D.C. Judges Weigh Rule to Curb Prosecutor Misconduct

D.C. Judges Weigh Rule to Curb Prosecutor Misconduct Photo: Diego M. Radzinschi/NLJ Former Alaska senator Ted Stevens exits the federal courthouse in D.C. in April 2009.

Nearly seven years since the botched prosecution of the late Alaska senator Ted Stevens, federal judges in Washington are considering a rule that describes in detail for the first time the government’s obligation to turn over evidence to defense lawyers.

Federal prosecutors are constitutionally required to provide potentially favorable information to the defense in criminal cases. But it’s up to each court and, often, individual judges, to decide how to enforce that requirement in practice.

On Wednesday, the U.S. District Court for the District of Columbia announced a proposed change to the local rules that would set courtwide standards for what information prosecutors must disclose and when they must start producing that evidence to the defense.

Twenty-eight district courts have rules that address prosecutors’ disclosure obligations and 15 have standing orders, although they vary in scope and detail, according to a 2014 survey provided by U.S. District Judge Emmet Sullivan in Washington, a supporter of the proposed local rule. There is no federal rule that applies to all of the 94 U.S. district courts.

The D.C. court will accept public comments for the next 45 days.

A committee of judges and lawyers in D.C. from the prosecution and defense bar spent the past year drafting the rule. The court convened the committee at the request of Sullivan, who presided over the Stevens case, and U.S. District Judge Paul Friedman. Both judges have advocated for rules that more clearly define prosecutors’ obligations under Brady v. Maryland to turn over potentially exculpatory or impeaching evidence to the defense.

“A federal rule that requires the government to produce all exculpatory material in a readily useable format to the defense serves the best interests of the court, the prosecution, the defense, and, ultimately, the public,” Sullivan said in an email to The National Law Journal on Wednesday.

Cynthia Jones, a professor at American University Washington College of Law and a member of the committee, said the proposed rule was not as broad as the Brady rule in the U.S. District Court for Massachusetts, which has some of the most expansive language in the country. Still, she said, the proposed rule in D.C. “fairly captured what Brady requires and the way in which the courts expect the disclosure to take place.”

The D.C. rule includes a more specific time frame for prosecutors to turn over information to the defense. It calls for prosecutors to make “good-faith efforts to promptly disclose” evidence starting at a defendant’s first court appearance.

The committee discussed including sanctions for prosecutors who fail to disclose information and follow the rule, Jones said, but decided against it. Judges can sanction prosecutors who violate the Brady rule.

Jonathan Malis, the chief of the criminal division in the U.S. attorney’s office in Washington, was part of the committee. He declined to comment through a spokesman.

The U.S. Department of Justice, which has internal guidelines for prosecutors about their disclosure obligations under Brady, has opposed court rules and congressional legislation in the past that address Brady. A spokesman for the U.S. attorney’s office said that DOJ is reviewing the proposed rule and had no other comment. According to Jones, Justice Department representatives indicated they opposed the proposed D.C. rule.

Manuel Retureta, a criminal defense lawyer at D.C.’s Retureta & Wassem and a member of the committee, said the rule would help prosecutors and defense lawyers better understand their responsibilities in criminal cases.

“We can have conversations with prosecutors and say we need certain things and according to our local rule we should have them,” Retureta said.

U.S. district judges James Boasberg and Colleen Kollar-Kotelly chaired the committee. Other members included O’Melveny & Myers partner Mary Patrice Brown, who co-chairs the firm’s white-collar defense practice and previously served as the leader of DOJ’s Office of Professional Responsibility; Federal Public Defender A.J. Kramer; and DLA Piper partner Earl Silbert, a white-collar defense lawyer and former U.S. attorney in Washington.

“This was a very good collaborative process with input from a lot of distinguished lawyers who worked very well and civilly together,” Boasberg said. “All of the judges are very eager to hear comments by practitioners and will certainly take them into consideration.”

Defense lawyers and some federal judges have for years called for clearer rules about prosecutors’ disclosure obligations and greater accountability for prosecutors who fall short. In a 2013 opinion, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit wrote that there was “an epidemic of Brady violations abroad in the land.”

The Justice Department has pushed back against those criticisms. Last year, Deputy Attorney General Sally Yates said in public remarks that the “overwhelming majority” of prosecutors honor their legal and ethical obligations.

The case against Stevens fell apart over allegations that prosecutors withheld evidence from Stevens’ lawyers. The Justice Department in 2009 dismissed charges against the Alaska Republican, who was accused of making false statements in his annual financial disclosure report. A 2012 report by a special prosecutor appointed by Sullivan found evidence that information was willfully concealed from the defense.

Williams & Connolly partner Robert Cary, one of Stevens’ lawyers, said on Wednesday that the proposed Brady rule in D.C. was “a great model for the rest of the country and I’m proud of our court for doing it.”

Updated with comment from the U.S. attorney’s office.

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