Analysis

There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain (docket 10-8145).

The case is the second before the Court in the past year to raise deep questions about the way the Orleans Parish office has prosecuted criminal cases, over a good many years.. And, near the end of Andrieu’s troubled argument, she was reminded of that history by Justice Sonia Sotomayor, who seemed to be wondering whether the D.A.’s staff there would ever learn. In both this Term’s case and last, the issue was whether the prosecutors had failed in their constitutional duty, under Brady v. Maryland (1963), to turn over evidence that could help lawyers defend their clients.

One might have some sympathy for the task facing Andrieu, not only because of that history, but also because the argument that unfolded before she even got up to speak was disciplined, legally and factually, and offered the Court a vivid portrayal of exactly the problem that these cases pose.

Kannon K. Shanmugam, a talented advocate with a good command of even the finest detail of the evidence, had found a totally receptive Court. He faced only a handful of tough questions. With the constitutional principles of the Brady precedent clear, the Court was attentive to even the nuances of the evidence in the prosecution of Juan Smith for five murders in New Orleans in 1995. The Court even showed a fascination with the way “hip-hop” hairdos might be worn, and why someone in that cultural element in the 1990s would have their teeth adorned with a gold laminate (the assailants supposedly had both trimmed-down hairlines and gold-appearing teeth). But the Justices were especially keen to learn about the evidence that Shanmugam said was withheld from Smith’s counsel.

Smith had been convicted, his lawyer told the Justices, “solely on the testimony of a single eyewitness. Unbeknownst to the defense, however, that eyewitness had told the police on multiple occasions that he could not identify any of the perpetrators or as he put it, that he would not know them if he saw them.” In fact, he added, the D.A.’s office “produced almost no relevant evidence to the defense before [the] trial.” Smith, Shanmugam said, is thus entitled to a new trial, and then he launched into a point-by-point description of what the defense lawyers did not know at the time of the trial, and thus had no chance to use it for his defense.

That key witness, a man named Larry Boatner, who was injured in the assault that left five others dead in a house in New Orleans, confidently identified Smith as a killer at the trial. The defense surely would have countered that, Shanmugam said, if it had known what he had said repeatedly to police before he took the stand.

Assistant prosecutor Andrieu then took her turn, choosing to begin by trying to rehabilitate Larry Boatner as a witness. She said that Boatner had identified Juan Smith “after having searched the faces of 72 individuals who were presented to him in photo line-ups, one after the other.” She soon ran into blunt questioning by Justice Stephen G. Breyer, who spelled out what was on police notes of what Boatner had told them — notes that Smith’s defense lawyers never saw before or during the trial.

Andrieu then sought to persuade the Court that what Boatner had said before the trial was not “material” to the case. (The Brady precedent requires prosecutors to turn over only evidence that would be “material” to the case — that is, evidence that bore significantly on guilt or innocence.) It would be Andrieu’s undoing. Justice Ruth Bader Ginsburg, who would gradually lose patience as she questioned the prosecutor, wondered how inconsistent statements by the only eyewitness to the killings could not be “material.”

She acknowledged Chief Justice John G. Roberts, Jr.’s suggestion that the defense would have liked to have known that Boatner at one point told police that he could not identify any of the attackers, but then Andrieu insisted that this was not “material.” Ginsburg then again criticized the prosecutor’s view of what was “material,” and Justice Antonin Scalia joined in to say that the trial did not depend solely on Boatner’s testimony but, in fact, his was the only evidence against Smith. She insisted there was more.

Justice Anthony M. Kennedy, voicing his agreement with Ginsburg’s comment, said “I just can’t believe” that a judge would have found what Boatner had said about not being able to identify the killers not to have a direct bearing on the case.

Andrieu conceded to Justice Samuel A. Alito, Jr., that any prosecutor should have asked the police investigators, before pursuing the case to trial, whether they had in their possession any statements by the witnesses who were to be called to the stand. But she said that, under Louisiana law, the defense has no right to such statements. While she acknowledged that the Brady precedent required that the defense get to see such statements, if they were “material,” Andrieu seemed to be saying that the harm to Smith had been alleviated because the trial judge got to see them, in the privacy of chambers.

The more Andrieu talked, the more the Justices brought up, over and over again, Boatner’s statements to police that Smith’s lawyers never saw. Justice Kennedy asked her, point-blank, whether the prosecutors had ever conceded in the case that they had committed a violation of the Brady requirement. Andrieu said no, but added that “a prudent prosecutor” would have handed it over to defense counsel.

The aggressive exchanges were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?”

Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument that these statements of Larry Boatner are not material.”

It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?” The prosecutor again tried, astonishingly, to make one more effort to rehabilitate witness Boatner’s credibility.

At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. It is disconcerting to me that when I asked you the question directly should this material have been turned over, you gave an absolute no.” Andrieu weakly suggested that she had misunderstood the question.

But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand. She said that “today we turn all of this over….It should have been turned over. I guess what I was addressing or attempting to address was the materiality prong of Brady.”

The Court is expected to decide the case sometime next year.

Recommended Citation: Lyle Denniston, Argument recap: Disaster at the lectern, SCOTUSblog (Nov. 8, 2011, 4:51 PM), https://www.scotusblog.com/2011/11/argument-recap-disaster-at-the-lectern/