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Catching up

Last March I told you about Walter Triplett, who'd been convicted of involuntary manslaughter and felonious assault for throwing a single punch that knocked Michael Corrado to the pavement, fracturing his skull and killing him.  That was reversed because the judge had screwed up the instructions on self-defense, but I found much more interesting the opinion's discussion of the question of whether Triplett had used "deadly force."  The 8th District found that deadly force is defined as force that carries a "substantial risk" that it will result in death, and a single punch doesn't do that.

As I enthused at the time, this was a "game-changer."  Triplett would be entitled to a charge on self-defense using non-deadly force, which is much less stringent than the charge regarding deadly force, and he might even be entitled to a charge-down to simple assault.  I breathlessly concluded, "the odds of Triplett having to do anything close to eighteen years" -- what he'd gotten in his initial trial -- "for his unlucky punch just got a lot longer."

This is why you shouldn't trust my predictions even if it's about yesterday's weather.  Well, actually, I was right:  he didn't get eighteen years.  He was retried in October, and this time the jury convicted him of involuntary manslaughter, instead of hanging on that charge as they did the last time, so he wound up having the judge max him for that and the RVO spec, then stack them together for twenty years in prison.  I have no idea what happened in trial, but I'll check it out and see what happened on the self-defense issue the second time around.  It could be that it had nothing to do with the result; as I pointed out in my post about the reversal, Triplett wasn't a very sympathetic figure.

Juan Smith had better luck.  Back in November, I told you about the oral argument in his case before the US Supreme Court.  Smith had been convicted of capital murder in New Orleans based solely upon the testimony of a single eyewitness, Larry Boatner .  The police notes, which were withheld by the prosecution at trial, showed that Boatner had repeatedly told the detectives that he hadn't seen the faces of any of the the perpetrators, couldn't identify them, and "wouldn't know them if he saw them."  Arguing that the failure to disclose the material wasn't prejudicial was a hard sell, given that Boatner's testimony was the only evidence against Smith, but at least it was tenable:  the prosecutor might have argued that the jury could have discounted Boatner's prior statements, believing that his initial inability was based on fear and the trauma of the event.  Instead, the prosecutor insisted that the statements weren't material, a contention that even Scalia found ridiculous; the argument concluded with Kagan pointedly asking whether her office had considered confessing error in the case.

As could be expected, the Court last week reversed Smith's conviction.  The majority opinion, written by the Chief Justice, spent only four pages dispensing with the state's argument, easily concluding that Boatner's earlier statements should have been disclosed.  The more interesting aspect of the case was Thomas' lone dissent, in which he spent almost five times as much effort -- nineteen pages -- in explaining why the prior statements were irrelevant, and needn't have been disclosed.

Three points about that.  Unlike some of my liberal colleagues, I do not regard Thomas as a cipher on the court; his views on federalism, for example, are probably as well-developed and cogent as anyone's on the Court.  (Not saying they're right, mind you.)  And his opinions are almost always meticulously crafted; his work in the Crawford jurisprudence is very consistent and, again, well thought out.  But his dissent here is simply indefensible.  I've often felt that the primary requirement for a good judge -- trial or appellate -- is a sense of fairness, and I'm sorry, there's no way that you can look at Smith's case and conclude that he got a fair trial when the jury never knew that the only eyewitness in the case had repeatedly told police he couldn't make an identification.

Second, there's an interesting subtext here.  Last spring, in Connick v. Thompson (discussed here), the Court reversed a $14 million dollar judgment against the New Orleans District Attorney's office, the same one which prosecuted Juan Smith.  Thompson had obtained the judgment because the prosecutor's office had -- wait for it -- withheld evidence that resulted in Thompson being wrongfully convicted of a murder and coming with 48 hours of being executed.  The Court, in a 5-4 decision, found that there was no evidence of "repeated" Brady violations sufficient to place the prosecutor on notice that he had to provide better training for his charges on that subject.  The decision prompted a bitter dissent from Ginsburg, so much so that she took the unusual step of reading the dissent from the bench.  Guess who was the author of the majority opinion in Connick?  That's right, Thomas.

Finally, the Court handed down another opinion last week involving eyewitnesses, Perry v. New Hampshire.  Basically, Perry (previewed here) held that there was no due process violation in an identification procedure which wasn't orchestrated by the police, even though the procedure could well have been suggestive.  (Perry had been stopped by the police on suspicion of burglary; at the moment he was standing in the parking lot in the company of a police officer,  a woman who claimed to have witnessed the crime looked out the window of her apartment and saw him, and identified him as the burglar.)  That opinion was also 8-1, but this time it was Sotomayor dissenting.  She discussed the extensive research on eyewitness identification, detailed in New Jersey Supreme Court decision I briefly discussed here, that's occurred in the 30-some years since the Court last addressed the issue.

In his dissent in Smith, Thomas points out how months after the crime, Boatner saw a picture of Smith and said, "This is it.  I'll never forget that face," and emphasizes how confident Boatner was in his identification.  Yet as Brandon Garrett, author of the book "Convicting the Innocent," points out, "in 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 DNA tests showed they were wrong."  Indeed, the sociological research discussed in the New Jersey Supreme Court case has shown that certainty of identification has almost no correlation with accuracy.

We'll catch up with Perry v. New Hampshire next week.

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