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August 04, 2015 Practice Points

SCOTUS Asked to Review Third Circuit Decision on Brady Obligations

A group of former prosecutors argue that the government’s obligation to turn over all material, favorable evidence is “unequivocal.”

By Anna H. Finn – August 4, 2015

Last week, a bipartisan coalition of former federal prosecutors and former senior governmental officials filed an amicus brief urging the Supreme Court to accept certiorari in Georgiou v. United States, No. 14-1585, on petition for review from the Third Circuit. The brief argues that the prosecutors in Georgiou violated Brady v. Maryland by not turning over information favorable to the defense that was related to the credibility of a key witness for the prosecution.

Georgiou was convicted of securities fraud, based in significant part on the testimony of his former business partner, Kevin Waltzer, whose testimony corroborated certain physical evidence collected by the government and supported the government’s contention that Georgiou’s actions were willful and intentional. Defense attorneys made a pretrial Brady request for information concerning credibility, competency, bias, or motive of government witnesses, including with respect to mental-health problems or substance-abuse issues. The prosecutors did not disclose two pieces of evidence in their possession demonstrating that Waltzer had received treatment for mental-health and substance-abuse issues in the timeframe leading up to his testimony. The government argued, and the Third Circuit agreed, that because defense counsel could have discovered this information on their own through public records, no Brady violation had occurred.

In their brief, the former prosecutors argue that the government’s obligation to turn over all material, favorable evidence is “unequivocal” because the prosecutors’ responsibility “is not to win at all costs but rather to ensure that a miscarriage of justice does not occur.” The amici decry the Third Circuit’s ruling, which appears to permit prosecutors to hide potentially exculpatory evidence and to require defendants to seek it out aggressively. The brief closes by quoting the inscription on the wall in the Justice Department: “The United States wins its point whenever justice is done its citizens in the courts.” The amici argue that permitting a defendant’s lack of diligence to justify a prosecutor’s failure to disclose favorable evidence loses sight of that fundamental maxim.

Anna H. Finn, Osborn Maledon, P.A., Phoenix, AZ

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