There have been a lot of reasons to find SDNY Judge Jed S. Rakoff interesting.
But the most recent one–involving his resignation from a federal commission over forensic science discovery rules–is in the top 10. (Be sure to read the update below–he rejoined the commission the next day.)
A Few Greatest Hits
There was the time Judge Rakoff told the SEC that it can’t let companies off the hook by allowing them to pay massive fines but admit no wrongdoing. The Second Circuit reversed him and he eventually (and reluctantly) approved of the deal, but not without this great zinger:
It would be a dereliction of duty for this court to seek to evade the dictates of the court of appeals
but the Second Circuit
has now fixed the menu, leaving this court with nothing but sour grapes.
Then there was the time that he wrote a great article titled “Why Innocent Plead Guilty” that includes the quote:
Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.
Over 10 years ago, he declared the death penalty unconstitutional, saying
The best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions. It is therefore fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence. It follows that implementation of the Federal Death Penalty Act not only deprives innocent people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process.
(The Second Circuit reversed him.)
The Most Recent Controversy
Most recently, though, Judge Rakoff took a very public step to call out the Department of Justice’s continued lip service to (rather than efforts to reform) Brady.
He had been appointed to a federal commission (the National Commission on Forensic Science) that was to determine standards for forensic science during trials. Apparently, he tried to have the Commission address the issue of pretrial forensic discovery—that is, when forensic results and testing information should be disclosed to the defense.
Specifically, Judge Rakoff wanted the Commission to consider:
the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court
DOJ blocked the Commission from doing so, claiming that the topic was beyond the commission’s scope.
Judge Rakoff is not one to go gentle into that good night. He sent an email—which was somehow uncovered by the media—with a few notable quotes:
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.
He also called DOJ’s blocking of the topic from consideration a “major mistake.” He wrote that:
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.
Judge Rakoff also made the eminently fair point that the Federal Rules of Criminal Procedure do not provide the same level of pretrial disclosure about experts as do the Federal Rules of Civil Procedure.
These days, when juries expect a full CSI experience in criminal trials, forensic experts are often the heart of the government’s case. The defense should have every opportunity to understand the basis of the forensic expert’s testimony and to develop a method to attack it.
The whole email, in all its glory, is here.
[Update, 1/30/15. Judge Rakoff decided to rejoin the Commission after DOJ switched course and said that it would review a proposal related to discovery issues. Specifically, he said:
I am grateful to Deputy Attorney General Yates for reconsidering and reversing the department’s prior position, so that the commission can now give full consideration to forensic discovery issues and recommendations.
I wish I could get DOJ to reverse course so quickly. I guess that’s one of the perks of a federal judgeship.]
Get Used to Judge Rakoff
Many won’t agree with Judge Rakoff but, most of the time, I do. He’s one of the few judges who is thinking critically about how our criminal justice system works. He’s also evaluating his own role as a federal judge in that system, and pondering ways for judges to improve the system.
He is also only 71 years old, so we have a long time to watch what he does next. I have a feeling he’s going to stick it out on the bench for a while.