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It's Prosecutor v. Prosecutor in Unprecedented Amicus Brief

By Casey C. Sullivan, Esq. on August 05, 2015 | Last updated on March 21, 2019

Here's something you don't see -- well, ever? A cadre of ex-government prosecutors, including 20 former Justice Department officials, has filed an amicus brief with the Supreme Court accusing current federal prosecutors of violating the Constitution by withholding evidence regarding a key witness. The claims made in the brief aren't in themselves uncommon, but it's unprecedented to see them made by former federal prosecutors against their current-prosecutor colleagues in the Justice Department.

The brief, signed by former officials from the Clinton, Bush, and Obama administrations, was submitted to support the cert petition of George Georgiou, a Canadian businessman convicted of securities fraud in 2010, after prosecutors failed to disclose evidence regarding the credibility of a government witness.

Due Diligence Exception to Brady?

Georgiou's cert petition asks the Court to address whether there is a "due diligence exception" to a prosecutor's duty to disclose materially exculpatory evidence under Brady. Georgiou had been convicted for manipulating stocks and was sentenced to 25 years in prison and order to pay over $55 million in restitution. One of the prosecutor's chief witnesses against Georgiou, co-conspirator Kevin Waltzer, had a history of substance abuse and mental health problems -- which the prosecution knew of but did not disclose when requested.

On appeal, the Third Circuit held that Brady does not require the government to turn over evidence that could be otherwise obtained with "reasonable diligence." It is this rule that the ex-DOJ officials take issue with, arguing that it amounts to a ruling that the "prosecutor may hide, defendant must seek." Brady, due process, and simple ethics require that prosecutors turn over favorable evidence regardless of the actions of a defendant, the amicus brief argues.

Commitment to Justice, Not Convictions

The brief is adamant that a prosecutor's goal must be to serve justice, not to win a conviction. Allowing prosecutors to skirt Brady "contributes to a harmful notion that the criminal justice system is a game, and that victory rather than justice is a prosecutor's goal."

Georgiou's lawyer, former acting solicitor general Neal Katyal, praised the brief as representing "the collective brain trust of the last several administrations." Included on the brief were Michael Mukasey, Attorney General under President Bush; Seth Waxmon, solicitor general for President Clinton; and Gegory Craig, former White House counsel to the Obama administration.

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