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.

Clarence Thomas.
Clarence Thomas provided a lone dissent in a case about eyewitness reliability and prosecutorial misconduct

Chip Somodevilla/Getty Images.

A “single witness” linked Juan Smith to the five murders for which he was convicted in New Orleans in 1995. The Supreme Court reversed Smith’s conviction yesterday, dwelling on that single witness in the 8-1 opinion it handed down. The justices had been “incredulous” at oral arguments at the conduct of New Orleans prosecutors. So it was an easy case, decided early in the season, with seven justices joining Chief Justice Roberts’ short and sweet three-and-a-half page opinion. But sometimes it is the easy decision that disguises insidious problems. The head prosecutor in New Orleans at the time, Harry Connick Sr., was nowhere to be found in the court’s opinion.

Before we get to him however, it is noteworthy that the court nowhere called the single witness who identified the culprit in this case the “single eyewitness.” Was he even really an eyewitness? At trial, the witness said he saw the attacker face to face and was sure Smith was the one. He said he had “[n]o doubt.” That sure sounds like the testimony of an eyewitness.

Everything in this case hinged on that single witness. The police explained that “[a]s amazing as it may seem,” no fingerprints matching Smith were found. And jurors place great stock in the testimony of a confident eyewitness. This was a terrible mass murder, where men stormed into an apartment, demanded money and marijuana, told everyone inside to lie on the floor, then shot five people. Smith was sentenced to life without parole.


The problems in the case emerged only during state habeas proceedings. That’s when Smith obtained for the first time notes from the detective stating that the eyewitness said on the night of the murder that he “could not ... supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all.

It’s a big risk to even show an eyewitness like that a lineup. But New Orleans police were undeterred. In fact, they showed 14 separate photo arrays to another witness, who said she could not identify anyone. That didn’t stop these police from trying over and over again. They didn’t succeed with her, but they also showed 14 separate photo arrays to the “single witness.” Months after the crime, they finally succeeded in getting him to identify Smith. How did this happen?  Smith’s briefs describe how the New Orleans Times-Picayune ran a story naming Smith as a suspect, including a photo. After seeing that newspaper story, all of a sudden the single witness became the single eyewitness.

It was easy for the Supreme Court to decide that such powerful evidence undermining the testimony of the state’s only evidence was “material” and that there was a “reasonable probability” that it would have made a difference at trial and that the conviction needed to be reversed (the standard under Brady v. Maryland, which entitles the defense to have such exculpatory evidence). It was, said eight justices, serious misconduct to hide such evidence. All the jury heard about was the photo array, four months after the crime, when the eyewitness first identified Smith, and then they saw him at trial, testifying with absolute confidence.

The Supreme Court cited its 1995 decision in Kyles v. Whitley, which like Juan Smith’s case was another New Orleans case prosecuted by Harry Connick Sr.’s office. In Kyles, a whole pile of evidence was concealed, undermining the testimony of a slew of witnesses (a wonderful book about the case, Desire Street, describes even more police and prosecutorial misconduct). In Juan Smith’s, more than just the statements by the single witness were withheld from his defense. Other exculpatory evidence not turned over included forensics relating to the firearms analysis (indicating that ammunition at the scene did not match the type of gun that the single witness said Smith supposedly carried), evidence pointing to other possible suspects, and more contradictory statements.

And so the court’s opinion was short. But then Justice Thomas wrote a long, long (17-page) dissent. Recall from last term how tolerant the justice is of prosecutorial misconduct coming out of Harry Connick’s office. More on that to come. But what might elude you on first reading is that here Justice Thomas calls the witness “the eyewitness.” Justice Thomas argues that the revelations about this witness would not likely have made a difference at trial, even if they could have been given “some weight.” Justice Thomas emphasizes how, even months after the crime, the eyewitness saw Smith’s photo and said, “This is it. I’ll never forget that face.” The witness had described the perpetrator as having gold teeth, which Smith did have (although apparently several other suspects did as well).