Stuart Gerson, a Member of the Firm in the Litigation and Health Care & Life Sciences Practices in the Washington, DC and New York offices, was interviewed on misconduct by Justice Department prosecutors in the case against former Senator Ted Stevens of Alaska and the Justice Department’s issuance of three memos guiding prosecutors in dealing with exculpatory evidence.
Gerson said the memos are a good start.
“They did the right thing,” Gerson said. “But it’s not enough. There is a working group formed under the aegis of the American Bar Association. It’s similar to the one we had with regard to attorney client privilege. That one involved the ACLU, the ABA, the Chamber of Commerce. It was across the board. We are seeing a similar effort with regard to disclosure of exculpatory information. And it even involves judges. There are several federal judges and a number of state judges who are involved in this working group. And it very well could lead to legislation.”
In early January, Deputy Attorney General David Ogden issued memo for federal prosecutors setting out standards for handling evidence.
“The pronouncements in these Ogden rules are helpful,” said Gerson. “They instruct the prosecutors to disclose exculpatory information in a timely fashion. But they don’t go far enough.”
Gerson pointed out that the policy differentiates exculpatory evidence from the situation in which a witness contradicts himself and provides impeachment material, where prosecutors are instructed to govern disclosure by the Jencks Act.
“Theoretically, if the witness is not going to be called, the contradictory information may never be disclosed. That is a weakness in the policy and it needs to be addressed,” said Gerson.
“The Stevens case is a classic example of showing why contradictions in witness interviews of a material nature are just as exculpatory as other evidence,” he added.
“There is more to do. I certainly applaud what the Department has done. It is an attempt to address some of these issues. But it doesn’t go far enough.”