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This site is the inspiration of a former reporter/photographer for one of New England's largest daily newspapers and for various magazines. The intent is to direct readers to interesting political articles, and we urge you to visit the source sites. Any comments may be noted on site or directed to KarisChaf at gmail.

Friday, April 4, 2014

How the Feds Rig Their Prosecutions -- In the Mark Cuban case, the SEC refused to turn over exculpatory evidence to the defense for three years -- By Mark Cuban and Thomas Melsheimer

(Martin Kozlowski illustration)

On March 21, 2014, Securities and Exchange Commission Chairwoman Mary Jo White was once again quoted praising her agency as "a strong and focused cop on the beat" that promotes fairness and accountability in the markets. The SEC often opens its trials by telling juries that every investor has to play by the same set of rules. But the agency won't play by a rule that's fundamental to due process. It's called the Brady rule, and it keeps the government honest when it takes people or companies to court. 

In a criminal trial, the federal government has long been obliged to promptly turn over to the defense any evidence that could show that the accused did not commit the offense of which he is accused. The Brady rule (announced in the 1963 Supreme Court case, Brady v. Maryland), prevents one-sided prosecutions in which the defendant is kept in the dark about information that might show that he is innocent. 

The government's job as criminal prosecutor is not to obtain convictions, but "to do justice," according to the traditional legal maxim. It should be required to follow the Brady rule in civil trials as well. But the SEC does not, even when it accuses a citizen of fraud. Had the agency complied with this simple rule in its recent insider-trading case against one of us, Mark Cuban, it is unlikely that a lawsuit would even have been filed, let alone go to trial.

While there has been much mainstream media discussion of the case since the trial last autumn, there has been little focus on the SEC's conduct in pursuing the case all those years, and its withholding of exculpatory evidence until the case was on the cusp of going to trial.

 In 2004, long before the SEC set its sights on Mr. Cuban as a high-profile target, he voluntarily submitted to an hour-and-a-half telephone interview about his investment in Mamma.comthe eventual subject of the SEC's investigation. Two agency lawyers took extensive notes and preserved them in a file folder marked "Cuban."
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