2

Maryland

, requiring the government to disclose evidence favorable to the defense, is probably the single most important underpinning of Due Process for a criminal defendant—yet it is often observed only in the breach.

Brady v. Maryland

, 373 U.S. 83 (1963) . While prosecutors routinely recite their full knowledge of and compliance with their

Brady

obligations, in truth they often scoff at them and continue to play games to win convictions at all cost s. Meanwhile, the defense does not know what the defense does not know. This problem was demonstrated dramatically in the prosecution of United States Senator Ted Stevens. In fact, it was the prosecutorial misconduct in t hat case that led this Court to adopt the

Brady

order it now routinely enters in every criminal case.

2

Unfortunately, the government learned nothing from the rebukes in

Stevens

. It has engaged i n even more m alevolent conduct in the prosecuti on of Mr. Flynn. The very reason this Court adopted its

Brady

Order was to impress upon prosecutors their most solemn obligations and to enable the contempt process to address the government’s failure to comply, rather than leaving openings for any excuses or being hamstrung to consider criminal contempt charges as it was in

Stevens

by the absence of a preexisting order.

3

Indeed, this Court

2

Standing Order, Dec. 12, 2017,

U.S. v. Flynn

, No. 17-232-EGS; Order, Feb. 16, 2018,

U.S. v. Flynn

, No. 17-232-EGS.

3

“The invest igation and prosecution of U .S. Senator Ted Stevens were perm eated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness. Months after the trial, when a new team of prosecutors discovered, in short order, some of the exculpatory information that had been withheld, the Department of Justice (“DOJ”) moved to set aside the verdict and to dismiss the indictment with prejudice. New prosecutors were assigned after U.S. District Judge Emmet G. Sullivan held two of the previous prosecutors in contempt for failing to comply with the Court’s order to disclose information to Senator Stevens’s attorneys and to the Court regarding allegations of prosecutorial misconduct which were made after trial by an FBI agent who had worked on the case.”

Report to Hon. Emmet G. Sullivan of Investigation Conducted Pursuant to