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I practiced law for a long time and made a number of Rule 29 motions. … I don’t have a very good track record with those motions. In my seven and a half years as a jurist[,] I have never granted one. There is, however, always a first.
U.S. District Judge Roger W. Titus (D. Md.)United States v. Lauren Stevens, May 10, 20111
Federal prosecutors have tremendous power. A couple of years ago, Boston criminal defense lawyer Harvey A. Silverglate published an immensely popular book entitled Three Felonies a Day: How the Feds Target the Innocent, about his coming to “the inescapable conclusion that the federal criminal justice system has become a crude conviction machine instead of an engine of truth and justice.”2
I, too, have felt that the engine of truth and justice had gone off the rails. But in several cases this year it was the runaway federal conviction train that jumped the tracks.
About the same time Silverglate’s book was published, federal prosecutors were caught violating the constitutional mandate to disclose Brady material to the defense team for the late U.S. Senator Ted Stevens. Stevens was convicted on seven felony counts of making false statements on financial disclosure forms, allegedly to hide some $250,000 in home improvements and other gifts from his friend Bill Allen, an Alaska oil figure. Allen testified against Stevens; prosecutors withheld, among other things, prior statements by Allen that the fair market value of the renovation work was probably no more than $80,000 and that he believed Stevens would have paid for the work if he’d been billed. Attorney General Eric Holder filed a motion to vacate the convictions and dismiss the indictment with prejudice, which the court granted.
Holder soon announced reform measures to make certain that discovery violations by prosecutors would not happen again. DOJ officials issued three new internal memos to demonstrate that they could handle their discovery problems internally.
This spring, the federal Ninth Circuit Court of Appeals in San Francisco reversed two cases initially related to the Stevens case for the very same reason — the government failed to provide the defense with evidence possibly favorable to the defendant.
It was not an insignificant amount.
The case against Victor Kohring, a former member of the Alaska House of Representatives, was tossed out by the appeals court because prosecutors failed to give to the defense several thousand pages of documents, including some police reports and notes from interviews with the government’s star witnesses — all material that needed to be disclosed to ensure the defendant received a fair trial.3
In the case of Peter Kott, the former Alaska House Speaker, the appeals court agreed with the lower court that there was “no doubt … that the prosecution suppressed evidence favorable to the defense.”4
The practice of prosecutors failing to abide by constitutional and ethical standards in providing important materials to the defense is not unique to these cases, but it is particularly problematic to see when prosecutors are then turning around and charging crimes against others who allegedly do the same thing — failure to give the other side materials they believe are important to their investigation.
That’s exactly what they did, however, when prosecutors indicted Lauren Stevens (no relation to the late senator), a former vice president and associate general counsel of GlaxoSmithKline. They charged her with crimes that included obstruction of justice and concealment of documents from an FDA inquiry, arguing that counsel failed to provide materials to the federal agency. DOJ prosecutors also used the “crime fraud” exception to the attorney-client privilege to obtain thousands of pages of her communications with internal and external lawyers for GlaxoSmithKline in order to prove their case.
The trial judge found those documents instead proved her innocence. At the conclusion of the government’s case-in-chief, lawyers for Lauren Stevens moved for a judgment of acquittal. On May 10, in open court, the judge stated, “The privileged documents in this case show a studied, thoughtful analysis of an extremely broad request from the Food and Drug Administration and an enormous effort to assemble information and respond on behalf of the client.”5
He continued, “I conclude on the basis of the record before me that only with a jaundiced eye and with an inference of guilt that’s inconsistent with the presumption of innocence could a reasonable jury ever convict this defendant.”6
The judge concluded:
[A] lawyer should never fear prosecution because of advice that he or she has given to a client who consults him or her, and a client should never fear that its confidences will be divulged unless its purpose in consulting the lawyer was for the purpose of committing a crime or fraud.
There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice. I conclude that the defendant in this case should never have been prosecuted and she should be permitted to resume her career.7
Given its track record, it should be apparent that entrusting the Department of Justice to monitor and correct its own conduct will not assure compliance with existing standards. It is entirely possible that new legislation and rules need to be put into place — ones with real teeth — so that those accused of crimes receive the kind of discovery proven crucial to receiving a fair trial. It is clear that the federal rules advisory committee has declined to put real teeth into Federal Criminal Procedure Rule 16, the federal discovery rule. Therefore, the time has come to codify Brady and bring some much-needed clarity and uniformity to the pretrial context of this long established but inconsistent application of a constitutional requirement. NACDL’s Discovery Reform Task Force continues its work to draft federal legislation and appropriate remedies that would still flex the same kind of muscle that the constitutional Brady rule is supposed to do, but which has atrophied because of inconsistent understandings of its full due process dimensions.
Decades of assurances by DOJ that it is capable of reforming itself from within have become tiresome. It is time for reform from without.
Notes
1. United States v. Stevens, D. Md., Crim. No. RWT-10-694, Titus, J., transcript 05/10/11 at 8.
2. Harvey A. Silverglate, THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT (New York 2009), xxxiii.
3. United States v. Kohring, 637 F.3d 895 (9th Cir. 2011).
4. United States v. Kott, 2011 WL 1058180 (9th Cir. 3/24/11) (unpublished).
5. Stevens, supra, note 1, transcript at 5.
6. Id., transcript at 6.
7. Id., transcript at 9-10 (emphasis added).