Updated 5:40 p.m.
Lawmakers filed a new bill Thursday that would change discovery rules in federal criminal cases, requiring prosecutors to turn over any information that would be favorable to the defense as soon as possible – or face sanctions.
The timing of the bill's introduction wasn't arbitrary. Sen. Lisa Murkowski (R-Alaska) announced the Fairness in Disclosure Act of 2012 on the day a report was released showing prosecutorial misconduct in the criminal case against former Alaska Sen. Ted Stevens.
At a Capitol Hill press conference, Murkowski said the Department of Justice breached its duty. “Instead of justice being blind, in this case, justice was blindly ignored,” Murkowski said.
There are 97 different standards across the country for DOJ prosecutors when it comes to disclosing potentially exculpatory evidence, and the bill would create one national standard and would not make it optional to follow, Murkowski said.
The law carves out a few exemptions – protective orders and sealed filings in matters of national security – but otherwise requires prosecutors to disclose to defense attorneys any exculpatory evidence they have, as soon as they have it.
The disclosure must be made after the arraignment and before any guilty plea, at which time the evidence disclosed is too late to be of use. The bill adds sanctions if prosecutors do not follow the standard, and does not require a judge to first order the disclosure of the evidence.
Murkowski was flanked by representatives of the American Bar Association, the National Association of Criminal Defense Lawyers and the American Civil Liberties Union, who all support the bill. The ABA said it has asked the DOJ to implement one standard for disclosure, and it has refused.
Sen. Kay Bailey Hutchison (R-Texas) is co-sponsoring the bill. She said the wide array of disclosure laws for the DOJ “almost invites the type of behavior that plagued this case.”
An ACLU official, Michael Macleod-Ball, pointed out that this was just one high-profile case that highlights a bigger problem. “It’s not just Senator Stevens who suffered this prosecutorial abuse, it’s thousands and thousands of others,” he said.
The DOJ is reviewing the proposed legislation, but has "significant concerns" about the impact of the bill on victims, witnesses and the criminal law enforcement process, a department spokesperson said.
Elsewhere on Capitol Hill, Sen. Patrick Leahy (D-Vt.), said he plans to hold a Senate Judiciary Committee hearing before the April recess with Henry "Hank" Schuelke III, the special prosecutor who conducted the Stevens investigation.
Leahy, the chair of the Judiciary Committee and a former prosecutor himself, said he expressed real concerns at the time of the Stevens trial that prosecutors were not meeting their discovery obligations.
“I believe everybody before our courts should have a fair trial. I don’t care whether it’s a Senator or an indigent client,” Leahy said at a hearing this morning.
“That means prosecutors have a responsibility to fairly disclose what the evidence is to the other side,” Leahy said. “I went so far as, when I was a prosecutor, I had a rule: we gave a copy of our file to defense counsel.”