USA TODAY obtained copies of internal Justice Department policies that spell out when and how they should share information with defense lawyers.
WASHINGTON – Five years ago, after a major corruption case imploded because federal prosecutors had improperly concealed evidence, the U.S. Justice Department ordered its lawyers to start turning over more information to criminal defense lawyers. But the rules for what prosecutors must share and when remained almost entirely secret, until now.
USA TODAY obtained copies of the department's internal guidelines under the Freedom of Information Act and is publishing them here.
"I think these policies are actually the right policies," said Timothy O'Toole, one of the chairmen of a National Association of Criminal Defense Lawyers panel that has been pushing Congress to enact similar measures. "The biggest problem is that nobody outside the prosecutor's office actually knows what those policies are."
Without knowing what the rules are, it's impossible to know whether prosecutors are following them, he said.
The policies mostly instruct prosecutors to turn over more information to defense lawyers more quickly — steps lawmakers and some judges had pressed for in the months after the disastrous prosecution of former Alaska senator Ted Stevens. That case collapsed because government lawyers had improperly concealed evidence from Stevens' lawyers that would have badly damaged the credibility of government witnesses.
As a result, top Justice Department officials ordered the offices that prosecute criminal cases to come up with new rules to make sure defendants wouldn't be left in the dark again. With few exceptions, the department did not share those guidelines with defense lawyers or judges.
Justice Department spokeswoman Emily Pierce said the department made some of that guidance public in 2009; after that, "U.S. attorneys were given discretion on formulating their own offices' guidance as well as the discretion on whether to make that guidance public," she said.
Few prosecutors' offices have opted to do so. And when USA TODAY sought copies under FOIA, it took the department nearly three years to release the policies from 74 U.S. attorneys' offices and the department's Tax Division. The department still has not provided copies of the rules for 19 other U.S. attorneys' offices and some of its other branches.
Several of the policies it did provide are marked as attorney work product, or as privileged attorney-client communications. The guide prepared for the federal prosecutors in Washington cautions that it contains "confidential and law enforcement sensitive material."
One of Stevens' lawyers, Robert Cary, said he was troubled that changes enacted after the case are neither public nor legally binding. "Until they make these policies public, there's still a lack of transparency that is going to engender distrust of the system. I don't understand why they won't publish them," he said.
A jury found Stevens guilty of making false statements on his financial disclosure forms. But before he could be sentenced, Attorney General Eric Holder ordered prosecutors to dismiss the case. A court-appointed investigator later concluded that the case had been "permeated by the systematic concealment" of evidence.
Sen. Lisa Murkowski, R-Alaska, is working to reintroduce legislation this year that would give legal force to some of those changes, her spokesman, Matthew Felling said. "Americans are still justified in worrying. If prosecutors play hide the ball under the national spotlight, what are they doing in smaller cases nationwide?" he said.
Meanwhile, problems like those in the Stevens prosecution have not gone away. The then chief judge of the Ninth Circuit Court of Appeals, Alex Kozinski, expressed alarm in 2013 at an "epidemic of Brady violations," a reference to the 1963Supreme Court case which said defendants have a right to know about evidence that could help establish their innocence. Kozinski pointed to a string of recent problems, including a 2013 case in which the appeals court ordered a new trial for a man charged with falsifying a tax return because the government had failed to disclose $14,500 in payments by investigators to an FBI informant.
In addition to the policies it released to USA TODAY, the Justice Department prepared a far more detailed guide for prosecutors known as the Blue Book, which it has refused to make public. After NACDL sued to obtain a copy, the attorney in charge of coordinating the department's discovery rules, Andrew Goldsmith, warned in a court filing last year that releasing the manual would give defense lawyers "unfair – and potentially dangerous – insight into the prosecution's approach to discovery." A federal judge in Washington agreed, and said the government could keep the manual secret.
Prosecutors have been required to disclose that manual only once, in a messy death-penalty case in Oregon. Defense lawyers received it on the condition that they not discuss it publicly and that they must destroy or return it once the case ends.