THE DOJ TEAM THAT WRONGLY PROSECUTED STEVENS
After the lying and withholding of exculpatory evidence in many federal prosecutions, the Stevens prosecution being just one recent illustration of this unfortunate truth, we have enlisted a spectrum of former prosecutors, white house counsel, noted authors, and members of congress from across the political spectrum to demand federal legislation to put an end to this misconduct.
More than 125 lawyers signed a letter urging Congress to take up criminal discovery reform and do something about it.
The signatories included former Deputy Attorney General Larry Thompson, author and SNR Denton partner Scott Turow, lead Stevens defense counsel Brendan Sullivan Jr. of Williams & Connolly, former US Attorney and Congressman Bob Barr, former White House Counsel Gregory B. Craig, former DEA Administrator Asa Hutchinson, ATR President Grover Norquist, former Appellate Judge H. Lee Sarokin, and former federal prosecutor and Capitol Hill Judiciary Committee Special Counsel John P. Flannery.
"Our experience leads us to believe that the vast majority of prosecutors act in good faith to fulfill their constitutional and legal obligations," the joint letter said.
"However, federal courts, the DOJ and other entities have for years articulated inconsistent, shifting, and sometimes contradictory standards for criminal discovery, leaving it up to individual prosecutors to navigate this legal maze and determine the scope of their obligations to disclose information."
Yesterday, Hank Schuelke, who Judge Emmet Sullivan appointed to investigate allegations of prosecutorial misconduct in Senator Stevens’s case, testified before the U.S. Senate Judiciary Committee.
Much of the initial questioning concerned Mr. Schuelke’s findings about what occurred in the case and how the improperly withheld information could have affected the case’s outcome.
However, the issue of legislative reform did arise, as well.
Asked whether Congress should intervene to reform federal criminal discovery, Schuelke replied that the Congress should eliminate the materiality requirement so that in a pretrial setting, prosecutors would be required to disclose any information that is favorable to the accused, regardless of materiality.
Schuelke acknowledged that the bill introduced on March 15th by Senator Murkowski (R-AK), the fairness in disclosure act, includes such a requirement; the text of that bill is found at the enclosed link - http://sdfla.blogspot.com/2012/03/fairness-in-disclosure-of-evidence-act.html .
It closely mirrors the legislative reforms that our statement endorses.
The DOJ did submit a statement prior to the hearing expressing their opposition to any legislation reforming criminal discovery practices.
This is a good example of how you can't teach an old dog new tricks - like fundamental fairness. The DOJ can't really say they are doing the right thing now - or we wouldn't have these disclosures of misconduct and the clean up afterwards of dismissals and punished assistants.
When asked about the DOJ’s objections, Schuelke stated, “If the Department believes that there should be no pretrial materiality standard -- because that’s what they’re telling their prosecutors now to do --what is the principled reason for opposing legislation that does just that?”
Here is a link to the full hearing if you are interested: http://www.c-spanvideo.org/program/StevensP .