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Credulous Thomas

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Clarence Thomas’s 2011 opinion for a bare majority of the Court shielding the New Orleans DA from liability for its systematic violation of civil liberties (which in some cases led to innocent people serving substantial jail terms) stands out as one of the very worst from a Court that’s produced a lot of candidates for the title. Earlier this week, he issued a (fortunately solo) dissent that actually went the Thompson case one worse.

Earlier this week, the Court threw out a murder conviction by that very same DAs office based on its violation of the evidence disclosure required by Brady. This was an easy case, as reflected by the fact that even Roberts and Alito were unwilling to strain to find excuses for the prosecutors as well as the facts of the case:

Tuesday’s case concerned Juan Smith, who 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.”

It later emerged that prosecutors had failed to disclose reports of interviews with Mr. Boatner. In one, hours after the killings, Mr. Boatner said he could not describe the intruders except to say they were black men. Five days later, he said he had not seen the intruders’ faces and could not identify them.

Eyewitness evidence, according to recent studies and court decisions, is both unusually persuasive and unusually unreliable. Kannon K. Shanmugam, a lawyer with William & Connolly who represented Mr. Smith in the Supreme Court, told the justices in a brief that the withheld statements from Mr. Boatner “constitute the epitome of impeachment evidence.”

When someone is convicted solely on the testimony of a single eyewitness, and the prosecution suppresses evidence that said eyewitness was unable to identify the accused in the immediate aftermath of the crime (but expressed certainty on the stand)…well, violations of Brady don’t get much more clear-cut, and the case is also an excellent illustration of why the Brady rule is necessary.

Despite this, Thomas filed a dissent that is quite a remarkable piece of work. The argument is that the suppression doesn’t violate Brady because it is immaterial: the majority, says Thomas, failed to a establish a “reasonable probability” that the suppression of evidence affected the jury verdict. But this is absurd. If the state had forensic evidence, or even more eyewitness testimony, that would be one thing. But when a conviction is based solely on one eyewitness, it should go without saying that evidence that might undermine the reliability of the eyewitness has to be disclosed to the accused. At least this time Thomas failed to carry his colleagues in his ongoing crusade to launder the systematic civil rights abuses of the Orleans Parish DA’s office.

Incidentally, the Court decided another major eyewitness testimony case this week — I’ll have a longer piece about that tomorrow.

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  • L2P

    Sadly, you’re downplaying how exculpatory the suppressed evidence was: that the witness said he never saw his his assailant’s face. That’s what Thomas is saying couldn’t possibly cause reasonable doubt in any jury.

    That’s like a 5 sentence cross. Back then you tried as hard as you could to identify your attacker, right? You couldn’t ID your assailant at the time, could you? You looked at 5 men and had NO IDEA which of them attacked you, did you? In fact, you NEVER EVEN SAW HIS FACE, did you? And now, two years later, you just happen to recognize him as the guy sitting at behind the sign saying “Defendant?”

    No further questions.

    • UberMitch

      All except that last question! Why give give him a chance to explain himself? Save the argument for closing.

      • Anderson

        That is a hard lesson to learn. It’s so tempting to try to make the witness state your conclusion.

      • Anonymous

        One question too far. Trial skills 101.

    • R Johnston

      Sadly, you’re downplaying how exculpatory the evidence is. If the prosecutors turn it over then, given the complete lack of any other evidence in the case, the defense motion to suppress the identification likely succeeds and the charges are dropped without a trial.

    • Anonymous

      Actually, that’s not what the evidence was. The suppressed statement included that the witness could identify the first man through the door, defendant, but not any of the other persons there. That testimony never changed, and that is exactly what the witness testified to at trial. The other statements suppressed included a detailed description of defendant, which was corroborated by later descriptions of the same, and the witness’ picking out of defendant ONLY from numerous lineups, even though the witness could say, hey that looks like him, but is definitely not. When he got to defendant’s picture he was 100% certain.

      Though the opinion may be sound, there is no need to color over the fact that the suppressed evidence is not entirely what you or the majority conclude it is.

      • Anderson

        Fail.

        The notes from the night of the murder state that Boatner “could not . . . supply a description of the perpetrators other then [sic] they were black males.” App. 252–253. Ronquillo also made a handwritten account of a conversation he had with Boatner five days after the crime, in which Boatner said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” Id., at 308. And Ronquillo’s typewritten report of that conversation states that Boatner told Ronquillo he “could not identify any of the perpetrators of the murder.” Id., at 259–260.

        According to Smith’s briefs, Boatner became much better at IDing Smith after a picture of Smith ran in the paper next to an article suggesting he was a suspect.

  • ODB

    When I read your post, I thought you surely had to be exaggerating or mistaken. There is no way a judge could say that a statement impeaching the only evidence used to support the conviction is immaterial. But holy $#%#, that is exactly what Thomas says!

  • sleepyirv

    What sort of crazy drives an intelligent man to write this? What could possibly go on in Thomas head that make any of this sound reasonable?

    • He’ll tell you he can square the decision with the supreme law of the land — his conscience. And if he got it wrong, God will take it up with him later, so it all comes out in the wash.

      This is someone whose idea of a judge is Othniel, or Ehud, or Gideon or Jephthah, not Story or Marshall or Holmes, or Brandeis.

  • Anderson

    The saddest part to me about Thomas’s opinion is this:

    Not only was it wrong on the law, but Scalia and Alito wouldn’t join it. Roberts needed all of one sentence to explain that Thomas simply had the Brady standard wrong.

    And none of that made Thomas think “hm, y’know, I was actually wrong on this one; guess I’ll withdraw this dissent.”

    It’s fine to be pigheaded when the law is on your side. But when it isn’t, you’re not being a brave dissenter; you’re being a lousy judge.

    • David Hunt

      There’s stiff competition for the status of worst Justice on the Supreme Court. Thomas must have decided to up his game.

      Jeez, stuff like this is a horrible reminder that the Stupid/Evil designation doesn’t take place on a line but on an X/Y coordinate system.

  • rea

    Thomas just doesn’t know wtf he’s doing. See also his concurrence in the eyewitness i.d. case we’ll discuss tomorrow, in which he states his view that the due process clause of the 14th Amendment doesn’t require that procedures be fair.

  • c u n d gulag

    When is “Reasonable Doubt” covered in law school?

    Maybe Ol’ Clarence was off buying some booty-and-hooter-licious porn at the newsstand in the big city that day?

    He was like Woody Allen in “Banana’s, getting a copy of ‘Time magazine,’ ‘Commentary,’ ‘Saturday Review,’ ‘Newsweek,’ and picks up some porn magazines to stuff behind them so he looks like an intellectual and not a pervert, and then the guy at the counter starts adding up the prices, but yells out to his buddy in the back, “Hey Ralph, how much is a copy of ‘Orgasm?’

    Maybe if the jury had known about this, if the defense knew about it and presented it, they might have had some reason(s) to have some “reasonable doubt?’

    And the fact the jury wasn’t told that the lone survivor wasn’t able to tell police what the person looked like, outside of the fact that he was black, and then wasn’t able to identify the individual in a line-up later on, but, miraculously, when the trial was put on, and the defendant practically had a neon sign over his head that said “KILLER!”, was then able to point him out in the courtroom, no, this had no bearing on the case says Justice Thomas.

    Justice Thomas has a strange definition of “justice.” And it’s obviously very different from what mine is.

    One wonders how Justice Thomas might have felt if he were in that defendants shoes, and this miscarriage were allowed to occur?
    He is, after all, a black man.

    But Justice Thomas doesn”t wonder at all.
    He clearly completely lacks any sense of empathy.

    • NBarnes

      Justice Thomas has a strange definition of “justice.” And it’s obviously very different from what mine is.

      One wonders how Justice Thomas might have felt if he were in that defendants shoes, and this miscarriage were allowed to occur?
      He is, after all, a black man.

      Strange justice, indeed.

    • Richard

      “And the fact the jury wasn’t told that the lone survivor wasn’t able to tell police what the person looked like, outside of the fact that he was black, and then wasn’t able to identify the individual in a line-up later on, but, miraculously, when the trial was put on, and the defendant practically had a neon sign over his head that said “KILLER!”, was then able to point him out in the courtroom, no, this had no bearing on the case says Justice Thomas.”

      Not quite. He did identiy him at a photo lineup a couple months after the incident (but, of course, this was after he told the cops that he had never seen faces).

      Despite this, however, this was a slam dunk Brady violation and a slam dunk case for reversal of verdict (evidenced by the fact that this may be the shortest Supreme Court opinion I’ve ever seen) .

      • sparks

        Uh, didn’t he ID him in a photo lineup after the suspect’s picture was shown publically? A detail like that makes a difference, you know.

  • Epicurus

    Maybe someone could teach the good Justice the very complex legal theory of “innocent until PROVEN guilty.” He seems to think it works the other way ’round…what a pitiable excuse for an associate justice of the Supreme Court this man is. Of course, he’s in good company (see, e.g., Alito, Samuel.) The pure evil that has been inflicted on our Republic may never be fully cleansed from the system. Thanks, GOP!!

    • Anderson

      Of course, he’s in good company (see, e.g., Alito, Samuel.)

      And not even Alito could join Thomas on this one.

      This was btw the case with the ruefully hilarious oral argument.

      JUSTICE KAGAN: Ms. Andrieu, did your office ever consider just confessing error in this case?
      MS. ANDRIEU: I’m sorry?
      JUSTICE KAGAN: Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.

      • Njorl

        I think a direct plea to ignore the facts and the law, and to find for New Orleans out of deference for the effects of hurricane Katrina would have been the best strategy.

        • Glenn

          I would have had Connick’s son croon the argument. Couldn’t have done any worse, right?

  • norbizness

    So the length of one’s dissent is inversely proportional to the amount of time one stayed awake during the oral argument?

    • Why bother with oral argument at all, when you can be guided by the promptings of the Spirit?

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