A reason to doubt: the suppression of evidence and the inference of innocence.

• Author: Jones, Cynthia E.

1. INTRODUCTION

   In a nationally televised press conference, the Department of Justice announced that a federal grand jury had returned a seven-count indictment against Alaska Senator Theodore "Ted" Stevens. (1) The eighty-four-year-old Senator was charged with violating federal ethics laws by failing to disclose thousands of dollars in gifts and services received from constituents. (2) After publicly announcing the charges, the Justice Department official thanked the lawyers in the Public Integrity Section, the division of the Department of Justice charged with investigating and prosecuting corruption by public officials. (3) Ironically, the Public Integrity Section lawyers who investigated and prosecuted Stevens for nondisclosure of information would later face investigation and possible prosecution for obstruction of justice due to their own acts of nondisclosure of information. (4) In fact, following the prosecutors' repeated acts of concealing, altering, and falsifying critical evidence in the Stevens case, the trial judge rhetorically asked the prosecutors, "How does the court have confidence that the Public Integrity Section has public integrity?" (5)

   Once the government initiated the criminal case against Ted Stevens, the landmark Supreme Court decision in Brady v. Maryland (6) mandated that the trial prosecutors provide the defense with favorable information collected by the government during the course of its investigation, including information that either negated guilt or undermined the government's case. The same constitutional principles of due process that compel the disclosure of Brady evidence likewise prohibit the government from securing a conviction with false testimony or concealing the fact that such tainted evidence has been introduced at trial. (7)

   The crux of the criminal charges against Senator Stevens was that VECO, an Alaska-based company, performed extensive renovations on a home Stevens owned in Alaska. (8) The government maintained that the free labor, building supplies, and related gifts bestowed upon Stevens totaled more than $100,000 over a seven-year period. (9) The indictment alleged that Stevens violated the criminal penalty provisions of the federal ethics law by neither paying for these services nor reporting them as gifts when he filed his annual financial disclosure statement. (10) Though it did not charge Stevens with accepting bribes, the indictment described Stevens' relationship with VECO as a "scheme" to accept the free services while VECO was soliciting the Senator's help with obtaining federal grants and seeking other federal government assistance with its foreign and domestic business matters. (11) In defense, Stevens maintained that he paid for the renovation services and was unaware that he was not billed for the full cost. Stevens argued that he never knowingly submitted false financial disclosure statements. (12)

   As the Stevens litigation progressed, the government violated nearly every facet of the Brady doctrine. In fact, their Brady violations grew in number and egregiousness throughout the trial. (13) Specifically, the trial judge found that the government "used business records that the Government undeniably knew were false," suppressed "critical grand jury transcript[s] containing exculpatory information," "affirmatively redacted" exculpatory content from documents, and provided the defense with a series of intentionally inaccurate document summaries. (14) Moreover, when a prosecution witness flown in from Alaska made unanticipated exculpatory statements during a pretrial interview, the prosecutors secretly shipped him back to Alaska before the defense could subpoena him. (15)

   The Brady violations only intensified after Ted Stevens was found guilty on all counts. Post-trial, the defense learned of a whistleblower complaint filed by an FBI agent assigned to the Stevens case. When the defense petitioned the court to order the government to disclose the facts of the complaint, the prosecutors intentionally misrepresented to the court that the FBI complaint was unrelated to the Stevens verdict. When the trial judge later learned that the FBI complaint involved allegations that the prosecutors had not turned over all evidence to Stevens's defense team, the court ordered the prosecutors to disclose all evidence related to the FBI complaint to the defense. When prosecutors repeatedly failed to comply with the court order, the trial judge held three prosecutors in contempt. (16)

   Thereafter, a new team of prosecutors was assigned to the Stevens case. The new prosecutors quickly uncovered and disclosed what the trial judge called "the most shocking and serious Brady violations of all." (17) Bill Allen, the Chief Executive Officer of VECO, was the star witness for the prosecution. Most of the Brady violations during the Stevens case involved information that either undermined Allen's credibility or information from Allen and others that affirmatively exculpated Senator Stevens. During the trial, Bill Allen admitted that he received a letter from Stevens requesting a bill for the renovation services. Allen testified, however, that he was subsequently contacted by a Stevens emissary, Bill Persons, who indicated that the Senator was only sending the letter to create a false record to protect himself. (18) This explosive revelation significantly bolstered the government's allegation that Stevens schemed to cover up his financial windfall. The government never informed the defense that, during a pretrial interview with the prosecutors, Allen stated that he did not recall having a conversation with Bill Persons regarding Ted Stevens's bill. (19) Allen's inconsistent statement was memorialized in handwritten notes prepared by the trial prosecutors. (20) Despite knowing that Allen's pretrial statement was either powerful impeachment evidence or that Allen's bombshell trial testimony was perjury, the prosecutors withheld their handwritten notes from the defense.

   In the end, the Stevens case collapsed under the weight of the Brady misconduct. Newly appointed Attorney General Eric Holder took the extraordinary and virtually unprecedented step of requesting a postconviction dismissal of all charges with prejudice. (21) The Stevens prosecution is significant, however, for three reasons. First, unlike most criminal cases, when the Brady violations were discovered in Stevens, the prosecutor's office took affirmative steps to repair the damage to the defendant and initiated its own internal investigation of the trial prosecutors. In the overwhelming majority of cases, prosecutors face few, if any, adverse consequences for Brady violations either within their offices or from an outside entity with the power to address their misconduct.

   The Stevens prosecution is also notable because of the actions of Judge Emmet Sullivan who presided over the trial. While applauding the Justice Department's initiative in conducting an internal investigation of the Brady misconduct, the judge also noted that "the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability." (22) For this reason, Judge Sullivan initiated criminal contempt proceedings against six of the Stevens prosecutors "based on failures of those prosecutors to comply with the Court's numerous orders and potential obstruction of justice." (23) Commonly, when Brady violations are discovered--even when the violations are intentional and blatant--trial judges focus on curing any harm suffered by the defendant but fail to take punitive measures against the offending prosecutor to deter future Brady violations.

   Most significantly, the Stevens case is a sad testament to the relative ease with which overzealous prosecutors can manipulate evidence and finagle a guilty verdict in our American justice system. Because the Stevens case was one of the most politically explosive cases of the decade, (24) there was intense media coverage. Members of the press packed the courtroom, and an even larger group of photographers and camera crews were positioned outside the courthouse to provide daily reports on the trial. The intense media coverage ensured that the trial would be more public than the typical criminal case. Also, the Stevens case was prosecuted by a team of veteran prosecutors from the premiere prosecution authority in the country and defended by a top-notch team of experienced and respected private defense attorneys. (25) If multiple intentional Brady violations could occur under these conditions, it is not difficult to understand how Brady violations occur in run-of-the-mill criminal cases. As Judge Sullivan stated upon dismissing the charges against Stevens,

   [t]he fair administration of justice ... should not depend on who represents the [d]efendant, whether an FBI agent blows a whistle, a new administration, a new attorney general[,] or a new trial team. The fair administration of justice depends on the Government meeting its obligations to pursue convictions fairly and in accordance with the Constitution. (26) Despite the nationwide epidemic of Brady violations and the magnitude of injustice that results from such misconduct, the criminal justice system has not developed effective reforms to provide a remedy for defendants or appropriately sanction prosecutors for concealing evidence favorable to the defense. Even though the disclosure duty is violated regardless of whether the nondisclosure is negligent or intentional, the most egregious Brady violations occur when prosecutors purposely withhold information that they know is clearly and unquestionably favorable to the defense. Shockingly, this level of willful misconduct--exemplified by the blatant arrogance of the Stevens prosecutors--is generally not met with harsh sanctions.

   This Article presents two alternative proposals to remedy and deter intentional Brady violations. First...