By Jessica Pettit, J.D. Candidate

This November, the Supreme Court will hear Smith v. Cain, the second Brady case to come out of the New Orleans’ District Attorney’s case in two years. The Court agreed to hear the present case on petition from Juan Smith, who was convicted of a quintuple murder stemming from a 1995 shooting on North Roman Street in New Orleans, Louisiana. The court agreed to hear the case despite deciding Connick v. Thompson, 131 S.Ct. 1350 (2011), regarding Brady issues out of the exact same DA’s office, only last term.

Both cases implicate the Brady Doctrine, which stems from the 1963 case Brady v. Maryland, 373 U.S. 83 (1963). While the doctrine has many nuances and has been addressed many times over the past several decades, at its core Brady imposes upon the prosecution a duty to turn over to the defense in a criminal trial all evidence which tends to cast doubt upon a defendant’s guilt. The New Orleans’ District Attorney’s Office has seemed to struggle with the requirements of Brady for years.  Four of the seven inmates to get off of Louisiana death row over the last few decades were tried and convicted by the New Orleans District Attorney. In each of these cases it was found that exculpatory evidence, covered by Brady, was withheld from the defense. Laura Maggi, U.S. Supreme Court Rejects $14 Million Judgment Against New Orleans District Attorney’s Office, The Times-Picayune, March 29, 2011.

Given the tremendous odds of having the Supreme Court grant certiorari on any given case it is particularly notable that the court has agreed to hear a second case coming out of the same District Attorney’s office just one term after hearing the first.

Last term, the court heard Connick v. Thompson, a § 1983 lawsuit arising out of prior Brady violations. John Thompson was convicted of armed robbery prior to being charged with and convicted of the 1984 murder of a New Orleans businessman. It was later discovered that prosecutors had blood evidence relating to the robbery that exonerated Thompson for that crime. The District Attorney hid the blood evidence from the defense despite the fact that it exonerated Thompson for the crime. It was because of the robbery conviction that Thompson decided not to testify at the subsequent murder trial. After the blood evidence was discovered Mr. Thompon’s convictions were overturned and he was released from prison when the robbery charges were dismissed and he was acquitted on the murder charges in a retrial. Mr. Thomspon then sued the Orleans Parish District Attorney under § 1983 and was awarded $14 million dollars by a jury in 2007. The District Attorney’s Office had been appealing the decision ever since.

In Thompson the Supreme Court held 5-4 that Mr. Thompson had not been able to demonstrate the level of systematic disregard for Brady that would be required in order to sustain his § 1983 suit. Instead, the hiding of the blood evidence from the armed robbery was deemed the actions of a rouge prosecutor, against which the District Attorney’s office could not protect and should not be responsible for.

The dissent in Thompson disagreed. Justice Ginsburg wrote that Mr. Thompson presented “convincing evidence” to meet the standard of deliberate indifference necessary to satisfy the legal requirements of the § 1983 suit.Connick, 131 S.Ct. at 1377. Ginsburg brought three other votes onto her dissenting opinion but in the end the majority triumphed in the view that the Brady violations were simply not systemic enough to create the “deliberate indifference” required for a § 1983 suit.

Juan Smith

That the Court has agreed to hear yet another case from the New Orleans Parish District Attorney’s Office perhaps indicates that they still have questions regarding just how widespread the disregard for Brady actually is at the New Orleans DA.

During the 1995 shooting at the heart of Smith a group of gunmen entered a home on North Roman Street, and forced the residents inside to lie on the ground before shooting and killing five of them. The sole link between Mr. Smith and the shooting was the testimony of one eyewitness who had been present in the house at the time of the shooting, but survived the attack. At trial, the defense attempted to discredit the government’s case by pointing out the lack of evidence in the case, but Mr. Smith was eventually convicted of the murders.

Following his conviction Mr. Smith applied for post-conviction relief. Through this process he discovered several pieces of evidence that the prosecution had not disclosed during the original trial. Among the newly discovered information was evidence that the eyewitness had stated multiple times that he couldn’t observe the perpetrators; an individual shot at the home, believed to be one of the perpetrators, indicated that Smith had not been involved in the shooting; an inmate in the Orleans Parish Prison told police officers that one of his cellmates had actually confessed to the North Roman Street shooting; this same inmate claimed a New Orleans Police Officer had offered to help get him a reduced sentence if he was willing to implicate Juan Smith in the shooting. See Brief for Petitioner at 26, Smith v. Cain, No. 10-8145

Smithis notable, and perhaps the Supreme Court agreed to hear the case, because “the favorable information that the prosecution withheld is remarkable both in its scope and its materiality.” Brief for Petitioner at 26, Smith v. Cain, No. 10-8145. The District Attorney does not dispute the underlying facts that favorable evidence was withheld from the defense, but only that it was not prejudicial enough to warrant a new trial. Whether Mr. Smith prevails in his latest quest for relief does not alter the fact that his trial happened under the cloud of multiple and egregious Brady violations.

Whichever way the Court decides in Smith v. Cain, the mere existence of the case, and the position of the District Attorney’s office itself, adds more credibility to the claim that the New Orleans DA is a system violator of Brady. With this new information before the court it is interesting to wonder if any of the members of the majority inThompson are perhaps seeing the Orleans District Attorney’s office in a new light, and in the future would not decide a similar § 1983 lawsuit in the same way.