The institutional commitment to justice is an obligation and hallowed tradition that guides this Department of Justice. It is this commitment and the importance of ensuring trust and confidence in the work of federal prosecutors that led Attorney General Eric Holder to take the extraordinary step of moving to dismiss the case against former Senator Ted Stevens in 2009 when errors were discovered. And it is this commitment and the need to ensure that the mistakes in the Stevens case would not be repeated that led the Attorney General to order a review of discovery practices and the development of recommendations for improving such practices so that errors would be minimized going forward.
The result was a sweeping new training curriculum and additional resources for prosecutors, agents and paralegals across the United States as part of an unprecedented overhaul taken by the department in the last three years since the Stevens case was dismissed.
As outlined in a statement for the record submitted today to the Senate Judiciary Committee (PDF) within days after the Stevens case was dismissed in April 2009, the Criminal Discovery and Case Management Working Group was created to review the department’s policies, practices and training concerning criminal case management and discovery. Our comprehensive review of discovery practices identified some areas where the department could improve, and we have undertaken a series of reforms which have since been institutionalized.
In January 2010, the Office of the Deputy Attorney General issued three memos to all criminal prosecutors that provide overarching guidance on gathering and reviewing potentially discoverable information and making timely disclosure to defendants; they also direct each U.S. Attorney’s Office and department litigating component to develop additional, district- and component-specific discovery policies that account for controlling precedent, existing local practices and judicial expectations.
Later in January 2010, the Deputy Attorney General appointed a long-serving career prosecutor as the department’s first full-time National Criminal Discovery Coordinator to lead and oversee all department efforts to improve disclosure policies and practices and provide prosecutors with key discovery tools such as online manuals and checklists. These efforts have included:
- All federal prosecutors are now required to undertake annual discovery training. Roughly 6,000 federal criminal prosecutors across the country – regardless of experience level – receive the required training annually on a wide variety of criminal discovery-related topics. Since 2010, the department also has held several “New Prosecutor Boot Camp” courses, designed for newly hired federal prosecutors.
- Discovery training requirements are now specifically outlined in the United States Attorney Manual (USAM § 9-5.001), which was amended in June 2010 to make training mandatory for all prosecutors within 12 months after hiring, and requiring two hours of training on an annual basis for all other prosecutors.
- In 2011, the department provided training to more than 26,000 federal law enforcement agents and other officials – primarily from the FBI, DEA and ATF – on criminal discovery policies and practices. The department is currently developing annual training for these agents.
- In late February 2012, the department held “train-the-trainer” programs to begin training the next round of federal law enforcement agencies.
- The department has held several Support Staff Criminal Discovery Training Programs and has produced criminal discovery training materials for Victim/Witness coordinators.
- A Federal Criminal Discovery Blue Book – which comprehensively covers the law, policy and practice of prosecutors’ disclosure obligations – was created and distributed to prosecutors nationwide in 2011.
- The department developed – in collaboration with representatives from the Federal Public Defenders and counsel appointed under the Criminal Justice Act – ground-breaking criminal electronically stored information (ESI) protocol. The protocol was distributed to prosecutors, defense attorneys and members of the federal judiciary in February 2012. It is designed to:
- promote the efficient and cost-effective production of ESI discovery in federal criminal cases;
- reduce unnecessary conflict and litigation over ESI discovery by encouraging the parties to communicate about ESI discovery issues;
- create a predictable framework for ESI discovery; and
- establish methods for resolving ESI discovery disputes without the need for court intervention.
- To ensure consistent long-term oversight of the department’s discovery practices, the National Criminal Discovery Coordinator position was made a permanent executive-level position in the Office of the Deputy Attorney General.
While even one instance of misconduct is one too many, department statistics show that these instances are extremely rare. Over the past 10 years, the department has filed over 800,000 cases involving more than one million defendants. In the same time period, only one-third of one percent (.33 percent) of these cases warranted inquiries and investigations of professional misconduct by the department’s Office of Professional Responsibility. Less than three-hundredths of one percent (.03 percent) related to alleged discovery violations, and just a fraction of these resulted in actual findings of misconduct.
The Attorney General recognizes the importance of ensuring trust and confidence in the work of department prosecutors. In 2009, the department took the extraordinary step of asking the court to dismiss the Stevens case, which the department has said was deeply flawed. This one case does not, however, represent the work of federal prosecutors around the country who work for justice every day.
Prosecutors and other law enforcement officials must recognize their obligations under these rules, apply them fairly and uniformly and be given the tools to meet their discovery obligations rigorously. This is what the department has done since the Attorney General directed the dismissal of the conviction 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.
For more information, download the full Statement for the Record from the Department of Justice to the Senate Committee on the Judiciary Hearing on the Special Counsel’s Report on the Prosecution of Senator Ted Stevens (PDF) .