Justice According To Thomas: Dissent in Case Overturning Murder Conviction Highlights The Twisted Jurisprudence of Clarence Thomas

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

55 thoughts on “Justice According To Thomas: Dissent in Case Overturning Murder Conviction Highlights The Twisted Jurisprudence of Clarence Thomas”

  1. Upon reading the majority opinion by Justice Roberts it might be stronger for defendants than first blush. He cuts the inquiry off where the sole witness, sole witness identifying the perp, has made prior statements that he could not ID the guy. Justice Thomas’ dissent makes me believe that the majority has made Brady stronger. That is just me speaking. I have yet to take this up with the rest of the 5thGradeGroup. But as usual, we 5th graders see things a bit less diffusely than you adults and that is why we are here on this blog–to chimne in. Where the Constitution is concerned we just look at the plain meaning– the res ipsa and not oopsa.

  2. I cannot credit Thomas with that much depth. He is in so far over his head and his rare forays into explaining his positions prove it. He should not be on the SCOTUS and he deserves to be impeached. That we have no choice but to rely on these folks is far scarier than anything else in this nation. Everywhere else, we have recourse, here, we have none in any real sense.

  3. Thomas went from being a Black Nationalism sympathizer to being a conservative once he left college. He clearly recognized that in the real world, being a professional token would be more beneficial than standing up for a minority.

  4. anon nurse

    karma. when a lock-em-up-and-throw-away-the-key prosecutor gets a relative of a person they railroaded taking care of them in a nursing home.

  5. Does this dissent pass the Gingrich threshold of judicial psychosis? I think it does. Lets have him before a Senate sub-committee to explain his dissent and then off to the loony bin.

  6. The only good thing about this particular decision? I guess it proves that J. Thomas is not a 100% puppet of J. Antonin “Fat Tony” Scalia.

  7. Thomas is one ugly, nasty old man – one with a hell of a lot of power. I think Mike has it exactly right.

  8. Justice Thomas does not what he is doing, but he just doesn’t understand that the rest of the country does not believe in what he believes.

  9. shano,

    Speaking of reactionary, I bet walking away silently shaking their heads is a very common reaction among Thomas’ clerks.

  10. Justice Thomas seems so stupid I doubt he has any real awareness of why he does anything at all. Simple reactionary. Feel sorry for his clerks.

  11. Perhaps Thomas, or his wife, are fans of Connick Jr. There you have it; grounds for his objection.

  12. How can we make it so that prosecutors’ job security is based on how they carry out actual Justice, rather than the number of ‘criminals’ they put away and how ‘tough’ they are on ‘crime’?

  13. @Mike Spindell

    I think you’re more correct than we may realize. I read an excerpt somewhere written by someone from Thomas’s past (may have been his ex) that stated that Thomas uses the bench to get back at all those who he feels have personaly wronged him over the years. A sort of personal vendetta, if you will.

    Could be true, could be false, but at least it would explain why his opinions are so out of touch with reality.

  14. Justice Thomas does not subscribe to the premise that the passage by the 14th Amendment was just as divine as the passage and adoption of the first ten amendments by the original Framers. Scalia is of the same bent. But Thomas is “unreconstructed”. What is that?
    The 13th, 14th and 15th Amendments were Framed by folks who included Radical Republicans a/k/a Radical Reconstructionists. Time period? 1863 onward until adoption in 1868 or thereabouts. To “reconstruct” the country, not just the South, there had to be reforms to the original Constitution. This was for the benefit of all citizens. The former non property owners, non slave holders, “crackers” were elevated to citizenship too. This whole proposition was rejected by the oligarchy in the South and also in much of the North. Jim Crow came about. Google that kids. The 14th Amendment gives the right of citizens to a fair trial under its due process clause. A right to a fair trail means that judicial lynchings need to be curbed by imposing a sufficiency of the evidence standard so that at the end of a prosecutors case a motion shall be sustained dismissing the case for good. A faulty or phony eye witness identification fails the sufficiency of the evidence test. See Jackson v. Virginia and United States v. Timothy Leary. Yeah the LSD Timothy Leary guy. See Justice Black’s concurrence in Leary. Mr. Turley, please have a topic on this aspect of the situation. While the Brady argument in this New Orleans case was sound, this case goes to the whole problem of judicial lynchings. Google the name Grover Thompson. Grover made the mistake of emerging from the bus station in Mount Vernon, Illiniois in 1981 and was convicted for attempted murder of a white woman on shanty eye witness evidence. He died in prison in 1996. In 2007 someone else admitted the crime–a white guy from elsewhere who had more cover in that “sundown town”. The Innocence Project of the University of Illinois Downstate Project is seeking a posthumous pardon.
    Our group, The Cultofthe5thGrade is folloiwing Grover’s case.
    Mt Vernon still is not safe for a black person becasue the courts will not follow Jackson v. Virginia and uphold a sufficiency of the evidence standard.

    Justice Thomas is unreconstructed. Of course we would rather have Hugo Black, a white guy who joined the KKK as a young man, but a constiutionalist, on the Supreme Court than honkies. Why, this sitting justice is unreconstructed must be psychological. He is in denial of his roots. Probably has enough sense not to let the sun go down in him in Mt. Vernon, Illinois though. Excuse any typos, gotta get back to class after the noon break.

  15. Gene, My husband gave her some John Corrington books to familiarize her with New Orleans.

  16. “Harry Connick retired years ago. He is 86.” -Swarthmore mom

    Thanks for that… I’d forgotten… His age (and retirement status) shouldn’t be a barrier to holding him accountable in some way… though it will never happen, of course… He’ll live out his “golden years” in relative splendor, I’m fairly certain.

    Rule of Law Index 2011
    United States (New York, Los Angeles, Chicago)


    (It’s too bad that they didn’t take a look at New Orleans separately.)

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