A REPORT RELEASED last week lays out in shocking detail the government’s badly marred prosecution of the late senator Ted Stevens (R-Alaska). Unforgivably, prosecutors failed to turn over evidence that could have helped the former senator refute corruption charges.
Attorney General Eric H. Holder Jr. moved to dismiss the case against Mr. Stevens, who died in a 2010 airplane crash. But the lengthy report underlines the need to revamp rules governing the government’s handover of exculpatory evidence. Sen. Lisa Murkowski, a Republican from Mr. Stevens’s state of Alaska, has introduced a reform bill that should serve as a starting point for such discussion.
Prosecutors are required to disclose “material” evidence that could plausibly help a defendant; this includes information that implicates a different culprit or that raises questions about the credibility of a government witness. The determination is left entirely to the prosecutor, and prosecutors may opt not to turn over information that at first blush appears beneficial to the defendant if they conclude it is not “material” to the case.
Ms. Murkowski’s bill would mandate that prosecutors turn over all evidence in their possession that may “reasonably appear to be favorable to the defendant,” whether or not it is deemed material to the case. The bill allows prosecutors to seek judicial approval to withhold information that may harm national security or endanger victims or witnesses. Three federal court districts — two in Alabama and one in Florida — already require prosecutors in their jurisdictions to abide by such rules. The proposal is supported by a diverse coalition that includes the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the U.S. Chamber of Commerce and the American Bar Association.
While taking up Ms. Murkowski’s proposal, lawmakers should consider going further. “Open file discovery” would allow defense lawyers to review all evidence and make their own assessments. State prosecutors who have adopted this approach say they have experienced few, if any, problems.
Justice Department officials worry that any changes could force the turnover of information that could endanger witnesses or victims or disseminate embarrassing but legally irrelevant information. They note that since the dismissal of the Stevens case, the department has ramped up training to ensure that all relevant material is turned over and has designated a top career prosecutor to coordinate these efforts full time. And the breach of existing rules — while abhorrent — is rare, they say: Of the roughly 800,000 cases prosecuted over the last decade, a mere 0.03 percent have resulted in discovery complaints against the department.
Then again, that number is likely not a true reflection of the problem. What are the chances that a defendant, without the resources of a U.S. senator, would ever become aware of such improprieties?