prosecutors buzing their responsibilities to divulge ecpulpy formion required under y and giglio. how are we to be -- how can we possibly be satisfied with that es citizen know that the department of justice won't abide by similar prosecutorial misconduct in the future? >> first of all, i do not believe, on the basis of our investigation, that what happened in the stevens case is representative of what happens ht the cases b thousands in the department of justice.

secondly, as senator leahy indicated at the outset it was, of course, the attorneyholder, stevens case be dismissed with prejudice while he learned of a portion of the nondisclosure in this case. eric holder did not shirk from that responsibility.i know eric personally and professionally and have for years. likewise, deputy jim cole. likewise, the assistant attorney general of the criminal division, lanny brewer. they are menintegrity.

and i do not believe the stevens case not withstanding that the public should labor under the notion that what happened in the stevens case happens as a matter of course. >> mr. schuelke, i agree with you that the attorney general is entitled to credit for after the fact in inthe charges. unfortunately, the damage to n senator stevens and to the adversarial system of justice had already been done and there's nothing that the attorney general or anyone else could do to undo it. and so i know you -- let me just ask in conclusion, since time is short here. in those instances where the character and integrity and professional responsibility of overcome their desire to win at any cost, is there anything that congress can or should do?

or is there any further action that you would recommend that we take in order to make sure that abuses like this do not occur? because i worry when they do sometimes occur -- i agree with you that in the main prosecutors or honorable people who perform their responsibilities with integrity but in those instances where they do not and they hold this information, as you've said these prosecutors have, how do we protect the integrity of our system of justice? how do we protect our constitution?

>> i do have an opinion. as you know, they have long articulated a pellet standard of review of brady violations. by that standard, the court will not reverse a conviction even in the presence of the concealment of exculpatory information unless the court is able to conclude that that concealment was outcome determined. that is to say it was material to the conviction. and material to the conviction that it would leave one without confidence in the guilty

verdict. from the post hoc stance of the aappellate court. prosecutors take the view pretrial that they are only required what they believe to be material. that is which might ultimately have an adverse affect on the outcome. in a recent, fairly publicized case said no, it is not the prero prerogative, one of the adversaries, to decide before a si single witness has been called to testify, before a jury has been impanelled, before the judge has -- that some

exculpatory piece of information will not be material. that'sn said, at the subject through the wrong end of the telescope. he's absolutely right about that, in my judgment. that makes perfect sense. so need we dothinabout li elim eeliminating so that they are prior to disclose any information which is favorable to the accused, or which would serve to impeach. i know that the department of justice has a strong, contrary

view. namely that there should be legislation to achieve this. by guidance issued by then deputy attorney general in december of 2010, largely inspired by the stevens case, issued guidance which directs the prosecutors to disclose information that's impeachment or that's exculpatory regardless of the standard. in most cases recognizing that we're going to have prosecutors go beyond the requirement of the

law. >> thank you. i'm going to include the written testimony of the department of justice, national association of criminal defense lawyers on discovery reformattoleey weinst >> thank you, mr. chairman. this is pretty awful hearing, frankly. i mean, high quality and thank you for holding it and thank you for your work, but this is some pretty awful conduct by the prosecutors, i think.

just paappalling. i want to ask a couple of questions about how to -- you've just been talking about this, fixing this kinds of problems. one thing i would like to know, first of all, do you think what the prosecutors did is do you think we need to change the law or do you think what they did is already this illegal? >> i think what occurred with this case in a number of instances was in violation of an obligation imposed by the courts. >> right. >> interpreting the constitution so using your term, i would have

to say it's illegal. >> in terms of brady violations and what to do about this -- >> yes. >> you're talking about maybe taking out the eexculpatory par. i understand that the judiciary -- the justice department doesn't want to do that because they're afraid that prosecutor also think anything they've ever done will have to be witnessed against a defendant, that anything negative about them will be exposed in court and make people much more reluctant to testify in court? that's one of the fears of the

justice department, is it not? >> it is. and that's a legitimate concern. >> okay. so, instead of rewriting the law that anything could possibly be exculpatory even if, in their opinion, it isn't material, is there any kind of process that could be set up where a prosecutor could get an advisory opinion about -- an independent advisory decision about a close call under brady? >> when you say independent you mean outside the department of justice? the department of justice has an

officepreo, which is there to entertain questions about the application of the disciplinary rules of the bar to the conduct of the prosecutors. >> as a matter of fact -- >> in other words, if the prosecutor had a question about a brady matter, is there either that board or -- i don't think -- i guess you can't go to the judge? >> you can. >> can you go to the judge? >> you can. if i had an issue where i, again, a federal prosecutor and i said to hmm, i've got this piece of evidence here. i'm not so sure whether i have to disclose this. well, first of all, i was taught you i assistant u.s. attorney, if i had to think about that for more than ten

seconds, turn it over. but if i didn't, i couldex parta submission to the judge in camera and say this is what i to turn this over or not. there are reasons in my view why perhaps i should, but there are reasons why i should not. you, your honor, decide. you're the magistrate. >> that's kind of what i meant. you can go to the judge? >> yes, that's available. and as you might well imagine -- >> i played one in a sketch on tv. >> and i think you did a pretty good job. >> thank you, thank you. that kind of ex-parte meeting

with the judge is cool, it's fine, it's okay? it's kosher? >> it is. >> all of the above. >> okay. and the justice department has a legitimate, meaningful objection to all exculpatory evidence, even if it doesn't seem material, having to be disclosed to the defense, then perhaps there could be some process written into the law saying if you have a question you have to go to the judge and if you didn't go to the judge, you have a big problem? >> yes. yes, that could be done. >> okay. thank you. i'm done with my time. thank you. >> thank you, senator durbin.

>> thank you. thank you for your testimony. judge sullivan stated, and i quote, prosecutorial misconduct were to the degree and extent he has not seen in 25 years on the bench. i assume that's why attorney general holder took the commendable, but rare step of seeking dismissal in the case and not attempting to retry it. but there are some exceptional reasons why we are meeting today. this was a high profile case, involving a united states s senator, one of our colleagues. and extremely conscientious judge presided over this case and took a rare step in pointing an investigator, yourself, who issued a 500-page there was an fbi agent in the case who allegedly spoke out as a whistle blower and raised

allegations of misconduct by the prosecutorial team. in short, this was the furthest thing from the every day criminal trial world even as we meet. the principle of law, constitutional principle, relates to notoriety cases as it does to those. i challenged the department of justice and said now what? now that you know this has taken place, what can you do to make certain it's less likely in the future? d learned our lesson. pardon my skepticism. i'm n because of contest

living that we will ever avoid the inclination oftt i was one ago, to do their -- to proceed to the outcome they're looking for. my question to you -- i have two. one relates to what senator franken asked you. if it happened in this case by the pros kurt was, in fact, illegal wasn't the commission of crime failing to disclose what should have been scloesed in evidence under the brady rule? secondly, if we are really serious about this, don't we have to go further in the department of justice of prosecutors across america? don't we have to enshrine on the law criminal defendant when it comes to this disclosure? a bill has been introduced by

one of our colleagues. i'm not sure thatf you're aware of it. >> i am. >> she talks about exceptions when it comes to this disclosure relating to witness safety, national security and the like. but it really puts a standard that goes to -- basically assume everything is material until proven otherwise or the court notes it. if you were to address those issues, if illegal, what specific crime did the prosecutors commit and, secondly, if there's a lesson to be read here, should the lesson be written into law so that the faceless defendant has the same protection? >> as my report describes, had judge sullivan issued a clear

and unequivocal order that the prosecut prosecutors produce all bradygi have been a crime committed? criminal intent with respect to those episodes described in our report as to which we concluded the conduct was intentional? beyond that, there's footnote in our report as for prosecution for obstruction of justice might lie. that's not within my prerogative. matter of fact, separations of power might preclude a lawyer, investigator from bringing such a charge. >> i'm sorry to interrupt you.

what you're saying is unless there's an express violation of a court order, that you do not believe that the prosecution for obstruction of justice would lie? >> no, that's not what i'm saying. >> please clarify it. >> in the absence of expressed order criminal contempt will not lie. whether or not the self same conduct violates the obstruction of justice statutes and whether, under the u.s. attorney's manual of prec on this conduct would be appropriate is not a decision for me to make. >> i'm going beyond my time. but if you could address the second part, whether we should seriously consider creating a s protection which you have articulated was denied senator

stevens and should be given to all criminal defendants under brady? >> i believe you should consider legislation which eliminates, as i have explained earlier, the so-called materiality requirement. i know that senator mccoskey's bill does that. the department, because i saw their statements yesterday, i know that they've submitted to the committee in length what they have done in the stevens' case, quite impressive, in my view. they explained as well, as i said earlier that as a matter of policy, their prosecutors are ininstructed -- that policy,

however, has an expressed disclaimer. this does not have the force law. invests no rights in anyone. i understand why that's so with respect to the policy.iois, if department believes that there should pretrial materiality standard -- because they'r telling their now to do >> thank you, chairman. >> having been the attorney general for my state, i tend to lean towards an open file rule.

i think there are obvious exceptions to the rule. very often, these are particularly dangerous individuals who would like nothing more than to murder witnesses. national security would be another important consideration. not disclosing would be another and a general against individual's privacy would all seem to make sense and would all seem to be subject to a reasonable check and balance if they were proceeding with the judge ex-parte where it was appropriate in a national witness safety matter and it would sort of put the prosecution through its paces.

i think with those protections, less is likely to go wrong than in prosecutions that are a hide the ball strategy, which i think is the wrong way to go about making cases. i'm speaking in part for you, mr. schuelke, but really through not just department to take a because it's new or different, but to see, what systemically, can be done about this. and there are two messages that i have, as somebody who was in the myself a friend of t i don't think there's a place in the government i admire more than the department of justice.

but that doesn't mean there's not room for improvement. in addition to not necessarily having the rule be right, when something does go wrong, appears that there are times when there could be a bit of a lean, shall we say -- l-e-a-n -- in the department oft violated,y did, violated the provision. and i just want to take this attorney to flag something i've the department and flag it yet again. this back to the office of legal opinion where counsel fa a circuit court decision,

circuit quarter appeals of the united states. and describe d it, i don't rememby the decision as torture they go on for pages, for dozens of pages. they never mention the case. what concerns m that when the department went back to look at it, the investigation concluded with a me memorandum that they weren't to be held to the standard that a regular, ordinary, ham and egg lawyer hauing the files under

his arm in the district court is in terms of the standard acquired for candor to the tribunal. so, again, i'm speaking through, mr. schuelke, to the department. but that continues to leave a sour taste with me. it does not make sense to me that the departments at the -- department lawyers at the office of legal counsel, which is probably the highest outside of the supreme court itself should not have to meet the standard of the day-to-day work and day trial lawyer appearing before a judge. particularly where the process of the candor of the tribunal standard is a pretty open one. there are checks on it.

the other lawyers can say, your honor, forgot to tell you the case on point. the judge, his clerk can look it up and say, counselor, how could you not have told me about the case on point that comes out of the circuit court of appeals? they don't operate that way. it's much more secretive, especially when it's a classified hearing. if anything, the standard for olc lawyers should be higher than the standard for a regular work a day lawyer going before a tribunal not lower. and i'm going to continue to press on that margoulis membeme. i think it is wrong to hold those lawyers to a lower standard. i flag that, because i think it is very important that the department makes sure it gets the rules right and follows the

rules and it's clear that there is no to come down on those that violate the rules. i wanted to make sure that those points were clear to the department of justice and my concerns about them were clear to the department of justice, which i'll conclude by saying, again, perhaps the organization in the united states government that i'm proudest of. i think it is a wonderful organization. thank you, mr. chairman. >> thank you. you have further questions? we'll wrap up here. you concluded that prosecutors intentionally when would the c