The issue arising in the petition for cert on behalf of George Georgiou is whether the government’s Brady obligation stands alone, or whether it is contingent on the defense lawyer’s due diligence. The issue arose from a witness against Georgiou who had some psychological issues:
The main witness against Mr. Georgiou was Kevin Waltzer, the former business partner, and Mr. Georgiou’s lawyers had asked the prosecutors for all sorts of information about Mr. Waltzer, including whether he had suffered from mental disabilities, emotional disturbances and the like.
But the prosecutors failed to provide a transcript and a report that would have disclosed that Mr. Waltzer had been diagnosed with anxiety and depression and had taken drugs to control those conditions. That information would have been useful during Mr. Waltzer’s cross-examination. It might also have led the defense to discover that Mr. Waltzer had received a diagnosis of bipolar disorder.
Yes, yes, a person’s mental illness shouldn’t be a reason to rip him a new asshole when he’s on the witness stand trying to convict a defendant, because we want to show only love and concern for the mentally ill. There must be an -ism for this, though it eludes me at the moment.
Except when the witness is part of the machinery that may convict a criminal defendant, we use whatever is there to discredit his testimony. Cry all you want. That’s what lawyers do. Save your tears for your lean-in group. If it is material and relevant to credibility, it is fair game.
You might think the next step in this post will address whether the defense should be required to exercise due diligence before the prosecutor’s Brady duty arises. You would be wrong. The answer to the question is “no,” and that’s that. What makes this worthy of a Sidebar column by Adam Liptak is something else entirely, the group amassed as amicus against the government.
They include some 20 former Justice Department officials, includingMichael B. Mukasey, who served as attorney general in the Bush administration. Seth P. Waxman, who was solicitor general in the Clinton administration, represents the former officials.
Their brief urged the Supreme Court to hear an appeal from George Georgiou, who was convicted in 2010 of securities fraud and related crimes. Mr. Georgiou says his conviction was tainted by violations of Brady v. Maryland, a 1963 Supreme Court decision that required prosecutors to turn over favorable evidence to the defense.
Mukasey and Waxman, sitting in a tree. Against the government. What? But wait, there’s more:
Neal K. Katyal, a former acting solicitor general in the Obama administration, represents Mr. Georgiou. He sounded delighted by the support his client was receiving from what he called “the collective brain trust of the last several administrations.”
“It’s a very rare thing when Michael Mukasey, Greg Craig, Walter Dellinger, Larry Thompson, Jamie Gorelick, Seth Waxman and Peter Keisler agree that a court decision siding with federal prosecutors is wrong,” Mr. Katyal said.
Mr. Craig was White House counsel in the Obama administration; Mr. Dellinger acting solicitor general in the Clinton administration; Mr. Thompson deputy attorney general in the Bush administration; Ms. Gorelick deputy attorney general in the Clinton administration; and Mr. Keisler acting attorney general in the Bush administration.
Calling this aggregation of ex-government clout “very rare” is like calling the birth of a baby Tyrannosaurus cute. You have a group consisting of nearly every governmental powerhouse still capable of personal locomotion joining together. That alone would be mind-blowing, but they’re going against the government.
They are against the government. Let that sink in.
And now for the piece of the puzzle that will turn that smile around. They’re doing it for some rich guy in a white collar case. Brady violations are a dime a dozen, and you couldn’t throw a stone in a prison without hitting a guy whose rights under Brady were violated. Where were these powerhouses for them?
Well, sorry guys, but Walter Dellinger doesn’t show up at just anybody’s party. And there is little chance he’s coming to yours, unless you can afford Neal Katyal to take your case.
But don’t be too cynical. Just as the constitutional rights of the innocent are usually vindicated through the worst of society, Brady rights will be vindicated through the wealthiest. Let them gang up on the government on behalf of a rich guy. Let the rich guy pay for the most expensive legal talent around. When he’s all done, you get to enjoy his leftovers, and they will, I hope, be tasty.
If this is what it takes to get some progress with Brady, so be it. Yes, it’s pathetic that it takes a rich guy to get the most influential figures in governmental law to lock arms and speak as one for the good of the Constitution, and it would be awfully nice if they demonstrated similar concern, heck, any concern, about the poor and downtrodden. But that’s how important people are, saving it up for that huge blowout at the rich guy’s house.
At least the decision will be good for the rest of us. Don’t scoff at crumbs. It’s better than starving.