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Making Prosecutors Share: Stevens' Case Prompts Bill

The story of the botched corruption case against the late Alaska Sen. Ted Stevens is coming to a close, but aftershocks from the government misconduct that doomed his prosecution are still playing out in courtrooms all over the country.

This week, Stevens' former colleagues introduced legislation in Congress that would force federal prosecutors to share favorable evidence with defendants. Defense lawyers are using the disaster to their advantage, too.

"A criminal prosecution is the single most awesome use of government power short of warfare," Norman Reimer said this week. It's not unusual for Reimer, the head of the National Association of Criminal Defense Lawyers, to warn about the dangers of Justice Department overreach. Prosecution, he said, "is not a game, it is not a hunt, it is not sport."

What made Reimer's remarks extraordinary was where he made them: in the U.S. Capitol, flanked by senators from both political parties and a wide array of interest groups.

They had all gathered to support the new bill that would require prosecutors to share more evidence with defendants, as soon as it comes to their attention — or face sanctions from a trial judge.

Republican Sen. Lisa Murkowski of Alaska, a close friend of Stevens, led the effort.

"This bill is not about seeking vindication for Ted, it's about learning vital lessons from the Justice Department's failure," Murkowski said.

Murkowski timed her bill to debut on the same day a special prosecutor issued the devastating report that detailed failures by the Justice Department to turn over evidence that might have helped Stevens win his case. His conviction was dropped in 2009, but not before it cost him his Senate seat.

Ever since department leaders abandoned the case in 2009, when hints of the wrongdoing began to come to light, defense lawyers have been raising arguments about prosecutors' failure to share favorable material in average cases involving ordinary people — not just a U.S. senator.

For the first time in a long while, judges are listening.

Over the past year, they've erased corruption verdicts against Alaska state house politicians and a manufacturing company, former prosecutor Peter Zeidenberg points out.

"It does have something of a snowball effect, where judges become more sensitive to this," Zeidenberg says.

The Justice Department says it's created sweeping new training programs to remind prosecutors of their legal obligations. Government lawyers are supposed to share evidence that would help a defendant prove he's not guilty or cast doubt on the witnesses against him.

But voluntary steps by the Justice Department are not enough, according to American University law professor Cynthia Jones. "It's sort of on the honor system, and that's a problem," she says.

The judge who heard the Ted Stevens case, Emmet Sullivan, tried to get a special panel of judges and lawyers to change the rules for federal criminal cases and make prosecutors' responsibilities more clear, but the Justice Department opposed the plan and it went nowhere.

"We've urged the Justice Department to implement a consistent policy nationwide," says Carolyn Lamm, a past president of the American Bar Association. "They have not done so."

So the U.S. Senate, where Stevens spent 40 years, entered the breach.

"No amount of reform can guarantee that prosecutors will not lie and cheat as they did in his case, but this legislation ... would go a long way towards making it much less likely that it happens in the future," says Rob Cary, who helped defend Stevens.

For its part, the Justice Department says it has significant concerns about how the legislation would affect victims and witnesses. Longtime court watchers like Zeidenberg say they're not sure it will change how prosecutors operate.

"It's just an inherently difficult decision for a prosecutor to make because you're obviously biased," Zeidenberg says. "You believe this defendant that you're prosecuting is guilty or you wouldn't be doing it. So you're looking at this evidence through a lens."

That's why some lawyers believe the best way to move on from the Stevens debacle is to force prosecutors to open all their files to defendants before a criminal trial begins.

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