimony that led to the creation of the Commission?

It is hard to escape the conclusion, therefore, that the Department’s determination that pre-trial discovery relating to forensic expert testimony is beyond the “scope” of the Commission is chiefly designed to preserve a courtroom advantage by avoiding even the possibility that Commission discussion might expose it as unfair. Prior to this decision, I have felt privileged to have been part of the Commission, not least because of the many wonderful fellow Commissioners with whom I have had a chance to work. I have also felt that, as the sole federal judge on the Commission, I could perhaps provide a useful perspective. But I cannot be a party to this maneuver by the Department to cabin the Commission’s inquiries, and I therefore must resign in protest.

Jed S. Rakoff

 

Here is an article that provides comments by DOJ and others:

 

U.S. judge quits commission to protest Justice Department forensic science policy

January 29 at 12:02 PM
The sole federal judge on a commission appointed by President Obama to improve forensic science in the criminal justice system has resigned in protest, criticizing the U.S. Department of Justice for muzzling its work to benefit prosecutors.U.S. District Judge Jed S. Rakoff of New York said he quit because the Justice Department had barred it from recommending an expansion of the exchange of pre-trial information to include more evidence from forensic experts. Prosecutors routinely share evidence with defense lawyers. Rakoff said in his resignation letter that the ban contradicts the panel’s charter and voids months of work.The proposed change would address a major criticism of the nation’s top scientific organization and many legal experts, who have warned in recent years that police and prosecutors exercise too much control over crime labs, which suffer from weak standards over research, testimony and examinations. The failings that have led to dozens of lab scandals and hundreds of exonerations over the past two decades.“Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission — and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth — I have decided to resign from the Commission, effective immediately,” Rakoff wrote in an e-mail late Wednesday to fellow commissioners that spread rapidly in legal circles overnight.

“It is hard to escape the conclusion [that the decision] is chiefly designed to preserve a courtroom advantage by avoiding even the possibility that Commission discussion might expose it as unfair,” Rakoff added.

Rakoff’s email came on the eve of the commission’s Thursday meeting, where the evidence discovery proposal was to be discussed. Rakoff wrote that the decision was made by Sally Q. Yates, the department’s acting deputy attorney general since James Cole’s departure Jan. 8, after objections by the commission’s co-chair, Nelson Santos, head of the U.S. Drug Enforcement Agency’s Office of Forensic Sciences.

Santos did not respond to a request for comment.

In a statement, Justice Department spokeswoman Emily Pierce said, “While the department is disappointed in Judge Rakoff’s decision, this was a basic disagreement about the scope of the commission’s work.”

A department official said its experts found that many of the commission’s proposals were covered by existing rules and guidelines, and encouraged the panel to keep working on evidence retention policies and transparency.

Nevertheless, Rakoff’s departure poses a blow to the credibility of the Obama administration’s effort, announced nearly two years ago, to commit scientists and a new presidentially appointed panel to address recurring concerns about the quality of forensic evidence used in criminal courts across the country.

Rakoff, a 1995 Clinton judicial nominee, made headlines in 2010 and 2011 when he criticized the U.S. Securities and Exchange Commission’s treatment of banks involved in the financial crises as too lenient. He has also been an influential voice from the bench for science, helping revise the 2011 edition of the federal judiciary’s reference manual on scientific evidence and serving on the board of the MacArthur Foundation’s Law & Neuroscience Project.

After meeting for more than a year, the forensic commission has prepared draft recommendations for Attorney General Eric H. Holder, Jr., or his nominated successor, Loretta Lynch, to improve evidence discovery and expert testimony, training, and certification practices. It also reorganized the scientific governing organizations for individual forensic techniques.

The commission’s efforts to improve research, training and standards will likely take years and new resources to bear fruit, however, while participants said Rakoff’s subcommittee on reporting and testimony could immediately help judges and juries make clearer sense of questioned forensic techniques.

Rakoff noted that the commission’s charter explicitly calls for it to develop proposals concerning “the intersection of forensic science and the courtroom.”

“The notion that pre-trial discovery of information pertaining to forensic expert witnesses is beyond the scope of the Commission seems to me clearly contrary to both the letter and the spirit of the Commission’s Charter.” he wrote.

Matthew F. Redle, chief prosecutor for Sheridan County, Wyoming, and co-chair of Rakoff’s subcommittee, said the proposal appeared to have majority support, but Rakoff held it for more discussion to build greater consensus.

“I respect and admire Judge Rakoff a great deal. His letter can speak for itself,” Redle said.

Spencer S. Hsu is an investigative reporter, two-time Pulitzer finalist and national Emmy award nominee.
 

The McShane Firm

PRESS RELEASE

Press Conference on Saturday January 24, 2015 at 1pm at The McShane Firm, LLC 3601 Vartan Way, 1st Floor, Harrisburg, PA 17110 all are welcome.

Man Freed After Serving 35 years 11 months and 8 days in Prison for An Arson-Murder that Wasn’t

(Harrisburg, PA and Bellefonte, PA)– In July 1979, James Hugney Sr. was convicted after a jury trial in Susquehanna Township, Dauphin County of a notorious arson-murder then called by the media “the Burning Bed Case.” The case was called the “Burning Bed” because the prosecution’s theory of the case was that Hugney in a fit of anger set his house on fire by pouring flammable liquid around the bed of his then 16-year old son: his namesake James Hugney, Jr while his son slept in the bed. His house was gutted by the fire. Five days after the fire, his son died as a complication of his burns where he had 3rd degree burns over 98% of his body.

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Picture 1: The 1625 Bamberger Road house in Harrisburg, PA after the fire fully consumed the house

At the time of the trial, three different experts were called by the government to testify that this was definitely an arson based upon “characteristic pour patterns around the bed of young Hugney” and also based upon chemical analysis that stated that charred parts of the bedroom “were characteristic of hydrocarbons.” However, the investigators could not establish a definitive cause, origin or first fuel for the fire. This method is called the Negative Corpus method of fire investigation and was the lynchpin of the prosecution’s case.

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Picture 2: The bedroom where James Hugney, Jr. was sleeping and what fire investigators at the time believed were “characteristic pour patterns” that proved that there was an arson

After his trial attorneys in 1979 did not challenge the opinions of the fire experts that it was an arson, James Hugney was convicted and sentenced to life in prison. Life in prison in Pennsylvania means that there is no possibility of parole. Life means life.

Beyond that, the trial court wrote at the time of his appeal: “We feel compelled to repeat the feelings we expressed in our opinion on Hugney Sr. ‘s post-trial motions that it is unfortunate that petitioner’s life, as well as his appeal, cannot be doused.”

Every day for 36 years, Hugney has maintained his innocence. But for the fact that capital punishment (the death penalty) was suspended in the United States from 1972 through 1976 primarily as a result of the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972), he may very well have been executed by this time.

Nearly four years ago, Attorney Justin J. McShane and the attorneys at The McShane Firm, LLC took up the investigation of Mr. Hugney’s conviction. Upon his initial review of the case, Attorney Justin J. McShane who is a well-known lawyer-scientist who focuses on forensic science related cases knew that “the science was wrong” in this case. “The pivotal scientific evidence of negative corpus had been debunked,” said McShane, “and all of the scientific evidence used in the case was based on popularly held beliefs and myths of the time that modern science has totally refuted.” McShane retained 3 international fire scientists: Dennis Smith of Premier Fire Consulting Services, LLC; John Lentini of Science Fire Analysis, LLC; and chemist and fire investigator Samuel Blittman. All three of them independently and categorically stated that the scientific methods used to condemn Hugney to life in prison are not supported by modern science. They stated in the reports, which were filed with the court, that they could not conclude that this was an arson using modern best practices of fire science. The lynchpin to the conviction had been pulled. With that, McShane filed a motion to set aside the near 36 year conviction.

Today, after 35 years 11 months and 8 days of imprisonment, he is a free man.

His PCRA was granted. The verdicts were set aside. He was awarded a new trial. He entered an Alford plea to proclaim his innocence. He was granted immediate release with credit for time served.

He went home with his family.

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“This is a great day for James Hugney, a great day for justice, and a great day for science,” said Hugney’s attorney, Justin McShane of The McShane Firm. “We give thanks to District Attorney Ed Marsico and First Assistant District Attorney Francis T. Chardo III who as honorable and noble shepherds of justice in Dauphin County did the right thing. Without them, justice would not have been served in this case. It shows a remarkable sense of ethics and morality that these two are already well known for. While no one can give him back the nearly 36 years of his life that he lost, at least Mr. Hugney has his freedom now,” said McShane.

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Justin J. McShane is a double board certified trial attorney. He is a Fellow with the American Institute of Chemists and has earned the American Chemical Society-Chemistry and the Law Division Lawyer-Scientist designation. He is the Chairman/CEO of The McShane Firm, LLC located in Harrisburg, PA. The McShane Firm is an 8-attorney law firm that focuses on criminal defense and forensic science related cases. He was aided in this case by Attorneys Theodore Tanski, Richard Roberts, Katherine Kennedy, all of The McShane Firm.

James Hugney, Sr. is nicknamed “Huggy” by family and friends. He is 72 years old. Before his conviction, he was a local businessman in Dauphin County, a taxpaying citizen, and a father of two boys. He even served on jury duty in Dauphin County in 1977. He received a commendation from then Chief of the Harrisburg Bureau of Police, Paul D. King, for his help in catching a purse snatcher. While incarcerated for nearly 36 years, he dedicated all of his time towards fundraising for Big Brother and Big Sisters raising tens of thousands of dollars. He became very actively involved in the Roman Catholic Church while in prison, and counseled many prisoners to find peace and religion while in jail.

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Picture 3: James Hugney, Sr.

More about The McShane Firm: http://www.TheMcshaneFirm.com/

James Hugney Sr.’s case was covered in detail in a two-part series by ABC27 which can be seen at:http://freehugney.com/in-the-modern-news/

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Media Contact:

Justin J. McShane, JD, F-AIC
The McShane Firm, LLC-The Science Attorneys

3601 Vartan Way
2nd Floor
Harrisburg, PA 17110
t: 7176573900
f: 7176572060
w: http://www.TheMcShaneFirm.com/
e: justin@TheMcShaneFirm.com

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