Constitutional Law General Litigation

Prosecutorial Misconduct Causes US Supreme Court to Overturn Murder Conviction -But Justice Thomas Just Doesn’t Get It.

In another blow to New Orleans DA Harry Connick (Father of the singer Harry Connick Jr) the US Supreme Court once again found that his office withheld exculpatory evidence from a defendant in a capital murder trial. There is a long history of problems in Connick’s office. In 1995, Esquire photographed him, for a piece on the death penalty, standing confidently in front of his desk with one of his favorite office decorations: a 12-inch-high, battery-powered (and operational) electric chair, complete with the mug shots of the five men he had personally prosecuted successfully in capital punishment cases. All five have subsequently been released or had their death sentences commuted to life due to procedural problems in their trials.

In this most recent case – Smith v. Cain – Juan Smith was convicted of killing five people in 1995, when a group of men burst into a house in search of money and drugs. They ordered the occupants to lie down and opened fire.Mr. Smith was the only person tried for the killings. He was convicted based solely on the eyewitness testimony of a survivor, Larry Boatner. Prosecutors presented no DNA, fingerprints, weapons or other physical evidence.But Mr. Boatner’s testimony proved sufficient. “He’s right there,” Mr. Boatner said at Mr. Smith’s trial, pointing at the defendant. “I’ll never forget him.” That is compelling evidence for sure. (though I question whether anyone should ever be put to death on the say-so of just one individual).

There was just one problem. Just hours after the killing, Mr. Boatner was interviewed by the police and he said that he was unable to identify any of the shooters, except that they were all black. Five days later, he told prosecutors he had not seen the intruders’ faces and could not identify them. Surely any criminal defense lawyer worth his salt would rip Mr. Boatner to shreds with this and raise reasonable doubt, right? So what happened? Connick’s office just sat on the interviews and never turned them over to the defense or even let them know of their existence. They intentionally withheld them.

The Supremes were swift and sure in their terse four page opinion – I mean the Supremes take four pages just to say good morning! A four page opinion sends a clear message – this is a no brainer. The Court relied on one of the most revered (and rarely used) Supreme Court decisions: Brady v. Maryland. Brady requires the prosecution to turn over to the defense any evidence it has in its possession which may tend to establish the innocence of the defendant. Here, the question for the justices was only whether the failure mattered — that is, whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” In Smith, Chief Justice Roberts wrote that “Boatner’s undisclosed statements were plainly material.” Of course they were. Now Smith will be taken off Death Row and given a new trial. He may still be convicted, but at least he will be armed with all the evidence he is entitled to.

Smith v. Cain was decided by an 8-1 court, with Justice Clarence Thomas providing the sole dissent. In his 19 page decision, Thomas stated that since Boatner later explained that his first statements were the product of far of retaliation, that this testimony would have cleared up the discrepancy and made the withheld evidence irrelevant. But the majority wasn’t buying that argument:

The State and the dissent advance various reasons why the jury might have discounted Boatner’s undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner’s contradictory declarations the jury would have believed. The State also contends that Boatner’s statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State’s argument offers a reason that the jury could have disbelieved Boatner’s undisclosed statements, but gives us no confidence that it would have done so.

In other words, maybe the jury would have believed Boatner but it could have also disbelieved him. Either way ti was for the jury to decide and for the defense to have the opportunity to let the jury decide. Its not hard to understand why Justice Thomas can’t see this simple and clear application of the law. Having risen to the US Supreme Court just because he was a young, African-American neo-con, he was one of the only Supreme Court justices at that time to have never tried a jury trial or even presided over a jury trial or even to have argued an appeal in court. It is worth reviewing Thomas’ meteoric rise to the bench. In 1974, he was appointed an Assistant Attorney General in Missouri. In 1979, he became a legislative assistant to Missouri United States Senator John Danforth and in 1981 was appointed Assistant Secretary for Civil Rights at the U.S. Department of Education. In 1982, President Ronald Reagan appointed Thomas Chairman of the Equal Employment Opportunity Commission (EEOC); he served in that position until 1990, when President George H. W. Bush nominated him for a seat on the United States Court of Appeals for the District of Columbia Circuit. In 1991, after only 16 months of service as an appellate judge, Thomas was nominated by Bush to fill Supreme Court legend Thurgood Marshall’s seat on the United States Supreme Court, making him the second African-American to serve. At the time of his retirement Marshall had this to say about his then potential replacement “I hope they don’t pick the wrong man for the right reason.” Thomas passed confirmation by a vote of 52-48. Having only served in governmental, political positions, Thomas could not fully understand the importance of cross-examination to a jury. But as a lawyer and appellate judge, even though it was for the shortest of stints, he should understand the need for a fair trial.

As another Supreme Court legend, William O. Douglas, stated in his decision in Brady v. Maryland:

Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: “The United States wins its point whenever justice is done its citizens in the courts.”

This case is a fitting reminder of that principle and is one that Justice Thomas needs to understand the importance of.

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