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.