By Annika McGinnis, McClatchy Newspapers (June 6, 2012)
WASHINGTON — Sen. Lisa Murkowski, R-Alaska, argued in front of the Senate Judiciary Committee on Wednesday for legislation that would create a uniform standard for prosecutors to disclose all possibly exculpatory evidence to the defense.
In the wake of the case against then-Alaska Republican Sen. Ted Stevens, in which prosecutors were shown to have withheld evidence that could have supported him, Murkowski said the problems that the case exposed extended throughout the Department of Justice and could be solved only by establishing uniform standards.
Deputy Attorney General James Cole said in the same hearing that such legislation would impede witness safety and deter prosecutors from going “above and beyond” minimum standards for disclosing evidence.
According to Cole, the Stevens trial was a single case of mismanagement that doesn’t reflect the entire Justice Department, which he said had many standards already in place to ensure fair evidence disclosure.
“The problem wasn’t what the rules were; the problem was that the prosecutors didn’t follow the rules,” Cole said. “We are confident, had the rules been followed, it would have been a fair and just trial.”
In 2008, Stevens, the longest-serving Republican in the U.S. Senate, was convicted of accepting expensive gifts and failing to disclose them. He lost his re-election campaign shortly afterward. In 2009, Attorney General Eric Holder led an investigation that found the two Alaskan prosecutors had withheld important evidence that would have supported Stevens’ case, and Holder moved to dismiss the charges. Stevens died two years ago in a plane crash.
On Wednesday, Murkowski and Judiciary Committee Chairman Patrick Leahy, D-Vt., charged that the case extended well beyond the two suspended prosecutors and showcased widespread, inherent problems within the Justice Department.
“Our justice system is damaged,” Leahy said. “I felt this as a prosecutor; I felt this as a senator; I feel it as an American.”
The two cited a “double standard of discipline” between managers and other employees, although Cole denied that.
Murkowski and Leahy also cited what they called prosecutors’ “contest mentality,” which they said could impede prosecutors’ ability to give fair rulings.
“Stevens’ case seemed to be driven by ‘Let’s get a conviction at all costs,’ and somehow justice gets lost,” Leahy said.
The case is part of a growing number of “high-profile failures” in the justice system, Murkowski and Leahy charged. These include last week’s John Edwards case, in which the Democratic former North Carolina senator was acquitted on one count and a hung jury declared on other counts of public malfeasance, and date to the 1990s, when the FBI presented evidence of campaign finance violations in the Clinton administration and the Justice Department refused to prosecute based on “frivolous legal analyses,” Leahy said.
Cole, however, told the committee there’s an “incontestably small” number of discovery rule violations, something like three hundredths of a percent.
Prosecutors already adhere to regulations in the United States Attorneys’ Manual, he said. He said prosecutors must report any violations of discovery rules to the Justice Department’s Office of Professional Responsibility, and that the office issued memos explaining regulations.
Sen. Mike Lee, R-Utah, argued that these were “vague and inconsistent standards,” but Cole disagreed.
“The rules are good rules,” Cole said. “What was really at the heart here was bad judgment, not paying attention, poor supervision.”
Under Murkowski’s legislation, prosecutors would have less incentive to go “above and beyond” minimum standards, Cole said.
“What is significant to the defendant’s case are sometimes judgment calls, and we want prosecutors to use their discretion,” he said.
Cole also said forcing prosecutors to release all evidence would endanger witnesses, who are sometimes attacked and even killed because of their testimony.
“We’ve had a number of instances where the family of a witness – their house was firebombed in the middle of the night, and some children who were in the house were killed,” he said.
Murkowski also questioned why the report on the Stevens prosecutors by the Office of Professional Responsibility wasn’t adapted based on the findings of a 500-plus-page report on the prosecutors’ misconduct released in March, written by special prosecutor Henry Schuelke, that said the prosecutors had deliberately withheld evidence from the defense in the Stevens trial.
The OPR’s report, released two weeks ago, found that the two Alaskan prosecutors didn’t withhold evidence intentionally. Instead of firing them, the office suspended the prosecutors for 40 and 15 days without pay.
Murkowski, however, has called for them to be fired. On Wednesday, she questioned the accuracy of the OPR’s report, since it was finalized last August, well before Schuelke’s report was released.
“I can’t understand why (the OPR) didn’t go back and reconsider its report based on Schuelke’s findings,” Murkowski said.
During the hearing, committee members of both parties also questioned the transparency, accountability and level of experience in the Justice Department. Cole stringently defended the department’s credibility and system of regulations.
Murkowski, however, said the department’s problems can be solved only by forcing prosecutors to adhere to universal standards.
“This is truly one of the Justice Department’s darkest moments,” Murkowski said. “But we can, through legislation and reforms, ensure that the same fate does not befall other defendants.”