Due Process Protections Act

Floor Speech

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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.

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.

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