The quote that forms the title of this post is by former acting solicitor general Neal Katyal in this article by Adam Liptak today in the New York Times. Katyal has filed a USSC cert petition on behalf of George Georgiou, whose securities-fraud conviction the Third Circuit upheld in January. The legal luminaries Katyal mentions, represented by fellow luminary Seth Waxman, have all joined an amicus brief seeking reversal.
The Third Circuit opinion is here and the amicus brief is here.
A key cert issue is whether Brady v. Maryland allows prosecutors not to turn over material exculpatory evidence if the defense could have found it themselves. Here, the Third Circuit (Greenaway with Chagares and Vanaskie) quoted its own 1991 precedent to say that Brady does not oblige the government to provide defendants with evidence they could obtain from other sources by exercising reasonable diligence. But the Third Circuit’s opinion did not mention the Supreme Court’s 2004 pronouncement in Banks v. Dretke that “Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material . . . . A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”
The SG’s cert response is due later this month.