Following the explosive report on the investigation of Senator Ted Stevens, Senator Lisa Murkowski has proposed a bill requring prosecutors to disclose exculpatory evidence to defendants. According to Main Justice:
Sen. Lisa Murkowski (R-Alaska) proposed legislation today that would require federal prosecutors to disclose evidence favorable to the defense.
The Alaska Republican’s announcement appeared timed to coincide with the release, also today, of a more than 500 page investigative report detailing the “systematic concealment” of evidence by prosecutors in the case against her late friend and mentor, Ted Stevens.
The “Fairness in Disclosure of Evidence Act of 2012″ would require prosecutors in federal criminal cases to disclose the exculpatory evidence in a timely manner or face repercussions, including a dismissal, ordering a new trial or excluding evidence, among other sanctions, according to the bill. At present, the Justice Department leaves the decision of what evidence counts as “exculpatory” to the discretion of prosecutors.
“While the injustices that were done to Senator Stevens may have provided the impetus for the focus on this important issue, this bill is not about seeking vindication for Ted,” Murkowski said in a news release. “It’s about learning the vital lessons from the Justice Department’s failure of his prosecution and making our criminal justice system work the way our Constitution envisioned that it would.”
The bill has bi-partisan support, with Senators Daniel Inouye (D-Hawaii), Daniel Akaka (D-Hawaii), Mark Begich (D-Alaska) and Kay Bailey Hutchison (R-Texas) all co-sponsoring the legislation, according to the release. Begich defeated Stevens in the 2008 election.
Writing in the Wall Street Journal, Nancy Gertner and Barry Scheck called on judges to change evidence rules to prevent mishaps like that suffered by Senator Stevens:
On Thursday, a special prosecutor released his report on the botched prosecution on corruption charges of the late Sen. Ted Stevens. It's worth noting the lessons learned from this investigation. Otherwise, wrongful convictions will continue.
The special prosecutor, Henry Schuelke, found that Justice Department lawyers committed ethics violations by the deliberate and "systematic" withholding of critical evidence pointing to Stevens's innocence, but he declined to go further. The reason: There was no court order expressly directing the government lawyers to turn over the evidence. Criminal charges can only be brought when there is a knowing and intentional violation of an order.
In sharp contrast, on Friday, Feb. 17, the chief judge of the Texas Supreme Court convened a court of inquiry to determine whether the former Williamson County district attorney violated state laws by failing to turn over evidence that could have prevented Michael Morton from spending 25 years in prison after his 1987 conviction for a murder that DNA evidence now proves he didn't commit.
The judge in the Morton case could deal directly with the prosecutor's alleged misconduct while the judge in the Stevens case could not. The Texas prosecutor had been expressly ordered by the trial court to turn over the lead investigator's complete report, an order that made certain all exculpatory evidence would be disclosed. The obligations of the Stevens prosecutors, while based on the Constitution and the disciplinary rules of the profession, were not formally embodied in a court order.
The two cases present a simple solution for dealing with prosecutorial misconduct: Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that "tends to negate the guilt of the accused or mitigate the offense," as required by the American Bar Association's ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible. . . .
This proposal can be implemented tomorrow by every state and federal judge in the nation without the need for legislation. Ultimately, it will benefit prosecutors, defendants and the courts by eliminating any confusion surrounding the disclosure of exculpatory evidence.