The United States Department of Justice has received significant attention for its prosecutorial misconduct in the Ted Stevens prosecution - among many other cases. Mainly, DOJ has had a problem with turning over Brady material. Named for Brady v. Maryland, Brady material is any evidence favorable to the accused. Federal prosecutors are required, under the law, to turn it over. Often they don't.
Promising to get tough on prosecutors, Attorney General Eric Holder has given several speeches apologizing for prosecutorial misconduct. Taking General Holder at his word, the Judicial Conference began discussing an amendment to the Federal Rules of Criminal Procedure. Under the amended rules, prosecutors would be required to disclose all Brady material to the defense. That a new rule is even needed, given the existence of Brady v. Maryland, reveals DOJ's dysfunctional relationship with Brady material. To federal prosecutors, turning over Brady material is like kissing one's sister.
The new rule would not be perfect. It would still allow prosecutors to decide what evidence to turn over to the defense. Requiring prosecutors to turn over Brady material is question begging: How do we know if the prosecutor handed over Brady material when the prosecutor gets to decide what to turn over? In the prosecution of Senator Ted Stevens, DOJ admitted that federal prosecutors withheld Brady material that they were required to hand over. It wasn't until an FBI agent filed a whistleblower complaint that anyone knew about the Brady material.
Instead, the Federal Rules should adopt the same rules applicable in North Carolina - the same rules that freed the Duke lacrosse players. Under open-file discovery laws, the prosecutor is required to turn over every police report and witness statements she receives. Under an open-file discovery system, whether something is exculpatory is simply not an issue. Hand over the files.
An ethical former prosecutor (do all the good ones leave?) supports open-file discovery:
When I was a prosecutor, I generally practiced open-file discovery. That means that if I had a piece of evidence, unless I had a specific, articulable, and legally sufficient reason to withhold it, I dumped it in a box with everything else and shipped it to the defense as soon as I received it. Few things got held back: internal strategy and case evaluation memoranda, the home addresses and personal identity information about witnesses, the identify of confidential informants, and very rarely reports revealing confidential investigative means and methods that had not yielded evidence against the defendant. In many cases I wound up holding back nothing at all. I didn’t bother with timing my disclosures to my own benefit; I generally sent things out the same day I received them myself.
At the Judicial Conference hearing, DOJ stated that it is opposed to reform. Despite General Holder's many apologizes and promises, here was his answer to protecting against prosecutorial misconduct - reading lessons:
Under fire for its handling of the criminal case against former Sen. Ted Stevens, the Justice Department last week outlined a plan to ensure prosecutors play by the rules when dealing with evidence. But some criminal defense lawyers and judges say the reforms don't go far enough.
On Oct. 13, Assistant Attorney General Lanny Breuer traveled to Seattle to address of panel of lawyers and judges who are considering a change to the Federal Rules of Criminal Procedure that would place more stringent requirements on prosecutors to disclose case information to defense lawyers.
Breuer pitched what he called a "comprehensive approach" to reform -- a plan that includes mandatory annual discovery training for all prosecutors and the creation of a new position at Main Justice that will focus on discovery issues. Breuer also said the Justice Department would agree to put existing case law and federal statutes involving information sharing into one rule in the criminal procedure books -- making the rule a one-stop shop for disclosure obligations.
But Breuer said the department would fight any effort to require prosecutors to turn over all favorable information to the defense.
Mike Scarcella, "DOJ Outlines Changes After Backlash Over Handling of Stevens Case"; "DOJ Begins Search for Public Integrity Section Chief."
Books! That's their answer. When the Department of Justice tells federal judges that it's taking prosecutorial misconduct seriously, all know what DOJ means: They are going to buy some books.
They refuse to be bound by actual rules - rules which may be enforced in a court of law. The law is what the Department of Justice enforces - not what it follows.