Clarence Thomas' dissent in Smith v. Cain: The justice finds himself another Harry Connick Sr. prosecution to love

Clarence Thomas Finds Himself Another Harry Connick Sr. Prosecution To Love

Clarence Thomas Finds Himself Another Harry Connick Sr. Prosecution To Love

The law, lawyers, and the court.
Jan. 11 2012 1:26 PM

See No Evil

Justice Clarence Thomas rehabilitates an eyewitness who may not have seen anything.

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Justice Thomas details why he concluded that the witness “evince[d] a discriminating, careful eye over a 4-month investigative period.” This was a model and “confident” eyewitness—moreover, one who was extensively cross-examined at trial. This witness was tested in the fires of the crucible of the courtroom and the jury convicted. What more could the justices demand?

This analysis indicates little familiarity with the vast body of research on eyewitness memory. We know, for instance, that the memory of an eyewitness degrades—in a matter of hours, not days. If this eyewitness knew he could not identify the attacker on the day of, or in the days after the crime, nothing that happened in the weeks and months that came later could somehow improve a rapidly vanishing memory. Nor does the confidence of an eyewitness at trial mean much at all as to its accuracy. (Jurors—and judges—put a lot of misplaced stock in confidence of witnesses.)

In my own research reading the trials of the first 250 people exonerated by DNA tests, I saw countless examples of eyewitnesses who were certain at trial and claimed they would never forget that face—but subsequent DNA tests showed they were wrong. Most cases, like the murders in Smith v Cain, do not involve any DNA that can be tested at the crime scene. That is why it is so important that police proceed with caution. Police know to take careful notes when a person says he is pretty sure he cannot identify anyone. They know they may not have an eyewitness at all. They know they had better investigate and try to find other evidence, rather than risk a lineup. That shaky or non-eyewitness may easily pick out a lineup “filler” and damage his credibility. Eyewitnesses generally pick out fillers as much as one-third of the time. Worse, the eyewitness may pick out an innocent man. For these reasons it is important for police to use careful procedures to document and test the memory of an eyewitness.


Good police officers know all that, but do prosecutors? If prosecutors hide their investigative work from the defense, there can be no end to the miscarriage of justice. What Chief Justice Roberts did not mention in his opinion yesterday was that this was not the first time the justices had heard of persistent failures of Harry Connick Sr.’s district attorney’s office to turn over obviously important evidence to the defense. In Connick v. Thompson, Justice Thomas authored the majority opinion in which the Supreme Court blithely threw out a multimillion dollar verdict in favor of an exonerated man who also had forensic evidence concealed from him by the prosecution. Justice Ginsburg in her dissent noted Connick’s “cavalier approach” to Brady v. Maryland and a “culture of inattention” to such misconduct.

The court’s decision in Connick powerfully undermined incentives for prosecutors to carefully supervise to ensure that information is not concealed from the defense and from the courts. Meanwhile, we keep hearing of revelations regarding police and prosecutorial misconduct: entire crime labs shut down because forensics are botched or concealed, high-profile prosecutions derailed and exonerations because of police or prosecution misconduct.

In the face of rulings immunizing prosecutors and their superiors from consequences of misconduct, what impact will yesterday’s perfectly correct but one-off decision have? Not much. Unless police do lineups right in the first instance, carefully document evidence, and prosecutors disclose full evidence to the defense, we will hear no end of eyewitness errors and prosecutorial misconduct throwing convictions into doubt. The prosecutor plays a “special role … in the search for truth in criminal trials,” the court said in Strickler v. Green. Let’s hope that the court does more to make sure that “special” is not just a euphemism, but actually means having a great responsibility to ensure “that justice shall be done.”