DOJ Outlines Changes After Backlash Over Handling of Stevens Case Mike Scarcella 10-19-2009 Under fire for its handling of the criminal case against former Sen. Ted Stevens, the Justice Department last week outlined a plan to ensure prosecutors play by the rules when dealing with evidence. But some criminal defense lawyers and judges say the reforms don't go far enough. On Oct. 13, Assistant Attorney General Lanny Breuer traveled to Seattle to address of panel of lawyers and judges who are considering a change to the Federal Rules of Criminal Procedure that would place more stringent requirements on prosecutors to disclose case information to defense lawyers. Breuer pitched what he called a "comprehensive approach" to reform -- a plan that includes mandatory annual discovery training for all prosecutors and the creation of a new position at Main Justice that will focus on discovery issues. Breuer also said the Justice Department would agree to put existing case law and federal statutes involving information sharing into one rule in the criminal procedure books -- making the rule a one-stop shop for disclosure obligations. But Breuer said the department would fight any effort to require prosecutors to turn over all favorable information to the defense. He also played down criticism that prosecutor misconduct is widespread, saying there's no evidence of that. "Mistakes are made, and our goal is to address mistakes and error and do what we can to minimize that going forward," Breuer said. Breuer's actions were an attempt by the department to beat back a recommendation that the Judicial Conference of the United States panel adopt a measure that would require prosecutors to disclose more material to the defense. Under current rules, prosecutors only have to give the defense information they plan to use at trial or information that they determine would be exculpatory. Defense lawyers and some judges have argued prosecutors have too much control in trying to glean the defense theory of a case before deciding whether information must be turned over. "How many more Ted Stevens cases do we need?" said Baker & McKenzie partner Robert Tarun, who pushed to amend the rule in 2003. "The Ted Stevens case is living proof we need a rule." Frustrated with the government's handling of information in the Stevens case, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia wrote a letter to the Judicial Conference advisory committee on criminal rules asking the committee to amend Rule 16 to require the government to produce all exculpatory information to the defense. Sullivan, who declined to comment last week, told The National Law Journal in July that the Stevens case provided "a real opportunity to bring attention to a problem that I believe is widespread, but often unreported or underreported." The Stevens case, he said, "dramatically" convinced him that there is a need for uniform approach. "Whether, when and how much exculpatory evidence the defendant receives should not depend on the prosecutor, the judge, the court or any other circumstances," he said. Sullivan said bolstering the rule to mandate disclosure of favorable evidence would reduce discovery disputes and help ensure integrity in the judicial system. In an interview, Breuer said that, despite the high-profile nature of the Stevens case, discovery violations are minimal. From Jan. 1, 2000, to Sept. 15, 2009, the Justice Department's internal watchdog investigated 107 allegations of prosecution disclosure violations, according to an Office of Professional Responsibility memo published last month. The OPR found misconduct was committed in just 15 of those matters, Breuer reported to the advisory committee. Breuer said "it would be a mistake" for the federal court system to approve a sweeping rule change. Eliminating materiality, he said, "seriously comes into conflict" with victim rights, witness security and, in some cases, national security. But one defense lawyer who has worked on a proposed amendment to the rule said the Justice Department position isn't strong enough to ensure defense lawyers get all the information they're entitled to receive. "I don't see this as any advancement," said Ballard Spahr special counsel Donald Goldberg, a former member of the criminal rules advisory committee. "What good does codification do if you leave materiality in there? It does nothing. Zero." Williams & Connolly partners Brendan Sullivan Jr. and Robert Cary, co-counsel in the Stevens case, said in a statement that they oppose a narrow view of "materiality" when it comes to pretrial requirement to provide defense lawyers with exculpatory information. "Such a limitation allows prosecutors to play games with their constitutional duties," the lawyers said. "Criminal trials are supposed to be a search for the truth, and there is no justification whatsoever for concealing any exculpatory information from the defense." The debate in Seattle resurrects an earlier fight over disclosure rules. In 2003, the American College of Trial Lawyers submitted a proposal to the Judicial Conference's advisory committee to amend Rule 16. Justice officials, including then-Assistant Attorney General Alice Fisher, urged the advisory committee in 2006 not to support broadening prosecution disclosure obligations. Fisher noted that revisions to the U.S. Attorney's Manual -- a guidebook for prosecutors -- were put in place to beef up the expectations of prosecutors to err on the side of disclosure. During a teleconference in September 2006, members of the committee generally applauded the department's effort to reinforce disclosure obligations. But some members said the revisions were not strong enough. Ballard Spahr's Goldberg called disclosure violations a "festering sore." The committee voted, 8-4, to send a draft rule to the standing committee for review. (Any rules change must ultimately be approved by the U.S. Supreme Court.) In June 2007, the Justice Department's then-Deputy Attorney General, Paul McNulty, criticized the proposed amendment in a memo to the standing committee. The changes, McNulty said, would mean that "the government is effectively turned into an investigative agent for the defense." That same month, the Judicial Conference standing committee voted to keep the proposal from moving forward. Chief Judge James Jones of the U.S. District Court for the Western District of Virginia, who worked on that earlier effort, said a court rule requiring federal prosecutors to turn information over to the defense is the strongest way to make sure the government plays fair. Said Jones: "It seems to me codifying the rule in the manner we proposed would provide an ultimate safeguard to this issue."

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