You know oral argument isn’t going well when a justice of the Court asks you to defend your decision not to throw in the towel already.  Yet that is precisely what happened to Donna Andrieu, an assistant district attorney from New Orleans, charged with defending her office’s decision to withhold exculpatory evidence from a criminal defendant.  Her position was inauspicious to begin with, but her performance did her no favors.

The case Ms. Andrieu was defending, Smith v. Cain, arose from a mass murder in 1995.  Juan Smith was convicted on the crime based solely on the eyewitness testimony of a survivor.  Somewhat unbelievably, prosecutors presented no physical evidence – no fingerprints, no weapons, no anything – that would link Smith (or anyone else) to the murders.

Unbeknownst to Smith, the prosecution’s witness expressed reservations about his ability to identify his assailant.  Immediately after the shootings, the witness said that he could not describe his attacker beyond the fact that the shooter was black.  Later, he said that the assailant had a “[m]outh full of gold.”  After that, however, the witness said that he had not seen the shooter’s face and could not identify him.  Though the witness eventually named Smith as his attacker, the identification came after he had seen Smith’s picture in a newspaper article naming Smith as a suspect.  Moreover, notes made contemporaneous to the ID noted that the witness felt “harassed” and pressured to comply with police’s request.

Ms. Andrieu attempted to explain away the D.A.’s failure to turn over the evidence by asserting its immateriality.  Under Brady v. Maryland, the prosecution need only turn over evidence that is “material” to the case – evidence likely to affect its outcome.  Justices Ginsburg and Kennedy both stated their disbelief that the evidence in question would be immaterial.  Chief Justice Roberts said, “If you were the defense lawyer, you really would like to have that statement where he said, ‘I couldn’t identify them [the shooters].’”  When pressed, Ms. Andrieu vacillated some, stating that a “prudent prosecutor” would have divulged the information.  Justice Scalia was more blunt: “Of course it should have been turned over.”

The justices’ tenor at oral arguments suggests that the Court was not so much seeking to resolve a complicated nuance of Brady jurisprudence, but rather sought to chastise publicly the New Orleans District Attorney’s Office, now notorious for its underhanded trial tactics and ethical violations.  Beginning in 1995, the Court has admonished the office three times for “blatant and repeated” ethical violations.  Since 1990, ten defendants convicted in New Orleans parish have been exonerated based on Brady violations alone, including four capital defendants.  Faced with an office that refuses to change its ways, the Court may have opted to shame the office into reform.  Indeed, commentators have referred to the office’s performance at oral arguments as a “disaster.”  Based on the justices’ questioning, New Orleans better learn quickly: the Court already seems to have lost its patience.

To listen to the oral arguments, click here.