Most people have not heard of the former Toronto broker George Georgiou who was convicted in February 2010 on one count of conspiracy, four counts of securities fraud and four counts of wire fraud in federal court and sentenced to 25 years in prison.


Georgiou’s fraud scheme cost investors more than $55 million, prompting the federal court to attach a $55.5 million restitution order to Georgiou’s sentence.


Failure to Disclose Evidence of Witness Credibility


The case probably would have drifted into legal oblivion had it not been for serious prosecutorial misconduct associated with Georgiou’s conviction.


The key witness against Georgiou at his trial was a former business partner and alleged co-conspirator named Kevin Waltzer. The co-conspirator’s testimony was critical: it not only corroborated the Government’s evidence but it was the structure needed by prosecutors to show, as they had a constitutional burden to do, that Georgiou had acted “willfully” and had the “intent to defraud.”


Co-Conspirator, Government Witness Mentally Ill and on Psychotropic Meds


Georgiou’s defense obviously pursued pre-trial discovery attempts to learn as much about Waltzer as possible, particularly whether he had suffered from any mental health issues like emotional disturbances, depression, or the like. While prosecutors turned over volumes of discovery documents, they deliberately withheld documents showing that Waltzer had been taking drugs to cope with serious mental health disabilities; specifically, that he suffered from anxiety and depression so severe he needed psychotropic medication to cope.


Defense Moves for New Trial


Georgiou’s attorneys moved for a new trial after they learned the Government had failed to disclose Waltzer’s complete mental health issues. They argued Georgiou was prejudiced by the failure to disclose because the attorneys were forced to focus their cross-examination on the plea agreement Waltzer had made with the Government rather than having the mental health   evidence which could have been used to impeach the witness’s credibility, and, more importantly, could have led them to discover that he suffered from a bipolar disorder.


Government Shameless


The Government was unapologetic. Prosecutors said they had no constitutional duty under Brady v. Maryland to disclose the information. Arguing that they were blameless, prosecutors said defense attorneys could have discovered the mental health evidence through other means.


And that is the grit in the Georgiou case: the lower federal courts are split on the issue of whether defense counsel must exercise “due diligence” before they can accuse prosecutors of a Brady violation.


The district court in which Georgiou was convicted, and the Third Circuit Court of Appeals which upheld the lower court’s ruling in January 2015, ruled that Government prosecutors are under no duty to disclose materials when defense counsel could have discovered them through another source.


Extraordinary Brief


Georgiou’s case drew the attention of 20 former Justice Department attorneys who filed amicus curiae briefs urging the Supreme Court to grant certiorari review of this critical issue. They argued that federal prosecutor had violated the Constitution by failing to turn over favorable evidence.  Georgiou’s lead attorneys, Seth P. Waxman, David W. Odgen, and John T. Byrnes, filed an extraordinary brief that presented two pressing constitutional questions:


First, whether prosecutors are permitted to withhold materials covered by Brady v. Maryland when it is possible that the defendant may have been able to discover the materials through another source; and, second, 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.


The first question is the most important. Are prosecutors duty bound to disclose under Brady regardless of defendant’s exercise of due diligence?  Regardless of whether the evidence could have been obtained through another source?


Special Responsibilities of a Prosecutor


We pointed out in a recent post, that the ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983. They serve as a model for ethics rules for most states. The Rules have been adopted by every State in the Union, except California.


Rule 3.8 spells out the “Special Responsibilities of a Prosecutor.”


Subsection (d) of this Rule provides that a prosecutor shall “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, and, in connection with sentence, disclose to the defense and to the tribunal all unprivileged information known to the prosecutor, except when the prosecutor is relieved of tis responsibility by a protective order of the tribunal.”


Brady Rule


In 1965, the U.S. Supreme Court adopted what is now known as the “Brady Rule.” This rule established the constitutional principle that “suppression by the prosecution favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecutor.”


Complimentary Purposes


The very purpose of the Brady Rule is to protect what the Texas State Bar has called “the integrity of the outcome of a trial” while Rule 3.8(d) exists to protect the integrity of the legal system from unethical prosecutorial misconduct.  These are important protections considering prosecutors enjoy absolute immunity from civil and criminal liability, regardless of how wanton or egregious their misconduct.


Tension Between Constitutional Duty and Ethical Requirements


Between 2011 and 2013, we posted three pieces dealing with the ABA’s unsuccessful efforts to get the Supreme Court to adopt the broader duty of Rule 3.8(d) to disclose than the court’s materiality doctrine (here, here, here). The ABA, and most legal scholars, realizes there is serious tension between the constitutional duty and ethical responsibility to disclose.  The U.S. Supreme Court passed on an opportunity to settle this tension in early 2012, when it avoided the question in Smith v. Cain.


The Supreme Court once again had an opportunity to resolve this issue but elected not to do so. On November 2, 2015, the court denied Georgiou’s certiorari application without comment.


Criminal Trials are Game of Hide and Seek


The Third Circuit effectively adopted the very rule condemned by the Supreme Court in 2004 that a “prosecutor may hide, defendant may seek” when it comes to discovery requests. Georgiou’s attorneys told the Supreme Court that this rule “contributes to a harmful notion that the criminal justice system is a game, and that victory rather than justice is a prosecutor’s goal.”


For some prosecutors, both the desire and the need to win at all costs have eliminated their sworn duty to seek justice. It is unfortunate that the Supreme Court continues to ignore the calls by the ABA and prominent scholars to harmonize Brady requirements with the Rule 3.8(d) duties.