- The Washington Times - Sunday, October 13, 2013

You’ve heard the stories. A prosecutor withholds evidence he thinks may be beneficial to a defendant. The defendant proceeds in ignorance of that evidence and is convicted. The evidence eventually comes to light, and the defendant is exonerated or given a new trial. These stories make for sensational headlines: misbehavior, intrigue and, eventually, justice. But overwhelmingly, instances of prosecutors failing to share favorable evidence with defendants are seldom this blatant, or simple.

Though our criminal justice system is adversarial, most prosecutors understand that their duty is to achieve justice, not win a case at all costs. One of the ways prosecutors prioritize achieving justice above victory is by adhering to the Constitution’s requirement that they disclose to defendants all favorable information prosecutors and police discover in the course of their investigation of crimes. This requirement, first acknowledge by the Supreme Court in the 1963 case Brady v. Maryland, helps ensure the fairness of a trial by recognizing the advantage prosecutors have in investigating and uncovering information in a case and giving defendants the information that could help their cases.

The headline-grabbing stories of prosecutors violating this obligation are as rare as they are shocking. Perhaps the most notable case in recent memory is the prosecution of the late Sen. Ted Stevens of Alaska. The senator’s guilty verdict for making false statements was vacated, and all charges dismissed after new prosecutors disclosed that the original prosecutors had failed to disclose evidence contradicting the government’s most important evidence. (Judge Emmet G. Sullivan had already held the original prosecutors in contempt for withholding other evidence from defense counsel.). Regrettably, the guilty verdict had already cost the senator re-election. The prosecutors’ failure to disclose favorable information in his case led to a 500-page report by an independent investigator, an internal investigation by the Department of Justice and three congressional hearings.

Sen. Stevens’ case, however, is the exception. We may never know how often these types of violations occur, since, by their nature, they are difficult to detect. In 2010, a USA Today study reported 87 documented cases since 1997 in which prosecutors failed to meet the Brady case disclosure standards, but the real number, reflecting the undiscovered instances, is arguably much higher.

Many of these violations are unintentional. While a small minority of prosecutors willfully conceal evidence in an effort to obtain convictions, countless others, seeking only to do their job faithfully, get lost in a maze of technical rules and shifting standards. For federal prosecutors in particular, with federal courts, the Department of Justice, individual states and other entities with competing — and often contradictory — standards, individual prosecutors are often left to guess at the true scope of their disclosure obligations.

For prosecutors preparing for trial, this offers little clarity and less solace. They are forced to speculate, possibly to resort to guesswork and, sometimes, they just guess wrong. In an area of the law designed to increase accuracy, we have neglected to provide prosecutors with a workable sense of their duties.

It’s also critical not to lose sight of the real victims of all this confusion: the defendants who suffer the real-life consequences of Brady violations, detected or otherwise. Those defendants include Edgar Rivas, who was convicted in 2003 in New York to a 10-year sentence for smuggling cocaine, only to have his conviction reversed a year later by the 2nd Circuit when the government’s translator informed the defense of a concealed admission from one of Mr. Rivas’ shipmates. Defendants such as Mr. Rivas, and the countless we will never learn about, are why we support clarifying prosecutors’ duty to disclose.

We renew the call for legislation that establishes a prosecutor’s duty to disclose all information, whether admissible or not, that could be considered favorable to a defendant during the proceedings. We further support a requirement that prosecutors exercise due diligence in uncovering any information that would meet this standard, and that they act without delay. Finally, we call for clear and uniform standards for addressing violations of this responsibility each and every time they occur.

Congress can accomplish this long-overdue reform. In 2012, Sen. Lisa Murkowski introduced the Fairness in Disclosure of Evidence Act (S. 2197), a bill that might have achieved many of the goals we outlined above. But the Senate failed to take up this common-sense legislation. It is time that the Senate and the House consider enacting legislation such as Ms. Murkowski’s. Until we bring uniformity and clarity to a prosecutor’s duty to disclose, we will continue to bemoan the Brady violations we learn about, and wonder about the ones we do not hear about.

William S. Sessions served three presidents as director of the FBI and was chief judge for the U.S. District Court for the Western District of Texas. Robert M. Cary is a partner at the law firm of Williams & Connolly LLP and co-author of “Federal Criminal Discovery.”

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