No. 14-1535
IN THE

Supreme Court of the United States
GEORGE GEORGIOU,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE FORMER FEDERAL
PROSECUTORS AND FORMER SENIOR JUSTICE
DEPARTMENT AND GOVERNMENT OFFICIALS
MICHAEL B. MUKASEY, STUART M. GERSON,
PETER D. KEISLER, GREGORY B. CRAIG, DONALD
B. AYER, JAMIE GORELICK, LARRY D. THOMPSON,
GARY G. GRINDLER, WALTER DELLINGER,
CHRISTOPHER WRAY, RITA M. GLAVIN, JOHN S.
GORDON, SCOTT R. LASSAR, JOSEPH P.
RUSSONIELLO, DAVID W. SHAPIRO, MICHAEL J.
SHEPARD, MARY PATRICE BROWN, SIGAL
MANDELKER, BOYD M. JOHNSON III, AND
SHARON COHEN LEVIN IN SUPPORT OF
PETITIONER

SETH P. WAXMAN
Counsel of Record
DAVID W. OGDEN
JOHN T. BYRNES
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
seth.waxman@wilmerhale.com

 QUESTIONS PRESENTED
1. Whether prosecutors are permitted to withhold
materials covered by Brady v. Maryland, 373 U.S. 83
(1963), when it is possible that the defendant may have
been able to discover the materials through another
source.
2. Whether a court of appeals may conclude that
withheld evidence was not material, consistent with
Brady and its progeny, without viewing the evidence
cumulatively and in light of the entire record.

(i)

 TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ............................................ i
TABLE OF AUTHORITIES ..........................................iv
INTEREST OF THE AMICI CURIAE ........................ 2
INTRODUCTION .............................................................. 3
REASONS FOR GRANTING THE PETITION .............................................................................. 6
I.

PROSECUTORS ARE DUTY-BOUND TO DISCLOSE ALL BRADY MATERIALS REGARDLESS OF DEFENDANTS’ EXERCISE OF DUE
DILIGENCE .................................................................... 6
A. Brady And Its Progeny Require Prosecutors To Disclose Exculpatory Evidence Without Regard To Defendants’
Diligence ................................................................. 7
B. Internal U.S. Department of Justice
And State Prosecutorial Regulations
Recognize A Prosecutor’s Central Role
In Ensuring a Fair Trial By Imposing
Affirmative Disclosure Obligations .................. 10

II. THE DUE DILIGENCE RULE REPLACES A
PROSECUTOR’S DUTY TO DISCLOSE PRIOR
TO TRIAL WITH POST-CONVICTION LITIGATION ABOUT THE COMPETENCE OF DEFENSE COUNSEL, A TRADE THAT DISSERVES THE FAIR AND EFFICIENT ADMINISTRATION OF JUSTICE .............................................. 16
CONCLUSION ................................................................. 19

(iii)

 iv
TABLE OF AUTHORITIES
CASES
Page(s)
Banks v. Dretke, 540 U.S. 668 (2004) ........................ 2, 7, 8
Berger v. United States, 295 U.S. 78 (1935) ................. 6, 9
Brady v. Maryland, 373 U.S. 83 (1963) ................. passim
Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) ..................... 9
Cone v. Bell, 556 U.S. 449 (2009) ....................................... 7
Edwards v. Carpenter, 529 U.S. 446 (2000) ................... 17
Gideon v. Wainwright, 372 U.S. 335 (1963) ................... 16
Giglio v. United States, 405 U.S. 150 (1972) .................... 5
Kyles v. Whitley, 514 U.S. 419 (1995) ......................... 9, 18
Martinez v. Ryan, 132 S. Ct. 1309 (2012) ....................... 17
Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) ..................... 8
Strickland v. Washington, 466 U.S. 668
(1984) ............................................................................ 17
Strickler v. Greene, 527 U.S. 263 (1999) ........................... 7
Taylor v. Illinois, 484 U.S. 400 (1988) ............................ 18
United States v. Agurs, 427 U.S. 97 (1976) .................. 8, 9
United States v. Bagley, 473 U.S. 667
(1985) ............................................................ 2, 6, 7, 8, 17
United States v. Lindstrom, 698 F.2d 1154
(11th Cir. 1983).............................................................. 4
United States v. Nixon, 418 U.S. 683 (1974) .................... 2
United States v. Perdomo, 929 F.2d 967 (3d
Cir. 1991) .................................................................... 5, 7

 v
TABLE OF AUTHORITIES—Continued
Page(s)
United States v. Tavera, 719 F.3d 705 (6th
Cir. 2013) .................................................................... 8, 9
United States v. Turkish, 623 F.2d 769 (2d
Cir. 1980) ...................................................................... 16
United States v. Van Meerbeke, 548 F.2d
415 (2d Cir. 1976) .......................................................... 4
Wardius v. Oregon, 412 U.S. 470 (1973) ......................... 16
STATUTES AND RULES
Fla. R. Crim. P. 3.220(n)(3)............................................... 14
Mass. R. Crim. P. 14(a)(1)(A) ........................................... 14
N.C. Gen. Stat. § 15A-903(a)(1) ....................................... 14
Tex. Gov’t Code Ann. § 41.111 ......................................... 14
OTHER AUTHORITIES
ABA Standards for Criminal Justice:
Prosecution and Defense Function (3d
ed. 1993), available at http://www.
americanbar.org/content/dam/aba/
publications/criminal_justice_standards/
prosecution_defense_function.authcheck
dam.pdf ............................................................ 10, 11, 18
ABA Standards for Criminal Justice:
Prosecution and Defense Function
(4th ed. 2015), available at http://
www.americanbar.org/groups/criminal_
justice/standards/ProsecutionFunction
FourthEdition.html................................................ 2, 10

 vi
TABLE OF AUTHORITIES—Continued
Page(s)
Ariz. Rules of Prof’l Conduct R. 3.8 ................................ 11
Ass’n of Prosecuting Att’ys, Statement of
Principles, available at http://www.
prosecutingattorneys.org/wp-content/
uploads/APA-Policy-StatementDiscovery1.pdf (last visited July 27,
2015) ............................................................................. 10
Coyle, Pamela, Tried and Tried Again, 84
A.B.A. J. 38 (Apr. 1998) ............................................. 18
Dist. Att’ys Ass’n of the State of N.Y.,
“The Right Thing”: Ethical Guidelines
for Prosecutors (2012), http://www.
daasny.com/wp-content/uploads/2014/
08/Ethics-Handbook-9.28.2012-FINAL1.
pdf ................................................................................. 11
DOJ, Guidance for Prosecutors Regarding
Criminal Discovery (Jan. 4, 2010),
available at http://www.justice.gov/
dag/memorandum-departmentprosecutors ................................................ 11, 12, 14, 18
DOJ, Issuance of Guidance and Summary
of Actions Taken in Response to the
Report of the Department of Justice
Criminal Discovery and Case Management Working Group (Jan. 4, 2010),
available at http://www.justice.gov/
dag/memorandum-departmentprosecutors-0............................................................... 12

 vii
TABLE OF AUTHORITIES—Continued
Page(s)
DOJ, Requirement for Office Discovery
Policies in Criminal Matters (Jan. 4,
2010), available at http://www.justice.
gov/dag/memorandum-headsdepartment-litigating-componentshandling-criminal-matters-all-unitedstates ............................................................................ 13
Fed. Jud. Ctr., Brady v. Maryland Material
in the United States District Courts:
Rules, Orders, and Policies (2007),
available at https://bulk.resource.org/
courts.gov/fjc/bradyma2.pdf ..................................... 14
Hashimoto, Erica, Toward Ethical Plea
Bargaining, 30 Cardozo L. Rev. 949
(2008) ............................................................................ 16
Kozinski, Alex, Criminal Law 2.0, 44 Geo.
L.J. Ann. Rev. Crim. Proc. iii (2015) ........................ 13
Lee Jr., Milton C., Criminal Discovery:
What Truth Do We Seek, 4 U.D.C. L.
Rev. 22 (1998) .............................................................. 14
Mem. from L.A. County Dist. Att’y Jackie
Lacey to All Deputy District Attorneys (June 4, 2013), available at http://
da.co.la.ca.us/sites/default/files/policies/
Brady_Special_Directive_13-02.pdf ........................ 15
Model Code of Prof’l Responsibility DR 7103(B)(1980)................................................................. 11
Model Rules of Prof’l Conduct R. 3.8 .............................. 11

 viii
TABLE OF AUTHORITIES—Continued
Page(s)
Nat’l Dist. Att’ys Ass’n, National Prosecution Standards (3d ed. 2009), available
at http://www.ndaa.org/pdf/NDAA%20
NPS%203rd%20Ed.%20w%20Revised%
20Commentary.pdf ..................................................... 10
N.J. Div. of Crim. Just. & N.J. County Prosecutors Ass’n, The Prosecutor’s Manual
(1979), available at https://www.ncjrs.
gov/pdffiles1/Digitization/55604NCJRS.
pdf ................................................................................. 10
N.Y. Rules of Prof’l Conduct R. 3.8(d) ........................... 11
N.Y. State Bar Ass’n, Task Force on Crim.
Disc., Final Report (2014), available at
http://www.nysba.org/WorkArea/
DownloadAsset.aspx?id=54071 ................................ 15
Tenn. Rules of Prof’l Conduct R. 3.8 .............................. 11
Tex. Dist. & County Att’ys Ass’n, Setting
the Record Straight on Prosecutorial
Misconduct (2012), http://www.tdcaa.
com/sites/default/files/page/Setting%20
the%20Record%20Straight%20on%20
Prosecutorial%20Misconduct.pdf ............................. 15
Traynor, Roger J., Ground Lost and Found
in Criminal Discovery, 39 N.Y.U. L.
Rev. 228 (1964) ............................................................ 18
U.S. Attorneys’ Manual, available at http://
www.justice.gov/usam/united-statesattorneys-manual (last visited July 27,
2015) ....................................................................... 13, 14

 ix
TABLE OF AUTHORITIES—Continued
Page(s)
Wash. Rules of Prof’l Conduct R. 3.8.............................. 11

 IN THE

Supreme Court of the United States
No. 14-1535
GEORGE GEORGIOU,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE FORMER FEDERAL
PROSECUTORS AND FORMER SENIOR JUSTICE
DEPARTMENT AND GOVERNMENT OFFICIALS
MICHAEL B. MUKASEY, STUART M. GERSON,
PETER D. KEISLER, GREGORY B. CRAIG, DONALD
B. AYER, JAMIE GORELICK, LARRY D. THOMPSON,
GARY G. GRINDLER, WALTER DELLINGER,
CHRISTOPHER WRAY, RITA M. GLAVIN, JOHN S.
GORDON, SCOTT R. LASSAR, JOSEPH P.
RUSSONIELLO, DAVID W. SHAPIRO, MICHAEL J.
SHEPARD, MARY PATRICE BROWN, SIGAL
MANDELKER, BOYD M. JOHNSON III, AND
SHARON COHEN LEVIN IN SUPPORT OF
PETITIONER

 2
INTEREST OF THE AMICI CURIAE 1
Amici are former federal prosecutors and senior Justice Department and government officials who have dedicated many years of service to the criminal justice system and have a continuing interest in preserving the fair
and effective administration of criminal trials.2 As such,
amici understand the duty of prosecutors “to seek justice
within the bounds of the law, not merely to convict.”
ABA Standards for Criminal Justice: Prosecution and
Defense Function, Standard 3-1.2(c) (4th ed. 2015). Amici write to emphasize that fundamental to vindicating
this responsibility is making timely disclosure of all material and favorable evidence to the defense.
As the Supreme Court recognized in Brady v.
Maryland, the failure to disclose favorable evidence
“violates due process … irrespective of the good faith
or bad faith of the prosecution.” 373 U.S. 83, 87 (1963);
see also United States v. Nixon, 418 U.S. 683, 709
(1974) (“The very integrity of the judicial system and
public confidence in the system depend on full disclosure of all the facts, within the framework of the rules
of evidence.”). While this affirmative duty is above and
beyond the demands of the “pure adversary model,”
United States v. Bagley, 473 U.S. 667, 675 n.6 (1985), it
is grounded in an understanding of the prosecutor’s
“‘special role … in the search for truth in criminal trial,’” Banks v. Dretke, 540 U.S. 668, 696 (2004). From
their years of combined experience, amici appreciate
1

No counsel for a party authored this brief in whole or in part
or made a monetary contribution to the preparation or submission
of this brief. Letters from all parties consenting to the filing of
this brief are on file with the Clerk. A list of amici is submitted as
Appendix A to this brief
2

The full list of amici appears in the Appendix.

 3
the challenging judgment calls prosecutors face on a
daily basis, but they also deeply believe that fundamental fairness and public confidence in our justice system
relies on prosecutors taking their disclosure obligations
seriously and fulfilling this duty capaciously.
Amici do not believe that Supreme Court precedent recognizes an exception to the Brady rule for lack
of diligence by the defense and are concerned that the
decisions of several federal circuits, including the Third
Circuit, have undermined Brady by shifting focus away
from the prosecutor’s affirmative obligation to disclose.
We submit this brief to emphasize that the introduction
of an antecedent “due diligence” inquiry focused on the
defendant is inconsistent not only with Supreme Court
precedent but also principles codified in the codes of
ethical conduct for prosecutors.
INTRODUCTION
Petitioner George Georgiou’s case presents a
straightforward question about the appropriateness of
conditioning Brady disclosures on a defendant’s exercise of due diligence. According to the government,
Georgiou and his co-conspirators engaged in a scheme
that inflated the prices of four securities through various trading strategies and then fraudulently used those
manipulated securities as collateral to obtain large
loans. Pet. App. 3a-7a. The prosecution relied on the
testimony of Kevin Waltzer, Georgiou’s former business partner and alleged co-conspirator. Pet. App. 4a,
41a. Waltzer’s testimony corroborated certain physical
evidence collected by the government, Pet. App. 51a,
and undergirded the government’s contention that
Georgiou acted “wilfully” and had the “intent to defraud,” Tr. 28 (Feb. 12, 2010); see also Tr. 7 (Jan. 25,
2010).

 4
Recognizing the importance of Waltzer’s testimony,
Georgiou made a pre-trial request that the government
turn over any Brady information that would “reflect
upon the credibility, competency, bias or motive of government witnesses,” including with respect to any mental health problems or substance abuse issues Waltzer
might have had. Letter from Defense Counsel to U.S.
Attorney 4, 5 (Mar. 25, 2009). The government provided limited information regarding Waltzer’s drug use
responsive to this request. Pet. App. 22a-23a. Georgiou’s counsel thereafter focused their effort to impeach
Waltzer’s credibility on his plea agreement with the
government. Pet. App. 51a-53a. On February 12, 2010,
Georgiou was convicted of one count of conspiracy, four
counts of securities fraud, and four counts of wire fraud.
Pet. App. 40a-41a.
Yet the government had been aware from
Waltzer’s own criminal proceedings that he had an extensive history of substance abuse and mental health
problems, and possessed two pieces of evidence at issue
on appeal that it failed to disclose: A Bail Report provided to the government a year before Georgiou’s trial
by pretrial services, Pet. App. 81a (the “Bail Report”),
and the transcript of Waltzer’s arraignment and guilty
plea hearing, Pet. App. 22a (the “Minutes”). Both documents contained specific information about the timeline of Waltzer’s mental health and substance abuse issues, as well as the medication and treatment he was
receiving in the period leading up to his testimony.
This information might have informed Georgiou’s defense strategy and advanced his efforts to undermine
Waltzer’s credibility.
See United States v. Van
Meerbeke, 548 F.2d 415, 419 (2d Cir. 1976) (noting the
relevance of drug use to witness impeachment); United
States v. Lindstrom, 698 F.2d 1154, 1163 (11th Cir.

 5
1983) (noting relevance of psychiatric history); see also
Giglio v. United States, 405 U.S. 150, 154-155 (1972)
(recognizing importance of witness credibility).
Georgiou learned about the suppressed information
only after his trial ended, when Waltzer requested leniency for himself at a sentencing hearing. Georgiou immediately moved for a new trial on the grounds that
the evidence was material to his defense and the government’s suppression of it violated Brady. Pet. App.
59a–60a. The government conceded that the relevant
information had been “‘available,’” Pet. App. 82a (the
Bail Report), or “in its possession,” Pet. App. 48a (the
Minutes), but it argued that it was not obliged to disclose the evidence because it had been “available to
Georgiou,” Pet. App. 48a. The district court denied
Georgiou’s post-trial motions, holding that there could
be no Brady violation where the suppressed evidence
could have been “‘obtain[ed] [by the defendant] from
other sources by exercising reasonable diligence.’” Id.
(quoting United States v. Perdomo, 929 F.2d 967, 973
(3d Cir. 1991)).
The Third Circuit affirmed the conviction. The
court held that the evidence had not been suppressed
because Georgiou failed to exercise “reasonable diligence” in seeking evidence of Waltzer’s mental health
history. Pet. App. 24a–25a. In particular, the court
reasoned that the Bail Report and the Minutes, as public records, were equally available to Georgiou and the
prosecution. Pet. App. 25a.3

3

The court also found that the information would not have
been material, in light of the other evidence introduced at trial.
Pet. App. 25a-26a. Amici do not address these holdings and do not
take a position with respect to them.

 6
By adopting this circumscribed view of a prosecutor’s obligations under Brady, the Third Circuit has
joined a growing list of courts departing in this way
from Supreme Court precedent and the fundamental
principles that undergird the Brady doctrine. Where
prosecutors are aware of this sort of information, they
should disclose it to the defense, and their obligations
to the truth-seeking process and principles of fairness
are not discharged on the theory that the defendant
could seek it out for himself. Such an approach contributes to a harmful notion that the criminal justice system is a game, and that victory rather than justice is a
prosecutor’s goal. Amici respectfully request that this
Court grant review to correct this misunderstanding
and to provide uniform guidance to the courts of appeals on this important issue.
REASONS FOR GRANTING THE PETITION
I.

PROSECUTORS ARE DUTY-BOUND TO DISCLOSE ALL
BRADY MATERIALS REGARDLESS OF DEFENDANTS’
EXERCISE OF DUE DILIGENCE

Brady v. Maryland requires prosecutors to disclose all evidence that is “favorable to an accused” and
“material either to guilt or to punishment.” 373 U.S.
83, 87 (1963). Underlying this unequivocal demand is
the recognition that prosecutors are subject to heightened ethical obligations by virtue of their office. Berger
v. United States, 295 U.S. 78, 88 (1935) (“The United
States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty …
whose interest, therefore, in a criminal prosecution is
not that it shall win a case, but that justice shall be
done.”). As representatives of the sovereign, prosecutors operate outside the “pure adversary model.”
United States v. Bagley, 473 U.S. 667, 675 n.6 (1985).

 7
Their responsibility is not to win at all costs but rather
to “ensure that a miscarriage of justice does not occur.”
Id. at 675. Crucial to that effort is “disclos[ing] evidence favorable to the accused that, if suppressed,
would deprive the defendant of a fair trial.” Id.
The Third Circuit has diminished this constitutional
and ethical requirement by introducing a rule that excuses a prosecutor from fulfilling her obligation if the
defendant could have but did not find the favorable evidence himself. Rather than ask whether the prosecution has withheld from the defendant evidence that, “if
made available, would tend to exculpate him or reduce
the penalty,” Brady, 373 U.S. at 87-88, the Third Circuit asks whether the defendant could have obtained
the evidence “from other sources by exercising reasonable diligence,” United States v. Perdomo, 929 F.2d 967,
973 (1991). Such a rule is tantamount to saying that a
“‘prosecutor may hide, defendant must seek,’” which
this Court in Banks v. Dretke made clear “is not tenable in a system constitutionally bound to accord defendants due process.” 540 U.S. 668, 696 (2004); see also Cone v. Bell, 556 U.S. 449, 469-470 (2009). It is also
at odds with standards of prosecutorial conduct.
A. Brady And Its Progeny Require Prosecutors
To Disclose Exculpatory Evidence Without
Regard To Defendants’ Diligence
Unlike the Third Circuit’s due diligence rule, the
Court’s Brady jurisprudence has been founded on the
prosecutor’s obligation to seek justice—what this Court
has called the “special role played by the American
prosecutor” in the search for truth, Strickler v. Greene,
527 U.S. 263, 281 (1999)—and therefore focuses on the
favorable effect of the evidence, not the conduct of the
defendant, or, indeed, of the prosecutor, Brady, 373 U.S.

 8
at 87 (suppression of favorable evidence violates due
process “where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad
faith of the prosecution”).
Thus, in United States v. Agurs, 427 U.S. 97, 110
(1976), the Court held that a prosecutor is required to
disclose certain favorable evidence “even without a
specific request” from the defense. The Court reasoned
that “obviously exculpatory” evidence must be disclosed as a matter of “elementary fairness,” and that
prosecutors must be faithful to their duty that “‘justice
shall be done.’” Id. at 107, 110, 111. The Court did not
suggest that a defendant’s lack of diligence in failing to
make a request would excuse this duty. In Bagley, the
Court furthermore rejected the notion that the standard for materiality somehow depends on the nature of a
defendant’s request. 473 U.S. at 683. Instead, the
Court held that materiality is determined by the extent
to which withheld information “undermines confidence
in the outcome of the trial.” Id. at 678.
Thus even when there are lapses in the adversarial
process, the prosecutor should take affirmative steps to
safeguard the fairness of the proceedings. In derogation
of that duty, the Third Circuit’s due diligence rule
wrongly “declar[es] ‘prosecutor may hide, defendant
must seek.’” Banks, 540 U.S. at 696. We agree with a
recent decision of the Sixth Circuit that the principles
announced in Supreme Court’s decision in Banks “reject[s] [the due diligence] requirement in no uncertain
terms.” United States v. Tavera, 719 F.3d 705, 711 (6th
Cir. 2013)4; see also Milke v. Ryan, 711 F.3d 998, 106-107
4

We note that prior to this decision, the rule in the Sixth Circuit was that “there is no Brady violation if the defendant knew or
should have known the essential facts permitting him to take ad-

 9
(9th Cir. 2013) (state court decision that “focused on the
discoverability of the evidence and the specificity of the
claim” was contrary to clearly established federal law).
Indeed, proper administration of justice requires
that prosecutors always err on the side of disclosure.
Rather than grudgingly withhold arguably favorable
evidence based on lack of a request, availability from
other sources, or arguable non-materiality, the Court
expects that “a prosecutor anxious about tacking too
close to the wind will disclose a favorable piece of evidence.” Kyles v. Whitley, 514 U.S. 419, 439 (1995); accord Agurs, 427 U.S. at 108 (“[T]he prudent prosecutor
will resolve doubtful questions in favor of disclosure.”).
As the Kyles Court acknowledged, “[s]uch disclosure
will serve to justify trust in the prosecutor as the ‘representative … of a sovereignty … whose interest … in
a criminal prosecution is not that it shall win a case, but
that justice shall be done.’” 514 U.S. at 439 (quoting
Berger, 295 U.S. at 88). The Third Circuit’s rule instead
encourages prosecutors merely to ask whether the evidence “could have been accessed through [the defendant’s] exercise of reasonable diligence,” and if so, withhold it. Pet. App. 25a.
vantage of the information in question, or if the information was
available to him from another source.” Carter v. Bell, 218 F.3d
581, 601 (6th Cir. 2000). Splitting the difference, the dissenting
judge in Tavera noted that the while the due diligence rule will in
many cases “place an unfair burden on defendants to conduct their
own investigations and relieve prosecutors of the disclosure obligations that Brady may have originally envisioned,” he would continue to apply the older Sixth Circuit precedent until the en banc
court revised course. 719 F.3d at 719 (Clay, J., dissenting). The
Sixth Circuit cases make clear that confusion surrounding the due
diligence rule is pervasive. It is crucial that prosecutors receive
clear directives from this Court and the courts of appeals where
fundamental fair trial rights are at stake.

 10
B. Internal U.S. Department of Justice And
State Prosecutorial Regulations Recognize A
Prosecutor’s Central Role In Ensuring a Fair
Trial By Imposing Affirmative Disclosure
Obligations
The legal profession sets a high bar for prosecutorial conduct, and relevant standards emphasize the
prosecutor’s affirmative obligation to disclose favorable
evidence. Prosecutors are expected to make disclosures to the defense “at the earliest feasible opportunity any evidence which would tend to negate the guilt of
the accused or mitigate the degree of punishment.” N.J.
Div. of Crim. Just. & N.J. County Prosecutors Ass’n,
The Prosecutor’s Manual 9, 18 (1979) (emphasis added);
accord ABA Standards for Criminal Justice: Prosecution and Defense Function, Standard 3-3.5(a) (4th ed.)
(“all information”); ABA Standards for Criminal Justice: Prosecution and Defense Function, Standard 33.11(a) (3d ed. 1993) (“all evidence”).5 These standards
unambiguously affirm the prosecutor’s truth-seeking
role. The National District Attorneys Association’s
National Prosecution Standards exhort the prosecutor
to “cooperate with defense counsel in providing information and other assistance” “[i]n the spirit of seeking
justice in all cases,” Nat’l Dist. Att’ys Ass’n, National
Prosecution Standards § 2-8 cmt. (3d ed. 2009), while
guidelines from the District Attorneys Association of
New York reminds prosecutors that when Brady obli5

See also, e.g., Nat’l Dist. Att’ys Ass’n, National Prosecution
Standards § 2-8.4 (3d ed. 2009) (“The prosecutor shall make timely
disclosure of exculpatory or mitigating evidence, as required by
law and/or applicable rules of ethical conduct.”); Ass’n of Prosecuting Att’ys, Statement of Principles (“Prosecutors have a duty to
disclose exculpatory information to an accused and their counsel
independent of either a defense request or a court order.”).

 11
gation are unclear, “[d]isclosure, of course, will never
be in error,” Dist. Att’ys Ass’n of the State of N.Y.,
“The Right Thing”: Ethical Guidelines for Prosecutors
15 (2012). The ABA’s Criminal Justice Standards likewise direct prosecutors to actively seek truth, stating
that it is improper to “refrain from investigation in order to avoid coming into possession of evidence that
may weaken the prosecution’s case, independent of
whether disclosure to the defense may be required.”
ABA Standards for Criminal Justice: Prosecution and
Defense Function, Standard 3-3.11 cmt. (3d ed.).
Prosecutors are bound to comply with these standards under their ethical obligations. The ABA’s Model
Rules of Professional Conduct impose special responsibilities on prosecutors. Model Rules of Prof’l Conduct
R. 3.8; see also Model Code of Prof’l Responsibility DR
7-103(B) (1980). In particular, a prosecutor must “make
timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate
the guilt of the accused or mitigates the offense.” ABA
Model Rules of Prof’l Conduct R. 3.8(d). Furthermore,
if a prosecutor learns of new evidence calling a conviction into question, the prosecutor must promptly disclose the information to the appropriate authorities or
the defendant and take affirmative steps to ensure that
an investigation is conducted. Id. R. 3.8(g). These provisions are widely followed in individual state ethical
rules. E.g., Ariz. Rules of Prof’l Conduct R. 3.8(d), (g);
N.Y. Rules of Prof’l Conduct R. 3.8(d) & cmt. 6B, 6C,
6D; Tenn. Rules of Prof’l Conduct R. 3.8(d), (g); Wash.
Rules of Prof’l Conduct R. 3.8(d), (g).
In 2010, the Department of Justice reaffirmed its
commitment to Brady. Guidance for Prosecutors Regarding Criminal Discovery (Jan. 4, 2010), available at
http://www.justice.gov/dag/memorandum-department-

 12
prosecutors.6 To ensure the Department’s continued
“pursuit of justice,” the Guidance for Prosecutors articulated a general obligation of making broad and early
disclosure. Id. It emphasized that “[p]roviding broad
and early discovery often promotes the truth-seeking
mission of the Department and … provides a margin of
error in case the prosecutor’s good faith determination
of the scope of appropriate discovery is in error.” Id.
step 3.A. To make clear that prosecutors have an affirmative obligation to discover Brady material, the
memo set forth the steps that prosecutors must take
before making any disclosures: Prosecutors must seek
information from “all members of the prosecution
team” (id. step 1.A); ensure that several key areas—
including investigative agency files and records of witness’s “[k]nown substance abuse or mental health issues”—are reviewed (id. step 1.B); and take ultimate
responsibility for disclosure determinations during the
review process, regardless of who conducted the firstlevel review (id. step 2).
These broad discovery obligations are also reflected in the U.S. Attorneys’ Manual’s disclosure policy,
which seeks “to ensure timely disclosure of an appropriate scope of exculpatory and impeachment infor6

The guidance was developed by a cross-component Department of Justice Working Group convened in the wake of certain
high profile failures to disclose information favorable to the defense. Issuance of Guidance and Summary of Actions Taken in
Response to the Report of the Department of Justice Criminal
Discovery and Case Management Working Group (Jan. 4, 2010),
available at http://www.justice.gov/dag/memorandum-department
-prosecutors-0. Together with the related directive discussed below in footnote 7, it was issued on behalf of the Department of Justice by one of the authors of this brief when he was serving as the
Deputy Attorney General.

 13
mation so as to ensure that trials are fair” and uphold
the government’s obligation “to seek a just result in
every case.” U.S. Attorneys’ Manual § 9-5.001.A.
Among other requirements, the policy calls for disclosure of certain information below the constitutional
threshold of “materiality,” explaining that “a fair trial
will often include examination of relevant exculpatory
or impeachment information that is significantly probative of the issues before the court but that may not, on
its own, … make the difference between guilt and innocence.” Id. § 9-5.001.C; see also id. § 9-5.001.C.3 (exculpatory information should be disclosed regardless of
admissibility). Prosecutors are also required to disclose
“substantial evidence that directly negates the guilt of
a subject of the investigation” to the grand jury before
seeking an indictment. Id. § 9-11.233. Additionally, the
policy mandates that all federal criminal prosecutors
receive official training on Brady in their first year and
complete two hours of training on disclosure obligations
annually. Id. § 9-5.001.E.7
Notably, none of the federal guidance even remotely suggests that prosecutors may withhold information
that defendants could discover with due diligence. Instead, it makes clear that prosecutors themselves must
7

Since 2010, individual U.S. Attorneys’ Offices and Main Justice litigating components have been required to establish a discovery policy binding prosecutors in that office. Requirement for
Office Discovery Policies in Criminal Matters (Jan. 4, 2010),
available at http://www.justice.gov/dag/memorandum-headsdepartment-litigating-components-handling-criminal-matters-allunited-states. Even before this directive, 90% of U.S. Attorneys’
Offices maintained standardized discovery policies. Id.; see also
Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii,
xxviii (2015) (discussing internal Brady policies from the Eastern
District of New York and the Northern District of California).

 14
act diligently to seek exculpatory and impeachment information from all members of the prosecution team.
Guidance for Prosecutors, Step 1.A, B; U.S. Attorneys’
Manual § 9-5.001.B.2. Indeed, the U.S. Attorneys’
Manual encourages prosecutors’ offices “to cooperate
with and assist law enforcement agencies in providing
education and training to agency personnel,” to ensure
that all members of the investigative team—not just
the prosecutors—understand their affirmative obligations. U.S. Attorneys’ Manual § 9-5.001.F.
So far as the authors are aware, no state has codified a due diligence exception to Brady; instead, most
have exceeded federal disclosure requirements, establishing liberal criminal discovery regimes that require
broad disclosure of potentially favorable information.
See generally Fed. Jud. Ctr., Brady v. Maryland Material in the United States District Courts: Rules, Orders,
and Policies, App. E (2007); Lee, Criminal Discovery:
What Truth Do We Seek, 4 U.D.C. L. Rev. 7, 22-23 &
n.98 (1998). Massachusetts, for example, mandates automatic disclosure of nine categories of information, including “[a]ny facts of an exculpatory nature” and
“statements of persons the Commonwealth intends to
call as witnesses.” Mass. R. Crim. P. 14(a)(1)(A)(iii),
Reporter’s Note (a)(1)(A)(vii) (2004). North Carolina
goes even further, requiring the prosecution to make
available “the complete files of all law enforcement
agencies, investigatory agencies, and prosecutors’ offices involved in the investigation” upon motion of the defendant. N.C. Gen. Stat. § 15A-903(a)(1).
In tandem with these broad disclosure rules, states
and localities have employed various approaches to ensure compliance. Some states require prosecutors to
certify that, after conducting “a reasonable inquiry,” all
relevant information has been disclosed. E.g., Fla. R.

 15
Crim. P. 3.220(n)(3). Other states and localities have
taken more affirmative steps: Texas, by statute, requires criminal prosecutors to regularly receive training on Brady, Tex. Gov’t Code Ann. § 41.111, while the
County of Los Angeles maintains a “Brady Compliance
Unit” that collects and maintains potentially exculpatory
impeachment information and advises prosecutors on
Brady issues, Mem. from L.A. County Dist. Att’y Jackie
Lacey to All Deputy District Attorneys (June 4, 2013).
Local professional associations have also joined the
compliance effort. A study conducted by the Texas District and County Attorneys Association found that although Brady violations were rare in Texas, failures to
disclose were a common feature in the most troubling
cases of confirmed prosecutorial misconduct, seriously
impairing “the search for truth in the criminal justice
system.” Tex. Dist. & County Att’ys Ass’n, Setting the
Record Straight on Prosecutorial Misconduct 13-14
(2012). The Association observed that “closed-file” discovery policies were at the root of many past violations,
and approvingly noted that the overwhelming majority
of local jurisdictions had shifted towards expansive
“open-file” policies. Id. 14-15. The New York State Bar
Association has also recommended policy changes to
enhance compliance, including that the “discovery statute should explicitly reject any ‘materiality’ limitation
on ‘Brady’ disclosure,” that “[d]iscovery [s]hould [b]e
[a]utomatic,” and that training and disciplinary
measures be implemented. N.Y. State Bar Ass’n, Task
Force on Crim. Disc., Final Report 22, 50, 67 (2014).

 16
II. THE DUE DILIGENCE RULE REPLACES A PROSECUTOR’ S D UTY T O D ISCLOSE P RIOR T O T RIAL W ITH
POST-CONVICTION LITIGATION ABOUT T HE COMPETENCE OF D EFENSE C OUNSEL, A T RADE T HAT D ISSERVES T HE F AIR A ND E FFICIENT A DMINISTRATION
OF JUSTICE
There is a structural asymmetry between the prosecution and the defense. United States v. Turkish, 623
F.2d 769, 774 (2d Cir. 1980). In addition to having, frequently, a general superiority in resources and staff,
the prosecution always has numerous “inherent information-gathering advantages”: the ability to conduct
the investigation while the facts are still fresh; the
power to “‘compel people, including the defendant, to
cooperate’”; the right to “‘search private areas and
seize evidence’”; and the means to tap networks of informants and the “‘vast amounts of information in government files.’” Wardius v. Oregon, 412 U.S. 470, 476,
477 n.9 (1973). The defense, by contrast, typically must
rely on the protections of due process to offset those
advantages—including, critically, the Brady rule. Id. at
480 (Douglas, J., concurring in the result) (“Much of the
Bill of Rights is designed to redress the advantage that
inheres in a government prosecution.”).8 And this imbalance is particularly acute in the case of indigent defendants. E.g., Gideon v. Wainwright, 372 U.S. 335, 344
(1963) (“Governments, both state and federal, quite
properly spend vast sums of money to establish machinery to try defendants accused of crime. … Th[e]
8

An innocent defendant may have particular difficulty in conducting an independent investigation, lacking knowledge of the
key witnesses and essential facts of the case. See Hashimoto, Toward Ethical Plea Bargaining, 30 Cardozo L. Rev. 949, 951 (2008).
In contrast, a guilty defendant may know exactly how to impeach a
state’s witness. Id.

 17
noble ideal [that every defendant stands equal before
the law] cannot be realized if the poor man charged
with crime has to face his accusers without a lawyer to
assist him.”).
By excusing prosecutorial disclosure obligations
where defense counsel might find favorable information
through due diligence, circuits adopting the due diligence rule make ineffective-assistance-of-counsel
claims, not the Brady disclosure obligation, the bulwark
against miscarriages of justice in such circumstances.
Such an approach disserves the interest of the defense,
the prosecution, the courts, and the public. Cf. Bagley,
473 U.S. at 695 n.3 (Marshall, J., dissenting) (“Without a
real guarantee of effective counsel, the relative abilities
of the state and the defendant become even more
skewed, and the need for a minimal guarantee of access
to potentially favorable information becomes significantly greater.”). On the merits, ineffective-assistanceof-counsel claims are difficult to establish, as defense
counsel “is strongly presumed to have rendered adequate assistance.” Strickland v. Washington, 466 U.S.
668, 690 (1984). And many defendants fail to reach this
point, having been entangled in the procedural thicket
of post-conviction proceedings. See, e.g., Edwards v.
Carpenter, 529 U.S. 446, 453 (2000) (holding that “an
ineffective-assistance-of-counsel claim asserted as
cause for the procedural default of another claim can
itself be procedurally defaulted”). Unlike a Brady
claim, which can be brought in a motion for a new trial,
an ineffective-assistance-of-counsel claim must often
wait until after direct review is finished. Martinez v.
Ryan, 132 S. Ct. 1309, 1317 (2012).
The inevitable delay in seeking such relief means
that by the time the claim is successful, a defendant may
have served many years in prison on an unjust convic-

 18
tion, and faded memories and lost evidence may prevent
the defense (and the prosecution) from presenting a
convincing case—in direct contravention of Brady’s
truth-seeking imperative.9 It can also require supplementary collateral proceedings, rather than insisting on
fairness in the first instance. Such an approach wastes
judicial resources with no discernible benefit.
Indeed, requiring disclosure even of information
discoverable by the defense is not particularly burdensome. Taylor v. Illinois, 484 U.S. 400, 416 (1988)
(“burden of [disclosure] in advance of trial adds little to
the[] routine demands of trial preparation”). Broad disclosure has benefits for prosecutors and the court system by “foster[ing] a speedy resolution of many cases.”
Guidance for Prosecutors, step 3.A; see also Traynor,
Ground Lost and Found in Criminal Discovery, 39
N.Y.U. L. Rev. 228, 237 (1964) (“[E]xtensive pretrial
inspection of government evidence … not only has expedited trials, but in some cases has convinced the defense of the strength of the prosecution’s case and
thereby induced a plea of guilty.”); ABA Standards for
Criminal Justice: Prosecution and Defense Function,
Standard 3-3.11 cmt. (3d ed.) (“[M]any experienced
prosecutors have habitually disclosed most, if not all, of
their evidence to defense counsel. This practice, it is
believed, often leads to guilty pleas in cases that would
otherwise be tried. A defense preview of a strong
prosecution case, for example, frequently strengthens
the posture of a defense lawyer who is trying to per9

Kyles, 514 U.S. 419, is emblematic of the delay that results
when prosecutors fail to disclose favorable evidence at trial. The
Court overturned the defendant’s 1984 conviction on the basis of a
series of Brady violations, but he was only released in 1998 after
three subsequent retrials resulted in deadlocked juries. Coyle,
Tried and Tried Again, 84 A.B.A. J. 38, 39 (Apr. 1998).

 19
suade the defendant that a guilty plea is in the defendant’s best interest. Voluntary disclosure also serves to
open areas in which the parties can stipulate to undisputed or other facts for which a courtroom contest is a
waste of time.”).
*

*

*

As it is inscribed on the wall outside the Attorney
General’s rotunda in the Department of Justice, “[t]he
United States wins its point whenever justice is done
its citizens in the courts.” Allowing a defendant’s lack
of diligence to justify a prosecutor’s failure to disclose
evidence favorable to the defendant loses sight of that
fundamental maxim. This Court should grant review
here to reaffirm it.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
SETH P. WAXMAN
Counsel of Record
DAVID W. OGDEN
JOHN T. BYRNES
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 663-6000
seth.waxman@wilmerhale.com
JULY 2015

 APPENDIX

1a
LIST OF AMICI CURIAE
Michael B. Mukasey—Attorney General (2007-2009);
Chief District Judge, United States District Court
for the Southern District of New York (1988-2006);
District Judge, United States District Court for the
Southern District of New York (1988-2000); Assistant United States Attorney for the Southern District of New York (1972-1976)
Stuart M. Gerson—Acting Attorney General (1993);
Assistant Attorney General (1989-1993); Assistant
United States Attorney for the District of Columbia (1972-1975)
Peter D. Keisler—Acting Attorney General (2007);
Assistant Attorney General (2003-2007); Acting
Associate Attorney General (2002-2003); Principal
Deputy Associate Attorney General (2002)
Gregory B. Craig—White House Counsel (2009-2010);
Assistant to the President and Special Counsel
(1998-1999)
Donald B. Ayer—Deputy Attorney General (19891990); Principal Deputy Solicitor General (19861988); United States Attorney for the Eastern District of California (1981-1986); Assistant United
States Attorney for the Northern District of California (1977-1979)
Jamie Gorelick—Deputy Attorney General (19941997); General Counsel of the Department of Defense (1993-1994)
Larry D. Thompson—Deputy Attorney General (20012003); United States Attorney for the Northern
District of Georgia (1982-1986)

 2a
Gary G. Grindler—Acting Deputy Attorney General
(2010-2011); Principal Associate Deputy Attorney
General (1998-2000, 2009-2012); Deputy Assistant
Attorney General (1995-1998)
Walter Dellinger—Acting Solicitor General (19961997); Assistant Attorney General and head of the
Office of Legal Counsel (1993-1996)
Christopher Wray—Assistant
(2003-2005)

Attorney

General

Rita M. Glavin—Acting Assistant Attorney General
(2008-2009); Assistant United States Attorney for
the Southern District of New York (2003-2010)
John S. Gordon—United States Attorney for the Central District of California (2001-2002); Assistant
United States Attorney for the Central District of
California (1984-2001)
Scott R. Lassar—United States Attorney for the
Northern District of Illinois (1997-2001); First Assistant United States Attorney for the Northern
District of Illinois (1993-1997); Assistant United
States Attorney for the Northern District of Illinois (1975-1986)
Joseph P. Russoniello—United States Attorney for
the Northern District of California (1982-1990,
2007-2010)
David W. Shapiro—United States Attorney for the
Northern District of California (2000-2002); Chief,
Criminal Division, United States Attorney’s Office,
Northern District of California (1998-2002); Assistant United States Attorney for the Northern District of California, (1995-1998); Assistant United
States Attorney for the District of Arizona (19921995); Chief, Narcotics Section, United States At-

 3a
torney’s Office, Eastern District of New York,
(1989-1991); Assistant United States Attorney for
the Eastern District of New York (1986-1992)
Michael J. Shepard—Interim United States Attorney
for the Northern District of Illinois (1993); Chief,
Public Integrity Section, Criminal Division, United
States Department of Justice (1992-1993); Chief,
Special Prosecutions Division, United States Attorney’s Office for the Northern District of Illinois
(1991-1992); United States Attorney’s Office for the
Northern District of Illinois (1984-1991)
Mary Patrice Brown—Deputy Assistant Attorney
General (2010-2012); Head of the Office of Professional Responsibility, United States Department of
Justice (2009-2010); Chief, Criminal Division, United States Attorney’s Office for the District of Columbia (2007-2009); United States Attorney’s Office
for the District of Columbia (1989-2007)
Sigal Mandelker—Deputy Assistant Attorney General
(2006-2009)
Boyd M. Johnson III—Deputy United States Attorney for the Southern District of New York (20092011); United States Attorney’s Office for the
Southern District of New York (1999-2009)
Sharon Cohen Levin—Chief, Money Laundering and
Asset Forfeiture Unit, United States Attorney’s
Office for the Southern District of New York (19962015)