There comes a point in every lawyer’s career where he realizes that what he’s saying is bullshit.  Actually, that point comes about twice a week.  The bigger problem is where he realizes that everybody else knows it’s bullshit, too.  Like when a trial lawyer’s giving a closing argument, and the jurors are sitting there frowning with their arms folded, frank expressions of disbelief on their faces.  The nice thing about that is that at least the jurors can’t say anything; if you’re doing an oral argument, the judges have plenty of opportunity to, shall we say, point out the deficiencies in your reasoning.

Donna Andrieu can tell you all about that.

Andrieu was the hapless New Orleans prosecuting attorney who was given the quixotic task of preserving the conviction of Juan Smith.  The New Orleans office has not had a storied history with the Court in its compliance with the Court’s 1963 decision in Brady v. Maryland, which requires prosecutors to turn over any exculpatory evidence to the defense.  During the 30-year regime of the District Attorney, Harry Connick, Sr., the office had allegedly flouted its Brady obligations with regularity, so much so that when the new DA came into office in 2003, he acknowledged that “the former administration had a policy of keeping away as much information as possible from the defense attorney.”  Nonetheless, just last year a bitterly divided Court, in a 5-4 vote in  Connick v. Thompson (discussed here), reversed a $14 million judgment against that office for misconduct in hiding exculpatory evidence in a death penalty case, the majority finding that the incident was isolated.

So the atmosphere was redolent with irony when Andrieu stepped to the lectern.  Her opponent, Kannon Shanmugam, had just finished regaling the justices with what had happened in Smith’s case.  Smith was accused being part of a gang which murdered five people in a New Orleans house in 1995, and was convicted based entirely upon the testimony of Larry Boatner, who’d survived the shooting and who confidently identified Smith as one of the culprits.  One problem:  the police notes, which the defense never saw, indicated that Boatner had repeatedly told the detectives that he could not identify any of the perpretrators; as he put it, he wouldn’t know them if he saw them.  Shanmugam had an excellent command of the evidence, and faced only a few hard questions, some devoted to the supposed uniqueness of what the perpretrators were wearing — hairdos and gold laminate on their teeth — which might have aided Boatner’s identification.  Not so, said Sahnmugam; those were common in the hip-hop culture back in the 90′s.  Not common to him, interjected Scalia, providing an amusing, if ultimately unsettling, mental picture.

There are two steps in a Brady analysis.  The first is whether the information was material, and thus should have been turned over.  The second is what was the effect of the failure to turn over the information.  The Court’s holdings here have been a little confusing:  it has held that the standard was whether there was a reasonable probability of a different outcome, but indicated that wasn’t a “more likely than not” standard — i.e., that it was more likely than not that the defendant would’ve been acquitted had the exculpatory evidence been disclosed — but whether the exclusion of it was “sufficient to undermine the confidence in the outcome” of the trial, the same standard as used  in claims of ineffective assistance of counsel.

The prosecutor’s road to victory, if there was one, was obvious:  argue that even if the evidence had been disclosed, the outcome would’ve been the same.  That’s a hard sell:  as Scalia noted, Boatner’s testimony was not just the only eyewitness evidence, but the only evidence against Smith.  Still, there were some points Andrieu could’ve made on that score, that Boatner’s initial inability was based on fear and the trauma of the event, and that the jury would’ve discounted his inconsistent statements if they’d known of that.  And that path is certainly preferable to an argument that the statements weren’t material in the first place, and that the prosecutor had no duty to disclose them.

Andrieu apparently believed the justices would buy the argument that the statements were immaterial.

They didn’t.  Ginsburg expressed frank astonishment at the claim:  “How could it not be material? Here is the only eyewitness, and we have inconsistent statements. Are you really urging that the prior statements were immaterial?”  Kennedy  too found the argument “just incredible.”  Andrieu seemed to retreat when Breyer asked her if she really meant that there was no reasonable probability that it would have made a difference at trial because of the explanation as to Boatner’s initial inability to make an identification.  She agreed that “that’s what I meant,” but then Sotomayor forced a concession from her that the jury would have been entitled to reject that explanation.  If there was a reasonable likelihood that the jury would have rejected that evidence, doesn’t that mean it could have affected the outcome?

Andrieu then sought refuge in the vagaries of the state’s criminal procedure:  under Louisiana law, prior statements of witnesses aren’t discoverable, but are given to the trial judge for in camera inspection at trial.  The judge had reviewed the inconsistent statements, but hadn’t turned them over.  Sotomayor again: ”So are you claiming that the judge’s failure to catch these inconsistencies excuses your Brady obligation?”  That’s going nowhere, too.  By that time, Andrieu had blundered back to her original position, that there had been no Brady violation at all.  She fenced with Kennedy, Kagan, and Sotomayor further on this point, to their obvious irritation, until Scalia finally told her to knock it off:

May I suggest that you stop fighting as to whether it should be turned over?  Of course it should have been turned over. I think the case you’re making is that it wouldn’t have made a difference.   That’s a closer case, perhaps, but surely it should have been turned over.  Why don’t you give that up?

Kagan administered the coup de grâce:

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.

There’s no question what the result in Smith will be, although given the factual posture it’s doubtful that an opinion is going to stand for much more than an affirmance of the principle that prior inconsistent statements constitute exculpatory evidence and should be turned over to the defense, a position, at least outside the confines of New Orleans parish, is as uncontroversial as that the witnesses against the defendant actually have to show up and testify in court.  Smith is hardly cause for a closer look at Brady and its progeny, but I’m betting that some members of the Court are thinking they should have taken a closer look at Connick.