What does a president or his so-called most esteemed administration members do when a blue ribbon scientific panel (PCAST) tells them what they do not want to hear?

A. Acknowledge differences with the report, but acknowledge that the presidential administration want honesty, independence, and thoroughness in its scientific advisors.

B. Ignore the report.

C. Trash the report, thus making the administration sound disingenuous about relying on the panel in the first place, and thus undermining public confidence in the fairness of the criminal justice system.

Answer: C

The Obama administration in 2015 tasked PCAST (President’s Council of Advisors on Science and Technology) to advise “whether there are additional steps on the scientific side, beyond those already taken by the Administration in the aftermath of the highly critical 2009 National Research Council report on the state of the forensic sciences, that could help ensure the validity of forensic evidence used in the Nation’s legal system.” (PCAST report at p. x). The result in September 2016 was PCAST’s lengthy report released on September 20, 2016, and entitled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods” (“Report”).

The Report brings into serious question the analytical and/or testimonial approaches for forensic testing and matching of hair, fingerprints, firearm markings, footwear, and bitemarks. The Report (summarized by Ars Technica) (at p. 7) also underlines the real risk of human error in DNA analysis.

Before I got around to spending more than one hour reading this 140-page Report, I learned that President Obama’s Attorney General and FBI director already had trashed the Report.

Attorney General Loretta Lynch proclaimed in relevant part, apparently on the Report’s September 20 issuance date: “We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning… While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.” (Emphasis added.)

The FBI’s September 20 reply is less definitive than Attorney General Lynch’s response, and includes asserting: “Finally, the report ignores important differences between forensic science disciplines, conflating fundamental differences between class-level and identification-level evidence, leading to troubling generalized conclusions about all forensic science disciplines.”

Furthermore, seeming to parrot back some of Attorney General Lynch’s and the FBI’s reply (with an apparent haste-caused typo of September 2 versus the Report’s September 20 release date), the National District Attorneys Association issued a news release trashing the Report. The essence of the NDAA’s press release is that: “Adopting any of [the Report’s] recommendations would have a devastating effect on the ability of law enforcement, prosecutors and the defense bar, to fully investigate their cases, exclude innocent suspects, implicate the guilty, and achieve true justice at trial.”

I will still read the remainder of the Report, which will not simply go away because trashed by the very presidential administration that spurred on the Report, and that posted the Report on the White House’s website. However, with the Report in the news, I wanted at least not to delay in giving the above and below summary and comments on the report.

On the civil liberties (versus civil rights/equal opportunity) and criminal defense front, I have not been thrilled too much by President Obama (nor by any recent president), aside from such items as his underlining and addressing (to a point) the unfairness of excessively harsh sentencing, acknowledging how harmless is marijuana, being more enlightened on immigration than would Republican presidents, and nominating judges less harmful than would a president Trump or any other recent Republican president or presidential nominee.

However, of all presidents, I would have expected President Obama to have not okayed Attorney General Lynch and the FBI to trash the Report without at least underlining that the administration was not seeking a rubber stamp from PCAST. One might ask whether Attorney General Lynch’s and the FBI’s trashing came about independently of President Obama’s go-ahead (at least a go-ahead to respond any way they wanted), but that would sound absurd in the trashing of a report that President Obama himself spurred.

President Obama is well advised to step in and publicly reject the Justice Department’s and FBI’s wholesale trashing of the Report. At the very least, the legacy that President Obama apparently wishes to leave as a level-headed president on criminal justice calls for such a public rejection.

Perhaps President Obama will wish to listen to such voices welcoming the Report as those of the Innocence Project, the National Association of Criminal Defense Lawyers, and yours truly.

Or perhaps President Obama will wish to listen to Reagan-appointed federal appellate judge Alex Kozinski (9th Cir.), a senior advisor to PCAST, who urged one day before the Report’s release that: “Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science.”

The Report warns of “confirmation bias” in forensic testing: “the inclination to confirm a suspicion based on other grounds.” The Justice Department’s and FBI’s trashing of PCAST’s Report is the very definition of confirmation bias, through trashing a Report whose findings the Justice Department and FBI did not want to hear.