[Congressional Record Volume 166, Number 96 (Thursday, May 21, 2020)]
[Senate]
[Pages S2611-S2613]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      DUE PROCESS PROTECTIONS ACT

  Mr. SULLIVAN. Mr. President, I will speak now about the Due Process 
Protections Act, which was sponsored by myself and Senator Durbin from 
Illinois and which passed the U.S. Senate last night unanimously. I 
thank my colleagues for their support for this simple but important 
bill.
  In fact, the Due Process Protections Act is so simple that it really 
probably shouldn't be necessary, but believe me, it is necessary. 
Unfortunately, it is necessary. I was pleased that this body passed it 
last night.
  Let me explain. The due process clause of the U.S. Constitution, as 
interpreted by the U.S. Supreme Court in the landmark decision, Brady 
v. Maryland, requires that prosecutors turn over all material evidence 
favorable to the defense. That is what a fair trial is about. If the 
prosecutor has exculpatory evidence, as we call it, you need to make 
sure the defense has it. This is such a bedrock element of our criminal 
justice system and constitutional due process that the name of this 
kind of evidence is simply now called ``Brady evidence'' after the case 
Brady v. Maryland.

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  Now, the vast majority of Federal prosecutors--and, by the way, FBI 
agents--who work in our criminal justice system are patriots. Many are 
veterans, and they work day in and day out to keep us safe and abide by 
their constitutional duties and obligations. They do turn Brady 
evidence over to the defense, as they are required to do by the 
Constitution.
  The sad fact is, some prosecutors don't do this. Some choose instead 
to win at all costs by taking shortcuts--not justice, but shortcuts. 
And when I say shortcuts, I am talking about violating a defendant's 
constitutional rights. The prevalence of these violations is not easy 
to quantify--these Brady violations, as we call them.
  One study--and I am not vouching for the accuracy, and this was a 
study called the National Registry of Exonerations--stated that from 
1989 to 2017, prosecutors concealed exculpatory evidence at trial in 
half of all murder exonerations. If that statistic is even remotely 
true, it is outrageous and needs to stop.

  Such potential Brady violations have, once again, been in the news 
with the prosecution of former National Security Advisor Michael 
Flynn--GEN Michael Flynn. There are all kinds of articles now out 
there. I recently wrote the head of the FBI on this very issue about 
the potential Brady violations by Federal prosecutors that appear to 
have taken place in this prosecution. What that has done in my State is 
that it has opened old wounds--old wounds--and difficult memories.
  My colleagues here--every single one of them--remember the late, 
great Senator Ted Stevens of Alaska. As a matter of fact, his portrait 
is right off of the Senate floor, an incredible new portrait that we 
just put there recently. He was charged by Federal prosecutors with 
making false statements and was convicted prior to his reelection, 
which he lost because of the conviction by prosecutors.
  Not long after the conviction, it started to become apparent that 
there was prosecutorial misconduct in that very high-profile case, so 
the trial judge in that case appointed a special prosecutor to 
investigate this. There was a report that came out in 2012 by the 
Justice Department, by the special prosecutor, that was highly critical 
of the prosecutors' and the FBI's conduct. In particular, they withheld 
all kinds of Brady evidence.
  Just 6 months after Senator Stevens' conviction, it was revealed that 
Federal prosecutors had concealed numerous pieces of evidence that very 
likely could have resulted in his acquittal. Among the more egregious 
examples--and there were many--rather than call a witness whose 
testimony would have supported Senator Stevens, the government flew the 
witness home to Alaska. That is pretty pathetic.
  The prosecution also concealed that its star witness, who was 
testifying against Senator Stevens, had an illegal sexual relationship 
with an underage woman whom he had asked to lie about the relationship. 
And to this day--to this very day--there are still questions about 
whether the Federal Government offered that star witness, in exchange 
for his testimony, leniency on not prosecuting him for violating the 
Mann Act. There are still questions to this day.
  The special prosecutor that the district judge appointed to 
investigate the prosecutorial misconduct in the Stevens case found that 
the Justice Department lawyers had committed ``deliberate and 
`systematic' ethical violations by withholding critical evidence 
pointing to Senator Stevens' innocence.'' That is the Justice 
Department special prosecutor determining just how corrupt the Justice 
Department was in prosecuting and convicting Ted Stevens.
  Yet the special prosecutor, who investigated all of this also, found 
that the district court judge was powerless to act against the 
wrongdoers--the corrupt prosecutors--because the district court had not 
issued a direct, written court order at the beginning of the trial, 
requiring the prosecutors to abide by their ethical and constitutional 
obligations as laid out in Brady v. Maryland.
  It is a bit remarkable because every law student knows you learn 
Brady v. Maryland the first year of law school. But somehow these 
prosecutors across the street over at the Justice Department forgot 
about it, and they were going to be punished. But the system of justice 
said that you couldn't punish them because they didn't know because the 
judge didn't tell them.
  Again, I am not sure we even need a law to deal with this, but, as I 
said, unfortunately, we do.
  As you can imagine, it was maddening to the people of Alaska that 
those who violated Senator Stevens' constitutional rights--and, by the 
way, forever changed the political landscape, not just in Alaska but in 
America; don't get me going about what happened there--these 
prosecutors couldn't even be held accountable and were not held 
accountable because they weren't instructed by the district court about 
the Brady evidence requirements that they learned in law school in 
their first year.
  So in response to the Stevens case and due to growing concerns about 
the unfortunate frequency of Brady evidence violations by prosecutors, 
a number of Federal district judges began issuing specific local rules 
or standing orders that explicitly remind prosecutors of what they 
learned their first year of law school, which is that you have to turn 
over Brady evidence.
  But the Federal Judicial Conference's Advisory Committee on the Rules 
of Criminal Procedure--so, essentially, the judges who advise on the 
rules--has consistently declined to require all Federal courts to do 
the same. So right now, all Federal courts don't have to issue 
instructions on Brady evidence.
  Well, today, Congress is beginning to change all of this. My bill, 
which passed last night unanimously--the Due Process Protections Act--
codifies this practice and requires it of every Federal judge 
nationwide by amending rule 5 of the Federal Rules of Criminal 
Procedure to require that a judge ``issue an oral or written order to 
prosecution and defense counsel that confirms the disclosure obligation 
of the prosecutor under Brady v. Maryland . . . and its progeny''--that 
is quoting from my bill--at the beginning of every criminal case.

  Our bill allows each judicial district flexibility to promulgate 
their own model rule, but they have to do it. Congress is telling them 
they have to do it, so they will do it.
  Having this standing order in place will explicitly remind the 
prosecution of their obligations--making it a priority to protect the 
due process of all Americans, including defendants--and it will provide 
for quicker recourse upon discovering any Brady violations that occur.
  We obviously can't undo what happened to the late, great Senator 
Stevens, nor can we undo all the harm it caused to my State, my 
constituents, and, really, the people across America who have also been 
victims of these kinds of violations because it undermines trust in our 
system of justice. But going forward, we can work to stem the corrosive 
effects to our democracy when prosecutors don't abide by their 
constitutional obligations. We can work to ensure our system of 
justice--the foundation of American democracy--is stronger and fairer 
for all, and that is what the Due Process Protections Act will do.
  I want to thank chairman of the Judiciary Committee, Lindsey Graham, 
for helping to facilitate this bill's passage; my colleague Senator 
Durbin, who was my original cosponsor of this bill; and the other 
cosponsors: Senators Lee from Utah, Booker from New Jersey, Cornyn from 
Texas, Whitehouse from Rhode Island, and Paul from Kentucky. I say to 
the Presiding Officer, you know those Senators. That is about as broad 
a political array in terms of the political spectrum in America and the 
U.S. Senate--Democrats and Republicans who believe in this issue, and 
that is why I think it is so important.
  Our system of justice will be fairer once that bill passes the House 
and is signed into law by the President. I just want to thank my 
colleagues--all of my colleagues--who voted for this necessary and 
important and simple piece of legislation that, unfortunately, we need 
in America today.
  I yield the floor.

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