Sunday, January 29, 2012
Previously discussed here, was the cert petition filled in James A. Brown v. United States (11-783),a case that raises interesting questions regarding Brady. As noted, Brown, is a former Merrill Lynch executive who "was convicted of perjury and obstruction of justice for his testimony before the Enron grand jury about a transaction between Merrill and Enron in late 1999." An amicus brief has been filed in this case that includes several different defense groups and several leading law professors. They weigh in on the important question raised in this brief - the appropriate standard of review for Brady cases. Should it be "clear error" or should it be de novo.
The case also examines "materiality," a term that has creates some confusion. What must a prosecutor provide to the defense counsel. And isn't it odd that the adversary in the process is making the determination for what the defense is entitled to receive. The case looks at summaries being provided to defense counsel. Bottom line - summaries are not the same as the real thing.