In April 2009, less than six months after a jury found Senator Ted Stevens (R-AK) guilty of making false statements, a federal judge set aside that guilty verdict and dismissed all charges against him. The judge in the case felt compelled to take these extraordinary measures after the Department of Justice revealed evidence that prosecutors had violated their constitutional obligation to provide information to Stevens' legal team that could have led to his acquittal. A comprehensive report by an independent, court-ordered investigator detailed federal prosecutors' numerous failures to disclose evidence during that high-profile prosecution.
It has been more than five years since Senator Stevens' case brought national attention to the need for criminal discovery reform. Yet, as a recent New York Times editorial noted, state and federal prosecutors continue to fail in their constitutional obligation to disclose favorable information to defendants, and defendants continue to be convicted without being made aware of information that may aid in their defense. And in a stunning dissent from a denial of an en banc rehearing, Ninth Circuit Chief Judge Alex Kozinski, joined by four of his colleagues, wrote last December that "[t]here is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."
Judge Kozinski wrote:
The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here... A robust and rigorously enforced Brady rule is imperative because all the incentives prosecutors confront encourage them not to discover or disclose exculpatory evidence.
On April 24, 2014, The Constitution Project, a bipartisan legal watchdog group, will honor members of the late Senator Stevens' legal team at Williams & Connolly LLP, including Brendan V. Sullivan Jr. and Robert M. Cary, for their insistence that federal prosecutors fulfill their constitutional obligation to disclose favorable information to defendants. Also being honored that evening are the independent investigators who wrote the report that highlighted the prosecutors' failure to hand over favorable evidence in the Senator Stevens' case, Henry F. Schuelke III and William B. Shields of Blank Rome LLP. Each will be recognized as a 2014 Constitutional Champion during TCP's annual gala at the offices of Jones Day in Washington, DC.
In a landmark 1963 case Brady v. Maryland, the U.S. Supreme Court recognized that prosecutors are constitutionally obligated to make potentially exculpatory evidence available to defendants. While most prosecutors make good-faith efforts to comply with Brady, confusion and disagreement regarding the scope of required disclosures often leads to inadvertent violations.
Much of this confusion stems from the language of the Brady standard itself, which requires the disclosure of all "evidence favorable to the accused... where the evidence is material to either guilt or punishment." Evidence is material when "there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Requiring prosecutors to determine whether evidence meets this test necessitates speculation and guesswork; it is impossible to determine, with certainty, the impact a piece of evidence will have on a case's outcome. For federal prosecutors in particular, with federal courts, the Department of Justice, individual states, and other entities articulating competing -- and often contradictory -- standards, individual prosecutors are often left simply to guess at the true scope of their disclosure obligations.
Moreover, in the rare instances where prosecutors knowingly or intentionally violate their obligation to disclose favorable information, they are seldom subject to meaningful disciplinary action, whether for ethics violations before state bars, internally by the prosecutor's office, or through criminal or civil sanctions by the court. And whether intentional or not, current standards make it very difficult for defendants to successfully appeal convictions, even when the Brady violations are clear.
In March 2012, Schuelke testified before the Senate Judiciary Committee regarding the findings of his two-and-a-half-year investigation into the prosecution of Senator Stevens. Schuelke found that the Stevens' prosecution had, in fact, been "permeated by the systematic concealment of significant exculpatory evidence." During his testimony he explained that prosecutors "do not want to have to undermine [their] case if it can possibly be avoided. I think that motive to win the case was the principal operative motive." He later testified before the House Subcommittee on Crime, Terrorism and Homeland Security.
Shortly before Schuelke's testimony, TCP released a Call for Criminal Discovery Reform, signed by more than 140 criminal justice experts, including more than 100 former federal prosecutors, which urged Congress to pass federal legislation to clarify prosecutors' disclosure obligations and provide courts with the necessary tools to hold violators accountable. Among the signatories were Brendan Sullivan and Robert Cary, who have worked tirelessly to address criminal discovery violations, both in representing Senator Stevens and in seeking broader reform. In an op-ed published in the Washington Times in October 2013, Cary observed, "Until we bring uniformity and clarity to a prosecutor's duty to disclose, we will continue to bemoan the Brady violations we learn about, and wonder about the ones we do not hear about."
That same month, Senator Lisa Murkowski (R-AK) introduced "The Fairness in Disclosure Act" (S. 2197). Cosponsored by both Republican and Democratic Senators, the legislation would achieve many of the objectives called for in TCP's statement. Unfortunately, this sensible approach to addressing the problem never came up for a vote in Congress. Despite widespread attention at the time of its introduction, too many in Congress accepted the Department of Justice's assertions that internal policy changes, on which neither courts nor defendants may rely, would effectively address the problem. Nearly two years later, federal prosecutors continue to violate their disclosure obligations, and defendants continue to be convicted without being aware of information that might otherwise have helped established reasonable doubt among their juries. Judge Kozinski's dissent demonstrates how much still needs to be done to address this critical problem.
Federal legislation clarifying a prosecutor's disclosure obligations and providing courts a means of redressing Brady violations will not completely eradicate failures to disclose -- states must also adopt these types of reforms -- but it is a substantial and necessary first step in altering a culture that currently allows convictions to stand despite serious constitutional violations and leaves unpunished those prosecutors who commit such violations.
Because of their efforts to highlight and achieve much needed criminal discovery reform, The Constitution Project is proud to recognize Brendan V. Sullivan Jr., Robert M. Cary, Henry F. Schuelke III and William B. Shields as Constitutional Champions for 2014. To find more information on the event, or to purchase tickets, visit TCP's website.