Sen. Lisa Murkowski (R-Alaska), at podium, unveils the proposed Fairness in Evidence Disclosure Act at a news briefing March 15. Also participating in the briefing were: ABA Past President Carolyn B. Lamm; Washington lawyer Robert M. Cary, who represented Sen. Ted Stevens (R-Alaska); and Michael Macleod-Ball of the American Civil Liberties Union.
Applauds Murkowski’s leadership on bill
Citing “wildly different policies” for disclosure of evidence in U.S. attorney offices around the country, ABA President Wm. T. (Bill) Robinson III commended Sen. Lisa Murkowski (R-Alaska) last month for her leadership in introducing S. 2197, a bipartisan bill to help establish uniformity in evidence disclosure standards.
“There is no reason why the Justice Department should have 96 different policies rather than one uniform policy,” Robinson wrote to Murkowski March 15. “A clearly defined and codified disclosure standard would help eliminate the pitfalls of the current system,” he emphasized.
In his letter, Robinson said that the disclosure of exculpatory information by the prosecution is vital to notions of due process as guaranteed by the First Amendment and effective assistance of counsel as guaranteed by the Sixth Amendment. He explained that the Supreme Court decision in Brady v. Maryland, 373 U.S.83 (1963), stated the constitutional basis of the duty of prosecutors to disclose evidence to the defense. The decision in Giglio v. United States, 405 U.S. 150, 154 (1972), made clear that the prosecutor’s duty to disclosure is not limited to exculpatory evidence and covers evidence affecting credibility. The court held in United States v. Agurs, 427 U.S. 97 (1976), that the prosecution’s constitutional duty to disclose is not limited to situations where the defendant made a specific request for the relevant evidence.
The ABA, which has approved several resolutions calling for various steps to improve the disclosure process in recent years, adopted policy last year urging enactment of federal legislation to implement Brady disclosure.
During a March 15 press conference unveiling the bill, ABA Past President Carolyn Lamm applauded the introduction of the legislation, which the ABA maintains would be “an important step toward achieving consistency and improving fairness in the federal civil justice system and will serve the cause of achieving justice in countless individual cases.”
S. 2197 would require federal prosecutors to make early disclosure of evidence that is favorable to a defendant and may demonstrate his or her innocence, regardless of whether the evidence is deemed material to the case by the prosecutors. The legislation also would make clear that failure to abide by Brady obligations is a serious breach of the government’s responsibilities and would give judges a broad range of remedies, including postponing or adjourning the proceedings, excluding or limiting testimony or evidence, ordering a new trial, or dismissing the case with or without prejudice.
Murkowski’s bill – cosponsored by Sens. Daniel K. Inouye (D-Hawaii), Kay Bailey Hutchison (R-Texas), Mark Begich (D-Alaska), and Daniel Akaka (D-Hawaii) – was introduced the same day Special Counsel Henry Schuelke released a report revealing a wide variety of discovery failures during the 2008 trial of Sen. Ted Stevens (R-Alaska). Stevens was convicted of accepting excessive gifts, but the Department of Justice vacated the conviction in 2009 after evidence of prosecutorial misconduct was discovered.
The Senate Judiciary Committee focused on the Schuelke report during a March 28 hearing as part of its oversight responsibilities. The House Judiciary Committee is expected to hold a broader hearing on the issue in mid-April.