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US Supreme Court takes up Brady case

US Supreme Court takes up Brady case

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The justices of the U.S. Supreme Court seemed sympathetic to an argument by a death row inmate that impeachment evidence withheld by prosecutors during his murder trial would have made a difference in his trial – and that the withholding constituted a Brady violation.

Smith v. Cain concerns the murder prosecution of Juan Smith by the Orleans Parish District Attorney’s office in New Orleans, which has a history of prosecutors failing to turn over exculpatory evidence to defense attorneys in capital cases.

Smith claimed that crucial exculpatory and impeachment evidence was withheld by prosecutors in his case. For example, he claimed prosecutors never told his defense lawyer that a prisoner confessed to his cellmate that he had committed the murders. He also claimed that that the state’s sole eyewitness, around whom the prosecution based the majority of its case, made prior inconsistent statements to police and identified Smith only after seeing his picture in the newspaper – but this was never disclosed.

Smith was ultimately convicted and sentenced to death.

A trial judge denied Smith’s Brady-based post-conviction plea for relief, and the state’s appellate courts declined to review the ruling.

He petitioned the Supreme Court, which granted certiorari.

No request needed

Kannon Shanmugam, a partner in the Washington office of Williams & Connolly, argued that the withheld evidence in this case clearly met both prongs of the analysis under Brady v. Maryland: (1) evidence suppressed by the state that (2) is material to an accused’s guilt or punishment.

“If all of that information had been disclosed to the defense before trial, the jury surely would have viewed this case in a completely different light,” Shanmugam said.

When Shanmugam turned to police notes indicating that the trial eyewitness had told them at one point that he couldn’t identify anyone at the scene, Justice Samuel Alito jumped in.

“Well, aren’t you exaggerating a bit about the value of the impeachment evidence?” Alito asked. “My understanding is that he made his first statement to the effect that he couldn’t identify anybody at the scene, when he had been at the scene where five people that he knew very well had just been killed. He’s lying on the floor with a gash in his head.”

But Shanmugam said the witness still couldn’t make an identification five days later, according to his withheld statements, even though police remarked that he was “coherent and articulated very well the events that transpired.”

Justice Anthony Kennedy seemed to be looking for the parameters of a rule.

“Can you just tell me, how does Brady work?” Kennedy asked. “Is there some obligation for the defense counsel to say: ‘Please give me all relevant reports?’”

“No,” Shanmugam replied. “This Court has made clear that a request is unnecessary to trigger the Brady obligation, and this Court has made clear in cases dating back to Brady itself that the good faith or bad faith of the prosecutor is irrelevant” if the withheld evidence is material.

“Does the defense have any theory as to why [the witness] would lie about whether he could identify this individual?” Alito asked.

Shanmugam said the inconsistencies needn’t have been intentional to serve impeachment purposes. Proving that the statement was unreliable could have been just as important, he argued.

“As this Court will be aware from its recent consideration of eyewitness evidence, it doesn’t necessarily follow from the fact that an eyewitness identification is mistaken that the eyewitness was somehow lying about it,” Shanmugam said.

‘Stop fighting’ 
Donna Andrieu, chief of appeals in the Orleans Parish district attorney’s office, seemed to struggle to make the argument that no Brady violation occurred.

She began by focusing on the evidence presented by prosecutors at trial.

“[The witness] identified the petitioner after having searched the faces of 72 individuals who were presented to him in photo line-ups,” Andrieu contended.

But Justice Stephen Breyer steered the conversation back to the evidence that was withheld.

“If you were a defense lawyer, I guess you would have been pretty happy to have those notes, because you might have tried to impeach [the] identification,” Breyer said.

“Yes,” Andrieu said.

“And you’re saying it would have made no difference?”

“That’s correct, Your Honor,” Andrieu replied.

“Then I’d like to hear how, because it seems on its face that it certainly could have made a difference,” Breyer said.

“This Court has held that favorable evidence which is not material need not be turned over to the defense,” Andrieu said.

“How could it not be material?” Justice Ruth Bader Ginsburg asked. “Here is the only eyewitness. … You can argue that it should be given diminished weight, but an inconsistent statement by the only eyewitness seems to me most material and useful to the defense in cross-examining the eyewitness.”

Justice Antonin Scalia spoke before Andrieu could.

“And not only the only eyewitness, but if I understand it correctly the only evidence against the defendant,” Scalia said.

After Kennedy indicated his agreement with Ginsburg – “I just can’t believe that” it isn’t material, he said – Breyer tried to rescue Andrieu.

“Is it that you mean immaterial, or is it that you mean that it wasn’t prejudicial?” Breyer asked. “[That] there was no reasonable probability it would have made a difference in the trial?”

“That is what I mean, yes,” Andrieu replied.

Later in the argument, Scalia offered Andrieu some advice.

“May I suggest that you stop fighting as to whether or not [the evidence] should have been turned over?” Scalia said. “Of course if should have been turned over. … Why don’t you give that up?”

A decision from the Court is expected later this term.

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