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Senators from Alaska seek reform at US Department of Justice

  • Author: Amanda Coyne
  • Updated: September 27, 2016
  • Published March 19, 2012

Less than two years after the death of former Alaska U.S. Sen. Ted Stevens in a Western Alaska plane crash came the report he longed to see while still alive -- a government report released last week may have cleared his name in the charges against him.

Those charges included accepting free gifts from Bill Allen chief executive of VECO Corp. and the senator's friend. The case revolved around the fact that as a U.S. senator, Stevens was required to disclose gifts. In this case, prosecutors alleged, he didn't.

He was found guilty by a Washington, D.C., jury based on what was given to Stevens's defense team. But key evidence, statements and witness testimony wasn't given to the defense. It was methodically and systemically hidden.

Prosecutors knew this but covered it up, according to the report. They knew the cost of the gifts was much less than they claimed, and that as Stevens had said from the first day, he paid every bill that was sent to him, and wanted more. But that was covered up, according to the report.

Prosecutors knew that Allen, their star witness, was accused of having sex with underage girls, and they covered that up, according to the report. They knew that one of Allen's seminal statements on the stand was probably made up, and they covered that up, too.

They even knew that some of what they were covering up might be uncovered one day. And yet they continued. A zealot mentality took over. And seemingly no amount of evidence of Stevens's innocence was going to change their mind. They convinced themselves of his guilt, and getting a conviction took precedence over everything, justice included.

As a result, Alaska lost its senior senator.

Stevens was able to expose these abuses because he could hire one of the best lawyers in the country. Imagine what could happen to you if the Feds were convinced that you were guilty.

Much of this could have been avoided, and could be in the future, if U.S. Sen. Lisa Murkowski's bill, the Fairness in Disclosure of Evidence Act of 2012, passes. The bill, introduced last Thursday, the day of the report's release, would change the rules around disclosure and create a national standard about what does and doesn't have to be disclosed to a defendant.

The bill has strong bipartisan support. Co-sponsoring it are Sens. Daniel Akaka, D-Hawaii, Kay Bailey Hutchison, R-Tex., and Alaska's junior senator, Democrat Mark Begich.

It's also supported by such disparate groups as the American Bar Association, the U.S. Chamber of Commerce, the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and the Constitution Project.

"To have any piece of legislation introduced with bipartisan support is a significant development," said Norman Reimer, the executive director of the National Association of Criminal Defense Lawyers, adding, "We truly commend Sen. Murkowski for this effort."

Discovery

At issue is the legal process called "discovery." Defendants have the right to see evidence held by prosecutors that could help their defense, including deals cut with government witnesses or information that would allow their lawyers to question the credibility of such witnesses.

In Alaska's and many other state courts, it's a fairly straightforward process governed by fairly straightforward rules. After an indictment, your lawyer is supposed to get from prosecutors any evidence that's to be used against you. The discovery rules don't completely protect defendants from prosecutorial misconduct in state courts. Defense lawyers will tell you they often get discovery material in the middle of a trial.

Still, at least in state court, discovery rules are unambiguous. In federal court, the rules are decided in individual districts and, save a handful of districts, are much more vague. It's the prosecutors who decide what constitutes exculpatory evidence and what the defense can and cannot see. Because prosecutors want to win, that's where abuses happen, as with the Stevens case.

But talk to most defense attorneys and they'll tell you that what happened to Stevens isn't rare. Lawyers have complained for years about prosecutorial abuses to little avail. The public -- and judges apparently -- have been hardened to the pleas of defense lawyers yelling about problems in the system.

USA Today recently published a series detailing examples of prosecutorial misconduct, finding 201 cases since 1997 in which federal courts determined U.S. lawyers violated laws or bent ethics rules so severely that the cases were overturned.

Murkowski's legislation doesn't go as far as require an "open discovery rule," as is required in Alaska. Rather, it 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.

Her bill would also require that prosecutors disclose after arraignment or prior to a plea, "without delay" or as soon as reasonably practicable, evidence that will be used against the defendant.

In other words, it still leaves much of the discretion up to the prosecutors, something that some have objected to, including the Washington Post and Fox's Greta Van Susteren, among others.

But it's a start. It is, in Reimer words, a "responsible" piece of legislation.

In an interview with Alaska Dispatch Monday afternoon, Murkowski said that her first and foremost concern is that nobody has to go through what Stevens did because they didn't follow the rules of procedure.

Upcoming hearings might reveal that the bill doesn't go far enough. "We might want to amend (the bill) in the future," she said.

Already, Murkowski has been getting push-back from the Department of Justice. Some there are concerned the legislation might go too far. A Justice Department official who required anonymity in order to speak about the country's laws, said that although the DOJ has yet to take an official position, "we have significant concerns about the impact of the bill on victims, witnesses and the criminal law enforcement process."

Murkowski said that she's confused by this response. Her bill expressly protects witnesses, she said, and she would think that it would be easier to have one standard that DOJ uses in the discovery process.

"I'm just not sure why they have been so against this," she said. "It does cause you to wonder if they are just worried that it's going to make more work for them."

The Justice Department, however, has fought any changes in the rules for at least 20 years claiming there is no problem to address. U.S. District Court Judge Emmet Sullivan, who oversaw the Stevens case, went so far as to write letters to judicial committees about his experience in the case and the need for systemic reform.

That, apparently, hasn't been strong enough evidence to convince the Feds that the way it hands over evidence is flawed.

"Maybe Alaska (senators) will lead the nation on this one," Reimer said.

Contact Amanda Coyne at amanda@alaskadispatch.com

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