In the Rajat Gupta case, the government was eventually forced to turn over Brady material to the defense, though the prosecutor did everything he could to delay from the arraignment in October 2011.

Nonetheless, the Brady disclosure was made only two months (February 2012) before the case went to trial (May 21, 2012). It sent a bill of particulars (specific charges) only at the end of March, less than two months before trial.

That is an incredibly short time for defense to prepare itself, when the government has had five years (2007-2012, if we include the prior SEC investigation) to prepare its case, when there are millions of documents including trading records, phone transcripts, board discussions, and financial analysis, covering scores, if not hundreds, of firms doing business with Galleon and Goldman, or involved tangentially in some other way. [Lila: Actually, a group Rajaratnam funded was raided for suspected ties to terrorism in 2006, so I suspect Big Raj had been under investigation even before that]

Besides the documents, there were 2000 wire-taps and scores of possible witnesses.

Yet, incredibly, a bill of particulars – list of specific charges – was sent to the defendant only at February, the end of March, all while the Galleon trial and tapes got replayed endlessly in the media.

Yet the DOJ is still bent on preventing Brady reform, which might make it easier for defendants to actually get access to the material in time to defend themselves.

Guest blogger Jon May in LawProfessors Blog points out:

“Fundamentally, the flaw in Mr. Cole’s testimony comes from the very examples he cites. Under the current system, witnesses are sometimes harmed. He fails to make a convincing case that either a broader standard or earlier disclosure will lead to an increased risk. And he ignores the fact that the proposed legislation provides for a protective order where the government can show a reasonable basis to believe that a required disclosure would lead to an effort to tamper with a witness. Similarly in claiming that the proposed legislation would undermine national security he fails to explain why the Classified Information Procedures Act is insufficient to protect our nation’s secrets. He just claims it is.

Mr. Cole also relies upon a statistical analysis that purports to show that serious allegations of government mishandling of Brady material has occurred in only a very small percentage of cases, less than three hundredth of one percent of the nearly 800,000 case brought in the last ten years. This is a significant argument because the burden is on the proponents of reform to demonstrate that there exists a problem that is in need of remedy. Mr. Cole’s analysis fails to take into consideration the fact that some 90% of the cases brought by the government result in pleas. Since there is no obligation to provide Brady material during plea negotiations such material is not provided unless the accused actually goes to trial. Mr. Cole’s statistical analysis also contains a built in bias since allegations of Brady violations are almost always evaluated under a harmless error standard. The upshot here is that regardless of the language of the Supreme Court’s decision in Kyles, circuit courts will rarely find a Brady violation absent a showing that the material withheld contributed to the jury’s verdict. Under such a standard, Mr. Coles can contend that reform is not needed since there has been no demonstration of systemic failure; systemic failure defined in such a way as to insure that no such showing could be made.

Finally, Mr. Cole contends that the government already provides greater discovery than is required by the law. Once again, there is no evidentiary support for this contention. While it may be DOJ policy that such evidence should be disclosed, because the law does not currently require such disclosure, prosecutors are under no legal obligation to actually apply DOJ guidelines and suffer no punishment when they fail to do so. Indeed, the current regime incentivizes prosecutors to evade Brady since prosecutors can enhance the odds of conviction through non-disclosure knowing that after a conviction appellate courts are loath to reverse.”