This past month, the United States Court of Appeals for the Second Circuit overturned the convictions of six brokers and traders who were charged and later convicted in an insider trading scheme in which day traders were allowed to eavesdrop on confidential communications via broker “squawk boxes.” A primary basis for the appeal court’s ruling was the failure of federal prosecutors to produce as “Brady” material transcripts of depositions taken by an attorney for the Securities and Exchange Commission in a related matter. * Portions of these withheld transcripts contradicted the testimony of key government witnesses at trial, hence triggering the reversal.
We all read Brady v. Maryland, 373 U.S. 83 (1963) in law school. At least, it was assigned. It remains a pillar of federal procedure; a transformative Warren Court opinion and a reminder of an era in which the expansion and definition of the rights of criminal defendants seemingly was the order of the day.
For those readers who either do not have a law degree or did not follow their 1L syllabus, Brady concerns the obligation of the prosecution to disclose material exculpatory information to the defense in advance of a criminal trial.
This past March, the United States Supreme Court rather quietly effected what one commentator called “…the single greatest revolution in the criminal justice process since Gideon v. Wainwright provided indigents the right to counsel.” (New York Times, March 21, 2012) While such pronouncements always involve risk of exaggeration or over-simplification, there is no doubt that the decisions in Missouri v. Frye, 566 U.S. — (2012) and Lafler v. Cooper, 566—- (2012), at least carry the potential to measurably impact how plea bargains are negotiated and entered in our state and federal courts.
It is commonly accepted that the right to a trial by jury is a principal protection afforded a criminal defendant. The right is, of course, enshrined in the Constitution. But it is also widely endorsed by the popular culture. There is no shortage of movies and other entertainment (some good, some middling, although I have always gotten choked up at the end of “12 Angry Men”) that purport to portray a group of citizens gathering to pass final judgment.