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The release of a scathing report this week detailing widespread prosecutorial misconduct that botched the corruption trial of the late Sen. Ted Stevens (R-Alaska) has reignited calls to revisit the rules requiring government prosecutors to hand over evidence that could help exonerate criminal defendants.
Though the underlying cause of the derailed prosecution has been known since April 2009, when Stevens' conviction was set aside after the Department of Justice said it had failed to disclose evidence that would have helped the Senator's defense team, details of prosecutors' "willful nondisclosure" in this week's report stunned legal observers, who say this is just the latest case that illustrates how badly the rules need revision.
"It's a really sad story, very disturbing and upsetting. ... There are no winners," said Peter Zeidenberg, a partner at DLA Piper. "But I think the problem is, frankly, larger. It's a systemic, global problem in that the way discovery is currently provided in these white-collar cases is problematic."
Stevens was found guilty in October 2008 of making false statements on his annual Senate financial disclosure forms because, prosecutors alleged, he did not disclose gifts he received in connection with the remodeling of his Girdwood, Alaska, home. The verdict was set aside after the DOJ said its prosecutors had failed to hand over evidence that would have bolstered Stevens' defense.
The acknowledgement did not come soon enough to save Stevens' re-election bid — he lost his seat to Democrat Mark Begich that November, shortly after the trial ended but before the government filed its motion to dismiss his indictment.
Stevens died when his plane crashed in rural Alaska in August 2010.
The judge who presided over the Stevens trial appointed Henry F. Schuelke to investigate the prosecutors who handled the case. Schuelke's 524-page report, which was unsealed this week, paints a picture of a prosecution team so hampered by infighting that disgruntled attorneys cut corners by assigning document-review duties to FBI and IRS agents who were left largely unsupervised. Crucial information — including the fact that trial witness Bill Allen had once bribed a child prostitute, whom he'd had a relationship with, to commit perjury, and that the home repairs in question were worth hundreds of thousands of dollars less than originally alleged — was never given to Stevens' defense team.
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.
But lawyers questioned whether a Congressional effort to clarify the disclosure of exculpatory evidence will be enough.
"The bill in Congress is a great step, but that's already the law, essentially," said Richard Marmaro, a partner at Skadden, Arps, Slate, Meagher & Flom. "The problem is that you allow the prosecutor to determine what is exculpatory, and in their zeal to win cases they either overlook or intentionally hide evidence that will hurt their case. There's an inherent conflict."