New Orleans Materiality

From the way it’s described, you have to feel badly for Assistant District Attorney Donna R. Andrieu.  She stood there, the face of the District Attorney of Orleans Parish, Harry Connick the elder, as justice after justice smacked her for speaking the words her boss demanded.  If Harry, Sr., was half a man, he would have had the balls to go there and argue Smith v. Cain himself. 

From the New York Times :


Justice Kagan said she could not understand why the Orleans Parish District Attorney’s Office persisted in defending its conduct. “Did your office ever consider just confessing error in this case?” she asked.


Justice Sotomayor made a broader point about the office, which has repeatedly been found to have violated Brady v. Maryland, the 1963 Supreme Court decision that requires prosecutors to turn over favorable evidence to the defense.


“There have been serious accusations against the practices of your office, not yours in particular, but prior ones,” Justice Sotomayor said. “It is disconcerting to me that when I asked you the question directly, should this material have been turned over, you gave an absolute no.”


“That’s really troubling,” Justice Sotomayor added.


The underlying case doesn’t matter, to the extent mass murder cases don’t matter, beyond the fact that it was a one witness ID where the one witness told the police that he couldn’t identify anyone.  Of course, he later did identify someone, and that someone was the defendant, Juan Smith.  Nobody every told the defense of the witnesses earlier statements.

There is no question that a statement by the witness who identified the defendant as the murderer that he was incapable of identifying anyone is critical for impeachment.  Even Nino knows that.


Justice Antonin Scalia said of the evidence, “Of course it should have been turned over.”


Yet the position taken by Connick, with Andrieu standing there to take the beating, is that it wasn’t “material.”  For non-lawyers, materiality is that which has a significant impact on a fact. It matters.


She acknowledged Chief Justice John G. Roberts, Jr.’s suggestion that the defense would have liked to have known that Boatner at one point told police that he could not identify any of the attackers, but then Andrieu insisted that this was not “material.”   Ginsburg then again criticized the prosecutor’s view of what was “material,” and Justice Antonin Scalia joined in to say that the trial did not depend solely on Boatner’s testimony but, in fact, his was the only evidence against Smith.   She insisted there was more.

As a general rule, it’s frowned upon when an advocate at oral argument persists in asserting an argument that is clearly frivolous. To deny the materiality of the eyewitness’ statement that he couldn’t identify anyone who committed the murders was nuts, and Andrieu took a beating for it.

The problem is that she was just the surrogate, the person told to stand up and take the beating for the Orleans Parish District Attorney.  She did her job and took her licks, while Connick was safe at home, perhaps a bowl of jambalaya in front of him so that he wouldn’t be hungry while his assistant was getting her butt kicked.

You see, he’s the same Connick whose name will forever be associated with a defendant named Thompson, who spend 18 years in prison, 14 on death row, and then lost a $14 million judgment for having been imprisoned and nearly executed because Connick’s assistants didn’t bother to disclose Brady material. But the Supremes tossed the verdict because  Thompson couldn’t prove that this was Connick’s official policy.

So there they were, beating up on poor Ms. Andrieu who kept to her script for making a frivolous argument that something that’s obviously Brady isn’t Brady because it’s not material even though it’s completely, totally, obviously material. It doesn’t get more material.

Why are they blaming poor Ms. Andrieu?  They know that she can’t do anything without Connick’s blessing, and if she concedes that they withheld Brady, she’ll never taste decent jambalaya again as there will be cops blocking the Danziger Bridge when she tries to make her way back home.  They know she’s doing Connick’s dirty work.

As for Connick, he’s only doing what the Supreme told him to do in Thompson’s case.deny it all and play stupid.  That’s the beauty of Brady, Wild Bill Douglas’ greatest joke on the law.  It’s the carrot that one can never quite reach, a fabulous and critical “right” without the necessary limits and parameters that allow it to work by holding the prosecution to any discernable test. 

In Thompson, the Supreme Court had a chance to make the prosecution pay a price for violating Brady. You see, there’s no price to be paid in any individual criminal prosecution. None.  Withhold Brady and the worst that can happen is the conviction is tossed. But provide Brady and you wouldn’t get the conviction in the first place, so nothing to lose. Every incentive is to deny it exists.  Or, as poor Ms. Andrieu argued, deny materiality.

If it becomes official, however, then defendants like Thompson win verdicts after their conviction is tossed and get compensated for the years of their life lost to the prosecution’s thievery.  That’s money out of the budget, and a government can feel that bite.  This is something real to lose.

When Juan Smith’s conviction came on the heels of the Supreme Court’s decision in Connick v. Thompson, it seemed pretty darned hard to ignore. Maybe, just maybe, the justices were mind-numbingly wrong in  Thompson, that the Orleans Parish District Attorney had a calculated policy to deprive the defense of Brady material so that they could convict who they wanted to convict without any of that nasty excuplatory or impeachment stuff screwing up their trials.

But all they had to do to beat the problem was shuffle their feet and play stupid, as in arguing that they didn’t know it was material, and all is forgiven.  Connick may lose his conviction of Juan Smith, but that’s no big deal.  If it had been disclosed that the witness couldn’t identify anyone anyway, he never would have gotten the conviction in the first place. No downside at all.  But he didn’t lose a dime to Thompson, and that’s all that really matters.

It seems like poor Ms. Andrieu did her job incredibly well.  There will be a big bowl of jambalaya waiting for her when she returned to New Orleans.


2 comments on “New Orleans Materiality

  1. Michael Chaney

    As I say over and over, the simple solution is to automatically sentence the prosecutor in a case like this to prison in the same cells (where possible) for the same amount of time as their victim. You only have to do it one or two times before the rest catch on.

    It’s amazing that the court would allow such nonsense – the idea that they don’t know the basic rules of conduct is absurd and should be treated as such.

  2. harold

    What to take away from all this? Maybe it should be this:
    Court watchers are trying to make sense of the fact that the SCOTUS have granted cert for the second time in two years to a Brady case from the same DA’s office especially since this last one presented no novel issues. Their conclusion is that the high court has found it necessary to reign in the practices of the Orleans DA’s office. The notion that the highest court in the land finds it necessary to take on such a task speaks volumes about the way Louisiana appellate courts have totally abrogated their duty to administer justice other than to ensure punishment to those that are convicted. The stand of the current D.A. like that of Connick is oddly reminiscent of that of noted segregationists of a half a century ago. They absolutely refused to respect or even acknowledge the authority of the United States Supreme Court. The major difference is that as lawyers they can not openly express contempt for the high court’s rulings, but it does not take a lot of reading between the lines from last weeks arguments to see that they have no intention of ever following Brady. The position of the New Orleans D.A.’s office Is little changed since they were singled out in Kyles v. Whitley in 1995. If anything, their position has hardened. Ms. Andrieu’s robot-like adherence to her boss’s position shows that more clearly than anything else could. The same prosecutor that tried the Juan Smith case Was brought up for disciplinary action by the Louisiana Supreme Court for conduct eerily similar to the one before the SCOUTS. A look at In re Roger W. Jordan, Jr., 913 So.2d 775 (S. Ct. La. 2005) shows the extent to which Louisiana courts will go to avoid any real discipline for illegal conduct by a prosecutor. It would be foolish to think the Supreme Court’s eventual decision in Smith v. Cain will change anything here.

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