The late Sen. Ted Stevens was found guilty in 2008 of making false statements on financial disclosure forms, but the verdict was set aside after it was discovered that prosecutors failed to give the defense evidence that could have helped clear the Senator.
The Senator's defense rested on notes he had sent his friend Allen, then the top executive of the Alaskan oil pipeline service and construction company VECO Corp., which had performed the repairs on his home. In the notes, Stevens requested a bill for the work and referenced his need to comply with ethics rules. Defense attorneys had the notes but didn't know Allen had been inconsistent with prosecutors about whether he thought Stevens was really asking for a bill or whether he was "just covering his ass."
Schuelke asked prosecutors about Allen's back-and-forth view of Stevens' notes, but none of the DOJ lawyers could recall when Allen first told them the notes were disingenuous. Schuelke wrote that the prosecution team's "collective memory failure strains credulity."
He concluded that two of the six prosecutors "intentionally withheld and concealed significant exculpatory information," and he made no conclusion about a third prosecutor, who committed suicide in September 2010.
Attorneys familiar with high-profile white-collar investigations say this sort of behavior is all too common.
Though Supreme Court cases dictate that federal prosecutors must hand over any exculpatory evidence that might exonerate a defendant, it is largely an honor system in which prosecutors are left to determine what may or may not be useful to the defense team.
"It's like asking a basketball team to call fouls for both teams when both teams want to win," Zeidenberg said. "To say that the system is imperfect doesn't begin to describe it."
There has been some effort to amend the rules to clarify when and what evidence the government must hand over — in the wake of the Stevens trial, for example, the DOJ implemented a series of new training initiatives and issued additional guidance. But lawyers who represent clients in these types of cases say the efforts have not gone far enough. The DOJ memorandums are not enforceable in court.
"And at any point the current or next attorney general could simply change it. Simply beefing up your manual doesn't replace codifying that duty," American University law professor Cynthia E. Jones said.
Experts told Roll Call that more effective approaches might include straightforward sanctions for wayward prosecutors or codifying the duty to produce exculpatory evidence more specifically in a law or court rule.
Attorney General Eric Holder established the Professional Misconduct Review Unit last year to investigate prosecutors within the department, though it is unclear how many cases the unit has examined to date.
A DOJ spokeswoman said a review of the Stevens case is "ongoing but in the final stages."
"The department is in the process of making an independent assessment of the conduct and, to the extent it is appropriate and in accordance with the privacy laws, we will endeavor to make our findings public when that review is final," Justice Department spokeswoman Laura Sweeney said.
An effort to codify more stringent rules also has gained steam on Capitol Hill.
Sen. Lisa Murkowski (R-Alaska) introduced legislation this week backed by the American Bar Association, the U.S. Chamber of Commerce, the American Civil Liberties Union and other groups that would create a nationwide standard for when prosecutors must disclose evidence to defendants in federal court cases. Senate Judiciary Chairman Patrick Leahy (D-Vt.) said he intends to have Schuelke testify at a hearing in the near future.