On March 15, 2012, Nancy Gertner, a former federal judge and a Harvard Law School teacher, and Barry Scheck, co-director of the Innocence Project, published an OpEd in the Wall Street Journal entitled How to Rein In Rouge Prosecutors.
Gertner and Scheck propose what they call a “simple solution for dealing with prosecutorial misconduct”:
Thirty days before trial, or at some reasonable time, the trial judge should convene a conference and issue a specific order directing prosecutors to produce all evidence that ‘tends to negate the guilt of the accused or mitigate the offense,’ as required by the American Bar Association’s ethics rules. This should include the requirement that prosecutors contact the relevant law-enforcement personnel to make certain all such evidence is disclosed as soon as possible.
The OpEd led to letters to the editor, including one from NAFUSA member Peter Vaira where he takes the position that the Gertner-Scheck proposal “doesn’t go far enough.” Vaira argues the need for more disclosure in the sentencing process. He concludes:
I propose that in federal cases that the court order the defense counsel to file with the court the adjustments required by the sentencing guidelines that are present in that particular case, and to direct the prosecutor to thereafter make a specific search for any material which would mitigate the application of those factors. This would include a direction to cause a search of the investigating agency or police-force’s files.