[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

                              ----------                              

                    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 
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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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