By Ginny Sloan, cross-posted from Huffington Post
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
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.