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“We don’t think the defense has shown anything wrong with the verdict,” Mr. Dwyer [the chief assistant Manhattan district attorney] said.

I’m not sure what world Mr. Dwyer lives in that 5 recantations don’t imply something wrong with a verdict, but wherever it is, I don’t want to live there.

What cases like these ought to do is put more focus on SCOTUS’ upcoming decision in Pottawattamie County v. McGhee [oral argument transcript here; scotusblog recap here]. The issue in Pottawattamie is whether prosecutors should enjoy immunity for intentionally coercing false testimony in the investigation phase of a prosecution and then introducing that same testimony at a trial that leads to conviction. In that case:

In 1978, Curtis McGhee and Terry Harrington were convicted of murdering a retired police officer in Pottawattamie County, Iowa and sentenced to life in prison. Twenty-five years later, the release of new files in the cases revealed that prosecutors had fabricated the testimony of a lead witness at their trials and failed to disclose evidence about an alternative suspect to the defense. The Iowa Supreme Court vacated Harrington’s sentence, and McGhee pleaded guilty to a lesser charge in exchange for time served. Both prisoners were freed.

The oral argument in Pottawattamie is something to read. It shocks the mind that something so simple as intentionally framing an innocent person is a phrase never once uttered by any party (not that I remember anyway). Some of the justices were more concerned with the chilling effect on prosecutors. Look, we all acknowledge that most prosecutors try to do their jobs fairly and very, very few of them wouldn’t be bothered by a wrongful conviction on their conscience. But how does removing immunity for intentionally framing someone produce a “chilling” effect on their prosecutorial function? It seems bass-ackwards. If anything, wouldn’t it make prosecutors more careful in whom they pursue and whom they charge? Would  removing such immunity not provide the very result which we seek: no wrongful convictions and certainly none that are obtained by intentional falsification of the evidence? [Listen to NPR's Morning Edition's coverage of this case last week, which includes listener calls from prosecutors and public defenders.]

For me, the answer in Pottawattamie is simple: If you’re a prosecutor who intentionally frames an individual, you should be sued. Not only should you be sued, but you should be disbarred. The latter is less likely to happen than I am to become the next Chuck Norris, but the former should be a real threat. The power of a prosecutor is awesome and that power should be wielded with great care and never with malice or dishonesty.

Had police and prosecutors not pressured 5 people into falsely identifying Mr. Bermudez, he probably wouldn’t have spent 17 years in jail for a crime he didn’t commit. That’s the real moral of this story, not the legal fiction of “opening floodgates” or “chilling effects”. Anyone who gives any weight to such an argument needs to spend 17 years in jail in his place.

And because it’s a Sunday night, I give you this little joke:

Get it?

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We do not agree with the contention in JUSTICE ALITO’s dissent (hereinafter dissent) that consideration of police reliance interests requires a different result. Although itappears that the State’s reading of Belton has been widelytaught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years,11 many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interestthat all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence.

…

The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely“within ‘the area into which an arrestee might reach,’”453 U. S., at 460, and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.

The decision is also a great primer on search incident to arrest law (and Bennett’s post does a nice job of recapping the history of it). Notable, however, is another holding within this decision: that police will always be entitled to search the interior of a vehicle if the evidence of the instant offense might be discovered within it. Obviously, this would not apply to traffic violations.

Scalia’s concurrence is also rather notable and packs a lot of punch in a few short pages. Here is a choice quote:

I believe that this standard fails to provide the needed guidance to arresting officers and also leaves much roomfor manipulation, inviting officers to leave the scene unse-cured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we shouldsimply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehi-cle search incident to arrest is ipso facto “reasonable” only Cite as: 556 U. S. ____ (2009) 3 SCALIA, J., concurring when the object of the search is evidence of the crime forwhich the arrest was made, or of another crime that the officer has probable cause to believe occurred.

As always, he concludes with a bang:

I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide thedegree of certainty I think desirable in this field; but the former opens the field to what I think are plainly uncon-stitutional searches—which is the greater evil. I therefore join the opinion of the Court.

For the CT reader, I decided to look up whether our Supreme Court had adopted Belton. My limited, preliminary research left me a little confused, so if you know the answer, leave a comment. Our Supreme Court first confronted Belton in State v. Badgett, 200 Conn. 412 (1986), in which they refused to extend Belton to permit law enforcement to conduct searches of vehicles willy-nilly.

We refuse, however, to extend the “fiction” that the passenger compartment is always within reach of the arrestee; New York v. Belton, supra, 467 (Brennan, J., dissenting); to circumstances, as here, where the defendant is no longer at the scene of the arrest when the warrantless search was undertaken. It is undisputed  that in this case the defendant was strapped and handcuffed in the police cruiser leaving the scene when the heroin was discovered by officer Kiernan. Because Belton does no more than apply Chimel to a “particular and problematic” context, and “in no way alters the fundamental principles established in the Chimel case . . .”; id., 460 n.3; we hold that the right of a police officer to search the vehicle ceases the instant the arrestee departs the scene because the arrestee’s removal forecloses any possibility that he could reach for an article within the vehicle.

This is close to Gant, but not quite. In Badgett, the emphasis was on whether the defendant was on the scene as opposed to secured and unable to access the interior.

But it gets murkier. In States v. Dukes, 209 Conn. 98 (1988), the Court wrote this:

With reference to the legitimacy of the search of the defendant’s vehicle, we conclude that it was proper. There is no need for us in this case to decide what authority the officer would have had under our constitution to search the vehicle for contraband when the only provocation for that was a traffic violation. This is so because once the officer had searched the defendant incident to a lawful arrest and found contraband, he then had probable cause to search the vehicle as he had grounds of the probable guilt of the defendant of a “crime,” as defined under General Statutes § 53a-24. New York v. Belton, supra. The discovery of the contraband in the defendant’s pockets, coupled with all the officer knew at that point, including the fact that he was now presented with a misdemeanant and not a mere traffic violator, gave him probable cause to search the vehicle for contraband. Black’s Law Dictionary defines “contraband” as “any property which is unlawful to produce or possess.” See United States v. Williams, 533 F. Sup. 448, 450 (E.D. Pa. 1982). We point out here that the officer’s ability to search the vehicle is not to be justified as any continuation of his authority to conduct a pat-down search specifically for weapons in order to protect himself, but is justified on the ground that the escalation of the defendant’s involvement had now risen from that of a mere traffic violation to probable guilt of a “crime” as our statutes define that term. Despite the fact that one does not enjoy the same expectation of privacy as to the interior of his motor vehicle as one does in the interior of one’s home, nevertheless, “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971). The same applies to an “automobile” under article first, § 7, of the constitution of Connecticut. The exception to the warrant requirement in an automobile search demands that the searching officer have probable cause to believe that the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 153-54, 45 S. Ct. 280, 69 L. Ed. 543 (1925); State v. Badgett, supra, 429. So does article first, § 7, of our constitution. We believe that this officer had, as we have outlined, objective facts upon which could be based  a finding of probable cause to search the defendant’s vehicle for contraband. Accordingly, the motion to suppress was correctly denied by the trial court.

You tell me what that means. (There’s more, but it’s late. I’ll update later.) If you’re interested, see State v. Wilkins, 240 Conn. 489 (1997), specifically the end of the majority decision and all of Berdon’s dissent.

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19 years ago, our supreme court considered Leon and its application in CT and decided that under the CT constitution, there is no such thing. The issue came before the august tribunal after two rounds of apeals and an adoption of Leon by the Appellate Court, in State v. Marsala. In Marsala:

the trial court issued a written decision in compliance with the directive of the Appellate Court  to make four specific determinations. The trial court concluded: (1) “the affiants did not mislead the issuing judge”; see Franks v. Delaware, 438 U.S. 154 (1978); (2) there was “no evidence that the issuing judge wholly abandoned his judicial role”; see Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); (3) “the police officers did have a reasonable belief that the warrant was valid”; see Brown v. Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring); and (4) “the warrant was not so facially deficient in its lack of particularity, regarding the place to be searched or the articles to be seized, that the executing officers could not reasonably presume it to be valid.” See United States v. Leon, supra, 923. In his appeal from this decision, the defendant did not contest the trial court’s first, second or fourth conclusions. State v. Marsala, 19 Conn. App. 478, 480 (1989)

The Court then turned to the question du jour: Whether Article 1, Section 7 of the Connecticut Constitution provides for a good faith exception. Justice Shea and the full panel of supreme court justices simply declined to adopt Leon. Writing for an unanimous court, Justice Shea opined:

Although we recognize that the exclusionary rule exacts a certain “cost” from society in the form of the suppression of relevant evidence in criminal trials, we conclude, nevertheless, that this “cost” is not sufficiently “substantial” to overcome the benefits to be gained by our disavowal of the Leon court’s good faith exception to the exclusionary rule. We base this conclusion on both the criticism leveled against the Leon opinion itself and our willingness in other areas of the law to uphold the exclusion of concededly reliable and relevant evidence on the basis of some greater benefit that will be realized by its suppression. Thus, for example, an otherwise voluntary and reliable confession is excluded from a criminal trial on the basis of a violation of Miranda v. Arizona, 384 U.S. 436 (1966), an exclusionary rule that we have adopted as an interpretation of the due process clause contained in article first, § 8, of the Connecticut constitution. See, e.g., State v. Barrett, 205 Conn. 437, 447 (1987); State v. Brown, 199 Conn. 47, 51 n.3 (1986); State v. Ferrell, 191 Conn. 37, 45 n.12 (1983).

The Court relied heavily on the dissent in Leon and the subsequent criticism of it to reject the good faith exception:

We simply cannot accept the conclusion reached by the Leon court as a result of its weighing of the relevant costs and benefits of excluding evidence obtained through police officers’ good faith reliance upon a warrant issued by a detached and neutral judicial official. Initially, we note that the exclusionaryrule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that “it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants.” S. Wasserstrom & W. Mertens, supra, 106. Just as with the fourth amendment, when article first, § 7, of our state constitution was adopted, “its purpose plainly was to prohibit the issuance of warrants that did not satisfy its requirements of probable cause and particularity.” 12 Id. The text of article first, § 7, is clear: “[N]o warrant . . . shall issue . . . without probable cause supported by oath or affirmation.” (Emphasis added.) While we might agree that the exclusionary rule was not  designed “to punish the errors  of judges and magistrates”; (emphasis added) United States v. Leon, supra, 916; we cannot agree that the rule as it stood before Leon was not a significant factor inducing judges to take seriously their obligation to ensure that the probable cause requirement of article first, § 7, had been met before issuing search warrants based on information contained in affidavits provided to them by police officers. We are confident that, at least in this state, search warrants failing to meet the probable cause requirement more often “result from carelessness than from intentional constitutional violations, and just as surely the exclusionary rule is logically directed to those more common violations.” 1 W. LaFave, supra, § 1.3(d), p. 55.

Over the years, I have become embroiled in several discussions with opponents of the exclusionary rule, whose primary argument is far too simplistic and myopic: The Fourth Amendment itself says nothing about the exclusion of evidence obtained via a violation of itself.

I have a hard time responding to this because on its face it makes no sense. To take the stance taken by the anti-exclusionists, one would have to believe that the Fourth Amendment reads something like this:  the right of the people to be free from unreasonable searches and seizures shall not be violated and no warrants shall issue, but upon probable cause, except if you violate this provision, we will scold you, but not really do anything about the violation, so it’s okay, go ahead and subject the people to unreasonable searches and seizures. So, violate this provision. It is what future generations will call a “technicality” and really, we can’t let those criminals go free on a technicality, can we?

As for Herring, I think my position is a little closer to the doomsdayers than it is to the laissez-fairers. I suspect many defendants will be the victims of “negligence”. But if you’re in CT, you don’t have to worry about this. Unless you’re a fatalist and decide to notice that the entire bench at the time of Marsala is no longer there and we now have 7 new justices who might want to revisit it.

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All other aspects of the circumstances surrounding this interview indicate that Morton’s statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time.

However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known Agent Pontius was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent’s status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent’s conduct, Morton’s participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton’s statements were involuntary and, thus, inadmissible.

SCOTUS has long held that mere lies and coercion by police do not render a confession involuntary. There has to be a causal relationship between the coercive tactic and the confession. The ultimate test remains:

Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.

Of course, the State bears the burden of proving, by a mere propenderance, that the confession is voluntary. That’s not very difficult. And neither is proving that the “he has willed to confess”. In fact, it’s almost impossible to prove otherwise. Consider the cases in CT, which has essentially adopted the same test.

In State v. Lapointe [pdf], the officer lied to the defendant and told him that his fingerprints were found on the murder weapon. No problem. The supreme court writes, albeit in a footnote:

Although we find no causal relationship between the defendant’s confession and the police conduct under the facts of this case, we note that “even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, [supra, 394 U.S. 731, 739].” Colorado v. Connelly, supra, 479 U.S. 164 n.2. For instance, in Frazier, even if the defendant would not have confessed but for the police statement about his associate’s inculpatory remarks, the confession was not thereby rendered involuntary. The inquiry is not merely whether the defendant would have confessed ‘but for” the police conduct, but rather whether the particular defendant’s capacity to resist the police pressure was overborne. See State v. DeAngelis, 200 Conn. 224, 232-33 (1986) (coercive police conduct must overbear defendant’s “will to resist and bring about confessions not freely self-determined” [internal quotation marks omitted]). If the police conduct is insufficient to overcome the defendant’s capacity to resist but the defendant still elects to confess, due process is not offended.

I will give 100 Italian Lire to anyone who can decode that for me. (A footnote in Lapointe and DeAngelis is that the length of an interrogation means nothing. Lapointe was interrogated for over 8 hours and DeAngelis for 10 1/2. Awesome.) The most recent treatment of voluntariness in CT (that I found) was in State v. Pinder [pdf]. In Pinder, the police stat[ed] falsely that the polygraph results would be used against him in court; present[ed] a fictitious Federal Bureau of Investigation (FBI) profile of the killer that included the view that the killer knew the victim; stat[ed] that the victim’s parents had a right to know the circumstances of their son’s death; and emphasiz[ed] that the defendant would be better off if he told the truth to the examiner.

It’s all okay. Doesn’t matter. Because the defendant had “the will to confess”. So the bottom line is that the totality of circumstances will almost always militate toward a finding of voluntariness. Short of a mentally retarded (is it okay to say that in the legal context?) defendant (and even then…State v. Toste, 198 Conn. 584 (confessions of mildly retarded defendant with IQ in 68 to 71 range held voluntary)), it is near impossible to prove an involuntary confession. The Court in Pinder did provide some guidance:

Factors that may be taken into account, ‘upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence;  the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the  use of physical punishment, such as the deprivation of food and sleep.’ . . . [State v. Madera, 210 Conn. 22, 41 (1989)]; see also State  v. Shifflett, [199 Conn. 718, 728 (1986)].

So, um…torture?

Now, it is worth pointing out that Pinder was in 1999 and I haven’t found a case since then that re-examined this issue (if there is one, I’m sure some loyal reader will send me an e-mail). Given the greater attention paid to wrongful convictions and forced confessions in recent years, defendants might receive more favorable results if scientific evidence is presented at the motions in limine or during the trial itself. All defense lawyers would be well-served by retaining or consulting a false confession expert these days. There is plenty of scientific evidence available and numerous studies have been conducted. I would love to see appellate court tackle this issue again.

Back to Morton. As the brief in opposition points out, the facts in Morton are very, very unlikely to occur again. I would be surprised if SCOTUS granted cert., and frankly, somewhat worried. It isn’t a case that they need to decide.

An interesting footnote in the Morton cert. petition is that the Respondent (the defendant Morton) filed the brief in opposition herself. While it is clearly written by a non-lawyer, it is actually rather well written for a pro-se party.

So what does this teach us? That you should never, ever confess. Ask unequivocally for a lawyer and keep your mouth shut. If you do confess, your chances at suppressing that confession are slim to none unless you were waterboarded. Except if you consult an expert on false confessions, in which case your chances go solidly into the “slim” column.

Merry Christmas!

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I suppose I don’t like the idea of living in a world in which our constitutional rights depend entirely on what 9 people think would be a cool thing to do on any particular day: I think our rights should be more grounded and more stable, even if I think I would probably agree with what the 9 people think is cool.

This comment made me pause and reminded me of Justice Berdon’s dissent in Ross II in 1994:

Arbitrariness also inheres in this court’s decision to resolve this appeal before a majority of the justices of this court have had an opportunity to review the constitutionality of the death penalty. Of the seven justices of the Connecticut Supreme Court, only three are qualified to sit on this case because of disqualifications by the remaining four. Of these three, only two are voting to uphold our death penalty statute. The other two judges who constitute the majority are sitting by designation of the chief justice.

In fact, to this day,14 years later, the entire panel of Supreme Court justices in CT has never considered the constitutionality of the death penalty. And yet it continues to be imposed and applied. Consider that in light of the fact that three US Supreme Court justices (former and present) have changed their views on the death penalty.

Justice Blackmun, dissenting from the denial of cert. in Callins v. Collins wrote:

From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored — indeed, I have struggled — along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. 1 Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies.

Justice Powell, who voted in the majority in McCleskey, soon regretted his vote:

The biographer of Associate Justice Lewis F. Powell, Jr., recently disclosed that Powell confessed the decision he most regretted was his decisive vote to uphold the imposition of the death penalty on Warren McCleskey, whose appeal attacked the racial bias inherent in the administration of the death penalty. 28 According to his biographer, four years after his retirement from the United States Supreme Court Justice Powell said, “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” The New York Times (June 23, 1994) p. A23, col. 1.

Berdon, J., dissenting in Ross II. The lack of any deterrent, the racism in the application of the death penalty, the growing number of exonerations all militate toward abolishing the death penalty.

Those in favor of the death penalty have no real argument other than to poke holes in the constitutional arguments of abolitionists. For there is but one reason to support the death penalty: retribution. If I am wrong, correct me. Why is the death penalty necessary? What purpose does it serve other than to exact revenge?

Since Gregg, the number of states that actually execute inmates has reduced. With the exception of CT, all New England states have abolished or stopped using the death penalty. Perhaps the reluctance to impose the death penalty is gaining momentum. 2008 saw only 37 executions, the lowest since 1994. [Read the DPIC's year end report here.]

Because I am not half the jurist that Justices Brennan and Berdon were, I will let them conclude (again quoting from Ross II):

Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose the right to have rights. A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a person for purposes of due process of law and the equal protection of the laws. The destruction of a human being does not become any more humane simply because the state is the executioner. To burn human flesh to death by electrocution or snuff out life through lethal injection, is not less inhumane because it is done in the name of justice.

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The last thing you want to do is pretend that you’re right when you’re not. It’s hollow and transparent. Everyone sees through it and it’s sort of like the boy who cried wolf. No one will believe you again, even when you’re right.

It’s something Jennifer L. Smith, Associated Deputy Attorney General for the State of Tennessee would have been well served by, had she remembered it and followed it.

Smith represented Tennessee before SCOTUS yesterday in Cone v. Bell. At issue in Bell was some boring nonsense about procedural default in habeas corpus practice. But what it devolved into was a discussion of whether the State had intentionally misrepresented the status of a Brady claim to a state court and then made disingenuous arguments to cover it up later.

What happened was this: The defense, in attempting to prove mitigating factors in the penalty phase of Cone’s trial, argued that Cone was a drug user and in the throes of a drug induced psychotic state when he committed the murders. To that end, they provided testimony from two experts. The State, during cross-examination, took greats pains to point out that the experts’ only source of such addiction information was Cone himself and went to some lengths to prove that Cone was not addicted to drugs.

The only problem is that the State possessed a wealth of information that showed that Cone was indeed addicted to drugs and seemed to be in a drug induced state at the time of the murders. The only logical conclusion here is that the prosecutors intentionally did not turn over this evidence to the defense. This is where Ms. Smith starts to get into some trouble. She has hardly begun speaking when she gets hit with the first questions:

JUSTICE STEVENS: May I ask — let me get something on the table. Do you agree that the evidence shows that this evidence was deliberately suppressed?
MS. SMITH: Your Honor, I don’t think there’s been any — any finding about the –
JUSTICE STEVENS: But is there any explanation for — was there any explanation for it other than the tactical explanation?
MS. SMITH: There’s no explanation in the record, there has been no finding about whether the evidence has been suppressed at all in this case because both the district court and the Sixth Circuit decided as a matter of law that the materials –
JUSTICE STEVENS: It seems to be relevant because if it was suppressed for tactical reasons, it seems to me hard to say that the prosecution thought it didn’t make any difference.

It doesn’t get any better for Ms. Smith:

JUSTICE KENNEDY: Do you think the prosecutor had an ethical duty to turn over this material?
MS. SMITH: I think that the material — if the material — if the subject was immaterial –
JUSTICE STEVENS: It’s a simple question, yes or no?
MS. SMITH: I think that as a legal matter there was no — no need to turn it over because it was immaterial.
JUSTICE STEVENS: That’s not my question. Can you answer my question? Did he have an ethical duty to turn this material over?
MS. SMITH: I’m unaware of any ethical requirement that he turn it over, and I don’t think that — and certainly under Brady if it’s not material, we don’t think it was material, then it’s certainly not required as a constitutional matter. And the reason is not –
JUSTICE SOUTER: You believe that the materiality judgment is yours to make, the State’s to make as sort of a gate keeping measure? Isn’t the materiality an issue for the fact finder?
MS. SMITH: Well, I think it’s — it’s –
JUSTICE SOUTER: You exclude — do you believe that you can, in effect, suppress any piece of evidence on — on — on the State’s judgment that it will not prove to be material in the context of the whole case?

Yikes. But wait. There’s more. After this little subterfuge of hiding the Brady material, the State twice argued to post-conviction courts and appellate courts that the Brady issue had already been decided. When, in fact, no Court had ever actually ruled on the merits of the issue. So it was deemed procedurally defaulted.

Not content with doing that much damage, the State them proceeded to change its tact on subsequent appeals. Accepting that the issue had not actually been decided, the State then argued that the defendant had waived the issue, despite several paragraphs in the habeas corpus petition alleging the Brady violation.

Any time you get a Justice of a Supreme Court, be it state or federal, to utter the following words, you know you’ve made a misstep along the way:

JUSTICE SOUTER: Then I will be candid with you that I simply cannot follow your argument because I believe you have just made a statement to me that is utterly irrational.

…

JUSTICE BREYER: Well, “waiver,” my goodness.

Why the State feels the need to defend every action it has ever take, however wrong or contrary to the law, is beyond me. If they were being intellectually honest, they would admit previous errors and make an appropriate argument. They might lose a case or two, but they at least wouldn’t end up in the position of having their credibility questioned by Supreme Court justices.

[This is not to say that Attorney Smith herself did anything untenable. It may well be that she was handed a deck of cards that lead to this result, and had to defend the questionable actions of others. It is the institutional resistance to admitting errors that irks me.]

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