The Inquisition by Special Prosecutor in United States V. Senator Ted Stevens: Of Brady, Contempt, and the Forensic Trifecta

This Article will examine important issues raised by this unusual case and its lingering aftermath, concerning the limits of the trial court’s authority to order prosecutors to comply with the discovery requirements of the Constitution, to order a private attorney as special prosecutor to investigate Assistant United States Attorneys (AUSAs), and to punitively imprison them sua sponte for Brady violation. Part I sets forth the proposition that criminal contempt for a Brady violation is not available to the court, and that so-called “Brady orders” are legally unsound. An amendment to the criminal contempt statute is proposed. Part II examines the legal basis and procedure for a district court to appoint a special prosecutor under Rule 42, Fed. R. Crim. P., and suggests an amendment to the Rule to inhibit the unnecessary and wasteful appointment of Rule 42 special prosecutors in the future. Part III assesses the investigation and report of the court’s special prosecutor, and evaluates whether its publication by the court in the absence of charges being filed or an adversary hearing being afforded constituted an abuse. An amendment to protect the privacy and rights of those investigated is presented.