Justice Department Opposes Expanded Brady Rule
By Joe Palazzolo | October 15, 2009 12:43 am
Lanny Breuer (USDOJ)

Lanny Breuer (USDOJ)

Justice Department officials on Tuesday announced new measures to ensure prosecutors comply with their obligations to make potentially exculpatory information available to criminal defendants. But they said the department opposes expansion of the disclosure rule.

In a meeting in Seattle with members of the federal judiciary’s Criminal Rules Advisory Committee, Assistant Attorney General Lanny Breuer pointed to a number of reforms: mandatory Brady training for federal prosecutors, the revival of a working group on computer forensics, a case-management pilot project and the creation of a position at the Justice Department’s Washington headquarters to oversee these efforts.

The Criminal Division chief’s 30-minute presentation was, in essence, a rebuttal of Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, who expressed frustration with prosecutors after presiding over the high-profile corruption trial of then-Sen. Ted Stevens (R-Alaska) last year.

In April, Sullivan wrote the advisory committee, urging its members to consider an amendment to Rule 16 that would require prosecutors to turn over all exculpatory information to defense lawyers in criminal cases.

“Such a rule would eliminate the need for the court to enter discovery orders that simply restate the law in this area, reduce discovery disputes, and help ensure the integrity and fairness of criminal proceedings,” Sullivan wrote.

Currently, prosecutors have discretion to decide which information is relevant, though Justice Department policy dictates that they err on the side of disclosure.

Sullivan’s proposal was in response to government errors in the Stevens case. The Alaska Republican, whose trial unfolded amid his ultimately unsuccessful bid for a seventh term, was found guilty in October 2008 of failing to disclose gifts on his Senate disclosure forms. Attorney General Eric Holder asked Sullivan to erase the conviction after a top-down review of the case exposed instances in which prosecutors improperly withheld evidence from Stevens’ defense lawyers.


Judge Emmet Sullivan

At the time, Sullivan said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” in the Stevens case. The judge took the unusual step of appointing outside counsel, Henry Schuelke, to investigate the Stevens prosecutors for possible criminal contempt. The investigation is ongoing.

The discussions over Rule 16 come as a former Alaska state representative convicted in the same corruption probe that snared Stevens is petitioning a judge to reverse his conviction. The former lawmaker, Republican Pete Kott, said in a court filing that Justice Department prosecutors failed to disclose that a key witness had allegedly had sexual relationships with underage women, The Washington Post reports.

The witness, Bill Allen, the former head of oil services company Veco Corp., also may have persuaded one of the underage women to file a sworn statement that hid the nature of their relationship, The Post reports. Kott’s attorneys say this information would have helped them challenge Allen’s credibility before the jury. Allen is awaiting sentencing on guilty pleas to bribery and tax charges.

Similar amendments to Rule 16 have been considered several times, most recently in 2006. Justice Department officials proposed refinements to the U.S. Attorneys’ Manual in lieu of a rule change. Then as now, Justice officials said expanding the rule would upset the balance of discovery, fundamentally changing the way DOJ operates, would conflict with existing laws limiting the timing of disclosure, and could pose a threat to national security.

Though additional language was added to the USAM, broadening disclosure requirements, the advisory committee voted to publish the rule for public comment.

A majority of the advisory committee members felt the Justice Department hadn’t gone far enough, arguing that judges could not enforce compliance with the USAM and that even tracking compliance would be impossible. But the Standing Committee on Rules of Practice and Procedure, the next rung up in the Judicial Conference, tabled the measure.

This time around, the Justice Department presented a set of reforms designed to enhance prosecutors’ understanding of their discovery obligations and help them cope with an ever-increasing volume of electronic evidence, said Jonathan Wroblewski, the Criminal Division’s Director of the Office of Policy and Legislation, who participated in the two-day meeting.

Wroblewski described the views of committee members — including  judges, lawyers and law professors — as varied. Some favored codifying existing case law or sought an expansion of Rule 16; others deferred to the Justice Department. (We’ve asked for the meeting minutes and will post them as soon as we get them.)

Breuer, an ex-officio member of the committee, acknowledged the challenge of bringing uniformity to the process, noting the patchwork of local rules, as well as varying practices among federal and state law enforcement agencies, Wroblewski said.

But Breuer disputed that discovery violations are prevalent, citing statistics from the department’s Office of Professional Responsibility. Over the past decade, OPR has opened 107 investigations of alleged Brady-Giglio violations and found 15 cases of misconduct. Skeptics — including a number of federal judges — have questioned the Justice Department’s diligence in policing itself.

Breuer said the Justice Department was in the process of sorting through findings by a working group assembled in the aftermath of the Stevens case. Breuer chaired the group along with Karin Immergut, who until recently was the top federal prosecutor in Oregon and head of the Attorney General’s Advisory Committee of U.S. Attorneys.

The department has adopted several of the group’s recommendations. As we reported here, each U.S. Attorney’s office has appointed a prosecutor to act as resident “discovery trainer.” They will be responsible for training every federal prosecutor and conducting refresher sessions each year.

The department is also planning to launch a case-management pilot project, which will employ new software and search for best practices, and to revive a computer forensics working group. A new position at the Justice Department has been created to oversee and institutionalize the reforms, Wroblewski said. It has not been filled.

The advisory committee meets again in April and could vote to open Sullivan’s proposal to six-month public comment period. The standing committee meets in January, at which time the department is expected to provide a fuller picture of its efforts.


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