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tv   Key Capitol Hill Hearings  CSPAN  November 17, 2014 11:00pm-1:01am EST

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there's an inherent tension tween the add versarl system -- adversarial system and prossal duty to disclose. that is why the courts have the ultimate responsibility for ensuring fair, prompt and effective disclosure of information helpful to the accused. so the report we release today, material indifference, is an analysis of how i am pleased to introduce our first speaker, one of the authors of the report, professor kathleen rudolphe. she is the founder of the innocence network, working to address wrongful condition. -- conviction. she was the lead researcher on a report on wrongful conviction.
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she launched the veritas initiative committed to pursuing data driven reform. we are proud to partner with and santa clara oin this project. i am going to invite you appear to tell us about the project and how the courts are doing in ensuring fair disclosure increment all cases. -- in criminal cases. >> thank you. the fairness of the criminal trial depends on the ability of the accused to present a defense and of course to present a defense depends on the axis the criminal defendant has to favorable evidence that might
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exist in this case. the very fundamental nature of this principle was acknowledged by the u.s. supreme court 50 years ago when it decided a case. the prosecutor has an obligation to disclose all favorable information that is material and a failure to do so violates the defendant's right to due process. the american bar association reinforced dispensable when it promulgated model rule three point -- 3.8d. a prosecutors required to make private -- timely disclosure of evidence that negates guilt or mitigates punishment. how is it that there are so many wrongful convictions that have been -- that are the result of at least in part prosecutors withholding favorable information?
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and conducting the study, we focused on three questions. first, to what extent are courts consistent in the use and application of the materiality standard when deciding brady clients -- claims question mark -- claims? and what -- to what extent is evidence be held from the defense? our focus was more on the courts than on prosecutors. we wanted to better understand the role that judges play in shaping disclosure or favorable information in criminal cases. a note on the methodology. we looked at five years of brady decisions litigated in federal court. that was 5500 cases. that includes the cases originating in state in federal court. we closely examined a stratified random sample of those cases, roughly 1500 decisions. from those, we identified 620 where the court's decision included an analysis of the brady plan. i want to point out the inherent limitations of the study.
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a brady claim is an allegation that a prosecutor has withheld favorable information. the question of the extent to which prosecutors are withholding favorable information is hardly possible to answer. brady violations involve hidden or withheld information and withheld information may never surface or become known. we can only view those cases where the withheld information is ultimately uncovered. for purposes of the study, we examined the available information and that body of information included or consisted of records of written opinions in cases where the defense learned information had been withheld, filed a claim, and the court issued a written opinion. those of the cases that form the basis of the study. keep in mind that written opinions on most exclusively are found in cases that went to
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trial. we know that across the country, no more than 5% of cases go to trial. that means we have no information on 95% of the cases. this is important because it means the evidence that we didn't cover in this study in all probability is just the tip of the iceberg. i mentioned a minute ago that the obligation of prosecutor has to disclose is drive from favorable sources. the due process clause and -- as articulated by brady versus maryland and the american bar association's rules of professional conduct. i will address each of these separately beginning with the brady analysis. under brady, prosecutor is required to turn over all favorable information that is material. the problem starts there. how do we define material evidence?
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to decide whether something is material, you have to decide whether it is relevant. you have to know the case, the whole case, and not just the prosecution's theory of the case. as justice stevens explained, "the significance of a piece of evidence can seldom be predicted accurately until the entire record is complete, yet that is what we expect prosecutors to do in applying the materiality standards pretrial without any sense of the perspective of the defendant." complicate the problem is the dual role of the prosecutor. the prosecutor is the administrator of justice. a prosecutor is an advocate with the skills, training, and ability to effectively prosecute cases and when convictions. what is difficult about the prosecutor making the materiality decision is a cannot be within -- neutral within that context. when deciding whether information is material or relevant, that is what prosecutors are expected to do, to set aside their role as advocates, go through the african -- evidence with an open mind, recognize the importance of the information to the
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defense and make in the active decision about whether or not to disclose it. prosecutors will like the rest of us, are subject to what psychologists call confirmation bias. this means that we tend to evaluate what we perceive in a way that is consistent with what we know or believe. the prosecutor with the responsibility of proving guilt, and possession of police reports that support his guilt will perceive his universe through this lens and will tend to view information in a way that is consistent with the belief that person is guilty. information that is not relevant is not material and not disclosed. even the best intentioned prosecutor is not in position to
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objectively decide materiality pretrial to the limited lens of the prosecution's theory. while most prosecutors seek to do their jobs with integrity, this is not true of all prosecutors. for those who are inclined to practice, close to the ethical line, the pliability of the materiality standards and it's inconsistent application invite a kind of game and ship without regard to the guilt or innocence of the defendant. the dynamics and psychological pressures affecting the materiality of the decision is not limited to the prosecutor. judges, too, have a kind of tunnel vision or confirmation bias that affects how they decide cases. in 1985, the u.s. supreme court justice harry blackmun acknowledged that "the reviewing court faced with the verdict of guilty, evidence to support the verdict, and pressured finalize judgment is in little better position to review the will -- withheld evidence as the prosecutor. it is not surprising that when
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the decisions we examined turned on the question of materiality, courts rule in favor of the prosecutor 86% of the time. we identified 210 decisions were favorable evidence was either withheld or disclosed late. of those, courts found brady violations and 22 cases. in the 188 decisions, the court decided that evidence was not material or the late disclosure did not materially prejudiced the defendant. we found that courts supply the -- apply the materiality standard and consistently. we compared cases where the end disclosed information was similar in factual context that were similar or nearly identical and found that reports were -- courts were inconsistent.
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we also identified 65 decisions were prosecutors disclosed information but disclosed it late. in 70% of the late disclosure cases, the prosecutor did not disclose the evidence until the trial was well underway. leaving virtually no time to make use of the evidence or to conduct an investigation that may have been prompted by a revelation of the new information. despite the obvious prejudice to a defendant in this situation, courts found the late disclosure violated the defendant's due process rights in just one out of 65 cases. we also found in some cases were prosecutors failed to disclose information, courts excuse the failure by imposing a due diligence role on the offended. shifting attention away from the prosecution's obligations to disclose severable evidence to blaming the defendant's failure to discover the information on their own.
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and finally, train -- turning our attention to the court, i can be very brief. while courts sometimes encourage prosecutors to resolve doubtful questions in favor of disclosure, they almost never expressly pointed to the duty and responsibility to disclose favorable evidence as they were required to do by our profession, by aba rules of for efficient conduct. i am going to turn this podium over to tiffany joslyn. we will open it for questions and i will ask and invite mike cole author -- my co-author, mike freeze, to answer questions. >> tiffany as my colleague where she serves as counsel for white-collar crime policy.
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she plays a key role in the effort to prevent and oppose over criminalization, over federalization, and the erosion of intent requirements. she has led numerous research projects and she played a key role in an extraordinary collaboration between and a cdo and the heritage foundation. i will ask you to pick up on where the professor left off and take us through some of the reports' findings and recommendations. >> i would be remiss if i did not think my co-authors and the rest of the distinguished panel. as you just heard and has been observed by many, the current
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permutation of brady has become a hindrance to the defendant's access to favorable information. this is in part because the odds are against the defendant. prosecutors who withhold favorable information overwhelmingly have that decision affirmed by court. given point undisclosed information services, it is higher for the justice system to provide a remedy to the accused. however, as my colleagues discussed, there are several disturbing issues that arise in
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three's jurisprudence that can relieve prosecutors of their disclosure obligation and deprive defendants of access to favorable information. courts impose a due diligence requirement on the defendant if the defendant could have found evidence on his own, there is no brady violation. prosecutors can disclosed very little without the risk of upsetting a conviction. this has not gone unnoticed. disclosure of all favorable information is not the policy of the department of justice, for example. stir judicial adherence to materiality standard without regard to the integrity of the process has become an endorsement of nondisclosure of favorable information. that is what our study found and that is what our study supports. that is why this problem must be addressed on the front end. the brady standard used by court following a conviction is not the role by which prosecutors should measure their disclosure obligations in advance of the trial. rather, a standard requiring disclosure of all favorable information, accompanied by penalties for noncompliance must established.
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this sort of friend and reform can be accomplished through passage of the state and federal levels how the statute is consistent with the role that my colleague described. this requires disclosure of all favorable information. this could be accomplished through changes to judicial role and accomplished by individual justices and defense attorneys say the request and granting of an order to disclose all favorable information. first the ethical role. this is one way that defense attorneys and judges can obtain results in the proceedings while encouraging broader changes and disclosure practices.
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defense attorneys and i know there are many in this room should request in order from the judge in every case requiring prosecutors to abide by rural -- rule 3.8d. this is a wrecked mechanism for achieving reform and a way to counter the problems that have been identified in our study. the presumption that most lawyers will comply with ethical
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role orders creates a reasonable probability that widespread use could have a digit -- a deterrent effect on non-willful disclosure. this approach is not a magic bullet. it will not solve the problem. its effectiveness will still hinge on the willingness of court to enforce the order with the proven unwillingness of court to reverse convictions, one can only wonder about their willingness to hold prosecutors in contempt. that brings me to a judicial rule change, another mechanism for reform discussed in the report. this is the type of reform that would address the arbitrary practices evidenced by the study. nationwide, judicial branches are well-positioned to take action to improve defendants' access to information to establish clear and consistent guidelines that track model rule 3.9d, balance could be restored. some federal judges have been calling for this sort of reform to the federal role 16. like any cdl, they question unsuccessfully to remove the materiality information from role 16. the findings blends hard evidence to what they have been saying.
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the standards disincentivizes the disclosure of favorable information. judicial rule changes at the state and federal levels would do much to promote a culture of compliance. of course, the most important and strongest and most effective mechanism for reform of prosecutorial disclosure would come through federal legislation, that sets forth a clear mandate for disclosure of favorable information as well as establishes comprehensive roles for the disclosure process. such legislation would have a systemwide impact. the fairness and disclosure act and disclosure of evidence act exemplifies the reform that this study demonstrates is critically needed. in direct response to the flawed prosecution of the late senator ted stevens, senators lisa murkowski and the late senator daniel n.o.i. -- inouye, the
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fairness and disclosure act was introduced to provide clear and meaningful standards to govern the prosecution's disclosure obligations syria the senators saw what happened to their colleague and had the courage of their convictions to take action. this act would require prosecutors to disclose that all information that may reasonably appear favorable to the defendant effectively prohibiting the government from using the materiality standard to limit its disclosure obligations. the favorable of information alone is what would trigger a disclosure obligation.
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it does provide for exceptions in situations where disclosure could be detrimental to witness safety and it includes the mechanism for seeking a protective order. if legislation such as this were enacted, defendants would have increased access to favorable information and that would reduce brady litigation systemwide. this would also address the problems evidenced by the study and discussed in the report including the con practice of late disclosure, the position of dude diligence, and the frequency with which some information is not disclosed. the timing provision would required disclosure before the entry of any guilty play reducing some of the pressure on innocent defendants to plead guilty. the weight of legislative action is greater than any other mechanism.
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it is an enforceable method that fair disclosure is requisite to fair process. this bill serves a model for bringing about sensible and copperheads discovery reform through legislation, providing clear standards and ensuring compliance would remove much of the gamesmanship that has been common place in the discovery process and put litigation in our fair process. unfortunately, politics got in the way of the fairness of disclosure act. it was not passed. nor was it reintroduced in the current congress. rather, it is sitting on the cutting room floor waiting for another group of legislative heroes to come back and pick it up and move it over the finish line. this legislation need not only take place on the federal level. federal action may be stalled right now, but state legislators across the country are poised to take this reform legislation and make it law in their own jurisdiction. the court's reliance on materiality as a central inquiry ended radio violation claim has evolved into the standard by which prosecutors measured their disclosure obligations. until the materiality standard
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is removed as a barrier to fair disclosure, and there are real consequences for withholding favorable information, the system will remain unaccountable to defendants. to bring clarity to this issue, provide prosecutors and courts with clear guidance, and ensure that those facing criminal charges are accorded the rights they deserve, there needs to be reformed. thank you very much. >> thank you. before i introduced our next speaker i do want to introduce todd phrase -- frise. in his work he focuses on promoting policies to prevent wrongful conviction and todd will be taking questions later on than the program.
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our next panelist will bring the perspective of a tactician or and a former government official who attempted to tackle the issue of fair disclosure. serves as chair of the government and regulatory litigation group will more than three decades as the experienced counselor and litigator, he focuses practice on disputes with complex legal and policy dimensions. he has served several stinson government including serving as deputy general counsel and legal counsel at the u.s. department of defense. chief of staff and counsel to former attorney general janet reno, assistant attorney general for the civil division and the deputy attorney general of the united states. while in that position in january 2010 he issued a memorandum known as the ogden memo which provided a guidance and summary of actions taken in response to a working group that
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was convened after the dismissal of all charges against the late senator ted stevens. the dismissal which followed the disclosure of serious violations by prosecutors in that case. we are honored that mr. ogden has written the forward to material indifference. david ogden. >> thank you. i feel honored to have been asked to do it. i am really here because i think the authors and organizations and others are to be commended for taking on what is a set of recommendations, data, and analysis on a subject that is extraordinarily group -- important and difficult.
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i am not in a position to specifically endorse the recommendations, i think they're serious recommendations, but i do think this makes a great contribution. i do have the perspective of having dealt with these issues on the outside as defense counsel, as having tried to deal with them as i think norm accurately described my efforts as deputy attorney general when we dealt with some foundational and fundamental issues in the wake of stevens prosecution. the subject is important because it relates to the most fundamental criminal justice issue of all. the guilt or innocence of the accused. whether, when, and how the prosecution shares information goes directly to the integrity of our legal system, the participants in it, and our
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institutions of justice. defense counsel has limited discovery tools at their disposal. lamentably, in a typical case they very have limited resources to conduct their own investigations created the prosecution failed to disclose it information favorable to the ed -- to the defense it may mean this never comes to light. no greater harm can be done by our criminals justice system by -- then conviction of innocent people. the subject is not only important, but it is also difficult. material that is exculpatory must be disclosed. for information of more questionable apparent significance, many believe that it is appropriate for prosecutors to weigh a range of concerns before disclosing. the potential for harassment or harm to witnesses, the integrity
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of other ongoing investigations or even national security concerns as was referenced and whether information is accurate or favorable to the accused may be difficult to assess and may depend on the eye of the beholder, the theory and the ways in which it might be utilized area did -- utilized. one may question reasonably whether it makes sense to mandate it. that is what makes it hard. in 2009, the new leadership of the department of justice, of which i was then apart, confronted a set of concerns and tried to chart a new course. the attorney general had just made a difficult decision to abandon the failed ted stevens prosecution's which was plagued by and destroyed by violations of the brady doctrine. i put together a broad working
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group and directed them to undertake if thorough review of the departments policies, practices, and training related to criminal investigation and to evaluate improvement. we implemented changes in policy meant to provide direction and resources to prosecutors. i make no claim to perfection. or any other work product of which i have ever been responsible. here's what we do. we set forth structured requirements, disclosed and make a record of information potentially favorable to the accused. a comprehensive review, and a timely and appropriate disclosure and record keeping to allow an understanding of what had been done.
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direction also to remain vigilant throughout the case to obligate us to make disclosures on an ongoing basis. we established a new training protocol, required every attorney to establish a policy, and provide a dedicated resources in each district to assist prosecutors making this decision. perhaps notably given this study and the concerns about judicial standards, we also reminded prosecutors that when disclosure obligations are not clear or when other competing considerations -- prosecutors's may address the scope, timing, and disclosure. we observed a federal prosecutors duty is to seek justice and set about the truth seeking role of the prosecutor. we stated that quote providing broad and early discovery often promotes the truth seeking mission of the department and fosters resolution and provides a margin of error in case.
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we encourage prosecutors to provide broader and earlier discovery consistent with any countervailing considerations. i believe today as i did then and others on the panel believe that prosecutors try hard to live up to those standards, most of them. they do have a dual role at has been alluded to. though they are seekers of justice, that is their ultimate mission. that while an obviously very important function, does affect the lenses of the prism through which they see issues. advocates may tend to view things through a particular lands. we tried to provide assistance to them to prosecutors in making that decision and remaining objective and we need to take seriously and insist upon prosecutors obligations to make
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utmost efforts to maintain objectivity and -- given the dual role it is the case that judges have an indispensable obligation to oversee the system's guarantees of fairness and make sure that its mission is fulfilled in every case. given the dual role, it is unquestionably the case that role. have a judicial it is the case that judges have an indispensable obligation to oversee the system's guarantees of fairness and make sure that its mission is fulfilled in every case. given the stakes, there is no more important judicial role so we should continue to focus on the shape of it -- the legal rules and the role of the courts and overseeing the way prosecutors fulfill their obligations. that is why i believe this paper makes a significant contribution. thank you. >> thank you. thank you for vindicating my decisions as to the order of speaking because your final comments are perfect segue to obtain a judicial perspective. our final speaker is the
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honorable alice kaczynski. she was appointed to the circuit court by president reagan in 1985 making him the u.s. -- youngest appeals judge in the country. he came to the u.s. when he was 12 years old. this is quite an american tail. -- tale. prior to serving on the court of appeals he clerked for justice anthony kennedy when he was a judge on the ninth circuit and then for warren burger. during his nearly three decades on the court of appeals, judge kaczynski has seen just about everything an appellate judge can see. in the case of the u.s. against olson, the judge issued a powerful defense in which he -- dissent, in which he wrote,
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"there is an epidemic of brady violations abroad in the land. only judges can put it -- put a stop to it. " he trained his keen analysis on the very subject of this report which is the materiality standard. >> thank you. i will spend a couple of minutes talking about brady. we all know that brady is a role -- rule that the supreme court has adopted and imposed on us. except for those -- many in this audience who actually practice criminal law, it is hard to understand how brady differs in many ways from other rules, why it is such a bedrock important principle of criminal justice.
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unlike civil cases, whether it is mutual discovery or full discovery, and the transaction is in some ways open, the criminal investigations are such that the prosecution has a huge advantage. if it is a physical crime, murder or robbery, the police secure the scene, they talked all the witnesses, if there is evidence to be picked up, they take it, and by the time the defendant or his investigator comes around, there is nothing left to pick up. the prosecution is able to force witnesses to talk or at least take the fifth. they are able to give immunity. they are able to seize records, bank records and the like. if it is not a physical crime, if it is a white collar crime,
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they can conduct the investigation for years without the defendant knowing about it. they can gather evidence for years and the defendant may have no clue this is going on or very little information about it. this is not a situation of some abstract role that the prosecution should play fair. there is only so much evidence of the case, only so much witnesses or facts or pieces of evidence that can be presented to the jury. most of it is picked up by the prosecution. this is the way the system works. the supreme court employees had , you cannot have a fair trial if one side has all the marbles.
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we learned that as kids. it is the principle of justice. you cannot have the juried its work if one side can decide what to present. this is a reality that is often pushed in the background or overlooked. this is an important report, i think it is well worth reading and considering and taking into account but to me it is not a surprise. because this is the nature of the brady violations. once evidence has not been presented to the defense, it does not come in and you get a conviction, all of the momentum of the process is to uphold the conviction. you have then had an expensive time, you spend judicial time,
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you have taken 12 or 14 or 16 people from the community depending on how large the jury panel is and kept them there for days and sometimes weeks on end. they have come to the judgment that this person is guilty. all the incentives of the system, the rules we have before conviction, all those things are reversed. the judicial instinct is to preserving the verdict. this is a good thing in many ways because, after all, we in america believe in juries. we believe that when a group of people are drawn and they make a decision about guilt or innocence, that has significant standing. that is something that ought not to be likely set aside but i would suggest that faith in the jury requires more than that.
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it requires not simply respecting the jury's verdict but also respecting the jury enough to present them with evidence that points to both guilt and innocence if there is such evidence. part of what goes on in cases where and this has been discussed by the professor and other speakers, what happens, this is -- prosecutors are not bad people, by and large. most of the once i have seen have been quite honorable and very fair and want to do a good job. the one -- once the investigation focuses on a single individual or group and they have a theory of the case, they simply stop looking for evidence pointing the other way. they become desensitized to evidence that might prove the guilt of someone else or prove the innocence or dispute the guilt of the person that is
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being accused. the blinders are on an these are not evil people. these are not people who want to convict someone who is guilty. they do not want to convict someone who is innocent. they believe this person is guilty and therefore, they look at the evidence with this filter in mind. i believe that putting the burden on prosecutors to come up with evidence that is exculpatory and is material i think puts an impossible burden. it is not their job. they are advocates. they want to win. they want to do justice but they believe in doing justice is by convicting the person or persons they believe is guilty. i think many of the suggestions made for reform have been welcome and it is a step in the
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right direction. fairness in evidence in disclosure act is a good idea and should have been passed by now after the debacle of the stevens prosecution, not enough can be said about how bad that situation was, but that is not enough because the statute is passed which still puts toprosecutors responsibility pull out evidence they believe is exculpatory. once again, as was pointed out, at that point this is not an adversary process. there is no one telling the prosecutor, look at this from the perspective of the defendant. look at the evidence and this piece of evidence that looks innocuous to you, here is what the defense can do with it. it's not there. i would favor and again i'm speaking only for myself, i
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should and i'm speaking for myself, not my court reporter or anybody else, but i have served as a court of appeals judge. i do district court trials. i have done criminal trials. i have taken jury verdict and convicted people in bench trials. i have served criminal juries. i have been in the process. i know what a little bit of evidence, just one piece of evidence that makes it -- that may seem insignificant can do when you're sitting around a table like that with 11 other people and you're discussing the case. one little piece of evidence can flip the discussion. my view is what's really needed, if we want to implement brady, is to have an open disclosure policy. if it is a prosecutor's file it ought to be presented to the defense,
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subject to national security, those kinds of exceptions, which must be submitted to the judge. this has been tried, i believe, in north carolina in the lacrosse case. and it was tried in the great state of texas. i think it is well worth considering on a nationwide basis and in the federal system. let me talk, if i have a couple of more minutes, about the other victims of the brady violations, ones we have heard little about, but we think we need to think seriously about. because every time an innocent person is convicted it means the criminal remains at large.
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every time you convict somebody who didn't do the crime it means the person who did the crime is still out there and can do it again. as an example let me give the case of michael morton who was convicted for the 1986 killing and beating of his own wife. he served 25 years in prison because the police focused on him. it was easy. it was his own wife. and because the prosecutor, a man by the name of ken anderson, lied, lied to a judge, and lied about exculpatory evidence he had.
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years later because of the work of the innocence project and over the vigorous objections of the prosecutor who succeeded ken anderson, john bradley -- that's his name. i mention these people because these people ought to be ashamed of themselves. they ought to feel ashamed in the community. ken anderson went from being a district attorney and became a judge, then for having lied in court and cost a man 25 years in prison served five years in jail. lost his license. i'm sorry, did i say five years? excuse me. five days in jail.
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never apologized and said, i'm -- never said, i sorry, i feel am responsible for having cost another human being 25 years in prison. obviously he can sleep well with that on his conscience. john bradley, who stonewalled for six years to keep the dena evidence from being disclosed and tested, he said he made the right decision given the facts available to him. shameful. they ought to be ashamed for having participated in the justice system and committed these kinds of misdeeds. the victims -- the other victims
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are the people out there who are victimized by the criminals who aren't caught and jailed because the police and prosecutors convicted the wrong man. in the case of morton, somebody by the name of ken norwood was convicted of mrs. morton's killing, based on dna and other evidence. he was also charged, and i am going to be careful what i say because he's not been convicted of anything. he's pled not guilty. i respect that and i will not prejudge it in any way. but i want to say there is now evidence that he committed another crime in 1988, two years after the morton crime. and perhaps we can think about the possibility that had the police not focused on morton,
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had they disclosed evidence of innocence, then maybe the police would have looked at the evidence they had, examined it more carefully, maybe focused on the person we now know is the real killer in the case, which is ken norwood, and perhaps the crime involving the other victim, debra baker, debra baker might be alive today. this happens again and again in situations across the country where somebody gets convicted and it's the wrong person. let me leave you with a final thought. dna has been quite a boon in many ways, not only in freeing
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people who are convicted who are innocent -- but also, it has been a great boon in giving us an insight into the flaws of the criminal justice system. , we have had a common law system where we present evidence and we have with guilt beyond a reasonable doubt, and we are taught as lawyers and believe as a society that that does justice. we say it is better for nine guilty men to walk free or 10 guilty men to walk free than for one innocent person to be convicted. but we have no evidence that's what's happening in our courtrooms at all. it's faith, religion. we have no proof and haven't had proof as to what actually happens is that few or any or no
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innocent people are convicted. dna has given us a rare glimpse into the process. it lets us go back and look at past convictions obtained before dna was a factor and lets us find people we now know didn't do it. that should give us insight as to what went wrong in the process. that should be and impetus to change what went wrong. why did these people get convicted? the window will close. nobody will be convicted again where dna evidence is exculpatory. this is a rare opportunity to go back and recalibrate our criminal justice system in light of hard evidence that really there are people being put away who didn't do it. this is a sobering thought.
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it should shake us all to the roots who are involved in criminal justice to think that, in fact our system, the best criminal justice system in the world, that gives us guilt beyond a reasonable doubt and lets 10 guilty men walk free rather than one innocent person be convicted that we are actually routinely convicting people who aren't guilty. it seems to me that is a challenge we must take seriously. we must look at cases where there are exonerations by dna evidence and we reverse engineer them. what's more, the spectacle that happened in the michael morton case where they have the evidence and it took six years to obtain an order allowing testing opposed tooth and nail by the prosecutor's office,
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that should not happen. that should not happen. if there is dna evidence, a small percentage of cases with dna evidence, testing should be routine, whether there was a time or a guilty plea. we all know people plead guilty all the time and turn out to be innocent. in this resistance that prosecutors have is entirely unjustified, they say, we are not testing for dna evidence. completely unjustifiable. the people who need to do it, the legislature would be good. but judges have to do it. in michael morton's case, no dna test happened until an appellate panel ordered it done. that broke loose the floodgates. not only did it free morton, but it also put ken norwood behind
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bars for his just conviction. it seems to me there is no moral or legal justification for prosecutors to oppose dna testing. any who do it should be shamed for their doing so. it seems this is something the prosecutor should welcome. because if they convicted the wrong person, they should be grateful for the opportunity to set the record straight, free an innocent person, and then go find the guilty one. thank you very much. >> thank you, judge. we are going to have time for questions now. i just want to follow up with what the judge just said by, of course, all of the great lessons we can learn from dna we have to learn. i just want to underscore in all the cases without biological evidence, which includes virtually every single case in which the question of guilt or
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innocence turns on intent, it's all the more critical that this favorable evidence be put into the hands of those people who we are respecting and who we are asking to make these decisions. so i want to lead off with a quick question which i want to put to todd to help contextualize the report. this was a randomized study of a number of cases, federal cases, but it actually involves state cases. can you explain that for those who need the context to understand that. >> so the study included a random sample of 1,497 decisions issued by federal courts from august 1, 2007 to july 1, 2012.
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all of the origins of the cases were done in federal court. the procedural posture of the cases included federal appeals, post trial motions, and habeas petitions. while the federal appeals and posttrial motions were limiteded to federally originated cases, habeas petitions can be in state or federal courts. before a petitioner can file in a federal court, all state options must be exhausted first. the state-originated decisions we saw in the study were exclusively habeas petitions and they were now seeking a remedy in state court. the overwhelming majority of decisions in the study were habeas petitions and appeals. the fact that we have both federal- and state-originated decisions in this study means the trends we see operating in the study sample are by no means limited to just federal cases. >> of course it means those
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folks who were litigating initially in the state case never got relief on the state side before it got to the federal court. i'd like to direct a question and ask for the purpose of this question to look at it from your defense lawyer perspective. one of the really astonishing findings was that in 64 out of 65 cases with late disclosure there was no relief granted. when you have that kind of case law, you have lawyers deciding not even to try to litigate late disclosure. i venture to say anybody that's tried a reasonable number of cases has probably routinely encountered the problem of late disclosure. i wonder if you could explain why late disclosure is not a substitute for timely disclosure. in other words, from the defense perspective, why is it important to get this information in a timely way?
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>> sure. obviously, it's critical to anybody who's tried to prepare anything that the ingredients to the thing you are preparing need to be there before you try to create it. putting on a defense is the same. there is a time you need , information in order to investigate in advance of the trial. you need to follow up on the information. and to develop your defense. you need to figure out what theory of defense you will have. you can't do it without the information to evaluate the strength and weaknesses of the case. if you get the information into a trial or on the eve of trial when it could have been disclosed earlier, your hands are tied to do those things. timely disclosure the critical. -- is absolutely critical. >> i would encourage anyone with questions to line up at the
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but i want to direct a question to you, judge. i'm going to take advantage of my opportunity. in your olson dissent, you said the panel's decision, and i quote, effectively announce that is the prosecution need not produce exculpatory or impeaching evidence so long as it is possible the defendant would have been convicted anyway. of course, you were looking at major impeachment evidence of a key witness that was never disclosed. you already in your talk spoke about the importance of giving -- the real loser is the jury. that doesn't get to hear something that might affect a jurors -- jury's determination. my fundamental question is given that, what's the reluctance that courts have to reverse the convictions? isn't it likely if there were a pattern of reversals that would
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be the best palliative imaginable? >> i think that reversals would be a good start. we operate under the standard -- it's one of those steps in the process we need to take. whether something is material, whether something is prejudicial is a question entirely of judgment. and if you look at the situation and consider the guy is probably guilty, the jury found him guilty, certainly the ones we see on appeal, they have been found guilty, so there is a great deal of inertia. for reasons i find it hard to explain, most judges are
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reluctant to use any one case as an example as a way of a teaching opportunity for future cases. i don't share that view, but these are fine colleagues with equal or better experience to mine, more years. maybe they are right and i'm wrong. but to me it's obvious that if you create -- maybe it's my economics background -- but it seems obvious if you reward stonewalling, you'll get more stonewalling. no two ways about it. >> i will ask one of the authors to respond to the question, whichever of you wants to jump in. the sample cases were randomly selected. by chance you reviewed two cases that involved undisclosed by chance you reviewed two
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cases that involved undisclosed information that contained the same central witness as in the prosecution of senator stevens, a witness about whom the government in that case failed to disclose prior conduct that directly affected his credibility and similar nondisclosure in these other cases. i will ask one of you to comment on what you learned from studying the cases of peter and victor. >> i will take this question. in your report, on page 16 and 17, there is a decision comparison of the two decisions. it's interesting because while the study sample was random we happened to end up with a district court decision in one of the cases and a ninth circuit court of appeals decision in another. we got to review them at different stages even though they took the same path. as norman said, the witness at issue here was the same witness in the stevens case.
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in that case the department of justice ultimately decided to drop the prosecution, and yet we had two defendants who had the same information about the same key government witness forced to pursue an appeal up to the ninth circuit. unlike stevens because of less press they got different treatment. what these decision show us is not only is the -- you have identical facts in different courts coming out differently. even more so you see the disparate treatment under brady. you could be a defendant in one district. maybe the prosecutors say, ok, fine, we'll lose if we keep letting you challenge this. but in another district they are
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just going to keep pushing it. that's what the decision shows. it's completely unfair. >> thanks. >> one thing that i don't know if she if she mentioned this, but all three cases involve essentially the same cases which were public corruption charges. contexts were with similar. >> question from the audience. >> thank you for this important information and for the suggestions that is you put forward. i would like to ask the judge, with your open file system do you see any problems where there is a bechblnch trial and how would you benefit those if you can see any? if i can ask, why isn't a continuance a good enough remedy for late disclosure? >> the problem of bench trials applies across the board.
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the judge has to rule on evidence and ignore himself, if it is a strike evidence and ignore it. i don't see it as a problem. the reality is most of the cases are jury trials. i can't emphasize enough the importance of judicial intervention and judicial activity or supervision. what happened, the difference between what happened here and in the ninth circuit case is the district judge. solomon took it seriously. you would think, you would think that once there is a disclosure as happened in the stevens case where somebody on the prosecution team blew the whistle, i mean, said they have
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been withholding evidence, you would think the justice department would slink away in shame and withdraw the prosecution or move the government for setting aside the conviction. no, they fought it tooth and nail. they fought it tooth and nail. what happened was judge solomon who is an excellent judge with a sense of honor, duty, and the constitution. he put down his foot and said, no, we are going to look into this. that was the difference. the ninth circuit it took getting up to the court of appeals. you cannot get around the need for judicial supervision. or understate the importance of judges taking this seriously. if judges take it seriously,
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prosecutors will take it seriously. >> part two of the question. on the continuance issue, why isn't that good enough when it is a late disclosure? >> it could be and it seems the minimum thing that at the trial level a court should do in that situation is to assess whether a continuance would help and certainly could be lenient in that situation in affording defense counsel time to respond. but there are circumstances in which the defense made certain decisions it's hard to back away from and the process is too far down the track. if opening statements have been made and the like, it comes late in the day to have a continuance. there is a big investment in the criminal process.
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try to salvage it. fairness really does require a hard assessment as to whether an error by the prosecution to disclose too late creates a problem. i agree with the judge. i think judicial supervision is extremely important and the message will be sent that there will be active superintendents. i do think that brings about a process and forces prosecutorses to do their duty, which is what this is about. >> i think it reflects this is really a trial tactic on the part of prosecutors. i think that's the bottom line. >> we actually did see quite a few cases. one of the problems is it can disrupt the flow of the case. it can be a risk.
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we also saw a number of cases where if defense counsel failed to ask for a continuance, the court assumed it wouldn't have made a difference in the case. >> thank you. next question. >> thank you very much. i want to acknowledge the judge. you were spot on when you said the prosecutor should be ashamed in the morton case. my question is i'm interested in learning about the incentives that prosecutors have to not try to pursue further evidence in a case. we have seen particular cases like michael morton where there's a judge that could lose his license and lose his
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standing in the community. we saw it happen with the central park five where all of the people who prosecuted this case made their way up the chains in new york city and no one wanted to say the kids were innocent. i'm curious about the incentives and if you talk in your report and you can answers this -- talked about incentives prosecutors receive in terms of prosecuting a case to the nth degree knowing this person is, in fact, probably not guilty. so incentives in terms of monetary incentives to have more and more cases prosecuted coming through the office, them able to hold up a pamphlet saying look how many people i have prosecuted, if you discussed that in your report. >> no. we didn't discuss it this the report. certainly if anyone wants to comment on that, feel free. >> the incentives aren't evident
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in the discussion of the cases which is why this is an academic report. we didn't go into anything like that. >> i do want to make it clear i don't think there are any prosecutors out there or indeed very, very rare who say the guy is innocent, i'm going to get him convicted anyway. i don't think that's how it happens. they are convinced they are guilty and there is a piece of evidence that doesn't fit. goes the other way. a witness who said the guy has a beard or the guy was 6'0" and the guy is 5'3". it doesn't fit. the prosecutor says, you know, the guy is clearly guilty, i have this stack of evidence, and there is a piece of evidence, nobody will believe it anyway. they want to sweep it under the rug, not to convict an innocent person, but to convict a person they believe is guilty.
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the problem is this is their job thinking people are guilty. it is not their job to see the holes in the cheese. they have to look at the cheese. they are there to see the guilt beyond a reasonable doubt, not the reasonable doubt that defeats guilt. that is how it happens. they want and believe if they let this piece of evidence and hand it over to the schyster defense lawyers they will make something of it and fool the jury into acquitting an innocent person. it shows a lack of faith in our jury system. it is contempt for the jury. the jury is us. it shows contempt for us as a society. >> president simon? >> thanks to the panelists.
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this is for the good judge. you just spoke about grady and the harmless error rule. i question to you, as we all know and that the report that it it's very rare results in reversal. it is a hurdle that the defendant must get over. my question to you is, would it be wise or interesting or prudent to create a rule that when there is a brady violation, it will be examined on its own, divorced from the harmless error rule, and if there is such a violation, it will result in reversal, not only will it result in the brady violation and create incentive for their trial court and prosecutors to comply, it would also help on appeal. it would not just be an appellate say. it would tell prosecutors if you commit a violation, you're not going to be able to rely on the
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harmless error rule to escape the rule. >> the supreme court has a short , thatf structural errors if you commit, the appeal is over, you have to retry the case. there is a very short list. the court has been exceedingly reluctant to act on this. i would be very surprised if the supreme court were to add radio violation to this list. it could be done legislatively, and i'm not going to say whether it's wise or not to do that. it certainly would create the right kind of incentives. adoptk it is better to the rule that forces disclosure when theat a time trial has not been run, the jury has not been handled, there's no judgment to take into account.
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judicial time has not been wasted in trying a case and having to retry it. and letting the process in which we believe, it giving the evidence that the prosecution has, whatever they have in their file, give it to the defense, and let the jury decide. if it's good comments back, this is why we have loggers and why we have trials. structuralother error that is beyond the reach , that isir analysis probably a bridge too far for me. i certainly have no authority to adopt that, maybe the supreme court. fairless -- fairness and discover of evidence act, i believe beyond a reasonable doubt is the standard appellate court should use when reviewing the claim. >> we have time for two more questions.
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i think we have two more questioners, so that is perfect. >> thank you so much for your panel today and the important work you did in this amazing report. i guess all asked this question on behalf of all the solo cj panel loggers that are out there. with cases ofced eight terabyte of information, cell phone tires, and -- cell phone towers on the thousands and thousands of pages of documents. even if you have an open policy and you get from the government all of this discovery on that one terabyte of hard drive and you have a very short time to file your motion, what do you do? how do we prevent brady material from not being exposed under those very difficult circumstances? >> who wants to take a shot at that?
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the gist of that question is if the government doesn't affirmatively identified, they consent we say we gave it to you and it was there, you just didn't find it. david, do you want to take a shot at it? challenge it is a big , that sort of the flipside of any sort of open discovery or open file discovery, it puts the burden on the person receiving the material to figure out what is in there, and i think it is a very good question. it doesn't answer the question, but i think it's an important perspective on some of the challenges, which is that the very data point creates challenges to the prosecution as well. why the challenges presented by the enormous volume of information that can be collected in a case by investigative agents is that it is very hard to review it all, consider and think about it all, and prosecutors like any of us done are get a job making pragmatic decisions on
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what to review and when i have a nothing can stop in at it. , even theoblem cynical explanation that's been given, which was true in some cases, sometimes mistakes simply, because material isn't considered and reviewed and prosecuted in time. i think we are all drowning in data, i think. it is needle in haystack. how do you find that one piece of evidence? until there is a rule change, so many of us are struggling because we know when you read rob kerry's book and you finally have the best lawyers in the country that are filing on these motions of discovery and motions to compel, etc., what do we do and how to we combat that? >> otis want to point out, and index -- there may be more information than the prosecutor has the time to discover themselves.
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once the prosecutor gets into the case and does delve into those areas, at that point, the information should be his cover book. quicktime for two more. >> i just participated in the civil discovery conference last week. my understanding is, and this is a big problem, the problem is not as serious as it first appears. over, and youdata don't know what's in it, it could be anything at all. people are much more reluctant without knowing what's in there. cases, the things you really want to look at are the investigative reports, and those are not going to be subject to a data donump. that they turns up
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witness is exactly opposite of what they've testified. what happened in the meantime? you got a plea bargain. >> i want to thank you for your report as well. i think everybody in the room agrees that what you've done is a tremendous service to those of us who have prosecutors telling us that they never see anything like brady that is exculpatory. and often don't produce it and sometimes it's discovered years later. in response to the last question, the thing about the p, thechnological data dum way to deal with it is not to rely on the government to organize it for you. you have to scan it, digitalize it, and use a program to do your own searches. theuestion is about disclosure that i think is the critical thing that you want. anybody who has practiced in court for any time on almost any
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other case has had evidence withheld from them. so we reach a point where we don't know if we have the honest prosecutor who cares to put aside his adversarial role to actually do justice in a case. so the open disclosure is the only one. what i want to ask is if we amended that fairness act and called it the open discovery act on what would you go up on the hill and testify before the judiciary committee to say that's what we need? he did say was an epidemic. to say have been known another context, i can't speak for the judiciary. all the judicial council of the , if the chief justice appointed me to speak -- >> do you not even have an expert opinion? >> i would appeal. >> thank you, your honor.
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>> good afternoon, thank you for your report. in listening to this, what credit -- my question is not going to be technical. average defendant is not necessarily a banker or something of that nature. the average defendant is low income, minority, maybe a drug torch. the work that's being rolled out charge. maybe a drug how can a person listening wrap their mind around this? how will this affect an average case where they may not see a public defender until right before they go to court, and what is redacted in the information is the history of a police officer. no were not just talking about the prosecutor but the whole process. >> do you want to take a shot at that one? report, weead the try to make it as simple as possible so that the layperson
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can understand exactly what we're trying to say here. , the findings are that there are a number of cases where favorable information is being withheld. decisions.620 those decisions are not limited to michael martin or ted stevens. cases. runcrimes in these cases the gamut from small, petty drug charges to serious murder charges. speak tondings really every single type of crime, every single type of defendant. >> in the introduction of the report you will see that we talk about three different cases, john thompson in louisiana was the third one that hasn't been discussed today. different scenarios, different socioeconomic status. to do think the report shows this problem knows no bounds in
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that regard, federal, state, race, all of that. i think the key to take away from this for the defendant who is about to get their attorney is to say, the government must disclose all favorable information, and i want to make sure that my lawyer is asking for it, but not just asking for, going to the judge in getting the judge to order it. that is key. until we can get legislation, that's what the individual defendant should take away from this. an incrediblys is important reality to focus on, that in these cases where defense counsel has got the least resources, the cases where it is the most compellingly important that we have the highest degree of fairness and disclosure by the prosecutors on the it is essential because in that situation, the deck is stacked in a way that it isn't anywhere else. it seems to me that the fear that one has is that it is
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exactly in that situation where scrutiny is the least likely, and therefore injustice is the most likely. i thank you for the question, it is very important. >> i want to wrap this up with one observation. i started by trying to give the disclosure issue some context. i think some other context is that this is a nation that has 2.1 billion people in prison and arrests 14 million people your. how our criminal justice process unfolds, and how we give those who are accused the opportunity to know the evidence that supports their innocence, supports litigation, or undermines the reliability or truthfulness of witnesses is essential and is something that literally millions of americans. we can talk about a case like morton which was anything but a white collar case, but because of the circumstances, it has
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become a major teaching moment. we can talk about the stevens case because it was a united states senator who was done in by a justice department of his at party, who had nothing all to gain. it actually tipped the balance of power. and it shows you that we are dealing with a systemic problem, and it requires a systemic solution. i want to extend my congratulations and thanks to the three authors. i know firsthand how hard they have worked on this, from the very earliest days of devising the methodology, trying to figure out how to make this work and produce something that can advance the public discussion. and of course, to david ogden for his generosity and reading the report, commenting on the report, and to judge kozinski for lending his elegance and his stature to our discussion today. thank you all very much. [applause]
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[captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> the death of a sierra leone surgeon in a nebraska hospital monday from the ebola virus was among the topics at a forum on
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global health security. that's next on c-span. administrator ian mccarthy takes questions about the administration's environmental policy. later, report on evidence disclosure procedures in criminal cases. on our next washington journal, we will talk to a democratic congressman about issues the lame-duck congress is debating, including the keystone pipeline, government funding, entitlement programs, and immigration. a north carolina republican congressman walter jones will join us. we will discuss president obama's funding request to combat isis and authorizing deployment of additional military personnel to advise and train iraqi and kurdish forces. washington journal is live each morning at 7:00 eastern. you can also join the conversation on facebook and twitter. next, the head of the
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centers for disease control and revenge and talks about the ebola outbreak and ways of protecting the u.s. from it and other viruses. we will also hear from former health secretary kathleen sebelius at this event hosted by the aspen institute. >> if i could ask folks to take a seat then we can get started on time. that would be great. good afternoon and welcome. i am executive director of the health medicine and society program here at the aspen institute. we are delighted you have joined us for our second session. we could not have asked for a more timely talk or speaker more knowledge will on the subject. let me take a moment to tell you a little bit about the series. many of you know that gran rounds is a time honored
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tradition designed to keep us up-to-date on scientific and medical advances and promote excellence in research and practice. we are barring from that tradition to advance knowledge about the cutting-edge public health issues of the day. public health gran rounds is a partnership between two programs, the one i work for, which has a domestic focus, and global health and development which of course works on international health issues. the series is made possible with funding from the aspen innovation fund, for which of course we are most grateful. schedule gran rounds 4-6 times a year, taking advantage of our prime location here in washington, to engage individual thinkers and doers in the field. it's an invitation-only event and we've asked you to join us because we believe you can take the forward focus ideas you will be hearing about and spread them further. event live streaming this
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him and a videotape will be up on our website within next 24 hours, so please feel free to share it with colleagues or to watch it again yourself. now it is my pleasure to introduce the man who actually needs little or no introduction, dr. thomas frieden, director of the centers for disease control and prevention. he will take us into the heart of the most recent infectious disease scare. i know he will be reminding us that microbes have no respect for international borders, which means it's not only a moral imperative, but an act of self interest to respond effectively to outbreaks around the world. since directed the cdc june 2009. in those year he has dealt with him in admission to ebola, h1n1 flew, and no doubt many other infectious agents that have never reached the front pages. he has also been involved in global efforts to eradicate polio and to control
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tuberculosis. to advanceibility the public health goes beyond all that. he has played a role in obesity prevention. he spent his early career as a disease detective in the cdc service, later as commissioner of the new york state health and later as the commissioner of the new york city health department will stop he cut teen smoking in half and helped the city become the first in the u.s. to eliminate trans fats from restaurant menus. somewhere the middle of all that he has managed to publish 200 scientific articles. he earned his medical degree and a masters degree from columbia university and completed his infectious disease trading at yale. thanks for being here, especially at this busy time. [applause]
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>> thank you. thanks to the aspen institute for bringing us together. i'm going to go through a large number of slides because i want to get a lot of information out there but i also want to do to other things. one, leave plenty of time for questions and discussion, and two, remember to leave you with what i think is the single most important concept that i will be sharing. that is that infectious diseases are here to stay, but we can make a difference, we can control them and push them back if we focus on three fundamental principles. first, finding threats when they first emerge. second, responding effectively. third, having learned from those activities, preventing them wherever possible. that key formulation of finding, stopping, and preventing, is going to be essential to every aspect of our infectious disease control measures. the cdc works 24/7 to save lives, protects people, and save
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money through prevention. we have more than 12,000 health professionals who work to find, stop, and prevent health threats. we analyze information around the world and most of the data you will see comes from the cdc. but we also work with individuals and communities and health care workers to implement strategies to respond and prevent. we also serve as the de facto reference laboratory for the world, and the cdc has more than 150 different laboratories, 2000 scientists working on a broad range of areas. and we have important partnerships all around the world. the cdc has staff in 60 countries. we also have a variety of programs that work around the world.
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that basic concept of finding, stopping, and preventing is how you can think about the different programs. we have programs in influenza so we can track how strands spread around the world and what is the best choice for our vaccine here. we have programs and immunization where we work closely with the world health organization. immunization over the past decade has saved more than 10 million lives and is responsible in and of itself for more than a quarter of all the increase and decrease in infant mortality. they are best buys in this country. we also work on malaria control, and we embed back into ministries of health where that program is operational. not dissimilar from what we do in this country.
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we put our staff and to state and local departments. we don't establish large offices, rather we strengthen the systems in place and hospitals, hospital systems, to support them for better infection control. we do the same thing globally. is the program, the largest bilateral global health program that has ever been, and which has been remarkably successful, the cdc provides about half of the treatments. the infrastructure established has been very important in helping to enable to respond quickly and effectively. perhaps the single most important thing we do in global health is a program called the field epidemiology training program. this is based on the cdc
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epidemic intelligence service program, a two-year program where you take a highly trained physician or veterinarian or dentist or nurse or pharmacist, and over the next two years, you train them to do a very specific style of field epidemiology. you train them to identify an outbreak and stop it. you embed them with a local entity and help them respond to urgent threats. that program has been the backbone of the cdc for more than 60 years and for decades we have been helping other countries do a similar type of epidemiology. we have now trained over 3000 epidemiologists from around the world. 80% of the graduates stay in countries generally working in positions of leadership.
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this is a program that allows the cdc to strengthen governments, public health systems, health care systems around the world, for their sake and for ours. we have had to respond to a large number of emergencies, natural events, infectious diseases, potential environmental contamination, and war. and for the past two years we have been discussing the issue of global health security. we are truly connected by airplanes, food supply, air, water. to a very great extend our vulnerability depends on how vulnerable other parts of the world are. we have three major risks that we face. the first are emerging organisms, as ebola emerged in west africa for the first time ever. the second are resistant organisms. the third are intentionally created organisms.
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the same advancements that allow us to do more faster would allow someone with malicious intent to create organisms that may be difficult to deal with. we had three opportunities that really give us a lot of hope and momentum. the first is that there is a public health framework for responding to health security threats. that framework works. it is committed to by every country. there is an evaluation system to accept it. second, there are real technological advances. now we are able to do rapid testing for the plague bacteria. in just 20 minutes, with a dipstick. that test is in africa today and has already been used to rapidly detect, and as a result, treat and prevent, outbreaks. not just a laboratory work but also in communications technology. there are success stories,
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whether it is china's successful containment of h1n9. setting up a system by which they can track and stop flow. for the global collaboration in response to a variety of threats. that leads us to the goal of prevention, detection, and response. the global air network is quite striking, and we are ever more connected. interestingly, west africa is
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closer to europe than it is to east africa or southern africa, but in many quarters there is a little bit of a conflation of what is africa and what is west africa. the west african countries that have been heavily affected by ebola are struggling and beginning to show proof of principle, that we can stop it. global health security is something that we have committed to for several years. we implemented pilot programs in 2013. those programs showed real success and promise. the one in uganda was able to result in very rapid detection of outbreaks and meningitis, cholera, pedal a very rapid response. our goal in 2014 has been to implement together with the department of defense in 10 countries programmed to advance this prevention repsonse. we are hopeful that with the emergency response of the president we are able to close some of the blind spots, to address some of the weak links that make vulnerabilities around the world our vulnerabilities.
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the commitment is that by 2020 we will have 30 countries with at least 4 million people effectively preventing and protecting against another outbreak. in prevention we start with bio security and biosafety, making sure laboratories are saved so that organisms don't unintentionally or intentionally get out. immunization programs, which are a tremendously effective way not only of promoting health but of reducing health risks that may spread more broadly. nothing could make that more apparent than what we have been dealing with measles over the past couple of years. outbreaks anywhere in the world
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results often in outbreaks here. measles is highly infectious. we are also focusing on surveillance for diseases in humans -- about three quarters of all newly emerging infections come from some part of the animal kingdom, and we still don't have a handle on the natural reservoir of ebola. we are trying to understand that better and prevent future events where ebola could be introduced into our society. on the prevention front there is antimicrobial resistance prevention, and that means antibiotic stewardship and also identifying and stopping the spreading of resistant organisms. what a different world we would be in today if these basic systems had been in place in west africa a year ago. it doesn't take much to identify
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a cluster of people with hemorrhagic illness, it is a very unusual disease. it doesn't take that much laboratory testing. it does take a lot to stop it, even if it is very small, and it takes an enormous amount to stop it if it is a pandemic. that means having information systems, having disease detectives, and response capacity. response capacity means having an incident management system with emergency operations centers. this is fundamentally how we organize to respond to an emergency, and we have the metric, the key metric, that every country should be able to activate their emergency operations center and respond within two hours to address. if you can do that, you can cut time out of steps and you can respond much more effectively and prevent things from getting as out of control as ebola has gotten now. to talk about ebola for a minute
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-- we look at different infectious disease spreads and ebola is scary. it is scary because of its fatality rates, which is generally in the 50%-70% range. we think that with meticulous clinical care we should be able to get that down substantially, addressing hydration and fluid management, but it is still a very deadly disease. compare that with things like sars, around 10%, or even the 1918 pandemic which is about 1%-2%. the case fatality rates is high. but that doesn't mean it has anything like the epidemic potential of influenza. one of the fundamental facts about ebola is that from
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everything we have seen, it only spreads from someone who is ill and it only spreads from direct contact with body fluids of someone who is ill or has died. the spread has been primarily by these two -- caregiving and unsafe burials. burial practices may promote the widespread transmission. the bottom line with ebola is that despite recent progress the epidemic remains severe. that core public health intervention can stop it. success requires speed and skill, deploying effective prevention and control resources. i think there are three overarching principles that are essential to response. the first is speed. the second is flexibility. the third is keeping the front lines first.
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just to mention speed for a moment. even a one-month delay in scaling up services to respond to ebola could result in a tripling of the size of the outbreak. that is why we have been working around the clock for the past 46 months, and that is why we have been working around the clock for the past few days, surging people into mali. flexibility is very important. the incubation time of ebola is 2-21 days but the usual incubation time is about 8-10. every weekend at half there is another generation of cases. you have got to be ready to respond wherever it is most needed. the front lines first is a key concept. staff who are working in west africa continue to be frustrated by the lack of simple things that will be very helpful.
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the cdc has 170 staff on the ground in west africa, the largest global response of history. we have been aided enormously by our partnership with the dod. despite all of the good wishes, still we deal with things like the need to get into a village that is so remote that not even helicopters can get out, or to take dugout canoes and get to a place where there is a cluster of cases, or to hike four hours three forest to get to a diamond mine, where we find a cluster of ebola and 20,000 people. if we don't get in and get specimens out we may have a cluster of hundreds or even thousands of cases. those are the three key principles we try to ensure, to adhere to. the way i think about the ebola outbreak is as a forest fire. at the center are liberia,
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sierra leone, and guinea, which have bushfires all over. the first time the world has ever had an epidemic of ebola spreading widely around countries, to multiple countries. but around them are the sparks that emerge from that forest fire, that might land in lagos or monaco or mali or senegal. each of those sparks has a potential to create another set of wildfires. unless it is rapidly extinguished. just to give you a sense of how fast that effort needs to be -- in nigeria, when an ill traveler went from liberia to lagos, he had to be carried off the plane, he went to a local hospital and his ebola diagnosis was initially not suspected.
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pretty soon there was a cluster of cases in lagos. the cdc had staff on the ground who were working on polio eradication in nigeria. we brought staff from other parts of africa and within 48 hours we put 10 of our top staff on the ground. we were able to help the government repurposed their polio infrastructure to manage the lagos outbreak. we were able to take 40 of the trainees we had helped to become disease detectives to deal with the polio. we allocated their work to ebola control. over the following weeks, 899 contacts did 19,000 home visits. they constructed a evil treatment unit. they trained 2000 health care workers.
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they got more than 95% of their contacts monitored every day. they missed one. it went to another city and started another cluster of ebola. they had to repeat the operation there. making a center, but with all of that intensive work, you were able to stop the outbreak. nigeria is now ebola free. that is the effort it took to prevent one case of ebola from becoming an outbreak or epidemic. given how central nigeria is to african travel and transit, it was crucial to do that. that is the struggle we are today engaged in in mali. beyond that second ring of countries that may have an immediate ember or spark that ignites an outbreak, every other country that has the potential to have ebola or other deadly infectious diseases needs to be,
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more fire resistant. in the case of infectious disease control, that means detections systems, response systems, and prevention. the same three principles. in ebola control we have five basic principles -- incident management, organizing our system. last week we ensured that mali had appointed an incident manager and we are now scaffolding around that individual to provide effective incident management. treatment in mali, they created an ebola treatment unit to provide isolation and care. they have one confirmed and that treatment unit which is currently being staffed by doctors without borders.
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burial support -- their traditions are very different which includes washing and touching the body. it is their way of grieving, it needs to change to protect people from ebola. that means change in communities that are very widely dispersed, which don't have a lot of trust of the government and society, which may be cut off without internet, cell phone, radio coverage. it is a challenge. for this infection control in the entire health care system. we have to ensure that the whole system in these three west african countries is ready to consider ebola and that is not easy. it initially presents quite a bit like malaria, and these are countries that are hyper and dimmick for malaria. the rate of malaria infection is in the range of 20% and 70%. when you have something that is very common and looks a lot like something a lot less common but a lot more deadly, you have to
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have an overarching change in the way infection control is done. finally, communication. to get this to health care workers and the public. the cdc has the largest global response to human history, and is addressing all aspects of the response in conjunction with our u.s. and global partners. that includes addressing the needs of each of the countries. though many of the u.s. efforts are focused on liberia, the cdc efforts are in every country where there are cases. we have more staff in sierra leone then in liberia because the needs are greater there at the moment. sierra leone has come in in a big way with assistant. everything from laboratory testing to communications expertise to contact tracing to
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outbreak control to logistics are things that the cdc along with w.h.o. and others are doing. there has been some encouraging trends in some parts of each of the three countries and i believe those encouraging trends are fundamentally proof that we can still stop ebola. but i have heard at times some sense of, the problem is over already. i am very concerned by that perspective because it is nowhere near over. it will be a very long hard fight. every single one of those cases that is emerging, and they are more than a thousand cases a week emerging in west africa,
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every one of those cases needs that kind of response that i described. that is going to be incredibly difficult. a reminder that cases are still growing. despite some progress, there was more cases in west africa in october than there were in september and though the numbers decreased in liberia, we believe, there are so many cases that we are not able to do the kind of outbreak control as needed and so many communities that have not yet had cases that need intensive control measures. in october, west africa had more ebola cases than in all of the recorded ebola outbreaks over the last 40 years. we have a long way to go but we do have proof of principle and we do have tremendous commitment from societies. my team was describing how many communities themselves were taking action among they identified buildings or schools to isolate and care for people with ebola. they tracked the contacts so
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they would be rapidly isolated and would not further spread disease. this is outdated because it is from yesterday. one additional case has been confirmed and this is an example of the kind of rapid assessment we are doing for the cluster. one individual, a 70-year-old man, the grand imam, became ill and died. it was understood that he had ebola. in all likelihood come he did. in all likelihood, he might have gotten it by performing some of those funeral rights that were mentioned. he was the grand imam of a large town that is literally on the border between ginny and molly. summit he said, you mean like, kansas city. it is a town that straddles two countries.
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when he became ill, he had other conditions. he had large funeral service. in those health care facilities, he was cared for in his family, by individuals who have in confirmed to have ebola. the team has identified more than 450 contacts and they have taken contact tracing to track those individuals ideally every day so the moment anyone get sick they get isolated. we expect people to get sick because there is flu, there is malaria, there is typhoid, there are other conditions. an indicator is that people would be brought into the unit and tested. when you have a negative test,
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you have to repeat it 72 hours after symptom onset because early on there is so little virus that individuals are not infectious but they also cannot be diagnosed in some cases. but this is just a map of what happened. you can see on the border through ramallah, it will travel to bamoko. every person that leaves the screen, there temperatures taken. over the past few months, we have identified within 80 people who have had fever and have not had fever. in many cases, they did not even the airport. that is retaken by the airline several times and keeping federal people off of airplanes. we have looked at that second and third ring. this is a slide. there is roughly speaking some green. some of them, it is challenging. there is a whole lot of for
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emergency response capacity, even more yellow where we are not there yet and that is why the emergency funding is so critically important. there can be another exposure like the exposure and molly and we will be dealing with another potential outbreak. every one of these countries has the risk of being like lagos and control enough spark or like the next liberia or sierra leone. that kind of widespread transmission doesn't just harm people from ebola, it really cripples the health care system. the health care system is basically closed. we don't come in for treatment of malaria. women that need emergency care don't come forward.
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people that are bleeding are not cared for. the effect on society are generally more devastating. schools are closed. economies are suffering severely, crops are either not being planted or harvested to the extent that they could be otherwise. there is also progress. this is a woman i met in liberia. she lives on the firestone rubber plantation. firestone had a cluster of ebola, they would did government can set helpless, the government said, we cannot, we are too busy. they said, ok, we will do it ourselves. they were able to stop the spread of ebola for their population of 55,000 people. this is one of the survivors. so, in the u.s., there are a
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series of things that we are doing to strengthen our preparedness against ebola. shaming and monitoring of travelers when they leave affected countries and when they arrive in the u.s.. their temperature is taking. they are provided a care package. that care package has a thermometer, a fever log, health information, a number to call if they get sick. over the last couple of weeks, at least four people have gotten sick. they have taken their temperature, they have called that number. the state health department has