US Attorney’s Plan to Protect Police Draws Warnings About Rights Violations

WASHINGTON — The interim U.S. Attorney for the District of Columbia said this week he no longer plans to turn over potentially discrediting information about police officers to judges or defense attorneys before the officers testify at criminal trials.

The announcement is raising questions about whether it could violate defendants’ legal rights to a fair trial.

“It’s going to interfere with the Constitution, really,” a Washington attorney who handles public defender cases told The Well News. He asked not to be named.

It also creates possibilities that prosecuting attorneys could be penalized or disbarred by judges or the D.C. Bar’s Board on Professional Responsibility for failing to follow proper court procedures.

“They could,” the attorney said. “I think it’s going to lead to a lot more litigation.”

The announcement from interim U.S. Attorney Ed Martin refers to “Lewis Lists.”

Lewis Lists are records of troublesome or untruthful behavior by police officers that would tend to undercut their credibility when they testify at trials. It is derived from the 1979 District of Columbia Court of Appeals ruling in Lewis v. United States.

The court said that the due process clause of the Constitution requires prosecutors to give the defense attorneys and judges any significant evidence they hold that suggests a defendant is not guilty, including information showing misconduct by police.

Defense attorneys sometimes use Lewis List information to challenge the credibility of officers who accuse defendants of crimes. The information also can interfere with officers’ opportunities for promotions or pay raises.

The legal term for the information is exculpatory evidence. The Lewis Lists are held by U.S. attorneys’ offices.

Martin said he would withhold the information as a show of support for police. He made the announcement on the social media site X.

The U.S. Attorney’s Office “will no longer allow judges or others to gratuitously damage your careers because of the outside impact of inexact characterizations,” he wrote in a memo addressed to “Our Cops and Law Enforcement Officers.”

“More and more, I hear from Men and Women in Blue that they want to know we have their backs. We do and we will,” Martin wrote.

He said the policy shift was a way to “stand up to judges” and “anyone who maligns our officers for sport or advantage unfairly.”

Some attorneys are saying Martin is overstepping his authority.

Under Rule 3.8e of the District of Columbia Bar’s Rules of Professional Responsibility, a prosecutor is forbidden from intentionally failing “to disclose to the defense … any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense.”

Judges or the D.C. Bar can discipline prosecutors who violate the rule by fining them, sentencing them to jail or taking away their licenses to practice law.

A high-profile example of what happens for violating exculpatory evidence rules followed the criminal conviction of former Alaska Republican Sen. Ted Stevens in 2009. A jury found him guilty of seven corruption charges for financial improprieties.

A federal judge later threw out the conviction after evidence arose that prosecutors hid evidence of Stevens’ innocence. By then, he had lost his reelection bid for the Senate seat he held for 40 years.

The prosecutor accused of hiding the evidence was facing criminal charges before he committed suicide.

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