News Release

Systemic Concealment in Ted Stevens Case: New Law Needed to Prevent Future Injustices

WASHINGTON, DC (Nov. 21, 2011) – Today’s decision by U.S. District Judge Emmet Sullivan underscores the need for federal legislation setting forth with complete clarity prosecutors’ “affirmative duty to disclose evidence favorable to a defendant.” Judge Sullivan, ruling that prosecutors who indicted and tried the late Sen. Ted Stevens, and at least two other Alaskan state officials, committed serious misconduct by withholding evidence favorable to the defendants, thereby denying them due process and their right to fair trials. An investigation by two attorneys appointed by the court, Henry F. Schulke and William B. Shields found that the investigation and prosecution of Sen. Stevens et al. were “permeated by the systematic concealment of significant exculpatory evidence that would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness.”

But because he did not issue an order that was “clear and unequivocal,” Judge Sullivan said, the prosecutors did not commit criminal contempt of court.

In effect, although the court’s investigators, and the judge himself, found that the six federal prosecutors from the Justice Department’s own Public Integrity Section committed egregious misconduct, prosecution for criminal contempt would not be appropriate. It is hard to disagree with that result; criminal contempt is a serious charge and no citizen should ever be prosecuted if there is any doubt as to whether a conviction can be and should be obtained.

Legislation proposed by the National Association of Criminal Defense Lawyers would make perfectly clear to federal prosecutors that they have a continuing obligation to disclose favorable information to a defendant in a timely fashion or sanctions will be imposed.

Commenting on Sullivan’s order today, NACDL President Lisa M. Wayne said, “I hope two things come out of the Stevens case.

“First, I hope that the Court orders release of Mr. Schulke’s report, which is said to be 500 pages or more. Second, I hope Congress realizes that sometimes the Constitution, the Supreme Law of the land, needs to be enforced with appropriate legislation. NACDL’s proposed legislation would create clear and meaningful discovery standards governing the prosecution’s duty to disclose any and all facts favoring the defendant or his case.”


Defending the Brady rule: Reforms are needed to make sure prosecutors share all evidence that could be helpful to defendants. (Los Angeles Times, Nov. 21, 2011) 

Judge Sullivan’s Order of Nov. 21, 2011 (In re Special Proceedings, Misc. No. 09-0198) 

Legislation Would Enforce Government’s Duty To Disclose Favorable Information to Accused (NACDL News Release, July 7, 2011) 

NACDL Proposed Discovery Reform Legislation and Commentary (Combined Document) 

NACDL Proposed 18 USC § 3014, Duty to Disclose Favorable Information  

NACDL Commentary to Proposed 18 USC § 3014, Duty to Disclose Favorable Information

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Jack King, Director of Public Affairs & Communications, (202) 465-7628 or

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.