You know oral argument isn\u2019t going well when a justice of the Court asks you to defend your decision not to throw in the towel already.\u00a0 Yet that is precisely what happened to Donna Andrieu, an assistant district attorney from New Orleans, charged with defending her office\u2019s decision to withhold exculpatory evidence from a criminal defendant.\u00a0 Her position was inauspicious to begin with, but her performance did her no favors.<\/p>\n
The case Ms. Andrieu was defending, Smith v. Cain<\/a><\/em>, arose from a mass murder in 1995.\u00a0 Juan Smith was convicted on the crime based solely on the eyewitness testimony of a survivor.\u00a0 Somewhat unbelievably, prosecutors presented no physical evidence \u2013 no fingerprints, no weapons, no anything \u2013 that would link Smith (or anyone else) to the murders.<\/p>\n Unbeknownst to Smith<\/a>, the prosecution\u2019s witness expressed reservations about his ability to identify his assailant.\u00a0 Immediately after the shootings, the witness said that he could not describe his attacker beyond the fact that the shooter was black.\u00a0 Later, he said that the assailant had a \u201c[m]outh full of gold.\u201d\u00a0 After that, however, the witness said that he had not seen the shooter\u2019s face and could not identify him.\u00a0 Though the witness eventually named Smith as his attacker, the identification came after he had seen Smith\u2019s picture in a newspaper article naming Smith as a suspect.\u00a0 Moreover, notes made contemporaneous to the ID noted that the witness felt \u201charassed\u201d and pressured to comply with police\u2019s request.<\/p>\n Ms. Andrieu attempted to explain away<\/a> the D.A.\u2019s failure to turn over the evidence by asserting its immateriality.\u00a0 Under Brady v. Maryland<\/a><\/em>, the prosecution need only turn over evidence that is \u201cmaterial\u201d to the case \u2013 evidence likely to affect its outcome.\u00a0 Justices Ginsburg and Kennedy both stated their disbelief that the evidence in question would be immaterial.\u00a0 Chief Justice Roberts said, \u201cIf you were the defense lawyer, you really would like to have that statement where he said, \u2018I couldn\u2019t identify them [the shooters].\u2019\u201d\u00a0 When pressed, Ms. Andrieu vacillated some, stating that a \u201cprudent prosecutor\u201d would have divulged the information.\u00a0 Justice Scalia was more blunt: \u201cOf course it should have been turned over.\u201d<\/p>\n The justices\u2019 tenor at oral arguments suggests that the Court was not so much seeking to resolve a complicated nuance of Brady<\/em> jurisprudence, but rather sought to chastise publicly the New Orleans District Attorney\u2019s Office, now notorious for its underhanded trial tactics and ethical violations.\u00a0 Beginning in 1995, the Court has admonished<\/a> the office three times for \u201cblatant and repeated\u201d ethical violations.\u00a0 Since 1990, ten defendants convicted in New Orleans parish have been exonerated<\/a> based on Brady<\/em> violations alone, including four capital defendants.\u00a0 Faced with an office that refuses to change its ways, the Court may have opted to shame the office into reform.\u00a0 Indeed, commentators have referred to the office\u2019s performance at oral arguments as a \u201cdisaster<\/a>.\u201d\u00a0 Based on the justices\u2019 questioning, New Orleans better learn quickly: the Court already seems to have lost its patience.<\/p>\n