Make Up Call

Sometimes the refs screw up, and they can’t fix it because it’s over and done with.  So the theory is, they screw up again – on purpose – in favor of the team that they inadvertently screwed over before.  The idea being that this balances things out.

I wasn’t really sure what the issue was in Smith v. Cain, which was argued in the SCOTUS yesterday.  It seemed to be an unlikely certiorari grant, not really presenting any hot issue du jour, a run of the mill Brady violation case, the vast majority of which go nowhere, to say nothing of attracting the interest of the SCOTUS.

There’s this, though:  the case arises out of New Orleans, and the same District Attorney’s office the SCOTUS exonerated from all constitutional accountability in the infamous Connick v. Thompson case last term.  You remember that one, right?  The justices snickering as they voted to overturn a jury verdict in favor of a wrongfully convicted man who spent years on death row owing to the N.O. District Attorney’s office’s Brady violations?

You can read all about the Smith v. Cain argument on the SCOTUS blog here, the overwhelming indication being that the Court is poised to reverse and grant a new trial.  It will in all likelihood accomplish nothing substantive for the defendant, who will probably be found guilty again.

The SCOTUS blog post makes much of the one-sided nature of the oral argument, at one point featuring commentary by the justices that perhaps the prosecutors should just concede that they violated Brady.  But this just makes it all the more curious that they took the case to begin with:  the SCOTUS famously doesn’t take a close look at cases that are too obvious.  It is not a “court of errors”.

Prompted by an external request, I searched the briefs and petitions and oral argument transcript in vain for any conventional reason why the case should have been argued in the SCOTUS at all.  An issue that came up obliquely was:  is the prosecutor the sole arbiter of what qualifies as “material” exculpatory evidence that has to be turned over?  That problem seemed to hover over the case, but then again it has hovered over Brady for almost 50 years drawing no notable concern from the SCOTUS before.

So maybe that’s what’s going on here.

But it’s probably just as plausible to suggest that the SCOTUS, having gone so far out of their way to place their imprimatur on prosecutor misconduct in Connick v. Thompson, was hedging just enough to avoid the accusation that they out and out approve of such misconduct, or that they are criminally indifferent to it.  So they revisit the New Orleans area one more time for a makeup call.




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