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Stevens Prosecutors Won’t Face Charges (NACDL News)
By Jack King
NACDL News columns.
In November 2011, U.S. District Judge Emmet Sullivan (D.D.C.) released a scathing memorandum and order finding that federal prosecutors from the Department of Justice’s Public Integrity Section committed numerous specified and unspecified acts of prosecutorial misconduct in a high-profile set of federal bribery cases.
An investigation by two attorneys appointed by the court, Henry F. Schulke and William B. Shields, found that the investigation and prosecution of Sen. Ted Stevens et al. were “permeated by the systematic concealment of significant exculpatory evidence that would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”
Three prosecutors, who indicted and tried the late Sen. Stevens and at least two other Alaskan state officials, will not face criminal contempt charges, however. Because he did not issue an order that was “clear and unequivocal,” Judge Sullivan said, the prosecutors did not commit criminal contempt of court. A fourth prosecutor who was a subject of the investigation committed suicide in 2010.
Legislation proposed by NACDL clarifies that federal prosecutors have a continuing duty to disclose favorable information to a defendant in a timely fashion or sanctions will be imposed. A copy of NACDL’s proposed legislation and commentary is available on NACDL’s website at http://www. nacdl.org/discoveryrform/.
Commenting on Sullivan’s order, NACDL President Lisa M. Wayne said, “I hope two things come out of the Stevens case. First, I hope that the court orders release of Mr. Schulke’s report, which is said to be 500 pages or more. Second, I hope Congress realizes that sometimes the Constitution, the supreme law of the land, needs to be enforced with appropriate legislation. NACDL’s proposed legislation would create clear and meaningful discovery standards governing the prosecution’s duty to disclose any and all facts favoring the defendant or his case.”
The report by Schulke and Shields is expected to be released in early 2012, after the subjects and witnesses have had an opportunity to object to certain information or request redaction from the public document.