Allegations of prosecutorial misconduct recently reverberated across the country during the federal prosecution of former Alaskan Senator Ted Stevens and threatened to undermine the public's confidence in the criminal justice system.
The presiding judge, the Honorable Emmet G. Sullivan (appointed by President Clinton in 1994) excoriated the U.S. Department of Justice's prosecutors, declaring, "[a]gain and again, both during and after the trial in this case, the Government was caught making false representations and not meeting its discovery obligations." United States v. Stevens, Criminal Action No. 08-231(EGS) (D.D.C.), Mot. Hr'g. Tr. 4 (Apr. 7, 2009).
Judge Sullivan further observed that he had "never seen mishandling and misconduct" like what he saw from the Justice Department prosecutors in the Stevens case. Id. at Tr. 3. As a final blow, Judge Sullivan dismissed the conviction and took the extraordinary step of naming a special prosecutor to investigate the conduct of the prosecutors.
In the aftermath, Attorney General Eric Holder acknowledged that mistakes had occurred: "After careful review, I have concluded that certain information should have been provided to the defense for use at trial." See Statement of Attorney General Eric Holder on Stevens Case, U.S. Department of Justice, April 1, 2009.
Following the dismissal of the indictment, a working group in the Justice Department was charged with reviewing the Department's policies, practices and training related to criminal case management and discovery and recommending areas for improvement.
Based on this group's efforts, Deputy Attorney General David W. Ogden issued a Jan. 4, 2010, Memorandum (the "Ogden Memo"), that provides guidance to prosecutors on meeting criminal discovery obligations and establishes minimum considerations for prosecutors in every case.
Specifically, it provides federal prosecutors with a framework to "avoid lapses that can result in consequences adverse to the Department's pursuit of justice." See David W. Ogden, Deputy Attorney General, Memorandum for Department Prosecutors, Guidance for Prosecutors Regarding Criminal Discovery, Jan. 4, 2010 at 1.