The Rich Man’s Brady

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.

13 thoughts on “The Rich Man’s Brady

  1. Ken Womble

    I prefer to swing dead cats when in prison. I save my stone throwing for glass houses.

    I like the optimism (always the optimist), but what will another “hey, remember Brady, jerks” ruling accomplish when the government ignores all the rulings already there?

    1. SHG Post author

      Swinging dead cats is mean and hateful, not to mention disrespectful of dead cat remains.

      Don’t harsh my naïve optimism with your negativity. Now I feel the need to go to my safe space.

  2. Patrick Maupin

    (Obligatory pro bono caveat) So are all those guys offering their opinions pro bono? That would be the gift that keeps giving, even if giving it does get them into the fancy parties.

    1. SHG Post author

      Well, yes and no. All those guys are partners in Biglaw. They get paid no matter what they spend their time doing. Just because it’s pro bono public, it doesn’t mean they don’t get paid.

      1. Jorge

        And they all get paid millions of dollars by law firms which make tens of millions of dollars from defending white collar crime cases. So doing this brief was not exactly economically neutral for them,

  3. Fubar

    A mercifully short comparative disquisition on the various natures of crumbs, due diligence, and Brady disclosures or lack thereof.

    Our gracious host observed of a crumb for which the wise would be grateful:

    Don’t scoff at crumbs. It’s better than starving.

    From Arthur Dent’s due diligence:

    “But look, you found the notice didn’t you?”

    “Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’.”

    From respondent’s brief in Georgiou v. US¹:

    I just prosecute. I’m not your shepherd.
    For the diligent, trails are well peppered
    With crumbs microscopic.
    You’re simply myopic,
    And far too afraid of the leopard!


    1. Yeah, I lied about that source. If readers all exercised due diligence, this note wouldn’t be necessary.

  4. zoe

    Isn’t this more of a Mooney v. Holohan (1935) violation rather than a Brady violation? Instead of “Oops, we forgot”, the prosecution purposefully didn’t turn the info over to the defense. Or am I splitting hairs?

    1. SHG Post author

      Mooney, which involves both the presentation of perjured testimony as well as the deliberate concealment of evidence that would have proven the testimony false, is generally subsumed in the broader rule of Brady, which applies regardless of good or bad faith by the prosecution.

      Here, the argument isn’t one of deliberate concealment (or perjured testimony), but rather that the defense could have discovered the material with due diligence, thus vitiating their duty to disclose. The issue is whether the defense has a due diligence obligation before the prosecution’s Brady duty kicks in.

  5. Marc R

    The solution to Brady has already been found by far simpler minds: Open prosecutorial files. Their job is to represent the government in determining the factual and legal support behind moving forward with charges and proposed punishments. They don’t represent the victim and they have a duty to investigate the arrest affidavit and/or the intake prosecutor’s charging decisions. I don’t understand the opposition to open files. And by that I obviously mean everything given them by police and witnesses, not their legal analysis or case stategy based upon those documents or evidence locations. How many guns are destroyed without a phone call to the defense lawyer to test the firearm? How many CI arrests between setting up the defendant and trial occurred and why wasn’t their CI number pulled? How many witness interview reports and DVDs are never turned over because the government doesn’t plan on calling that witness? Open files.

      1. Marc R

        The word Menckian is a clear explanation, and your linked earlier post, as to my favored general solution. The answer though isn’t simple but a different level. Right now how do you get a Brady hearing? You show evidence you received in discovery necessitating missing info using basic logic or phrases like “I reminded the witness to our prior 2 conversations and his changed version didn’t make sense” with an audio filled with “…so are you done lying, now tell us the truth” not knowing the allegedly told lie.

        Open files have to have intake docs go from the clerk’s to us and the government at the same time. Logins for LEO agency’s clerks to upload supplemental reports and lineup photos and notices of witness ABC’s recorded interviews. Remove SAO or USAO investigators using any arrest or search power in meeting witnesses; held to same right to ask for conversation like a licensed PI. Unethical people will always collude but I’d hope it’s far less likely an agency and prosecutor would share docs off record, versus an agency turning over evidence piecemeal to the state and the state not following up before or if filing a supplemental discovery response.

        1. SHG Post author

          Huh? Marc, this is incomprehensible. If you can’t be bothered to express yourself in a way that is reasonably comprehensible, I’m going to have to trash your comments.

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