Olivia Scheck Presented Testimony at City Council re: The Technology Gap Between Public Defenders and DAs

New York City Council

Committee on Justice System 

Hearing re: The Technology Gap Between Public Defenders and DAs

January 29, 2020

Written Testimony of The Bronx Defenders

By Olivia Scheck, Forensic Practice Group, Criminal Defense Practice

Chairman Lanceman, my name is Olivia Scheck, and I am an attorney in the Criminal Defense Practice of The Bronx Defenders and a member of our office’s Forensic Practice Group. 

The Bronx Defenders (“BxD”) is a public defender non-profit that is radically transforming how low-income people in the Bronx are represented in the legal system, and, in doing so, is transforming the system itself. Our staff of over 350 includes interdisciplinary teams made up of criminal, civil, immigration, and family defense attorneys, as well as social workers, benefits specialists, legal advocates, parent advocates, investigators, and team administrators, who collaborate to provide holistic advocacy to address the causes and consequences of legal system involvement. Through this integrated team-based structure, we have pioneered a groundbreaking, nationally-recognized model of representation called holistic defense that achieves better outcomes for our clients. Each year, we defend more than 20,000 low-income Bronx residents in criminal, civil, child welfare, and immigration cases, and reach thousands more through our community intake, youth mentoring, and outreach programs. Through impact litigation, policy advocacy, and community organizing, we push for systemic reform at the local, state, and national level. We take what we learn from the clients and communities that we serve and launch innovative initiatives designed to bring about real and lasting change.

1. Introduction

When it comes to forensic science, there is a huge gap in resources and information between public defender offices and prosecutors in this city.  That gap leads to an imbalance that undermines our ability to adequately represent clients. Moreover, people charged with crimes who have the means to hire experts, utilize technology, and run tests receive better outcomes than those who do not.  This is not justice. The Council should take action to provide public defenders with increased access to information and resources so that they can adequately represent impoverished New Yorkers facing criminal charges.

At BxD, we have established a Forensic Practice Group in order to more effectively confront and utilize forensic science on behalf of our clients.  The Forensic Practice Group (“FPG”) is a group of attorneys, each of whom is responsible for conducting trainings and consulting with others in the office on a particular area of forensic science.  The specialty areas within FPG are: digital forensics, DNA, pattern evidence (e.g. ballistics and fingerprints), toxicology, false confessions and eyewitness identification.  As members of FPG, our role is often to assist attorneys in identifying forensic issues and then connect them to actual scientific experts.  However, retaining experts (for consultation and/or live testimony) is an extraordinarily expensive undertaking for which we do not always have adequate funding.

In addition to the expense associated with hiring experts, there are other challenges that make it difficult to effectively confront and utilize scientific evidence.  In some cases, neither we, nor the available experts, have access to the technologies that are being used by law enforcement. (This is true in the context of facial recognition technology, DNA analysis, and breath alcohol testing, all of which are discussed below.)  Indeed, in the digital context, we do not even have a full understanding of what technologies are being used by law enforcement. 

In order to ensure that the adversarial system functions properly, we are asking the City Council to do the following:

• ensure greater transparency among police and prosecutors regarding what technologies are in use and the methodologies being employed;
• provide additional funding for defender organizations to be able to hire experts and, where necessary, purchase the technologies that are being used, and;
• in cases where it is not possible for defender organizations or independent experts to purchase the technology ourselves (for example because the manufacturers refuse to sell them to us), require law enforcement to allow independent experts access. 

The widening gulf between law enforcement and defenders in access to forensic technology undermines our ability to adequately represent our clients. In what follows, we identify topics of concern in the four FPG areas where access to forensic technology is most at issue:  digital forensics, DNA, pattern evidence, and toxicology.  

Read the full testimony here