Category Archives: Discovery/Brady

The Department of Justice Should Drop the Inauguration Day Protest Cases

Posted on June 11, 2018 by

The Department of Justice has been humiliated in its misguided prosecution of over two hundred Inauguration Day protestors. It has lost every single case to go to trial. It has engaged in intentional violations of the rules. And it has … Continue reading →

Posted in Acquittal After Jury Trial, Brady violations, Discovery/Brady, DOJ policy and practice, First Amendment | Tagged | 1 Comment

Doing the Government’s Laundry

Posted on April 23, 2018 by

By Dan Portnov In certain legal (nerd) circles, coining a phrase or term of art is one of the surest ways to achieve immortality – think Tim Wu’s first use of “network neutrality” in a 2003 journal article or Justice … Continue reading →

Posted in Brady violations, Criminal Investigation, Deferred Prosecution Agreement, Discovery/Brady, DOJ policy and practice, Securities fraud | Leave a comment

Should a Court Erase a Prosecutor’s Name from an Opinion about Brady Violations?

Posted on October 17, 2017 by

I was perusing recent opinions from the courts of appeal for possible blog post ideas when I came across an odd-looking errata sheet. Here’s an excerpt: That’s odd, I thought. I took a look at the original opinion in the … Continue reading →

Posted in Appeal, Brady violations, Discovery/Brady, Prosecutorial misconduct | 1 Comment

Fight the Power, Part IV: The Government Backs Off Absurd Claims of “Witness Tampering”

Posted on September 7, 2017 by

A defendant has a constitutional right to prepare a defense to criminal charges. In a white-collar case, contacting potential witnesses is as important as reviewing the document trail. Why does the government feel threatened when we do our jobs? I … Continue reading →

Posted in Discovery/Brady, Obstruction | Leave a comment

Massey Mine Defense Team Wins the Discovery Lottery–But Then Can’t Collect on It?

Posted on July 27, 2015 by

A few weeks ago, I wrote about some important discovery motions in the Massey Mine trial unfolding in the Southern District of West Virginia. The defense had a nice win recently on one of those motions. But according to a … Continue reading →

Posted in Discovery/Brady | Tagged | 3 Comments

The Massey Mine Trial’s Discovery Battles Continue, and Why Rule 16 Still S&%ks

Posted on June 18, 2015 by

I have previously posted about the upcoming trial of Donald Blankenship, the former CEO of Massey Energy Company. Mr. Blankenship was indicted on several charges, including conspiracy to violate federal mine safety standards, following a fatal explosion at one of … Continue reading →

Posted in Discovery/Brady | Tagged | 2 Comments

Can The Ethics Rules Stop Brady Violations?

Posted on May 1, 2015 by

Brady v. Maryland requires a prosecutor to disclose evidence that is favorable to the defense. Yet many critics have correctly pointed out that unless there exists a way to discipline prosecutors who willfully violate this obligation, it is an abstract … Continue reading →

Posted in Appeal, Discovery/Brady, Ethics | Leave a comment

A Brady Win for a Defendant–Finally (and Some Tips to Get Brady Material)

Posted on March 26, 2015 by

The conviction and sentence of a man in California were recently vacated when it was discovered that the government had improperly withheld exculpatory material from his defense team at trial. We read a lot of stories about the failures of Brady … Continue reading →

Posted in Conspiracy, Discovery/Brady, Reversal | 2 Comments

Judge Jed Rakoff Is Never Boring

Posted on January 30, 2015 by

There have been a lot of reasons to find SDNY Judge Jed S. Rakoff interesting. But the most recent one–involving his resignation from a federal commission over forensic science discovery rules–is in the top 10. (Be sure to read the … Continue reading →

Posted in Discovery/Brady | 2 Comments

Question of the Day: Should Defendants Get Complete Discovery Before Deciding Whether To Plead Guilty?

Posted on November 7, 2013 by

A few days ago, I attended the excellent white collar conference sponsored by the National Association of Criminal Defense Lawyers (NACDL) in Washington, DC. During one of the panels, an interesting topic arose: should criminal defendants be entitled to discovery … Continue reading →

Posted in Discovery/Brady, Policy issues | 1 Comment