For the Prosecution, Justice Clarence Thomas

By Andrew Cohen

Why does the justice usually side with cheating prosecutors, even when the evidence against them is clear and damning? 

thomas 2-body.jpg

Reuters

Decades from now, when Supreme Court Justice Clarence Thomas is long gone from his post, historians will clamor to write about his remarkable tenure there. We'll see chapters on his confirmation hearings, which quickly devolved into chaos (and which raised questions that still have not been answered). There will be chapters on his rigid conservative ideology, his wife's  commitment to political causes, and, I suspect, even a chapter or two on the fact that the Thomases like to  travel around the country in a motor home. 

All interesting stuff. But if true history is in the details, I hope Justice Thomas' future biographers will also take a long look at his dubious work in cases involving prosecutorial misconduct. At a time when Americans are just now awakening to the ugly truth about their justice systems, when dozens of capital defendants each year are exonerated, it's remarkable that Justice Thomas continues to adhere to a grim philosophy that justifies constitutional violations and excuses cheating on the part of prosecutors. 

Last year, for example, in Connick v. Thompson, Justice Thomas wrote a 5-4 opinion that protected the Orleans Parish District Attorney's Office from a civil lawsuit brought by a man who had been wrongfully convicted and spent 14 years on death row before investigators discovered that his prosecutors had failed to turn over to him a crime lab report. Justice Thomas  contorted both logic and justice  when he protected the cheating prosecutors from a $14 million jury verdict that had been affirmed by both lower federal courts.

On Tuesday, in Smith v. Cain, Justice Thomas was back at it again, coming to the defense of Orleans Parish and its  corroded brand of justice. Only this time, the justice was unable to convince any of his colleagues to indulge the notion that judges should bend over backwards to protect cheating prosecutors. In Smith v. Cain, an 8-1 ruling authored by Chief Justice John Roberts himself, Justice Thomas spoke alone. (The difference between Connick and Smith is easy to define: The first case was about money, the second about a man's freedom). 

It took the Chief Justice less than four pages to declare that the defendant's rights had been violated. Juan Smith was convicted of murder based upon the testimony of a lone witness, a man named Larry Boatner. A detective's notes, which included "statements by Boatner that conflict with his tes­timony identifying Smith as a perpetrator," were not turned over to Smith before his trial. This, Chief Justice Roberts wrote, violated the rule of  Brady v. Maryland  that requires prosecutors to turn over to the defense all potentially exculpatory information.

Here's what Chief Justice Roberts wrote:

The State and the dissent advance various reasons why the jury might have discounted Boatner's undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that they could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner's contradictory declarations the jury would have believed. The State also contends that Boatner's statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State's argument offers a reason that the jury could have disbelieved Boatner's undisclosed statements, but gives us no confidence that it would have done so.

Case closed for the Chief Justice and all of his other colleagues save for Justice Thomas. For 19 pages -- nearly five times as long as the majority opinion -- Justice Thomas reconstructed the case against Smith by seeking to buttress Boatner's credibility. The dissent is remarkable because it reads like a crime novel or a brief written by a prosecutor or policeman. In Justice Thomas' world, the jury would have been so underwhelmed by the undisclosed evidence of Boatner's unreliability as a witness that it would have convicted Smith anyway.

The majority failed to properly apply the Brady test, Justice Thomas argued, because it failed to take into account other evidence at the trial that would have tended, in his view, to reduce the importance of the undisclosed notes about Boatner. After what amounted to an exhaustive closing argument on behalf of the prosecutors, and Boatner, and predicting jury minds more than most jurists would dare to try, Justice Thomas concluded that "Smith has not shown a reasonable probability that that the jury would have reached a different verdict." 

So, in Justice Thomas' world, a tie in a Brady case goes to the prosecutors, the same ones who were caught cheating and violating the constitutional rights of criminal defendants by withholding exculpatory evidence from defense attorneys. If he cannot get rid of the command of  Brady outright, it's seems clear from the past two cases at least that he is going to try to undermine its premise and promise by subjecting it to tests and standards that would make its remedies meaningless. 

A single witness identified Smith. Prosecutors didn't tell the defense about problems with that witness. Could there be a simpler case of misconduct? Could there be a more textbook example of a Brady violation? That Justice Thomas would spend 19 pages in dissent, writing at times like  Dashiell Hammett, trying to defend an indefensible conviction, is what his future biographers ought to write about. This, and heartless dissents like this one, are also what his contemporaries talk about when they talk about the jurisprudence of Clarence Thomas.

This article available online at:

http://www.theatlantic.com/national/archive/2012/01/for-the-prosecution-justice-clarence-thomas/251309/