Sunday, January 15, 2012

More Discovery Issues - Petition for Cert Filed in Brown Case Looks at Brady

The cert petition in James A. Brown v. United States (11-783) raises interesting questions regarding Brady.  Brown, a former Merrill Lynch executive "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."  This case was part of the "Enron barge transaction" investigation. The cert petition states that "prosecutors steadfastly denied that they possessed any Brady evidence and claimed that their production of nineteen pages of court-ordered 'summaries' exceeded their constitutional obligations."  The Fifth Circuit later found the "evidence was exculpatory and 'plainly suppressed,' but 'not material.'"  This was despite the fact that items had been "yellow-highlighted" by prosecutors as "selected exculpatory statements in the evidence they submitted for the district judge's pretrial in camera review." Years after the trial "new prosecutors disclosed thousands of pages of actual notes, 302s, and testimony."  This cases raises the issue of what is the correct standard of review under Brady and Kyles.

The petition asks the Court to "establish three clear rules to enforce the crucial constitutional protections established in Brady v. Maryland."  It states:

"First, consistent with the majority of Circuits, this Court should establish that Brady decisions must be reviewed de novo.  Second, this Court should reject the Fifth Circuit's novel and dangerous approach to determining materiality, and thereby refine and reinforce the Kyles test. Third, this Court should adopt and mandate the majority rule that exculpatory evidence is material per se if the government corrupts the adversary process by providing deficient summaries or affirmatively capitalizing on its suppression at trial."

Discovery issues need to be examined by the Court.  This is a good case for the Court to stress the importance of defendants receiving timely discovery to allow for a fair and proper defense to the charges.

Petition for Cert - Download 2011 CERT PETITION FILED

See also Brady posts of co-bloggers Lawrence Goldman here and Solomon Wisenberg here.


Enron, Judicial Opinions, Prosecutors | Permalink

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Only circuit split noted in the petition appears to be over the question of de novo vs clear error review for materiality. Do you think that issue is certworthy? Or should the Supreme Court start taking cases to "emphasize" things.

Posted by: Certworthy? | Jan 16, 2012 8:02:18 AM

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