[Senate Hearing 112-933]
[From the U.S. Government Publishing Office]
S. Hrg. 112-933
ENSURING THAT FEDERAL PROSECUTORS MEET
DISCOVERY OBLIGATIONS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JUNE 6, 2012
__________
Serial No. J-112-78
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 46
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
prepared statement........................................... 48
WITNESSES
Witness List..................................................... 45
Murkowski, Hon. Lisa, a U.S. Senator from the State of Alaska.... 5
Cole, James, Deputy Attorney General, U.S. Department of Justice,
Washington, DC................................................. 9
prepared statement........................................... 51
Brook, Carol, Executive Director, Federal Defender Program for
the Northern District of Illinois, Chicago, Illinois........... 33
prepared statement........................................... 60
Bibas, Stephanos, Professor, University of Pennsylvania Law
School, Philadelphia, Pennsylvania............................. 34
prepared statement........................................... 67
QUESTIONS
Questions submitted by Senator Grassley for Hon. James Cole...... 73
Questions submitted by Senator Hatch for Hon. James Cole......... 78
Questions submitted by Senator Grassley for Carol Brook.......... 79
Questions submitted by Senator Grassley for Stephanos Bibas...... 80
ANSWERS
Responses of Hon. James Cole to questions submitted by Senators
Grassley and Hatch............................................. 83
Responses of Carol Brook to questions submitted by Senator
Grassley....................................................... 98
Responses of Stephanos Bibas to questions submitted by Senator
Grassley....................................................... 106
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
American Bar Association (ABA), Thomas M. Susman, Washington, DC,
June 5, 2012, letter........................................... 116
American Civil Liberties Union, National Association of Criminal
Defense Lawyers, Constitution Project, March 15, 2012, joint
letter......................................................... 118
Constitution Project, Washington, DC: Sloan, Virginia E., June 5,
2012, email.................................................... 133
American Civil Liberties Union, National Association of Criminal
Defense Lawyers, Constitution Project, June 5, 2012, letter.... 135
Committee on Rules of Practice and Procedure, Judicial Conference
of the U.S., Reena Raggi, Criminal Rules, June 5, 2012, letter. 137
National Association of Assistant U.S. Attorneys, Robert Gay
Guthrie, President, Lake Ridge Virginia, June 4, 2012, letter.. 140
Terwilliger, George J., III, White & Case LLP, Washington, DC,
June 5, 2012, letter........................................... 144
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island and Hon. John Cornyn, a U.S. Senator from the State of
Texas, May 30, 2012, joint letter.............................. 149
ENSURING THAT FEDERAL PROSECUTORS MEET DISCOVERY OBLIGATIONS
----------
WEDNESDAY, JUNE 6, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:09 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Whitehouse, Klobuchar, Franken,
Coons, Grassley, Sessions, Hatch, Cornyn, and Lee.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. The Committee will come to order, and I
thank the Members for being here.
Today, as we promised, we are continuing our inquiry into
ensuring that federal prosecutors meet their obligations, and
these are obligations, as I look at this, whether the defendant
is a prominent official or an indigent defendant. Either way,
prosecutors have certain obligations that should always be
followed.
Now, we have seen the results of two separate
investigations and two reports into what went wrong during the
Ted Stevens trial. And I thank Attorney General Holder for
making the report of the Department of Justice's internal
Office of Professional Responsibility available to us,
something that normally is not, and we have now made it
available to the public.
The investigation by the Justice Department found that
several career prosecutors acted with reckless disregard of
their discovery obligations and that the Deputy Chief of the
Public Integrity Section exercised poor judgment in failing to
supervise discovery. While the Department's OPR investigation
did not find intentional misconduct, its findings are serious,
and they are significant. They resulted in suspensions of two
of the prosecutors.
Everybody knows that Ted Stevens was a friend of mine, but
even if Ted Stevens was somebody I never knew, I would be
bringing this hearing because I believe that prosecutors bear
unique responsibilities in maintaining the integrity of our
criminal justice system. I am looking at the Senators who are
here now. Senator Klobuchar and Senator Cornyn have both been
prosecutors.
We all know that our constitutional framework provides that
all individuals are guaranteed the right to fair treatment and
a fair trial. And without ensuring adherence to the rule of law
and vigorous and competent counsel for defendants, we cannot
live up to these guarantees. But we also have to remember that
prosecutors have a unique position in our whole system, a
unique thing. They wield so much power when it comes to
charging decisions, plea bargaining, and gathering of evidence.
Simply the power to bring or to withhold prosecution is
probably the most significant power in the whole criminal
justice system. So we count on them to uphold the law, adhere
to the highest ethical standards, and seek justice. That is,
justice for everybody involved. Their standards are different
than that of defense attorneys.
What happened in the Stevens case undermines this system
and cannot be tolerated. Two separate investigations have now
found that significant evidence was not disclosed to the
defense, and critical mistakes were made throughout the course
of the trial that denied Senator Stevens a fair opportunity to
defend himself. The mistakes and poor decisions in connection
with the Stevens case disturbed the judge hearing the case, and
they disturb the Chairman of the Senate Judiciary Committee.
But I also know they disturb the Department of Justice.
Attorney General Holder did the right thing when he came into
office and, based upon his review of the matter, decided to
dismiss the indictment that had been brought against Senator
Stevens, and he withdrew the case even after a jury's guilty
verdict. Today we will hear from Deputy Attorney General Jim
Cole, the number two official at the Department of Justice,
about the steps the Department has taken and plans to take to
ensure that federal prosecutors meet their discovery
obligations so that the situation in the Stevens prosecution is
never repeated--never repeated whether it is a Ted Smith or a
Ted Stevens, whether it is somebody we have never heard of
before or somebody we have. The standard should be the same.
We want to ensure that prosecution supervisors are diligent
as well. The recent mistrial declared in the prosecution of
John Edwards raises concerns about the exercise of
prosecutorial judgment in that case. Now, I worry that when
this happens, you can also end up with sometimes unfair,
partisan criticism directed at the Justice Department, and that
may make them reluctant to exercise restraint.
Let us get things back on the balance where they are
supposed to be. Prosecutors make tough judgment calls all the
time. By and large, they make the right ones, and they use
their discretion in the interests of justice. Remember, that is
the discretion both to bring prosecution or to withhold it.
More than 70 years ago, while he was serving as Attorney
General of the United States, Robert Jackson spoke about
federal prosecutors, saying: ``The prosecutor has more control
over life, liberty, and reputation than any other person in
America.'' As he spoke about the exercise of prosecutorial
discretion, he wisely observed that federal prosecutors need to
be ``diligent, strict, and vigorous in law enforcement'' but
also ``just.''
As a young prosecutor, I remember reading those words. I
also made sure that every prosecutor in my office subsequently
read those words.
Now, I know how strongly Attorney General Holder and Deputy
Attorney General Cole feel about these issues. I know they are
committed to justice and to ensuring that our federal
prosecutors follow Attorney General Jackson's timeless advice
that ``the citizen's safety lies in the prosecutor who tempers
zeal with human kindness, who seeks truth and not victims, who
serves the law and not factional purposes, and who approaches
his task with humility.''
When I talk about my time as a prosecutor in Vermont, it is
because I am proud of the dedicated public servants--the
prosecutors and the law enforcement officers--with whom I had
the privilege to serve. Our criminal justice system is the envy
of the world in large measure because good prosecutors adhere
to the directive to seek justice for all parties, the
government and the defendants, not just convictions. So we have
to ensure that all federal prosecutors continue these high
standards.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Senator Grassley, did you want to say something before we
go to our first witness?
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Yes, please. Thank you. This is a very
important hearing to make sure that people get justice. Since
our last hearing, the Office of Professional Responsibility has
released its report. You talked about that, so I am going to
skip that part of my remarks.
You talked about the second review, and I am going to skip
that part. I am just going going to say that finally we have
the review of the OPR's findings by Terrence Berg, a career
prosecutor assigned to the Professional Misconduct Review Unit.
Berg was assigned the case by the head of the review unit, and
he rejected much of OPR's findings with regard to individual
prosecutors. Instead, Berg's review determined that the
problems in the Stevens case were part of the mismanagement and
poor organization of the case by the Public Integrity Section.
While Berg's findings were ultimately overturned by the head of
the review unit who sided with OPR, his findings raise
interesting questions about the failed mismanagement of the
case.
Berg's findings deserve particular attention for two
reasons: First, he has been nominated by the President for a
position as a federal district judge of the Eastern District of
Michigan; and, second, he led the U.S. Attorney's Office in the
Eastern District after a scandal similar to the Stevens case
when a major post-9/11 terrorism prosecution was dismissed
because of discovery issues. So his judgment on this should not
have been lightly overturned.
All three reviews reached different conclusions but point
to the same problem: a fundamental failure of justice attorneys
to follow the rules required by the Department, courts, and the
Constitution. So where we go from here is the focus of today's
hearing.
Senator Murkowski has introduced this Fairness in
Disclosure of Evidence Act, a bill designed to reform the
discovery and disclosure process in criminal cases. We will
also hear about her proposal from representatives of the legal
community that have offered different views. I thank Senator
Murkowski for putting forth a proposal and am looking forward
to hearing from her and discussing it with our third panel of
experts.
Justice's conduct in the Stevens case definitely warrants
Congress's attention. However, I am not sure at this point that
legislation to completely overhaul the criminal justice system
is necessary. I do have letters here from the National
Association of Assistant U.S. Attorneys and one from Deputy
Attorney General George Terwilliger expressing concern, and I
ask that those be put in the record.
Chairman Leahy. Without objection.
[The letters appear as a submission for the record.]
Senator Grassley. I have concerns that changes to ex parte
orders could have a dangerous impact by discouraging their use
as a means to balance between defendants' rights and the
protection of sensitive information. There could be unwarranted
disclosure of classified information in national security cases
such as terrorism and espionage prosecutions. Further, these
changes could impact witness safety as they could require
Justice attorneys to provide evidence that could be used to
harm or intimidate witnesses, a sad but true reality of high-
profile criminal prosecutions. Where I think we can all agree
is that reforms are needed at the Justice Department, and I
support Senator Murkowski's efforts to achieve reform in the
Department. I believe the failures in the Stevens case were not
simply just a couple of line attorneys making bad decisions, so
that brings me to something I have been crusading for a long
time.
I have been concerned about the double standard of
discipline at the Justice Department and FBI. As recently as
May 2009, the DOJ Inspector General found that ``a perception
of a double standard of discipline between higher-ranking and
lower-ranking employees continues.'' This perception was backed
by the Inspector General's findings that senior executives at
the FBI had OPR findings reversed 83 percent of the time
compared with lower-level career employees who had their
findings overturned 18 percent of the time. While no similar
review of Justice Department OPR findings was conducted, it is
easy to see with the OPR report in the Stevens case how this
perception continues.
Another area of concern for me with Justice is the growing
list of high-profile failures in the Public Integrity Section.
Just last week, a jury found former Senator John Edwards not
guilty on one count and a mistrial was declared on five others.
Then there was the prosecution of State legislators in
Alabama that ended in two acquittals, a hung jury, and
allegations from the judge that the Government's witnesses were
racist. Add to this list the Stevens prosecution, the failure
of the prosecution of Governor Blagojevich, and a pattern
appears. However, this pattern is not a recent trend and dates
back to the 1990s. At that time, the Public Integrity Section
was unwilling to prosecute cases. When the FBI presented
evidence of campaign finance violations in the Clinton
administration, it looked the other way. When the FBI Director
concluded that the law required the appointment of an
independent counsel, the Justice Department disagreed based on
frivolous legal analysis, keeping the cases within DOJ but then
refusing to prosecute. Hearings were held in the Senate, and
the poor management of the Public Integrity Section was
documented 15 years ago.
Clearly, something must be done at the Department to
address the failures of the Public Integrity Section, the
double standard of discipline, and the discovery failures.
Department Attorney General Cole is here today on our second
panel to talk about a remedial effort taken following the
Stevens case and ongoing efforts to correct the problems. I am
not sure that these efforts will be enough, and we may need to
act in Congress. That is why today's hearing is so important.
Thank you very much.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Leahy. Thank you.
We will begin with Senator Murkowski, Alaska's senior
Senator. She and I have talked about this case on a number of
occasions. We also worked together to pass a strong bipartisan
reauthorization of the Violence Against Women Act in the
Senate, and I appreciate that. I am hoping it is going to be
enacted into law soon. In March, she introduced the Fairness in
Disclosure of Evidence Act of 2012, on which she is going to
testify today, and I told her at the time we would have a
hearing.
Senator Murkowski, thank you for taking the time to be
here.
STATEMENT OF THE HONORABLE LISA MURKOWSKI, A UNITED STATES
SENATOR FROM THE STATE OF ALASKA
Senator Murkowski. Thank you, Mr. Chairman, and to the
Ranking Member, I so appreciate the fact that you have convened
this hearing today to take up what I believe we all agree is an
important issue, and that is, as we explore whether our federal
prosecutors are meeting their discovery obligations. It is an
important issue for this Committee to pursue as it goes
directly and intimately to the question of whether federal
criminal defendants are being treated lawfully and consistently
by application of divergent Brady practices across the various
judicial districts here in the United States.
I am hopeful that this oversight hearing will be followed
in the near future by a legislative hearing on the bill which
you have addressed, which is S. 2197. It would establish
uniformity in compliance with the Brady obligations. It would
establish uniformity basically in three different ways: the
what, the when, and the how if Brady is not complied with.
So with respect to the what, S. 2197 would eliminate the
materiality requirement as a matter of statutory law and end
the practice through which prosecutors rationalize their way
out of disclosing material evidence by claiming that it is not
material.
With respect to the when, the legislation would direct that
prosecutors disclose Brady and Giglio material as early in the
process as is feasible, and this would enable both sides then
to evaluate the merits of the cases and promote appropriate and
efficient dispositions.
And then, finally, S. 2197 provides trial judges with a
broad range of remedies that can be employed if Brady
obligations are not obeyed and the confidence then to use them.
To appellate courts, what it does is send a strong message
that the Brady obligation is mandatory, it is not optional, and
that the harmless error rule should be used sparingly when
evaluating breaches of a Brady obligation. I believe that the
legislation strikes an appropriate balance between competing
interests in particular with respect to the issue of witness
intimidation and protection of classified information, which
Senator Grassley has raised.
The bill has been endorsed by pretty broad and wide-ranging
groups, well-respected groups. We have got the American Bar
Association that has supported it, the American Civil Liberties
Union, the U.S. Chamber of Commerce, so clearly coming from
divergent perspectives but all in support of this legislation.
Of course, the bill does have its detractors, most notably
the U.S. Department of Justice, and I would like to take a
moment to address my concerns with their approach taken to the
legislation.
It has been widely reported in the legal press that the
Justice Department has historically opposed efforts to
establish a uniform Brady process. I have consistently said
that Congress is perhaps not the most desirable of places to
deliberate on Brady reform. Ideally, these issues would be
sorted out by the Advisory Council on the Federal Rules of
Evidence. The Justice Department would have us believe that the
Advisory Council has considered Brady reform on its merits and
then rejected it. But the legal press indicates that the
Advisory Council's reform efforts have been abandoned as a
direct result of the Justice Department opposition.
I would also like to comment on the superficial approach
that the Justice Department has taken to its evaluation of the
legislation. The Department first criticized the bill in the
press after it was introduced and subsequently in hearings
before the House Judiciary Committee. The Justice Department
would have us believe that this legislation somehow is going to
open the jailhouse doors, let the criminals and let the
terrorists all run free--precisely the same sort of superficial
arguments that are used so frequently to argue that searches
conducted and evidence seized in violation of the Fourth
Amendment should be excluded, precisely the sort of argument
used to argue that the Miranda rule should be eliminated.
Now, under our system of justice, the victim has rights,
the government has rights, and the defendant has rights. And
one of the defendant's rights is the disclosure of exculpatory
evidence in the hands of the government. Another of the
defendant's rights is access to information suggesting that a
government witness might not be forthright and truthful. The
government's interest in prosecution is balanced then against
the defendant's interests in a fair trial. In this instance,
the government would have us ignore that the defendant has
rights which need to be uniformly administered, and that is how
the government got into the Brady mess that it presently finds
itself in.
As this Committee hear from Mr. Schuelke, prosecutors from
time to time exhibit a contest mentality which gets in the way
of their judgment with respect to the rights of the defense,
and that is why I think it is important for Congress to speak
to the obligations with a single and enduring voice. A criminal
defendant's rights should not depend on whether or not Mr.
Holder or someone else is the Attorney General or whether the
Attorney General comes from one party or another. The
obligations and the rights should be uniform, they should be
predictable, and they should be consistent. And as you have
noted, Mr. Chairman, it should not make any difference who that
defendant is.
Now, I would also acknowledge that some would argue that S.
2197 is not sufficiently protective of the interests of
defendants. These experts would have us go to an open-file
system of discovery. I do think that there are merits to this
approach provided that the exceptions do not swallow up the
rule and discovery is provided sufficiently early in the
process to then be meaningful.
My suggestion to the Justice Department is that they
express a willingness to work with me and the Committee on a
set of unified Brady practices that can be legislated. If the
Justice Department thinks that S. 2197 is not sufficiently
balanced or protective of some interest or another, perhaps
they could propose a concept that would make it more balanced.
But I am sad to say that since my legislation was introduced in
March, I have had no direct contact from the Justice Department
until yesterday when Mr. Cole did call me to discuss this
hearing. But I think that that suggests that the Justice
Department does not take this effort seriously, and if that is
the case, it suggests that this is somewhat of an arrogant or a
dismissive approach. And I think that is unfortunate.
I would respectfully submit that the Justice Department is
in no position to be arrogant. The latest chapter in the Ted
Stevens prosecution demonstrates that beyond a reasonable
doubt. Every time I read a postmortem on the Stevens
prosecution, I am left more and more convinced that it was
fatally mismanaged from the get-go, and the Justice
Department's unwillingness to stop it from going to the jury
despite the many red flags that justice had not been done I
think is unconscionable.
The Office of Professional Responsibility report released
in late May reveals that there was considerable doubt as to
whether the Justice Department would go forward with the
indictment. Once it did go forward, it is evident that the case
was mismanaged from the very top to the very bottom. Senior
Public Integrity Section managers were more interested in the
egos of staff attorneys passed over for first-chair
responsibilities than seeing that Brady was carried out. Brady
obligations were delegated to law enforcement officials who
were neither properly trained nor supervised to carry out their
responsibilities.
There was poor communication between Washington and the
Alaska attorneys that were working the Brady issue, and in
spite of all of these deficiencies, the Office of Professional
Responsibility offers only a slap on the hand to one senior
official in Main Justice--that would be Ms. Morris--who was
responsible for supervising the case, not anything directed
toward her boss.
I would also note that while Mr. Schuelke found that the
Brady violations committed by two members of the Alaska U.S.
Attorney's Office were intentional, the Office of Professional
Responsibility simply discards this finding, and the reason, I
think, is obvious. The Office of Professional Responsibility
never once considered Mr. Schuelke's findings. Its report was
issued August 15, 2011, about 90 days before Schuelke's report
was completed. I cannot understand why the Office of
Professional Responsibility did not go back and reconsider its
report in light of Schuelke's conclusions.
The public deserves to know whether the Office of
Professional Responsibility concurs with each of Schuelke's
conclusions, or does not, and why. The Department's plans to
expeditiously close the books on this unfortunate episode will
prevent the people of Alaska from ever reaching closure on this
issue.
The Ted Stevens prosecution was one of the most sensitive
and probably one of the most delicate, one of the most
important prosecutions that the Justice Department has ever
undertaken, and I say this because few prosecutions cut as
close to the relationship of the American people to the
government as this one did.
If the Justice Department is going to allow a case
involving a sitting Senator seeking reelection to go to a jury
weeks before that Senator's general election, it must be
absolutely certain that the defendant's rights were
meticulously observed. In other words, if the Justice
Department had the slightest doubt that it conducted its trial
in the fairest fashion, it should have asked for--it actually
should have demanded a mistrial.
With 20/20 hindsight, there is no question that this case
should never have gone to the jury, and with 20/20 hindsight,
it is now evident that the right of the people of Alaska to
select a Senator of their choosing was interfered with by the
Justice Department's malfeasance that permeated every aspect of
this prosecution. This is truly one of the darkest moments in
the Justice Department's history. I have said that before. We
are no longer able to do justice to Senator Stevens as he was
defeated and then died less than two years later. But we can,
through legislation, through reforms, make a start in ensuring
that the same fate does not befall other defendants.
Mr. Chairman, I thank you for your attention to this issue
and look forward to working with you and Members of the
Committee.
[The prepared statement of Senator Murkowski appears as a
submission for the record.]
Chairman Leahy. Well, thank you.
The providing of exculpatory evidence to a defendant should
be the sine qua non of any prosecution, whether it is a State
prosecution, a federal prosecution, or any prosecution. If we
are going to have a justice system, justice, the true meaning
of the word ``justice,'' I do not care whether it is a State
court, a federal court, if the prosecution has exculpatory
evidence available only to them, they have a duty to give it to
the defense. They might not like the idea, but that duty,
unless it is enshrined in the minds of everybody, our justice
system is damaged. I felt this as a prosecutor. I feel this as
a Senator. I feel it especially as an American.
I know, Senator Murkowski, that you have other places you
are supposed to be, and Senator Grassley and I have already
discussed this. We will not have questions at this time for
you, but I thank you for being here.
Senator Murkowski. I thank you. And, again, I look forward
to working with the Committee and the Department as we resolve
these issues. Thank you.
Chairman Leahy. Senator Murkowski mentioned James Cole and
the conversation they had. Mr. Cole was confirmed by the Senate
to be the Deputy Attorney General at the Department of Justice.
It is the number two leadership position at the Department. He
was confirmed June 20, 2011.
Mr. Cole first joined the Department in 1979 as part of the
Attorney General's Honors Program, served for 13 years, first
as a trial attorney in the Criminal Division, later as the
Deputy Chief of the Division's Public Integrity Section, the
section that handles investigation and prosecution of
corruption cases against officials and employees at all levels
of government. He entered private practice in 1992 and was a
partner at Bryan Cave from 1995 to 2010 specializing in white-
collar defense.
I have known Mr. Cole for years, and I am delighted to have
you here. Please go ahead, and then we will open it up to
questions in the usual order, going back and forth between both
sides.
STATEMENT OF THE HONORABLE JAMES COLE, DEPUTY ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Cole. Thank you, Mr. Chairman. Chairman Leahy, Ranking
Member Grassley, and distinguished Members of the Committee, I
appreciate the opportunity to appear before you to discuss the
Department's commitment to criminal discovery procedures that
will result in fair trials, the serious public safety risks
that would result if pending discovery legislation were
enacted, and also to talk about the recently imposed discipline
on two prosecutors responsible for the discovery failures in
the prosecution of former Senator Ted Stevens. Having been both
a prosecutor and for nearly 20 years a criminal defense
attorney, I understand the critical importance of all of these
issues.
What occurred in the Stevens case was unacceptable, but it
is not representative of the work of the prosecutors in the
Department of Justice, and it does not suggest a systemic
problem warranting a departure from longstanding criminal
justice practices that have contributed to a record reduction
in the rates of crime in this country and that have provided
defendants with a fair and a just process. The Stevens case was
one in which the well-established rules governing discovery
were violated. It is not one in which the rules themselves were
found to be insufficient to ensure a fair trial.
The lesson from Stevens was not that the scope of existing
discovery obligations needed to change but, rather, that the
Department needed to focus intently on making sure that its
prosecutors understand and comply with their existing
obligations. And we have done just that.
Under Attorney General Holder's leadership, the Department
has taken unprecedented steps to ensure that federal
prosecutors meet their discovery obligations. In January 2010,
my predecessor issued a memorandum instructing prosecutors to
provide broader and more comprehensive discovery than before,
to provide more than the law requires, and to be inclusive when
identifying the members of the prosecution team for discovery
purposes.
Since then, the Department has instituted mandatory
rigorous training for all federal prosecutors, appointed a
national criminal discovery coordinator who reports directly to
me, appointed local discovery coordinators in each U.S.
Attorney's Office, and provided prosecutors with key discovery
tools such as online manuals and checklists.
The specific steps we have taken, which are detailed in my
written testimony, have already had a demonstrable effect of
improving criminal discovery practices nationwide. And what is
more, we have institutionalized these reforms so that they will
be a permanent part of the Department's practice and culture.
Despite these actions, some have argued that legislation is
necessary to alter federal criminal discovery practice. The
Department does not share that view. Legislation along the
lines being proposed by Senator Murkowski would alter the
balance between ensuring protection of a defendant's
constitutional rights and safeguarding the equally important
public interest in a criminal trial process that reaches timely
and just results, safeguarding victims and witnesses from
retaliation and intimidation, protecting ongoing criminal
investigations from undue interference, and recognizing
critical national security interests.
Unfortunately, our concerns are more than merely
theoretical, and in my written testimony, we set forth examples
of witnesses being intimidated, assaulted, and even killed
after their names were disclosed in pretrial discovery. Law
enforcement officials throughout the Nation repeatedly confront
chilling situations where witnesses are murdered to prevent
them from testifying.
The bill ignores the very substantial costs the
legislation's additional disclosure requirements would impose--
costs to the reputational and privacy interests of witnesses,
and, if witnesses become less willing to step forward, costs to
society from the loss of the just conviction of the guilty. In
national security cases, such results could have devastating
consequences with respect to the government's ability to
protect the American people, an ability that depends upon
obtaining the cooperation of confidential human sources.
The bill would also give the defendants the perverse
incentive to wait to plead guilty until close to trial in order
to see whether they can successfully remove identified
witnesses from testifying against them. These are real costs
and ones that both the Supreme Court and the Congress have
taken great pains to avoid incurring. Unfortunately, they are
costs that the bill does not account for.
But it must be noted that when the Department discovers
that the applicable rules that exist have been violated, it
takes disciplinary action. Late last month, the Department
provided this Committee the OPR investigative report in
connection with the federal prosecution of Senator Stevens.
That report reflects OPR's thorough examination of the
allegations of misconduct in the case. OPR concluded that the
government violated its obligations under the constitutional
Brady and Giglio principles and under the Department of Justice
policy by failing to disclose exculpatory statements by the
prosecution and by prosecution witnesses during trial
preparation sessions and law enforcement interviews and by
failing to disclose a witness' alleged involvement in securing
a false sworn statement.
OPR found that two prosecutors violated existing rules,
thus depriving Senator Stevens of a fair trial. With respect to
those two prosecutors, the Department found each should be
suspended without pay, one for 40 days, the other for 15. The
prosecutors violated existing rules and are being held to
account for that violation.
The objective of the criminal justice system is to produce
just results. This includes ensuring that the processes we use
do not result in the conviction of the innocent, and likewise
ensuring that the guilty do not go free. It also includes an
interest in ensuring that other participants in the process--
victims, witnesses, and law enforcement officers--are not
unnecessarily subjected to physical harm, harassment, public
embarrassment, or other prejudice.
For nearly 50 years, a careful reconciling of these
interests has been achieved. The legislation proposed by
Senator Murkowski would disturb this careful balance without a
demonstrable improvement in either the fairness or the
reliability of criminal judgments and in the absence of a
widespread problem.
As the Judicial Council's Rules Committee recently agreed,
the rules of discovery do not need to be changed--and the
Stevens case did not prove otherwise. Rather, it demonstrates
that prosecutors, their supervisors, and other law enforcement
officials need to recognize fully their obligations under these
rules that do exist. They must see to it that they are applied
fairly and uniformly and must be given tools to meet their
discovery obligations rigorously. This is what the Department
has done since the Attorney General directed the dismissal in
the Stevens case. And it is what the Department will continue
to do in the future under the policies and procedures that have
been implemented and institutionalized during the past three
years.
Thank you, Mr. Chairman. I am prepared to answer any
questions.
[The prepared statement of Mr. Cole appears as a submission
for the record.]
Chairman Leahy. Well, thank you. The Attorney General did
the right thing in directing, even after the guilty verdict,
the dismissal of the Stevens case because of all the misconduct
there. What I worry about--and I must admit I come at this with
the mind-set I had as a prosecutor, and I know some of the
superb prosecutors we have, not only our State prosecutors but
in our federal system. But I also know that with some you get
this idea of an environment where securing a conviction is the
most important measure of a prosecutor's success. And if you
are in the Justice Department, you have huge resources behind
you. Millions of dollars were spent on this fiasco, and in the
Edwards case to get a hung jury and a not guilty verdict.
Whether you believe one way or the other about Mr. Edwards'
conduct, but many people from the right to the left have asked
what was the crime involved, not behavior anybody would approve
of, but what was the crime. But millions of tax dollars were
spent on that. In the Stevens case, it seemed to be driven by
let us get a conviction at all costs, and somehow justice, the
question of justice, gets lost.
Now, some have criticized the OPR report for focusing more
on the conduct of line attorneys than on the role of
supervisory failures in the Stevens prosecution. The OPR report
concluded that two Alaska-based line prosecutors committed
reckless professional misconduct and recommended suspension but
did not make a professional misconduct finding against any of
the other prosecutors. And one of the supervisors of the
Stevens prosecution was found by OPR to have exercised poor
judgment and failed to supervise discovery but was not
disciplined.
What responsibility does supervision and the leadership of
the Public Integrity Section and the Criminal Division bear for
what happened in the Stevens case? It is easy to talk about the
line attorneys, but at the higher level, the supervisor, what
kind of responsibility did they have? They are certainly well
aware of this case going on.
Mr. Cole. Well, Mr. Chairman, I think there are two
separate issues here. One is the question of misconduct from
the OPR findings, and the other is a question of good
management. As you have pointed out in talking about Attorney
General Jackson and as Justice Jackson noted in his opinions,
the role of the prosecutor is to make sure that justice is done
at all costs. It is not just to win; it is to make sure justice
is done.
In regard to the two line attorneys, they were found to
have actually committed professional misconduct by OPR, but the
OPR report, as did the Schuelke report, goes into the
management failures and the supervisory failures of some of the
people who were in the supervisory line in that matter. They
did not find that they had engaged in professional misconduct,
but they found that they had not performed as they should have
as managers. That is different. It is not something to be
sanctioned in that way. But I will note that as soon as the
review that was done that Attorney General Holder had ordered
after the allegations in the Stevens case came to light, the
two supervisors that were in the Public Integrity Section were
assigned to non-supervisory positions. And so from the
management role standpoint, that was being dealt with.
Chairman Leahy. Well, we have what Terrence Berg said, who
was a long-time career prosecutor initially charged with
assessing discipline in the matter. He said, ``Conduct by the
supervisors was of equal or comparatively greater consequence
in causing the disclosure violations, created a unique and
extremely difficult set of circumstances under which line
attorneys were required to function.''
Without going into a debate of whether he is right or wrong
in that, do you believe the changes that you have instituted in
the Department of Justice addressed this problem?
Mr. Cole. Yes, Mr. Chairman, I do think the changes we have
made address this problem. We have taken great pains to try and
elevate the issues of proper discovery and following the rules
of discovery to a point where everybody, every supervisor,
every trial attorney, is required every year to take the
training. As the Deputy Attorney General, I am required to take
this training every year. It is the constant topic not only of
training, but of supervisory control over every case. It is one
of the things we always ask about and always make sure is being
done, that the rules that we have, which are robust, for
discovery are being complied with.
Chairman Leahy. But those are your rules, and I commend the
rules. I have commended both you and Attorney General Holder on
that. But if the Department determines you have to have these
kind of rules and broader disclosure of exculpatory and
impeachment evidence, even more than the Constitution requires
to make sure everything is fair, the Congress looks at it.
Attorneys General come and go. Why should Congress not consider
codifying these policies in order to allow for consistent
enforcement by independent judges? Which sort of goes to the
question that Senator Murkowski raises. That will be my last
question.
Mr. Cole. I think you raise a good question, Mr. Chairman,
and it is one we have thought about a great deal. As we went
and developed the standards that we use for discovery
disclosures, particularly for Brady and Giglio material that
are in the U.S. Attorneys' Manual--and those have been in there
since 2006--they go beyond, as you noted, the constitutional
minimums, and that is something that we want to encourage in
the Department of Justice, that the constitutional minimums are
just that. They are the minimums that the law requires. But we
want our prosecutors to go beyond them, and we want them to use
their discretion and their abilities in these cases to make
sure that fairness is being done.
So anytime that the Department should voluntarily decide
that it will go beyond what the law requires and give
defendants in criminal cases more than the law demands that
they be given, if you then take that as the benchmark and say,
okay, we are now going to codify that, I am concerned that it
would be a disincentive for the Department to ever go beyond
what the law requires if it starts to then become the new
floor. And the Department will say, well, we do not want to
keep moving that floor; we want to make sure that we have the
ability--because some of these issues, what is favorable to the
defendant, what is significant to the defendant's case, are
sometimes judgment calls, and we want to encourage our
prosecutors, with a little bit of a buffer, to make those
judgment calls generously. But if you start putting them into
the new floor, if you will, by codifying them, you start making
prosecutors just hew to the minimums, and I would rather that
they not hew to the minimums. I would rather that they go
beyond them.
Chairman Leahy. We will have more discussion of that, but I
want to yield to Senator Grassley, who is the Ranking Member
and famously known as the grandfather of Pat Grassley, who won
his primary last night.
[Laughter.]
Chairman Leahy. Congratulate your grandson for me.
Senator Grassley. I will, and I am sure the whole country
knows it now.
First of all, Senator Hatch was here for just a short
period of time. He had to go to the floor, and he wanted me to
express that he had great interest in this issue. He wants to
see that the crimes against Senator Stevens, et cetera, do not
happen again, and he may be able to come back, but just in case
he does not.
Also, I had questions along the lines of your questioning,
so I am not going to go over that ground again.
Mr. Cole, obviously, you know, we are upset about the
misconduct of the prosecutors in the Stevens case. We do not
want future instances of people having their constitutional
rights denied.
If S. 2197 had been in effect during the Stevens case,
would the results have been any different? And could you
explain why they would be different?
Mr. Cole. Senator Grassley, I do not think the results
would have been different because the problem was not what the
rules were that were in place. The problem was that the
prosecutors in the case did not follow the rules, and that was
the real damage and harm in the Stevens case. So we believe and
we are confident that the rules, had they been followed, would
have produced all of the information that should have been
produced in the Stevens case and it would have been a fair and
a just trial.
Senator Grassley. You heard what I said in my opening
remarks about the Inspector General of the Department reviewing
disciplinary procedures at the FBI. In 2009, the Inspector
General found that a perception of a double standard continues
to plague the FBI; however, the report also found that 83
percent of the SES employees had negative disciplinary
proceedings overturned compared to only 18 percent of career
employees. The OPR report continues to support the theory of a
double standard by holding line attorneys accountable but not
their managers, despite both the Schuelke and Berg reports
finding the mismanagement of DOJ superiors was a significant
factor.
How should we view the OPR report as anything but evidence
of a double standard of discipline for managers and line
employees?
Mr. Cole. I do not think the OPR report does show a double
standard, Senator. I think what we have here is two different
sets of conduct. We had misconduct by the line prosecutors by
not fulfilling their discovery obligations. And I think we had
poor supervision and mismanagement by the supervisors in not
making sure that the trial attorneys were, in fact, paying
attention to those rules, as was gone through in great detail
in both reports, by micromanaging the trial teams as opposed to
letting them do their jobs.
Those are the kinds of things, while we do not think they
are proper and we do not think it is the way our managers
should perform, they do not rise to the level of misconduct. So
we deal with them as a management issue as opposed to a
misconduct issue because they do not violate rules, but they do
not produce the kinds of results we want to have produced in
the Department of Justice. So we dealt with that as a
management issue.
Senator Grassley. Well, then let me follow up on whether or
not you believe Morris and Welch had a duty as attorneys in
charge to oversee the production of Brady material. And why
were they not held accountable by OPR for the failures in the
Stevens case even though the Schuelke and Berg reviews thought
they should be?
Mr. Cole. Well, first of all, OPR did find that there was
poor judgment on the part of Ms. Morris, who was the chief
trial attorney on the trial team and had delegated the review
of the Brady material to an FBI agent, which is unusual, and
had not ensured that all the trial attorneys had gone back and
reviewed what redactions were being made and made sure that
what was being produced was all that should be produced.
It was not as though she was personally aware of things
that were not being produced, and that was her poor judgment
failure, that she was not aware and she was not supervising it
properly. But that is different than misconduct.
The concern that I think we find with Mr. Berg's view is
that he was not suggesting that the supervisors be elevated to
the level of misconduct. He instead was suggesting that the
trial attorneys, their misconduct would be discounted because
of poor supervision. And I think that both OPR disagreed with
that, the head of the Professional Misconduct Review Unit
disagreed with that, and that is why there were changes made in
that regard.
Senator Grassley. In our investigation of Fast and Furious,
a supervisor in the U.S. Attorney's Office in Arizona named
Patrick Cunningham refused to testify before the House
Oversight Committee on grounds that he might incriminate
himself. He then resigned a few days later. This raises
questions about how the Department manages situations where the
prosecutor may have engaged in criminal misconduct. I
understand that Mr. Cunningham has a constitutional right of
the Fifth Amendment, but does he have the right to continue
supervising federal prosecutors after having pled the Fifth?
And, hypothetically, if he had not resigned, would you have
allowed him to continue supervising prosecutors while invoking
his Fifth Amendment rights?
Mr. Cole. Senator, in that matter, obviously Mr. Cunningham
had his own counsel. His counsel gave him advice on whether or
not he should assert his Fifth Amendment right, and he
proceeded in that regard. He left fairly shortly after that,
and we were not in a position of having to evaluate that.
What we would normally do in those situations is try and
find out what the facts are behind the matter and make our
judgment based on those facts.
Senator Grassley. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. Thank
you, Mr. Cole.
As Senator Leahy mentioned, many of us up here are former
prosecutors, and I always viewed that job as--we would always
call it a ``minister of justice,'' that our job went beyond
prosecuting the guilty. It was also protecting the innocent,
and I think a larger duty to uphold the system of justice and
uphold the system of law, and that is what is so troubling
about what happened here.
I was listening to your answer to Senator Leahy's last
question about why not codify the rules that we have in place,
and I think your answer would be--and you can change it if you
like, but that we are doing better--you know, we have started
this education effort with all the prosecutors and done
something. When Attorney General Holder came in, he started a
new program here. But is there any way to track whether this
has worked as opposed to codifying these rules in terms of
disciplinary actions, in terms of appeals, in terms of
reversals before this education on discovery was put in place?
Mr. Cole. Well, one of the things, I think, that needs to
be pointed out is that the instances where there have been
findings of misconduct for violating the discovery rules is
infinitesimally small. We have looked at it over, I think----
Senator Klobuchar. And you are talking about it under
Attorney General Holder or former----
Mr. Cole. Even, frankly, before that. We have looked at it
over the past 10 years, and the percentage of cases where there
have been discovery violations, where there was misconduct
involved, is something like three-hundredths of one percent of
all the cases that have been brought. And I think it is worth
pointing out there is no shortage of defense attorneys, having
once been one, who will make any argument that there is a
discovery violation at any moment in any case and push that
very, very hard. Also, anytime that a judge who is in charge of
the case sees any discovery violation, the judge, if he puts it
into an opinion, our Office of Professional Responsibility
picks that up. They look at all legal opinions to find any
indication of that. And under our own rules, if a judge makes
that kind of finding, even if the prosecutor disagrees with it,
the prosecutor is required to inform OPR that, in fact, the
judge has found that there was a discovery violation. So we
have a lot of sources to put allegations of discovery
violations into the system.
I think part of what we look at in terms of any additional
legislation to codify what is being done is that you are
legislating judgment, and I think that is a difficult thing to
do. The rules are good rules. They provide beyond the
constitutional minimums. They provide what should be done on an
everyday basis to make sure that nobody, whether they are rich
or poor or famous or not famous, gets a fair trial. What is
really the heart of what happened in the Stevens case was bad
judgment, not paying attention, and poor supervision.
Senator Klobuchar. And you must understand where Senator
Murkowski is coming from, hearing her passion for this, that
she is really standing in Senator Stevens' shoes. He sadly,
tragically, cannot be here today. How do you respond to some of
the things that she said about the timing of this and what
happened in terms of the Justice Department's decision to move
forward?
Mr. Cole. Well, obviously, the decision to move forward
with the case was made long before I was in the Justice
Department, long before Attorney General Holder was in the
Justice Department. So I cannot really speak to what those
decisions--how those decisions were made.
I can understand Senator Murkowski's concerns. We find what
happened in the Senator Stevens case wholly unacceptable. And I
am hard-pressed to find another instance where the Attorney
General would come in, look at a case, see a discovery
violation, and instead of just saying let the court work it
out, walk in and take the initiative of actually dismissing
that case on our own initiative. That is very unprecedented.
Senator Klobuchar. The last question. My ears perked up
when I heard you talk about the potential danger of disclosing
names. We had several cases when I was a prosecutor where
jurors were actually threatened because their names were out
there or people had identified them. Could you just walk
through your concerns about that issue?
Mr. Cole. We have had a number of instances where, while
people are awaiting trial, they may find out the name of one of
the witnesses or two of the witnesses or several of the
witnesses against them. We have had instances--and it is
detailed in my written testimony--where the family of a
witness, their house was firebombed in the middle of the night,
and several children and some adults, relatives of this
witness, were in the house and were killed. We have had a
witness who walked out of a halfway house after having been
identified who was killed to prevent her from testifying at
trial. We have had instances where the defense attorney
received the name and the statements of witnesses in the course
of discovery, gave them to a relative of the defendant, and the
witness was then killed.
So these, sadly, happen more than we would like to see them
happen and create a great concern on our part that this be
carefully controlled. You still have to have discovery. You
still have to make sure that the trial is conducted fairly. But
these are countervailing concerns that are very important that
need to be protected and taken care of.
Senator Klobuchar. Thank you very much for your testimony.
Mr. Cole. Thank you, Senator.
Chairman Leahy. Thank you very much, Senator Klobuchar.
I am going to yield to Senator Cornyn but first ask consent
that a letter from the Chair of the Judicial Conference
Committee on Rules of Criminal Procedure sent to Senator
Grassley and myself be included in the record.
[The letter as a submission for the record.]
Chairman Leahy. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman, for holding this
hearing. Good morning, Mr. Cole.
Mr. Cole. Good morning, Senator.
Senator Cornyn. I join Senator Grassley in expressing deep
concern about what appears to be a troubling lack of
accountability at the Department of Justice, and it is not just
limited to this one instance where there is a suspension of
these lawyers for 15 and 40 days. Under the circumstances of
this case, it hardly seems adequate to dismiss the case once
what happened here occurred, and then to have suspensions for
that short period of time hardly seems like a just outcome.
But I also would join Senator Grassley in expressing
concern that as part of the investigation into the botched
gunrunning operation known as Fast and Furious that the
Department has unfortunately misled Congress. Mr. Breuer came
back nine months after the fact and said, ``Sorry about that,''
but, again, very little accountability there.
But what I want to focus my attention on and ask your
opinion about are two sensitive national security leaks,
specifically on our intelligence efforts on Iran's pursuit of
nuclear weapons, and the war against al Qaeda and the use of
drone strikes, two highly sensitive and highly classified
programs.
First of all, just to lay the groundwork, is it a crime to
leak classified information on the part of a government
employee?
Mr. Cole. Without going into all the details, generally,
yes, it is, Senator.
Senator Cornyn. Just looking at the article in the New York
Times on the so-called Kill List and the President's personal
participation in that process and the process by which 100
national security personnel are patched in by videoconference
to go through this list and then make recommendations to the
President, it says in this article that, ``David Axelrod, the
President's closest political adviser, began showing up at the
`Terror Tuesday' meetings, his unspeaking presence a visible
reminder of what everyone understood: a successful attack would
overwhelm the President's other aspirations and achievements.''
Are you aware or can you confirm that Mr. Axelrod
participated in that? And wouldn't that concern you?
Mr. Cole. Well, two things, Senator. Number one, Mr.
Axelrod was no longer with the White House by the time I
started serving as Deputy Attorney General; and, number two,
those meetings are classified, so I would not be at liberty to
talk about what occurred inside at those meetings.
Senator Cornyn. In the article on the Kill List, which is
intriguing and troubling in a number of different respects that
I do not have the time to go into here, the reporters Joe
Becker and Scott Shane said, ``In interviews with the New York
Times, three dozen of his current''--meaning the President--
``and former advisers describe Mr. Obama's evolution since
taking on the role, without precedent in Presidential history,
of personally overseeing the shadow war with al Qaeda.''
As a prosecutor and Deputy Attorney General of the United
States, does it trouble you that current and former advisers of
the President would talk to reporters and disclose classified
information about this highly sensitive program?
Mr. Cole. It troubles me that anybody who has classified
information and lawfully has it would then disclose it in
violation of their duties to keep that classified information
secret.
Senator Cornyn. Are you aware that any of this had been
declassified?
Mr. Cole. I am not aware of any of that.
Senator Cornyn. And, also, the whole issue of the use of
cyber attacks to try to disrupt Iran's pursuit of nuclear
weapons, a highly sensitive and classified program, and I must
say even in classified settings it is difficult for Members of
Congress to get information on some of these issues. Now we
read about it, of course, on June 1 in the New York Times once
again.
It seems to be that there is some sort of coordinated
effort to leak classified information, which, of course,
jeopardizes the sources of that information, because if the
sources realize that they are going to be exposed to being
identified in public, then they are not likely to cooperate.
Likewise, our allies whom we are working with would be unlikely
to share information. And, indeed, disclosure of classified
information like this makes the world a more dangerous place
for the people of the United States.
So I would just like to ask you, is it the intention of the
Department of Justice to pursue an investigation? It seems to
me that if you can--these interviews took place by talking to
three dozen current and former advisers. Another article, the
one on the cyber attacks, talks about quotations from President
Obama, according to members of the President's national
security team who were in the room, I mean, that is a rather
small and defined number of people who would be the potential
source of those leaks.
Is it your intention and the Department of Justice's
intention to conduct an investigation of this to see if
prosecution is warranted?
Mr. Cole. I do not mean to dodge the question, Senator, but
obviously we are talking about material that, if it exists,
would be very classified, and the existence of it itself
obviously would be classified. So it is a difficult topic to
talk about without treading into the area of either confirming
or denying that such information exists, which I think is also
in the realm of how sensitive and classified anything like that
might be, were it to exist.
Senator Cornyn. So this information is so classified you
cannot even confirm it----
Mr. Cole. Well, there is a lot of information that is
classified at a very high level, and obviously, as you
described it--I take you at your word that information of that
nature would be very, very sensitive and agree that information
of that nature, should it exist, would be very, very sensitive.
Senator Cornyn. If confirmed, do you believe that a special
prosecutor or special counsel would be warranted?
Mr. Cole. I do not believe that it would be necessary in
this case, no.
Senator Cornyn. If I may ask, Mr. Chairman, just one
follow-up question. Thank you for your usual courtesy.
The problem of accountability that Senator Grassley
addressed earlier and that I touched on, too, ranging across so
many different topics to me raises the concern that I think the
Justice Department is perhaps the hardest job that you and
Attorneys General generally have, and that is to maintain a
separation between the political operations of an
administration and your separate professional responsibility as
a lawyer and as the chief administrator of justice. Can you
understand why people would be worried, if these types of
stories were confirmed, that there has been not only
cooperation but collaboration and a lack of accountability when
it comes to maintaining those separate and distinct roles,
pursuing justice and winning the next election?
Mr. Cole. We are always cognizant of the fact that the role
of the Justice Department is a very sensitive role and has to
be separated from not only the actual influence of politics but
the appearance of any influence of politics, and we take great
pains to both separate what the Justice Department does from
any actual or apparent influence by the White House and, with
all due respect, trying to separate what the Justice Department
does from any actual or apparent influence from the Congress,
because we just do not want politics in it at all.
Chairman Leahy. The questions asked by the Senator from
Texas are legitimate questions, and I worry that we see this so
often. I do recall a time when then Director of the CIA, Mr.
Casey, was required to report certain things to the so-called
Gang of Eight, and over a period of several weeks he came up to
the Hill three times to report something that had not been
reported to Congress, even though required by law to be
reported to Congress, but had been on the front page of the New
York Times. On the third time that he came up, he was asked in
the hearing, ``You want to report these things to us, but you
never do. Wouldn't it be easier just to send us each a copy of
the New York Times marked `Top Secret'? '' Because three things
would happen: one, we would get the information in a more
timely fashion than we ever got it, from Mr. Casey; second, we
would get greater detail; and, third, of course, you would have
that wonderful crossword puzzle.
[Laughter.]
Chairman Leahy. I appreciate the chuckles insofar as I was
the one that said that to him, but I appreciate the chuckles
around the room. I should note for the record that Mr. Casey
was not amused.
Senator Cornyn. Mr. Chairman, if I may----
Chairman Leahy. And I do not suggest by saying that that
this is something amusing because, as I read these articles in
the New York Times, like the Senator from Texas and we all
have, you can get these briefings when you want. I remember
sitting there just fuming as I read the details of what was--
and I have not had a briefing yet to determine whether what was
in there was accurate or not, so I am not saying whether it
was--but if it was, it should not be in a newspaper.
Senator Cornyn. Mr. Chairman, thank you for your comments
and your leadership on these issues, but I would just--my
concern really comes from our independent constitutional
responsibility to provide oversight of the Federal Government,
including the Department of Justice. And that implies, indeed
requires, a certain accountability and transparency, and we
need to get information to be able to do our jobs, or else we
are failing to do our jobs in holding the Department of Justice
or any federal agency accountable.
Senator Whitehouse. Mr. Chairman.
Chairman Leahy. We are in agreement on that. What I am
going to do--Senator Whitehouse?
Senator Whitehouse. May I add one point while we are having
this moment of discussion? That is, the executive branch has an
enormous advantage in these discussions versus the legislative
branch, which is that the executive branch has a great number
of officials who are, by virtue of their official
responsibilities, declassifiers. And as they utter classified
information, it becomes declassified because they have uttered
it. There are no declassifiers in the legislative branch of
government. We have to go through exhaustive procedures. And so
I just wanted to add that point to this discussion. I thank the
Chairman for his courtesy.
Chairman Leahy. What I am going to do, I am going to yield
to Senator Franken, and I am going to ask Senator Coons to take
the gavel, and he has agreed to do that, as I go to another
hearing. But thank you. And, Senator Franken, thank you. You
have been here diligently through all of this. Please go ahead,
sir.
Senator Franken. Thank you, Mr. Chairman.
Deputy Attorney General Cole, when the court-appointed
special counsel appeared before the Committee in March,
basically on this subject, I asked him whether in close cases
could prosecutors present evidence to judges in camera and seek
ex parte advisory opinions about their Brady obligations. He
said that that was an option. Do your prosecutors ever take
that approach? And, more generally, what instructions do you
give your prosecutors when they are unsure whether to produce
evidence?
Mr. Cole. First of all, sure, prosecutors do take that
approach. When I was a prosecutor, I would at times take that
approach. But what we instruct our prosecutors to do--and it is
in the U.S. Attorneys' Manual--is if it is a close call, turn
it over. And that is the general rule that we want them to
follow.
Senator Franken. Well, what if it is a close call as to
whether it is a close call?
Mr. Cole. If it is a close call that it is a close call,
they should first seek some input from their supervisors, and
there is a discovery coordinator who is even more advanced, has
gone through more advanced training in each district to advise
on discovery issues on the close calls. And if that does not
answer the question and it really becomes one of those, there
is an incredible reason why I cannot turn it over but I am not
sure, it might be Brady, then we ask them to go to the court.
Senator Franken. That to me seems possibly one way to
address the objections that the DOJ may have to Senator
Murkowski's bill, which is maybe that could be a procedure
build in that you go to the judge, and that way there is some
third party who is not doing the prosecuting deciding whether
this information should be--whether it is safe to pass on in
terms of all those witnesses you talked about who are getting
blown up. Is that idea out of bounds for you or what?
Mr. Cole. It already exists. It is already there. I do not
think we need to legislate for it because the judges are
available in those situations to make those rulings. Judges
make discovery rulings all the time on any number of different
things, and when you get into very close calls on Brady issues,
the judges are available to look through those as well.
Senator Franken. But that is up to the discretion of the
prosecutor.
Mr. Cole. To initiate it, that is right.
Senator Franken. Yes, that is what I am saying.
Mr. Cole. But, again, I think that anytime you would
initiate it, it is one of those where you are going to be
making the judgment call up front that it is a close, close
call. Under our rules, we are telling you if it is a regular
close call, turn it over.
Senator Franken. Okay. Well, just a suggestion.
Mr. Cole. Thank you.
Senator Franken. You are welcome.
Mr. Cole, in your written testimony, you say that ``true
improvements to discovery practices will come from prosecutors
and agents having a full appreciation of their responsibilities
. . .'' Don't you think that defense lawyers have a role to
play here, too? And if so, what do you think that role should
be?
Mr. Cole. Well, they do have a role to play, just like the
role they play in any trial. It is an adversarial proceeding,
and defense attorneys are there to make sure that their
client's rights, including the discovery rights, are honored.
And even when a prosecutor who may have his or her own view of
what should or should not be turned over, the defense attorneys
are there to try and challenge that and to push it and to make
sure that anything that comes out is everything that should
come out.
I think it should be noted again that the failures in this
receive a lot of attention, but they are actually very rare.
But when they happen--and if it happens once, it is
unacceptable from our point of view. But when it happens, they
do get a lot of play, and, frankly, they should get a lot of
play because it is unacceptable.
Senator Franken. Most cases result in plea bargains. What
are the Justice Department's policies with respect to the
disclosure of exculpatory evidence during plea negotiations?
Mr. Cole. Well, I think that every prosecutor, if they are
aware of information that indicates that the defendant who is
planning on pleading guilty did not commit the crime, they
should not be taking that plea because they have a duty as an
officer of the court to make sure that whatever is being done
is, in fact, just and is based on the facts and the law.
As far as something like Giglio material, whether there is
an inconsistent statement from a witness or there is something
in the witness' background that may make them somewhat
unsavory, that is not necessarily required to be turned over
before a plea because really what you are focusing on there is
how the trial might progress and how the proof might progress.
But in a situation with a plea, the defendant, with the advice
of counsel, has gone through their own view of whether or not
it is appropriate for them to plead guilty, and they have made
that decision knowing what it is they have done and knowing
what it is they are willing to swear to under oath in court.
Senator Franken. Thank you. My time is up.
Thank you, Mr. Chairman.
Senator Coons [presiding]. Senator Lee.
Senator Lee. Thank you, Mr. Chairman, and thank you, Mr.
Cole, for joining us today. It is an honor to have someone with
your distinguished background join us and help us with this.
Like many of my colleagues, I am very concerned with any
practice that could result in innocent people going to prison,
especially considering the fact that our Nation has the highest
incarceration rate in the world. It is my understanding that we
have got about five percent of the world's population, and yet
we have about 25 percent of the world's incarcerated
population. And we need to look at that, and we need to look at
the fact that, notwithstanding these facts, we continue to
expand the federal criminal code, we continue to expand the
number of federal inmates we have, which right now I think is
at about 200,000. We have got to watch out for this.
As a former Assistant U.S. Attorney, I am committed to
enforcing our laws. I want to be certain that victims and
witnesses are properly protected and that prosecutors are able
to pursue their cases zealously where crimes have been
committed, and that opportunities for guilty parties to get off
on a mere technicality are avoided.
I am, at times, though, inclined to wonder whether the
somewhat vague and inconsistent standard that currently
constitutes the Brady rule and the Giglio rule might allow
prosecutors to withhold important information from the defense
without a real threat of penalty. And so I would like to ask
you, Mr. Cole, you mentioned the fact that the U.S. Attorneys'
Manual standards are actually higher than what Brady itself
requires. What might happen to a prosecutor who violates that
rule even where there is not a Brady violation recognized by
the court? What might be the consequences for a prosecutor who
does that?
Mr. Cole. Well, certainly there would be supervisory
admonishment. There would be counseling at a minimum if that
came to our attention. It would probably be referred to OPR for
them to look at whether or not it amounts to misconduct or poor
judgment or something that was negligent or any of the various
options that might be available. It would be part of how that
prosecutor gets evaluated. If it is misconduct, they will be
sanctioned. If it is not, they will be admonished, and they
will be counseled, and they will be looked at a lot more
closely and supervised a lot more closely to make sure that
they comport and comply with Department policy. We do not put
them in the U.S. Attorneys' Manual just to make it thick. We
put them in there to be followed.
Senator Lee. Right. I appreciate that.
You referred in your opening statement to the fact that the
incidents of violation of the Brady rule and of the
accompanying U.S. Attorneys' Manual standards are, I think as
you put it, infinitesimally small. Doesn't the very nature of
the Brady rule and the violation of the Brady rule make it
somewhat difficult to detect? So the incidents that you
referred to I think were those that were actually discovered,
but isn't it somewhat difficult to detect by its very nature?
Mr. Cole. Well, it can be, but I think one of the
interesting aspects of the cases we have looked at is that most
of--maybe not most, but a number of the instances where we have
discovered violations of Brady have been because some other
motion was raised in the case which caused either a supervisor
or somebody else to start looking through the file, discovered
the material that they believed should have been turned over,
and we voluntarily let people know that this matter, this piece
of evidence had not been turned over. So a number of these are
generated by the Department voluntarily, giving over after the
fact what turned out to be Brady material.
Senator Lee. Okay. That is helpful.
I think one of the arguments that could be made in support
of this legislation is the fact that the Brady rule itself has
some vagueness built into it, it has some subjectivity built
into it--vagueness and subjectivity that I think, arguably, are
reduced under the standard proposed by this legislation. So
there is a judgment call that has to be made in the case of
Brady as to whether or not there is a reasonable probability
that the conviction or sentence might have been different had
the materials been disclosed; whereas, there is less
subjectivity, less vagueness built into the other rule. Is that
a strength? Is that a benefit to this statute? Or is there
something that I am not taking into account there?
Mr. Cole. I think, frankly, that the other rule of
``favorable to the defendant'' is a less-defined standard. The
Brady standard, I think, is a little tighter, and it is a
little more easy to define, but it is not the standard we use
going into a trial. It is the standard that the appellate
courts use when they are reviewing a trial after the fact in
order to make sure that we have finality and that if a case is
going to be overturned, it is going to be overturned for a good
reason. But going into trial, looking at it prospectively, that
is not the standard we use in the Justice Department.
Senator Lee. That is part of why you have the U.S.
Attorneys' Manual standard to help flesh that out in advance of
trial.
Mr. Cole. Exactly. And our standard is any evidence that is
inconsistent with any element of any crime that is charged
against the defendant, turn it over; any information that casts
doubt upon the accuracy of any evidence, including but not
limited to witnesses' testimony, turn it over; and that we tell
people err on the side of disclosure. And those are mantras
that we repeat over and over and over again, particularly since
what happened with Senator Stevens' case, and we realize that
there was a need in the Department for greater sensitivity for
this, greater supervision, and greater training.
Senator Lee. Thank you very much.
Mr. Chairman, my time has expired.
Senator Coons. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman. Welcome, Mr. Cole.
Mr. Cole. Thank you, Senator.
Senator Whitehouse. I was here for your exchange with
Senator Franken, and it sounded for a moment as if you were
saying that the only reason that any defendant pleads guilty is
because they are guilty. You did not mean to make that point,
did you?
Mr. Cole. Well, I think there have been instances found
where defendants who are not guilty have pled guilty, and----
Senator Whitehouse. Correct. So having an open file prior
to a plea negotiation and having, from the defendant's point of
view, some view of how likely or effective the prosecution's
case is against them could actually have a meaningful effect on
a defense counsel's recommendation to his or her client,
correct?
Mr. Cole. Yes.
Senator Whitehouse. Okay. Let me ask unanimous consent to
put into the record of this hearing a letter of May 30, 2012,
that Senator Cornyn and I wrote to the Attorney General. I do
not expect you to be familiar with this letter, Mr. Cole----
Mr. Cole. I have read it, Senator.
Senator Whitehouse. Oh, good. Well, it concludes, ``We
recommend that the Department of Justice give serious
consideration to a departmentwide default open file policy. We
invite your thoughts on this proposal, whether it is sound and
why, and what exceptions ought to apply. We understand that
there are exceptions, particularly in the witness safety and
witness privacy context, and what their scope should be. We
look forward to your response.''
Do you have any idea when we might get a response to that
letter or where it is in the process?
Mr. Cole. I do not know exactly where it is in the process,
but it is something we will certainly respond to.
Senator Whitehouse. I appreciate it.
Senator Coons. Without objection, it will be made part of
the record.
Senator Whitehouse. Thank you.
[The letter appears as a submission for the record.]
Senator Whitehouse. As Attorney General of Rhode Island, I
operated under rules that were so liberal that I think they
could fairly be described a de facto open file policy, and I
thought we did fine. I tried to run as wide open a U.S.
Attorney's Office as I could when I was U.S. Attorney in terms
of discovery. So I think it is a worthy discussion to have,
that the traps and the damage to the Department's reputation,
setting aside the damage to the defendant themselves, is
worth--is a heavy weight in the balance.
I also would like to react briefly to your suggestion that
the U.S. Attorneys' Manual applies a higher standard to
Assistant United States Attorneys than the Brady rule or the
Giglio rule per se. There is one piece--and I think we have had
this discussion before--that remains a real thorn in my side in
which that is not true, and that is the so-called Margolis memo
that closed out the investigation into the Office of Legal
Counsel and that declined to apply to opinions of the Office of
Legal Counsel the same standard and duty of care with respect
to candor toward a tribunal that a regular lawyer has. And it
strikes me that this is a mistake, and I once again urge the
Department to correct it.
In Rhode Island, you see workaday lawyers heading into the
Garrahy Judicial Complex with multiple files under their arms
to get through the work of the day. They are going before a
judge who has the chance to do independent research and correct
any failure of candor to the tribunal. They are facing an
opposing attorney who has every incentive to catch them out in
any failure of candor to the tribunal. And even in that
environment, they nevertheless bear a duty of candor to the
tribunal.
Cut to OLC. You have perhaps the smartest lawyers in the
country. You have lawyers who go on to become Supreme Court
Justices. You have lawyers who come off Supreme Court
clerkships. You do not have any safeguard on them. There is no
judge who will be reviewing that opinion, and there is no
opposing counsel who will see it.
So it would seem to me that structurally it is even more
important that an OLC opinion meet the basic standard of duty
of candor to a tribunal that a regular workaday lawyer has to
meet slugging into the courthouse every day. And I urge you to
reconsider that. I think it is the last bad legacy of that bad
event that we no longer hold OLC--or since then we do not hold
OLC to the minimal standards that a regular workaday lawyer is
held to in a context in which I think it is more important that
they be held to a high standard because so many of the checks
and balances do not apply.
So I think it is important that the Department set high
standards. I am delighted that the U.S. Attorneys' Manual sets
a higher standard with respect to Brady and Giglio. In this
area, you are on the wrong side. You are setting a lower
standard, and I urge you to correct it.
The last thing I want to raise with you in my last second
is Director Mueller of the FBI said that a substantial
reorientation of the Bureau was necessary to face the modern
age of cyber crime, and I hope that the Department will be
similarly flexible and thoughtful about how we should reorient
the resources and perhaps even the structure of the Department
to meet a threat that now the head of the cyber command says is
the cause of the greatest transfer of wealth in the history of
humankind and of which we are on the losing end. It is a very
important issue, and I think the Department needs to be
flexible in rethinking what its role is, even if it means
clashing with OMB about asking for more resources.
Mr. Cole. All I can say is, as you know, Senator, you and I
have had many discussions on the cyber issue. It is one of the
greatest dangers facing our country today, and it is something
that we need to look at very carefully, both in terms of what
legislation we have, what organizational structures we have,
what resources we have to fight it.
Senator Whitehouse. I appreciate that.
Thank you, Chairman.
Senator Coons. Thank you, Senator Whitehouse.
Before we proceed to Senator Sessions, Senator Grassley has
asked for an opportunity to speak briefly.
Senator Grassley. I have to apologize to Professor Bibas
because he came at our request to be here, but I have an 11:45
meeting I have got to go to, and I just wanted to apologize,
and I will submit questions for answer in writing.
Senator Coons. Thank you, Senator Grassley.
Senator Sessions.
Senator Sessions. Mr. Cole, thank you for coming. It
strikes me, looking at your bio, that you are well prepared to
deal with this question, having spent 13 years as a trial
attorney in the Criminal Division, later as Deputy Chief of the
Public Integrity Section, having prosecuted notable cases,
including a federal judge, a Member of Congress, and a federal
prosecutor.
You know one thing, and that is, when you send an attorney
into a courtroom to try a big case, this is not a little bitty
matter. It is a very, very intense environment. When you have a
person who is the Chairman of the Appropriations Committee, a
governor, a Congressman, or a federal judge, and they are
looking at maybe the rest of their life in jail, it ceases to
be an academic matter. Wouldn't you agree? It becomes a very
intense environment.
Mr. Cole. I would agree wholeheartedly, Senator. It is a
very important matter.
Senator Sessions. And the defense attorneys are highly
skilled at identifying the slightest Brady violation, and they
make charges in the press of prosecutorial misconduct and
denial, and it may be an innocent, insignificant event, an
error perhaps by the prosecutor, but insignificant
nevertheless. Is that true?
Mr. Cole. That does happen.
Senator Sessions. And it is just part of the technique to
put the prosecutor on the defensive from the get-go.
Mr. Cole. It is one of the standard avenues of attack that
prosecutors use.
Senator Sessions. So prosecutors----
Mr. Cole. That defense attorneys use.
Senator Sessions. Excuse me. Defense attorneys. Let me tell
you what I am worried about. I am worried that we have these
big cases--we have had them in my State. We have had them in
Alaska. We have had them with a former Presidential candidate
here. These are tough things, and my sense is from my
observation of it that too often we are sending prosecutors in
from Washington who do not have the depth of experience--they
may be top of their class academically. They may be men and
women of integrity. But they just do not know what they are in
for, the kind of challenges they are going to be facing, and
there is no substitute for real experience, having been through
these kinds of cases.
Do you sense and don't you think the Department of Justice
as part of your review needs to give serious thought to the
question I just raised?
Mr. Cole. I think you raise a very important and a very
interesting point, Senator. In looking at the statistics over
the years, the number of trials that are taking place in
federal court, criminal trials, has gone down.
Senator Sessions. Gone dramatically.
Mr. Cole. Dramatically.
Senator Sessions. So there is a lot less experience out
there by the FBI and by the prosecutors.
Mr. Cole. And having been one of those Washington lawyers
who went out and tried cases in different parts of the country,
I know how important it was when I did that to make sure that I
understood what the local rules were, that I understood what
the makeups of the juries were, that I understood what the
preferences of the judges were. I would try----
Senator Sessions. Did you listen to experienced local
prosecutors who have been in the courtroom?
Mr. Cole. To the point where I would annoy them. I would
try and get as much information as I could.
Senator Sessions. I understand that often prosecutors--and
it is always I have been told that, but even in recent years--
ignore or reject the opinion of the experienced attorneys
oftentimes. Do you think that would be a dangerous thing for a
prosecutor to do?
Mr. Cole. Well, I think it would. I am hopeful that those
are the exceptions to the rule because I do know that many of
our prosecutors go out and in most cases work with the local
United States Attorney's Offices on these cases. The times
where they are not working together are pretty rare, and in my
view, and certainly the tradition has been, even in those
cases, except where there are recusals and there have to be
walls, you should be checking with the local prosecutors to
make sure you understand what is going on in that district.
Senator Sessions. I do not think that always happens.
Let me mention something to you. Isn't it true that there
is a real danger in putting prosecutors in big cases that
require a lot of discovery, a lot of records and documents,
heading out to a big trial, facing some of the best defense
lawyers in the country, isn't there a real danger that cases
can be rushed, prosecutors can be put in a position where they
are physically unable to master all the evidence and can get in
trouble for that reason?
Mr. Cole. Yes, I think those are certainly big concerns
that any manager and any supervisor should have, that they want
not only the most capable team trying the case but the most
experienced and familiar team trying the case, so that the
lawyers who really handled the case should be the ones trying
it. It does not mean you cannot add talent to a team, but you
have to take care that they are up to speed.
Senator Sessions. Right. Well, I would just say, this case
in Alaska had two local Assistant United States Attorneys.
Public Integrity Section attorneys Edward Sullivan and Nick
Marsh were assigned to the trial team. However, this
arrangement was abruptly altered by the Chief of Public
Integrity Bill Welch's decision to bring in Brenda Morris, his
Principal Deputy, as a lead prosecutor just before the
indictment was issued. That was before you were Deputy Attorney
General. But wouldn't you say that is a highly risky thing just
from the basic facts I have given you?
Mr. Cole. You know, you have to learn what all the facts
are surrounding it. Certainly when I was the Deputy Chief of
Public Integrity, every now and then I would get called in at
the last minute to help with trying a case just to add in a
level of trial experience, a level of seasoning that may have
been viewed as needed in the team. So you have to try and look
at what all the reasons may have been for having done that.
Senator Sessions. Well, I understand that the new dynamic
created by the Morris addition led to discord among the
litigation team and a lack of communication. I think that
factually has been ascertained.
Mr. Cole. Right, and that is not good.
Senator Sessions. That is not good. Are you confident that
the Chief of Public Integrity, who served under your direction,
is sufficiently aware of the dangers and difficulties of trying
these kinds of cases and is sufficiently committed to having
the kind of experienced prosecutors necessary to handle a case
of this magnitude facing perhaps some of the best defense
lawyers in America? And do you think that is something you will
be looking at in your supervisory role?
Mr. Cole. Absolutely, we look at it in our supervisory
role, and absolutely, I feel that this is something that has
been reiterated time and time again, something that we focus
on, and something that the Chief of the Public Integrity
Section understands.
Senator Sessions. Well, Mr. Chairman, thank you for letting
me go over a minute. I really love the Department of Justice. I
spent 14 years in it. I personally tried some very big public
corruption cases for weeks at a time. And I am telling you,
anybody that thinks that is a picnic does not know what it is
about. And I lived with those cases, and the idea on the eve of
trial of another lawyer being assigned to a case of the kind
that Alaska was and the cases I dealt with is unthinkable to
me. It is just very dangerous. And I would think you do not
have in the Department of Justice, Mr. Chairman, you just
almost cannot have in the Department of Justice the kind of
experience you need. And perhaps these big cases, you need to
look around to the offices around the country where they have
got skilled Assistant United States Attorneys who have tried
cases, who know what it is like to be called on to move to
another district if need be to lead or assist in these
prosecutors, something like that. But you cannot have, in my
opinion, a big, complex case being tried by an inexperienced
attorney. It is a disaster waiting to happen.
Mr. Cole. Well, Senator, obviously, that cannot be
disputed. There are, however, very experienced attorneys both
in U.S. Attorney's Office and in Main Justice, and in some of
the sections in Main Just, there is a real repository of
expertise in some of these kinds of cases which is very
helpful. But I agree with you. People who are not experienced
with a case should not be thrown on it at the last minute.
Senator Sessions. My time is up. Thank you, Mr. Chairman.
And I do hope that you will give that attention. And I am
inclined to believe, as you have said, that it is not a
question of legislation, rules. The rules are in my view clear.
You have to disclose exculpatory evidence. The question is:
When you do a massive case, do the lawyers have the time or the
ability or the knowledge to ascertain what is discoverable,
what needs to be produced within the time frame set for the
trial? And if you rush it too fast, you can make mistakes. And
Alaska went awfully fast, it seems to me.
Mr. Cole. Yes, it did. And they need to make that time to
make sure that those things are being followed and those rules
are being honored.
Senator Sessions. So when you announced--I hate to keep--
but so when this trial was moved up, first at the request of
the defendants, which is a clever gambit sometimes when they
know the prosecution really is not prepared, so they demand the
speediest of trials, and you--do you think in retrospect
sufficient resources were poured into that case to make sure
every document was scanned and evaluated and promptly gotten to
the defendant as required?
Mr. Cole. Based on the record that has been developed
rather exhaustively, obviously not.
Senator Sessions. I think not, too. It is just dangerous to
have a big case like that go that fast and have lawyers being
changed in the process. It is a disaster waiting to happen.
Thank you.
Senator Coons. Thank you, Senator Sessions. I think your
personal experience and your passion for this is obvious and
contributes significantly to this discourage today.
I believe I am the last questioner for this panel. Mr.
Cole, thank you for your testimony in front of us today. As
Senator Sessions has so roughly summarized it, we are weighing
a piece of legislation that is intended through statute to
enforce certain commitments, requirements, and obligations of
prosecutors, and you have suggested in your testimony that the
Department already sort of goes above and beyond the Brady
obligations and is already engaged in the sorts of actions to
enforce appropriate disclosure and compliance. So if I could, I
just wanted to go over a few things with you before we
conclude.
Mr. Cole. Certainly.
Senator Coons. First, there was an exchange with Senator
Whitehouse before you testified that each U.S. Attorney's
Office has a designated discovery attorney, and I would just be
interested in hearing what regulations exist governing the
qualifications and experience of that attorney, and then what
percentage of their time they are available to answer
disclosure questions--in other words, the sort of first level
questions--so in these instances when you have got fast-moving
trials, perhaps relative inexperience, high stakes, and you
have got a tough judgment call to make prospectively, how
accessible, how reliable, how engaged are the discovery
attorneys that are available to those practitioners who have
got a tough judgment call?
Mr. Cole. Generally, they are experienced attorneys who
have had a number of trials, who have been through those wars
that Senator Sessions has described. They have the scars to
show for it. They are part of the office. They are there to
answer those questions. They will have their own cases, too,
but they are generally going to be available to answer those
tough discovery questions, and they are going through their own
training to make sure that they are really up on all of the
Department policies and procedures that need to be followed in
order to make sure we have a fair trial.
Senator Coons. And what sort of policies are in place in
the DOJ to audit line prosecutors for their Brady compliance,
to ensure and to record their Brady compliance?
Mr. Cole. Well, first of all, we have the standards that
are put not only in the United States Attorneys' Manual, but
there are memos that have been issued by the Deputy Attorney
General's office, by my predecessor, that give further
instruction not only on what the standards are but how to
implement them. And then we have the Office of Professional
Responsibility's procedures where any allegation of a violation
of discovery rules is going to come to their attention. If a
judge questions whether discovery was done properly in a case
and makes any finding, that automatically goes to OPR. If the
attorneys have been found by a judge to have violated
discovery, the attorneys themselves are supposed to report it
to OPR.
As was pointed out, I believe, by Senator Sessions, defense
attorneys are always giving us letters and calls and making
allegations that discovery has not been given as it should have
been. And while those happen frequently, we do not just throw
them out. We look at them and we take them seriously, and we
make sure that there was no problem.
So there is an enormous number of sources that come in that
allow us to have visibility into whether or not the individual
line attorneys are fulfilling their obligations.
Senator Coons. So if I could summarize, there is no
uniform, routine audit process, but there are so many different
ways in which challenges are presented, whether judicial,
opposing counsel, postconviction if that is the outcome, that
you are confident that the audit process is sufficiently robust
and broad?
Mr. Cole. Yes, I think that a kind of regularized routine
audit process would require you to go through virtually every
piece of information or evidence in a case file, and I do not
think that would be practical.
Senator Coons. Would you comment on whether the duty
imposed in this proposed disclosure fairness bill to use due
diligence to discover exculpatory evidence that was reasonably
available to the prosecutor, would that, in fact, expand the
duty of the prosecutor beyond current Department regulations?
Mr. Cole. I am not sure that in and of itself would expand
it. Obviously, that is not a hard-and-fast standard. There is a
lot of room and judgment that is contained in that standard.
The memos that have been put out by the Department really
expand who is part of the prosecution team, and I think that is
really the key to that part of it, to define whose material
should be looked at. And this is something the Department has
taken great pains to make sure is taken into account, who is
part of the Department team, the prosecution team, making sure
that their files are reviewed to determine whether there is any
Brady or Giglio information in them, and that is certainly one
of the most important parts of complying with these rules, is
starting out by defining where you are going to get the
information.
Senator Coons. Then my last question, as has been
referenced before, the vast majority of cases are actually
resolved through plea bargains rather than taken to trial?
Mr. Cole. Correct.
Senator Coons. And, if anything, that percentage has
increased. You are familiar, I presume, perhaps, with the
Ashcroft memorandum regarding plea deals which restricted
prosecutors post indictment to accepting pleas for anything
less than the top count, and my understanding is that that
standard has been changed somewhat in the current
administration. I am concerned with the potential Brady
implications. A deal may be impossible if a prosecutor
discovers and discloses Brady material that negates the top
count if there is still a position that you cannot accept a
plea for less than the top count.
What is the current status of this policy memo? My
impression was it had receded to individual U.S. Attorney's
Offices to make their decisions. And what would you think of
the DOJ adopting a uniform policy that permitted prosecutors to
resolve cases with plea bargains that did not require the top
count? And what is the impact both for Brady and, to the extent
relevant, for Giglio material?
Mr. Cole. Well, the Attorney General issued a memorandum
that I think expanded on the Ashcroft memorandum and allowed
for--while there is the general policy still in effect, but it
allows for individual considerations in each case--not every
case is the same--and allows there to be consideration of any
number of factors that may not have been anticipated in a case
so that you can deal with them in the most effective way
possible. And so I think there is room within that standard to
take into account the situation that you propose where you may
not be able to prove the top count in a charge and you should
not be taking a plea for something you cannot prove, but there
are other charges that are available that will end up producing
justice for the matter, and that is really where we want to be.
Senator Coons. Thank you. Thank you very much, Mr. Cole,
for your testimony here before us today.
Senator Sessions. Could I say one more thing to Mr. Cole?
Senator Coons. Senator Sessions.
Senator Sessions. Mr. Cole, you may be uniquely qualified
to deal with this problem. You have got the experience and the
knowledge. You have seen the Department of Justice Public
Integrity Section. I do not think it is performing well in
terms of getting your best people in the courtroom trying some
of the most important cases. I think the Department has been
embarrassed by the results of a lot of big cases. And I think
you should look at it really hard. You should review from top
to bottom the staff you have got there, see if you can find
ways to make sure that the best attorneys are available,
whether they are in Washington or in U.S. Attorney's Offices
around the country or in the courtroom handling these cases,
because I do think the Department is challenged right now and
needs to demonstrate that it is operating at the highest degree
of professionalism.
Mr. Cole. Senator, I appreciate those comments. The only
comment I would like to make in return is that I think you end
up emphasizing--the press ends up emphasizing--our losses much
more than our victories. There are a huge number of very
successful cases that prosecutors throughout the country and
throughout the Public Integrity Section win on a regular basis.
We, of course, do not like to lose cases because obviously
we make a lot of decisions on the way toward a case being
tried. And as you point out, these are tough cases. Some of
them are very tough cases. And the ability to find that right
balance and to exercise your discretion under tough sets of
facts, under issues that cry out, on the one hand, to be dealt
with and, on the other hand, may have questions about how far
are you going and where are you going as far as the
interpretation of the law. These are very tough cases to deal
with day in and day out, but I think our prosecutors do a very
good job of it, but we are constantly looking as managers to
make sure that all of our attorneys are trained as well as they
can be, are as experienced as they can be, are supervised as
well as they can be, and are performing at the peak of their
abilities. By and large, they are, but there is always room for
improvement.
Senator Coons. Thank you very much, Mr. Cole, for your
service, for your leadership, and for your testimony before us
today, and I would like to specifically thank the men and women
of the Department of Justice for their very hard work to ensure
that witnesses are protected, that cases are brought forward,
and that justice is served. So thank you for appearing before
this Committee here today.
Mr. Cole. Thank you, Senator.
Senator Coons. I would like to invite the second panel,
Executive Director Carol Brook of the Federal Defender Program
and Professor Stephanos Bibas, professor of law at the
University of Pennsylvania Law School. As this next panel is
coming forward, I would like to state that, without objection,
we will enter into the record a number of letters that Senator
Murkowski had asked be put into the record. These are letters
from the American Bar Association, the ACLU, the U.S. Chamber
of Commerce, the Constitution Project, and the NACDL broadly in
support of Senator Murkowski's legislation. That matter of
housekeeping simply needed to be done before we introduce our
second panel.
[The letters appears as a submission for the record.]
Senator Coons. First we welcome Carol Brook, who is
executive director of the Federal Defender Program for the
Northern District of Illinois. Director Brook has been an
attorney with the Federal Defender Program for over 25 years.
She previously served as staff attorney, chief appellate
attorney, and deputy director. Her duties include
representation of clients through trial and all appeals and the
training of staff attorneys and 170 private attorneys under the
Criminal Justice Act panel. Ms. Brook received her law degree
from the University of Illinois College of Law and
undergraduate degree from the University of Michigan, and we
are grateful for your willingness to join with us here today.
Before I then introduce Professor Bibas, if you would like to
make your opening statement.
STATEMENT OF CAROL BROOK, EXECUTIVE DIRECTOR, FEDERAL DEFENDER
PROGRAM FOR THE NORTHERN DISTRICT OF ILLINOIS, CHICAGO,
ILLINOIS
Ms. Brook. Thank you, Chairman Coons, Senator Sessions. I
guess I want to start by thanking you, Senator Coons, for
saying it was 25 years rather than 36 years. I appreciate that.
Senator Coons. I appreciate the length and seasoning that
your service has brought.
Ms. Brook. I am honored to be here not just because you
want to hear my testimony, but because the issue of discovery
in federal cases has been near and dear to my heart since I
began practicing law. I am here as a member of the criminal
defense bar on behalf of the hundreds, probably thousands of
federal defender colleagues. And I need to say I am not here
representing the Federal Criminal Rules Committee, and if you
ask me any questions about it, you will get me in trouble.
When I began practicing law----
Senator Coons. Disclosure up front is always very
practical.
Ms. Brook. I promised I would.
When I began practicing law, I first learned about the kind
of training that Deputy Attorney General Cole talked about from
a story that then U.S. Attorney and later Chief Judge of the
Second Circuit Jon Newman told. At that time the training
consisted of going before very large groups of prosecutors and
giving a hypothetical. The hypothetical was, ``You have
indicted a bank robber, and several bank tellers and customers
have identified that person as the robber in a line-up. Later,
a witness comes in and says, `No, that was not the man.' ''
Judge Newman asked the prosecutors at the time, How many of
you would turn over the name of the witness who said that was
not the man? It turned out only two would.
That vignette, if you will, is important, I think, because
although we have heard from Deputy Attorney General Cole that
everything is much better now, that the Stevens case was an
aberration, that is not my experience, nor is it the experience
of my colleagues. Our experience is that it is a rare case
where some piece of discovery is not turned over at midnight
the night before the trial or during the trial or after the
trial. And, of course, we do not know how many cases there are
when the evidence is not turned over at all. We do know that
there are a significant number of cases where our research
determines, our investigation determines, that there was Brady
evidence that we did not get.
What that tells me is that the internal training,
commendable as it is, which has gone on now for 50 years since
the decision in Brady, is not making enough of a difference;
that the rules governing criminal discovery, although helpful,
are not making enough of a difference; and that what we need at
this point is legislation, the imprimatur of Congress to say we
believe in the rule of Brady, which is not about guilt or
innocence but about fairness. The bedrock principle of Brady is
fairness.
It seems to me that when we talk about internal training, I
can hear the difference between what the prosecution believes
and what we see. They say the U.S. Attorneys' Manual is far
broader than the law. I see their interpretation of the law as
far narrower than what I believe the law to be. So we start
out, I think, in different places, and we continue to go out
from those places instead of coming back together.
It is my belief that the clear legislation that Senator
Murkowski has proposed would bring us together because it would
set a level of clarity that we simply do not have at this time,
and I urge this Committee and the full Congress to take up that
legislation.
Thank you.
[The prepared statement of Ms. Brook appears as a
submission for the record.]
Senator Coons. Thank you, Ms. Brook.
Next I am going to welcome and introduce Professor
Stephanos Bibas, who is a professor of law and criminology and
director of the Supreme Court Clinic at the University of
Pennsylvania Law School. Professor Bibas is a former Assistant
U.S. Attorney for the Southern District of New York, a national
leader in the field of criminal law who has published important
articles regarding the role of plea bargaining and the effects
of scarce resources in the criminal justice system. He clerked
for Judge Patrick Higginbotham in the Fifth Circuit and for
Justice Anthony Kennedy of the U.S. Supreme Court. Professor
Bibas is a graduate of Columbia University, Oxford University,
and I have the passing impression that I remember him from our
time at Yale Law School together.
So I welcome you, Professor Bibas. Thank you so much. And,
again, Senator Grassley was grateful for your willingness to
join us and testify here today.
STATEMENT OF STEPHANOS BIBAS, PROFESSOR, UNIVERSITY OF
PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA
Mr. Bibas. Mr. Chairman, Members, thank you for having me
back, and good to see you again.
I am delighted the Committee is looking at this problem.
The impulse is important. The problem is a real one. I fear
that the thrust of the bill is beside the point, and I think it
important to look beyond the Stevens case to the impact of the
bill, which would be far broader.
I want to make three points today. The first is the root
problem here is not one of standards but enforcement. Second,
the core issue here is not the very small minority of cases
that go to trial but plea bargaining. And, third, that
particularly disclosure of Giglio material during plea
bargaining poses grave risks to victims, to witnesses, to
undercover agents, and confidential informants in particular.
So the first point I want to make is the Brady and Giglio
decisions have been on the books for decades, and yet we have
seen multiple studies that show hundreds of violations. Now,
most of these focus on State and local prosecutors, but I would
not be surprised if there are a good number in the federal
system as well.
I agree that there is a problem here, but all of these are
already unlawful under existing constitutional law, and nothing
in the bill would appear to solve that. The much bigger
problem--and I have written about this repeatedly--is not the
substantive standard. It is the structures and procedures used
to comply with them.
We have heard reference to--and I would agree--the
mentality of winning a conviction at all costs as opposed to
seeing justice done. And that is bound up with a series of
structural issues: prosecutorial hiring, incentives such as pay
and promotion, training, oversight, discipline, firing, office
culture. Some of that can be spurred externally. I do believe
there may be a role for congressional oversight hearings, for
bar disciplinary authorities which currently do almost nothing
in practice, and sometimes judicial review of evidence in
camera, as I think Senator Franken referred to. But experience
has shown that at best they are going to have a secondary role.
You can weed out a few bad apples, but there are systemic
failings here that led to the Senator Stevens debacle. What you
really need is to have the outsiders be backstopped to prod DOJ
and prosecutors' offices themselves to self-regulate and
supervise themselves.
As I view it, from what I have seen empirically, there are
two basic clusters of discovery issues that come up, and both
of them are not about the substantive standards. They are about
compliance. The first one is that prosecutors, police, and
other agents have to gather all the evidence from across far-
flung agencies, case files, computer systems, lawyers, and
teams, and here we have the problem that in the Stevens case
you had Main Justice, you have Alaska, you have different
people coming on and off the team. That is a logistical
problem, and especially in the Stevens case, there is a problem
that some of the evidence that came up in interviews was not
even recorded down into FBI 302 witness reports. That is a
procedural problem. Once it is not in the report, whatever
substantive standard you put on the paper is not going to
affect that problem.
The second problem is that prosecutors have to learn to see
and track what evidence, in fact, meets the standard of being
favorable or helpful. I have been a prosecutor, and I know that
there is a mentality that comes with being on one side of the
aisle that means you do not always see the evidence the way the
other side is going to see it. It is a valuable thing to have
some prosecutors who can see things through a defense lawyer's
eyes, but that is an issue of perspective, of vision.
You can tweak the materiality standard or not, but if you
do not understand the defense's theory of the case and the way
they are going to use a piece of evidence, any formula of words
on paper is not going to deal with that problem. And so that,
again, is a cultural issue that DOJ needs to work on within. As
far as I can tell, the bill would do nothing to attack these
core problems.
The second issue I want to point out, which is something
that the Chairman has referred to, is that the Stevens case is
atypical, because roughly 95 percent of criminal cases never
reach trial. They result in guilty pleas. One of the big things
the bill would do is accelerate the timing of all of this
disclosure to say it has to be right after arraignment, as soon
as is feasible.
For classic Brady material, that is, stuff that shows you
are innocent of the crime or deserve a lower penalty, I
probably would support that. It's probably not a bad thing if
it shows the person is innocent. We could set aside some
possible defenses like entrapment, but core evidence as to
whether you did it and whether you deserve the punishment, that
is fine--except that is already standard Department of Justice
policy. That is what I was taught. That is what everyone
understood in the system.
I think the crux of the dispute here is going to be about
Giglio, impeachment material. The problem with that is that
often signals who the defense witness is. If you are signaling
there is a romantic jealousy or someone who is a co-
conspirator, the defense lawyer is going to be able to tell the
identity of this witness in a lot of cases. And I do not think
it is as crucial to justice in the way classic Brady disclosure
is. It makes sense at trial in the context of undercutting the
incriminating evidence, but without the picture of what the
incriminating evidence is, you do not really know whether this
witness's compromised eyesight matters or not if there are five
other witnesses who had perfect eyesight.
So it is part of the whole picture at trial. It does not
matter as much during plea bargaining. I am strongly inclined
to believe that the waiver provisions in this bill would wind
up meaning that this right would be waived the same way that
the rights to a jury trial and proof beyond a reasonable doubt
are waived all the time.
If I am wrong about that, I think this would be a serious
impediment to plea bargaining, to disposing of the flood
especially of immigration cases along the southwestern border.
And I think correspondingly defendants would be less likely to
receive concessions because they would not be able to trade
that off.
If I thought that these disclosures had little cost, I
might still support them. Even if they do not do much good,
they would help to reduce some bluffing, some trial by
surprise. But, as I am going to discuss, my fear is that Giglio
disclosures at an early stage come with a very high cost.
So my final point is that there are substantial costs to
giving this discovery of witness and victim information. The
most obvious cost is to victims--rape victims, molested
children, victims of other forms of violence. They are
traumatized, they are fearful, they can easily be intimidated
or tampered with, and there is some evidence I mention in my
written testimony that this happens routinely in jurisdictions
such as New Jersey where this kind of disclosure is
commonplace. So in the Stevens case, that may not be a fear.
That is a public corruption or white-collar case. But the
majority of federal cases involve violence, gangs, drugs, other
situations where this is pretty common.
Criminal cases also involve a lot of hidden witnesses--
undercover agents, cooperating witnesses, confidential
informants--and they legitimately fear for their safety. There
is the big ``Stop Snitching'' campaign out there to show
community hostility to working with the government, and in New
Jersey and other jurisdictions with broad discovery, witness
threats have become serious problems, witness tampering.
The bill does allow a safety valve. It would require
prosecutors to jump through hoops, so I am not sure that would
take care of it. But even the safety valve is only limited to
threats to witness safety. It makes no provision for witness
influence to shade their testimony, to bribery of witnesses, no
provision for keeping undercover agents' and confidential
informants' identities secret so they can continue to work
undercover and provide information for future cases.
One of the major reasons why prosecutors plea bargain is so
that they can preserve the confidentiality of an informant who
will continue to penetrate organized crime or some other big
organization. That is an important quid pro quo for plea
bargaining concessions. It takes a lot of time, a lot of money,
and a lot of risk to infiltrate these organizations. And the
prosecution should not have to burn the informant the first
time it makes a case or bring the entire organization down at
once. If they had to do that, they would be much less willing
to offer concessions, and they would be much less able to
prosecute many gang conspiracy and organized crime cases.
So, in short, I applaud the Committee's work. I think it is
focusing on an important problem. But I fear that the bill
distracts attention from the root problem, and if it is not
amended to take care of these victim and witness concerns, it
would cause some serious harm.
[The prepared statement of Mr. Bibas appears as a
submission for the record.]
Senator Coons. Thank you, Professor Bibas. Thank you, Ms.
Brook. We will begin five-minute rounds of questions.
Ms. Brook, if I might, first, thank you for your many years
of service in the Federal Defender Program. Could you describe
from your experience as the chief appellate attorney of the
Federal Defender Program in the Northern District your
experience of the difficulty seeking meaningful recourse on
appeal following a prosecutor's failure to disclose exculpatory
evidence?
Ms. Brook. Well, you really cannot raise that on appeal
because you do not have the evidence. You have to go all the
way through the appellate process and then come back down and
file a habeas corpus petition and then do the investigation to
present the evidence into the record. So we are talking about,
first of all, some length of years and, second of all, an
entirely new investigative process, which is not only time-
consuming but costly. And then the standards are, of course,
much more difficult to meet on an appeal from a habeas corpus
petition than a direct appeal.
Senator Coons. Mr. Cole testified that Brady should not be
augmented by statute and pointed to the very extensive training
the Department of Justice has put in place and the higher
standard they meet than the Brady obligations and argued
repeatedly that the disclosure standard that the Department
currently complies with goes beyond Brady obligations. In your
statement to us, you suggested you have a different view. How
do you see this?
Ms. Brook. Well, I see it in two ways. One, we see cases
all the time where we are not receiving whatever Brady material
is out there in those cases that we know about it. Now, Senator
Sessions, I would just say in response to your earlier comment,
some of those may not seem like significant pieces, but in the
context of the hundreds and hundreds of cases that we see that
are not the Ted Stevens case or a mob case but a much smaller
immigration case or a drug case, that can make the difference.
It can be a witness who could not see as well or who was not
wearing their glasses that does make the difference truly in a
case where there are only two witnesses and my client talking
about some relatively small drug deal, which make up the
majority of cases that we see in federal defender offices and
the majority of cases that are prosecuted are represented by
federal defenders. I think the number is 85 percent across the
country.
The U.S. Attorneys' Manual, as I read it, in answer to the
second part of your question, starts out as a narrower reading
of Brady. It talks actually, as Professor Bibas talks, about
this idea of classic Brady and impeachment material under
Giglio. That is not something that I think the law supports. I
think the law is Brady, is Brady and Giglio impeachment
material, is a part of Brady. It could be that the impeachment
of a witness is the key. Indeed, in the capital cases that the
Supreme Court hears on discovery, such as Kyles v. Whitley,
that is what they find, that it was the impeachment material
that was withheld that made the difference between whether that
defendant was sentenced to death or not.
Senator Coons. Would you, Ms. Brook, support a duty for
prosecutors to certify to the court what they have done in
order to identify Brady material?
Ms. Brook. To certify to the court.
Senator Coons. And would that be sufficient to make some
real progress on this compliance issue?
Ms. Brook. If I had a preference, I would prefer to see the
statute that would put the onus on them rather than to have
them bring a certification to the court. I think that might
cause some, I guess I would say, bad feelings between the
prosecutors and the court, which I would not like to see. My
preference would be for this body to create legislation that
would apply to everybody and send a signal to everybody. I
mean, Congress knows better than anybody the importance of
passing a law, not to catch the law breakers but to prevent the
law breakers, and that is what I think would make a difference
here.
Senator Coons. Thank you, Ms. Brook.
I will yield to Senator Sessions.
Senator Sessions. Thank you. You know, you told the story
of Judge Newman. Maybe the prosecutors were sleeping when he
asked them to raise their hand. Maybe they did not bother to
raise their hand. But that is obvious----
Ms. Brook. That is what he said.
Senator Sessions. There is no question about it--well, I am
just saying I do not think the story is that valuable. It was
1968, also, so I do not want to--I am just saying today I do
not think any prosecutor faced with that choice would withhold
evidence that he had an eyewitness that said this was not the
guy. Do you disagree with that?
Ms. Brook. I do disagree with that.
Senator Sessions. Well, I think the prosecutor should be
fired on the spot.
Ms. Brook. Well, I would agree with that. But I do not
think that is what happens, and I think it is the materiality
that makes that so difficult because----
Senator Sessions. Well, it could be. They talk about the--
--
Ms. Brook [continuing]. It gives them a whole different----
Senator Sessions [continuing]. Glasses. You know, if you
know that there is a key eyewitness and you know they do not
have good eyesight and you know they did not have their glasses
on, that has to be disclosed. Wouldn't you agree, Mr. Bibas? It
is not a question. It should not take 30 seconds to give that
any thought.
Mr. Bibas. Absolutely.
Ms. Brook. And I wish the government prosecutor was like
you----
Senator Sessions. I do not think--I think you are
exaggerating the willingness of prosecutors not to disclose. I
am just telling you. You and I can disagree, and I respect your
opinion, but I do not agree on that.
Now, what about, Mr. Bibas, in the Murkowski legislation--
we had a defense lawyer write the Committee, a defense lawyer,
saying that eliminating the materiality requirement, which I
think the Murkowski bill tends to do, ``could lead to new
trials and reversals in cases even where error results in no
prejudice to a defendant and would have no impact on the
case.'' Do you agree that that problem with the Murkowski bill?
Mr. Bibas. It is hard to know whether the materiality
change would make a difference or not when it interacts with
the harmless error standard that the bill preserves. I actually
tend to think that, you know, it looks like a change in the
form of words. It probably would not matter that much. It could
wind up----
Senator Sessions. Because it preserves the harmless error.
Mr. Bibas. It preserves the harmless error rule. The place
where it would matter is in those cases in which a defense
lawyer had the evidence and did not make a timely objection. In
that situation, it is possible to read the harmless error rule
in here as undercutting the requirement that a defense lawyer
make a timely objection or else suffer a more demanding plain
error standard. So it could get in the way of resolving the
issue early on, but it is really hard to tell how it is going
to interact with the harmless error rule.
Senator Sessions. Well, I know judges and courts analyze it
on the basis of, you know, is it material, is it a matter not
relevant to the guilt or innocence of the defendant. And I
think you do have differences of opinion about where to draw
that line. At some point a judge gets to call the question. But
I do not think that is the final thing.
I am just aware of some big cases that go to trial rapidly.
Sometimes you have computer access documentation of massive
amounts, and so I worry about charges of prosecutorial
misconduct when it is simply that may be a young prosecutor
doing the best they can do, just did not fulfill the
responsibility either from lack of time, lack of insight to
realize this could be a problem, that this might be something a
defense lawyer would come up with as part of the defense.
So I guess there is some problem or dangers there, but I
believe that there are more--that prosecutors are hammered
constantly over this question. Almost every case that you have
large complaints about, you know, anything that is close to a
Brady violation is raised. So most prosecutors that have much
experience are pretty well informed about what they should
produce and what they should not.
Ms. Brook, would you--I will give the two of you a right to
comment on that.
Ms. Brook. Well, in cases that I have laid out in the
written testimony, there are a number of cases--small cases,
not these big cases--where prosecutors have not turned over
evidence that seems to me--fingerprint evidence, for example--
to be clearly exculpatory, as you say, and yet it was not
turned over.
Senator Sessions. Is that like there was no fingerprint on
the counter where a robbery occurred?
Ms. Brook. It was the fingerprint of the investigating
agent in a case where the defense was, ``I, the defendant, did
not touch it. Somebody else must have put the drugs there.''
And it turned out that actually somebody else did have access
to the piece, but he did not know it.
I am not saying, Senator, that all these prosecutors are
deliberately sneaking around withholding evidence. I do not
believe that. But I believe the standards are so muddled and
the internal kind of non-disclosure culture that has developed
would change if there was a higher ruling that said this is
what the United States declares.
Senator Sessions. Professor Bibas.
Mr. Bibas. Yes, Senator Sessions, I think you are right.
There are young prosecutors, and they do not always know how to
look at things, but I think it is dangerous to view this as a
matter of a few bad apples. I also think there are false
charges that get thrown around. And fundamentally, I think it
is an issue of culture and systems, and I just do not see what
changing the standard of materiality is going to do to that.
Fundamentally, when I was a young prosecutor and I look back
and I say, gee, I should have turned that over under Brady, it
was because I--and I can think of a specific case. I just did
not see this the way that the lawyer on the other side saw his
defense. And I think one thing that is very atypical about
Stevens is there is an internal memo in Stevens where the
prosecutors knew exactly what the Stevens defense was going to
be, and it was very clear how this plugged into that. But you
cannot write a bill based on the Stevens case that is going to
apply to a whole bunch of cases where the real problem is the
young prosecutors who have not dealt with a lot of defense
lawyers or do not see things that way do not see the evidence
that way. I mean, partner them up with senior prosecutors,
maybe some of them who have served some time on the defense
side. Maybe there is a way to get the defense to voluntarily
provide some of its theory of the defense so that in time the
prosecution can see, oh, this relates to the idea that the
contractor had folded this into his bills. But it is much more
complicated than just putting a set of words on paper and
saying getting rid of the materiality requirement is going to
change what is a failure to see things in the first place.
Senator Sessions. Thank you.
Senator Coons. Thank you, Senator Sessions.
If I might just follow up on that specific line of
questioning, if I remember correctly, in the Schuelke report,
there is a reference to a Stevens prosecutor defending his non-
disclosure of a statement that would corroborate the Stevens
defense by stating that it never crossed his mind that Brady
required disclosure, and I think that reflects what you are
suggesting about just the difference in mind-set and how
prosecutors and defense attorneys look at evidence. And should
this cause us to doubt whether Brady is sufficiently clear in
what it demands of prosecutors? In short, is the core issue
here a lack of clarity in how to interpret what constitutes
Brady material or a failure to adhere to Brady standards? Both
of you, if you would, please.
Mr. Bibas. I think it is more foundational than that. If it
were unclear, people would be running around, wondering, asking
questions. I just do not--the ``never crossed his mind'' I
think is about just the tunnel vision. There is a psychological
tunnel vision that when you are too invested in a particular
theory and you are rushing to trial and this case is under very
tight time pressure, you know, you do not step back. And I
think a second opinion is what doctors do for that, right? But
there is not a mechanism for a second opinion for someone else
more seasoned to step in and say, well, here are the strengths
and weaknesses. Maybe you need a pause or a little more time in
the cases that are going to trial to really look at it the way
that they will. But I do not think that that has to do with the
wording of the standards. You know, training and culture and
those other things could help with that, but it is a more
complex problem than I think the bill grapples with.
Senator Coons. So, in an article that you published, I
think, in Northwestern Law Review, you suggest the problem is
skewed priorities and metrics of success rather than
underfunding or other proposed factors. Are you implying
prosecutors are fully capable of complying with Brady but do
not do so just because in their career paths and in their
operating environment they just do not place enough emphasis on
it?
Mr. Bibas. I think some of that is conscious and a lot of
it is unconscious. I think a lot of it is just the way their
worldview has been shaped. In England, generally people do not
specialize in being prosecutors or defense lawyers. Barristers
do some prosecution, some defense. We are not going to require
all prosecutors here to have defense experience, but having a
fraction who do or having a supervisor who does or having to
justify something--it is like a moot court where you get the
hostile questions, and you really test whether your theory
works or holds up under the best cross-examination.
There are other ways to do that, but I do think that you
are right--and in a way I fear that if we stigmatize losses too
much or there are always the occasions for stigmatizing the
prosecutor, you discourage prosecutors from saying, okay, I
dismiss the case. Maybe we want to celebrate the prosecutor who
dismisses the case, loses the case, because he turned over the
evidence. And if every acquittal is an occasion for saying, oh,
this prosecution should never have been brought, the risk is
that there will be more pressure to win or to be so risk averse
that everything winds up in generous plea bargaining, because
there are a lot of moving parts here. So I am reluctant to
say--I am reluctant to put my finger on one thing as the easy
solution, but you are right, the metrics, the incentives, the
worldview are connected here, and DOJ has to make a point of
rewarding and praising the people who maybe do not do
everything that they can do to win a case.
Senator Coons. So if the main thing that Mr. Cole points to
is policies, training, compliance, access to more seasoned
attorneys in close calls, would you suggest, Professor, not the
adoption of this new statute and the imposition of new
statutory standards but instead some voluntary action by the
Department of Justice to change or strengthen their recognition
and training procedures so that those who fully comply yet lose
the important case as a result, those who are less willing to
focus on the win-loss record and more willing to invest time in
mentoring more junior attorneys ought to be celebrated and that
would be the better path forward?
Mr. Bibas. Yes, I think----
Senator Coons. Is that what I hear you suggesting?
Mr. Bibas. I think that--and I think this Committee could
play a role in oversight and just communicating that, you know,
if the Department wants to prove that it is capable of self-
regulation, the Committee is going to want to see progress on
those fronts. And I think they are better at self-regulating
than maybe just a piece of legislation in the first instance,
assuming the Department is making good-faith efforts. And when
you look at states like Florida and New Jersey, actually,
prosecutors in those states have adopted self-regulation to
head off legislative reforms and have been able to come up with
more careful, more subtle metrics than maybe just writing a
piece of legislation in the first instance could do.
Senator Coons. Let me in closing on my part--has Senator
Sessions left? Okay. If I might just as a last question, both
of you highlighted the importance of the predominance of
federal cases being resolved through plea bargains. Your
closing comments, if you would, on the impact of insufficient
disclosure of potentially exculpatory evidence on the plea
bargain process and the question I had for Mr. Cole about the
Ashcroft memo and whether or not the approach of the Department
ought to be, as it is now, to allow some consideration of
individual case factors in order to avoid being overly rigid in
terms of plea bargaining and its interaction with Brady
disclosure, some comments on how do we ensure plea bargaining
is being done fully appropriately.
Ms. Brook. Well, as I said in my written testimony, I think
especially in light of the most recent Supreme Court decisions,
the idea that we will receive adequate discovery, including
Brady discovery, prior to a plea is going to be mandatory. We
are going to be required as defense lawyers, as all good
defense lawyers have always tried to do in the past, to
understand as much about the case and as much about the
prosecution's evidence as we can to knowingly advise our
clients whether or not it makes sense to plead, not just
because either you did it or you did not, but because of a
whole host of factors, including what the risks are, which we
generally do not know now, although in my view we should know
now, and certainly under the law that the Supreme Court has put
down, we must know now.
So I think this idea that we will have to have more
discovery prior to plea is already going to be mandated by the
Supreme Court and, as you point out, is required for us to
actually make any kind of reasonable assessment of what to tell
our clients and whether they should plead.
I agree with you on your second point as well that--and
they have backed away from the Ashcroft memo. They do more
individual decision making now on what is a reason to plead. So
we are not always told you must plead to only the highest
possible statute that we can prove. But there would be some
room--like under the Sentencing Guidelines, there would be some
room for some more breadth of consideration.
Senator Coons. Thank you, Ms. Brook.
Professor Bibas, I thought you raised in your testimony
some particularly interesting points about the potential
threats or risks of compromising confidential informants,
potentially risking witness intimidation or inappropriate
persuasion. Your comments--and this will be the last--on how to
ensure that plea bargaining is being done appropriately and
that there is accelerated disclosure that is relevant.
Mr. Bibas. I think it is a very important point, and I am
glad that the Committee focuses on it. I will talk generally
about the plea bargaining issue and then specifically about the
Ashcroft and Holder memos.
The general point is I think I have a different emphasis
from Ms. Brook, in part, because the Supreme Court itself
unanimously in the Ruiz case said, you know, when it comes to
impeachment evidence, when it comes even to affirmative defense
evidence, they said this is--it is not the central factor for a
defense in weighing the evidence. I think defendants would like
to have a picture of the prosecution's case, but they do not
get the incriminating evidence, which is what they would really
need to weigh it. And in the ordinary case, that probably does
not matter too much because in the ordinary case the defendant
knows whether he did it or not and has a general idea as to
what the likely evidence is going to be against him, especially
assuming that he did do it. There are some special cases, but
they are not going to be a huge fraction.
I agree that the classic Brady exculpatory material is
important to keep innocent people from being bluffed into
pleading guilty. But as I said, the Department of Justice
policy and what I taught and what I observed consistently as a
prosecutor was the classic exculpatory material gets turned
over as soon as you get it, and it is about whether you should
be able to bargain over a concession in exchange for keeping
your witnesses confidential, and that strikes me as a
legitimate tradeoff as long as we do not have any of that red-
flag classic Brady material. And I do think the Court in Ruiz
treated that differently from Giglio material.
Now, on to your specific point about the change from the
Ashcroft to the Holder memos, I think it is a good one. My
understanding of the way that the Ashcroft memo was interpreted
in practice is that you could always drop the top charge if
there were genuine doubts about the likelihood that it would
result in a sustainable conviction. So if you had a good-faith
Brady argument, that itself you could use as your rationale for
dropping the top charge and pleading it down from, you know, a
high-level conspiracy to a low-level conspiracy or something
like that.
So I think in practice that was never barred, and what the
Holder memo does only serves to underscore that prosecutors
have some flexibility that way. And there are costs and
benefits, and that is beyond the scope of this particular
panel. But I do think it important that in plea bargaining it
be clear to prosecutors that when there is a good-faith doubt
about Brady material, et cetera, that that should not be viewed
as something they have to push ahead. I tend to think that is
already covered by the Holder memo, certainly, and even by the
Ashcroft memo, but that is something DOJ could underscore
internally as well.
Senator Coons. Thank you. Thank you, Professor Bibas. Thank
you, Ms. Brook. Thank you for your service. Thank you for your
contribution to this hearing today.
We will keep in the Committee the record open for a week
for those Members who had other hearings and were not able to
attend or have questions they would like to submit to any of
today's witnesses for the record. But other than that, this
hearing is hereby adjourned.
[Whereupon, at 12:35 p.m., the Committee was adjourned.]
A P P E N D I X
Additional Material Submitted for the Record
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Prepared Statement of Committee Chairman Patrick Leahy
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Prepared Statement of Ranking Member Chuck Grassley
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Prepared Statement of Hon. James M. Cole
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Prepared Statement of Carol A. Brook
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Prepared Statement of Stephanos Bibas
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Questions submitted by Senator Grassley for Hon. James Cole
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Questions submitted by Senator Hatch for Hon. James Cole
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Questions submitted by Senator Grassley for Carol A. Brook
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Questions submitted by Senator Grassley for Stephanos Bibas
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Responses of Hon. James Cole to questions submitted by Senators
Grassley and Hatch
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Responses of Carol A. Brook to questions submitted by Senator Grassley
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Responses of Stephanos Bibas to questions submitted by Senator Grassley
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Miscellaneous Submissions for the Record
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