The extreme views of Justice Clarence Thomas were put into sharp relief yesterday when he stood alone in an 8-1 decision to overturn an outrageous conviction from New Orleans. In the face of shocking misconduct by prosecutors under Harry Connick Sr., even the most conservative members lined up to denounce the case . . . all but one.
The conviction of Juan Smith was a travesty by any measure outside of a Tehran Sharia court. Smith was convicted of five counts of murder based on the testimony of a single eyewitness, Larry Boatner. However, during post-conviction proceedings, Smith’s lawyers discovered that Boatner had told police on the night of the killings that he “could not ID anyone because (he) couldn’t see faces.” Prosecutors concealed this and other evidence from Smith and his legal team. Chief Justice John Roberts (hardly someone known to be liberal on constitutional criminal law) wrote the majority opinion.
While Boatner testified at trial that he had been “face to face with Smith during the initial moments of the robbery,” he and other witnesses were repeatedly given pictures of Smith by the prosecutors and failed to identify him.
I knew Connick in my time in Louisiana and we have appeared together on problems. He is an engaging person and we discussed his pride in his son’s success, Harry Connick, Jr. However, his record in New Orleans is highly controversial and he was often accused of violating the basic rights of accused individuals — a culture within his office. In this, and other cases, his staff was accused of violating the requirements of disclosure established in 1963 in Brady v. Maryland, which requires a state turn over evidence that would be favorable to the defendant and “material” to his guilt or punishment.
The majority took only four pages to overturn the case — though I will note that Roberts guaranteed that the case did not include language detailing the violations of the prosecutors and further expanding on the themes and use of Brady. Chief Justices will sometimes use their right to take a majority opinion to minimize the impact of a case. Roberts clearly did not want to expand on Brady and quickly dispensed with the case. His opinion fails to note the recidivist record of this office and concludes:
Because we hold that Boatner’s undisclosed statements
alone suffice to undermine confidence in Smith’s conviction, we have no need to consider his arguments that the other undisclosed evidence also requires reversal under Brady.
Given the abusive record, the Roberts decision reads like a judicial haiku — particularly when compared to cases involving free exercise or federalism or the second amendment where the Court offers long factual and legal explorations of the case.
Thomas,however, was neither brief nor measured. He wrote a 19 page dissent insisting that Boatner was a fine witness and there was no reason to reverse. Ignoring the record showing repeated denials by Boatner that he could identify the man, Thomas engaged in what can only be described as judicial artistic license in claiming “[m]uch of the record evidence confirms that, from the night of the murders through trial, Boatner consistently described — with one understandable exception — the first perpetrator through the door, that Boatner’s description matched Smith.” Thomas’ opinion seems not only detached from controlling precedent but from reality.
While never revealed to the defense before trial, notes from the detective contain a statement that Boatner told him that he “could not … supply a description of the perpetrators other then [sic] they were black males.” Five days after the crime, Boatner again said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.”
The record also shows police repeatedly showing witnesses Smith’s picture in 14 separate photo arrays to get someone to ID Smith. They were unsuccessful until Boatner finally changed his account.
What is most striking is that this is the same office that produced the outrage in the 1995 case, Kyles v. Whitley, where Harry Connick Sr.’s office concealed evidence. Yet, there is still no discussion of any punishment for the prosecutors responsible for this latest abuse.
For his part, Thomas would create a standard that would be virtually impossible for any defendant to satisfy. What Thomas calls a “’reasonable probability’ that the jury would have been persuaded by the undisclosed evidence” was clearly not met to his satisfaction in a case where the only witness said that he could not identify Smith. Here Boatner was offered for his ability to identify the defendant and previously said that he could not identify the defendant. Yet, Thomas views that as falling below any reasonable probability that it would have persuaded the jury. It is unclear what it would take for Thomas sort of a Perry Mason moment of the witness screaming, “I did it, I did it and I glad I did it.”
We continue to struggle with the problem of prosecutors withholding evidence in criminal cases. While Roberts made sure that this case would not expand on existing precedent in support of such defendants, the case goes into the win column of constitutional criminal law.
Here is the opinion: 10-8145