The lawyers who defended former Sen. Ted Stevens said in a letter this week to a Judicial Conference committee that the Justice Department's new discovery guidance does not go far enough to combat prosecutorial error and misconduct.
Williams & Connolly partners Brendan Sullivan Jr. and Robert Cary said in the June 15 letter that the guidance, part of department reforms following the botched prosecution of Stevens, expressly says it does not carry the force of law or confer any rights, privileges or benefits. The guidance was issued in January as a directive to all federal prosecutors.
“What are defense lawyers or judges to do when next confronted with failures to provide exculpatory evidence to the defense?” Sullivan and Cary wrote Judge Richard Tallman of the U.S. Court of Appeals for the 9th Circuit. “The Department’s Guidance does not provide any rights at all. And assurances from current leadership of the Department that they will make sure that the Department’s prosecutors do the right thing may be small comfort when the Department’s current leaders are no longer in charge.”
Sullivan and Cary, who said the guidance is a “step forward,” are proponents of changing the Federal Rules of Criminal Procedure to require that prosecutors turn over all exculpatory material, irrespective of their determination of whether the information is “material” to the defense. In the letter, Sullivan and Cary criticized the lack of transparency in the discovery process, saying that the government makes decisions in a “black box” about what to produce to defense lawyers. Click here for the letter.
The Judicial Conference Advisory Committee on the Rules of Criminal Procedure, chaired by Tallman, is debating a change to Rule 16, which governs discovery. Justice Department officials have for years opposed such a rule change. Assistant Attorney General Lanny Breuer, head of the Criminal Division, has spoken out against a rule change. Breuer has instead urged what he calls a comprehensive approach to reform -- a hallmark of which is increased training for prosecutors.
The Stevens trial prosecution team remains under investigation for criminal contempt. Judge Emmet Sullivan of the U.S. District Court for the District of Columbia appointed Hank Schuelke of Washington’s Janis, Schuelke & Wechsler to determine whether the trial prosecutors intentionally violated court orders demanding the government turn over material to Stevens’ attorneys.
The Williams & Connolly lawyers said in their letter that they expect the “full measure of the government’s discovery failures” to emerge from the investigation. “While no rule change can guarantee protection from dishonest prosecutors, an unambiguous rule requiring the disclosure of exculpatory information in time for the defense to use it effectively would make it less likely that innocent citizens will be convicted in the future,” they wrote.