From the President: DOJ Needs Oversight to Shape Up Discovery Practices

DOJ Needs Oversight to Shape Up Discovery Practices Jim E. Lavine; Ellen S. Podgor April 2011 5   “From the President” is my regular column on a topical issue. This month I asked Professor Ellen S. Podgor, who has written extensively on prosecutorial misconduct issues at Stetson University Col

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“From the President” is my regular column on a topical issue. This month I asked Professor Ellen S. Podgor, who has written extensively on prosecutorial misconduct issues at Stetson University College of Law, to co-author the column with me.

These past few weeks have been tough ones for the Department of Justice. The agency had two convictions from the U.S. Court of Appeals for the Ninth Circuit vacated due to discovery violations. In a third case from a federal district court in Maryland, the judge told DOJ to start over in its prosecution of a former pharmaceutical executive. The irony is that in the Ninth Circuit cases the government is failing to comply with constitutional mandates for discovery, and in the Maryland case the government is prosecuting someone for failing to comply with its request for information.

Two years ago, federal prosecutors were caught violating constitutional mandates that required them to share discovery with lawyers for accused U.S. Sen. Ted Stevens. The government instituted reform measures via three new internal memos, all unenforceable in court, saying that it could handle its discovery problems internally. But as one might expect, this has not resolved the discovery problems in the DOJ.

DOJ officials failed to examine prosecutions similar to the Stevens case and at least acknowledge their errors. As a result, the Ninth Circuit vacated convictions in two cases initially related to the Stevens case for the very same reason — Brady violations.

The Ninth Circuit tossed out the case against Victor Kohring,1 a former member of the Alaska House of Representatives, because prosecutors failed to give the defense several thousand pages of documents, including some police reports and notes from interviews with the government’s star witnesses. And in the case of Peter Kott,2 the former Alaska House Speaker, the Ninth Circuit agreed with the lower court that there was “no doubt … that the prosecution suppressed evidence favorable to the defense.”

Both decisions allow the government to expend additional taxpayer dollars to retry these cases. However, one of the appellate court judges — who was part of the three-judge panel deciding both cases — said she believed prosecutors should not get a second chance. In the Kohring case Circuit Judge Betty Fletcher found the government committed “flagrant prosecutorial misconduct,” and in the Kott case she said the prosecutor’s “lack of contrition” was “deeply trouble[ing].” Fletcher pointed out that prosecutors “attempted to minimize the extent and seriousness of the prosecutorial misconduct,” and they even went so far as to assert that the defendant received a fair trial.

We all know that the practice of prosecutors failing to abide by constitutional and ethical standards in providing discoverable materials to the defense is not unique to these cases. But it is particularly troubling when prosecutors say they have learned their lesson (following the Sen. Stevens fiasco) and then turn around and argue that there is no Brady violation in similar cases, as was done by new prosecutors involved in the Kott and Kohring cases.

Yet while the government can obstruct investigations with impunity by violating Brady, it is indicting others for not turning over information to them. Maryland prosecutors indicted Lauren Stevens,3 a former vice president and associate general counsel of GlaxoSmithKline, charging her with crimes that included obstruction of justice and concealment of documents from a Food and Drug Administration inquiry. They argued that she failed to provide materials to the agency. Government attorneys, however, improperly instructed the grand jury — they thought the crime only required general intent as opposed to specific intent — and the court dismissed the case. Prosecutors re-indicted her in mid-April.

When a corporation missteps, DOJ calls for the appointment of outside monitors to assure future compliance. But what happens when DOJ missteps?

Permitting the Department of Justice to monitor and correct its own conduct will not assure compliance with existing standards. It is essential that new legislation and rules are put into place — ones with real teeth — so that people accused of crimes receive materials that may prove crucial to receiving a fair trial. Defendants should not have to pay the price for a second trial when prosecutors fail to adhere to constitutional mandates.

1. United States v. Kohring, ___ F.3d ___, 2011 WL 833263 (9th Cir. Mar. 11, 2011).
2. United States v. Kott, 2011 WL 1058180 (9th Cir. Mar. 24, 2011).
3. United States v. Stevens, ___ F. Supp. 2d ___, 2011 WL 1033707 (D. Md. Mar. 23, 2011).

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