Congress Must Act To End Prosecutorial Misconduct

By Ginny Sloan, cross-posted from Huffington Post

When federal prosecutors charged the late Senator Ted Stevens (R-AK) with failing to report more than $250,000 in illegal gifts and home renovations, they knew the stakes were sky high. Stevens, after all, was only the 11th senator in history to be indicted while in office. In 2008, the prosecutions succeeded in convincing a Washington, DC jury to convict Stevens. A month later, Stevens, the longest serving Republican senator in history, was defeated in his bid for re-election by fewer than 4,000 votes; most observers think the conviction helped to sway the election. Stevens died two years later in a plane crash.

Thanks to a two-and-a-half year independent investigation ordered by the judge in the case, Emmet Sullivan, and finally released several weeks ago, we now know how prosecutors won Stevens' conviction: they cheated. They violated his constitutional rights by intentionally concealing evidence that they knew would have supported Stevens' claim that he intended to pay for all work performed on his house. They hid documents and they allowed a cooperating witness to testify falsely to the jury. The investigators' 514-page report is a chilling reminder that not even the most powerful leaders in the nation are safe when federal prosecutors ignore their duty to seek justice, and instead pursue victory at any cost.

Sadly, the Ted Stevens case was not an isolated incident. Although the failure to disclose evidence is a constitutional violation that by its very nature often goes undiscovered (anything that the government chooses not to disclose to the defense generally remains unknown), we still know it occurs with disturbing frequency. For example, a 2010 USA Today investigation documented 86 cases since 1997 in which judges found that federal prosecutors had failed to turn over evidence that they were legally required to disclose. A number of organizations have reached similar conclusions about the frequency of these violations.

I have tremendous respect for the men and women who serve as federal prosecutors and believe that the vast majority of them act in good faith to fulfill their constitutional and legal obligations. However, it is difficult for even well-meaning prosecutors to understand what exactly those obligations entail in the face of murky rules and conflicting standards. When violations are occurring by even those prosecutors who intend to seek justice, something must be done.

Legislation offered by Senator Lisa Murkowski (R-AK) gives Congress the opportunity to address this serious problem. Senator Murkowski's "The Fairness in Disclosure of Evidence Act" is a bipartisan proposal that would require federal prosecutors to turn over to defendants all evidence favorable to their cases, and would provide appropriate penalties when they fail to do so. Passage of the bill would ensure that defendants receive all information to which they are constitutionally entitled, and would create greater consistency in federal prosecutions by eliminating jurisdictional disparities.


The Constitution Project has long been dedicated to protecting constitutional safeguards in the criminal justice system, and the Murkowski bill is an important step towards doing just that. Its safeguards are the bedrock of our system and absolutely essential in protecting the public from abuses of the government power to deprive individuals of their liberty and even their lives.

We recently released a statement from 140 criminal justice experts from across the political spectrum calling on Congress to adopt legislation to address the problem highlighted in the Stevens case -- legislation that is consistent with the Fairness in Disclosure of Evidence Act. More than 100 former federal prosecutors are among those joining the call, including: Stuart Gerson, former Acting U.S. Attorney General under President Clinton; Larry Thompson, former Deputy Attorney General during President George W. Bush's first term; former FBI Director William S. Sessions; and famous author Scott Turow.

These experts point out that federal courts, the Department of Justice and other entities have for years tried to fix the problem, only to articulate inconsistent or inadequate standards, making it difficult for individual prosecutors to determine the scope of their obligations to disclose information. The group concluded, "Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations."

Congress has the power to prevent another injustice like what happened to Senator Stevens from occurring. It should act swiftly to pass the Fairness in Disclosure of Evidence Act, creating clear standards for what information federal prosecutors are obligated to disclose to the defense and providing appropriate remedies when prosecutors fail to do so.

Virginia E. Sloan founded The Constitution Project in 1997 and is now its President and serves on its Board of Directors.  The Constitution Project is a politically independent think tank established to promote and defend constitutional safeguards. More information about the Constitution Project is available at constitutionproject.org.