Brady, Brady, Brady: SCOTUS Hears Smith v. Cain Nov. 8 - Criminal Law - U.S. Supreme Court
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Brady, Brady, Brady: SCOTUS Hears Smith v. Cain Nov. 8

The Supreme Court has entertained a heavy criminal caseload so far this term, considering rights to effective counsel, returned-mail appeal waivers, and the wisdom of eyewitness testimony. Next week, the Court will take up prosecutorial misconduct in Smith v. Cain as it reviews questionable practices in the Orleans Parish District Attorney's office for the third time in 16 years.

Why has the Court showered the New Orleans prosecutors with so much attention over the years?

Because Orleans Parish prosecutors have a nasty habit of withholding exculpatory evidence.

The Supreme Court held in Brady v. Maryland, almost 50 years ago, that withholding exculpatory evidence from a defendant violates due process "where the evidence is material either to guilt or to punishment." Orleans Parish prosecutors, however, continued to withhold evidence.

The Supreme Court attempted to set Orleans Parish prosecutors straight in the 1995 case Kyles v. Whitley, in which the Court held that a prosecutor has an affirmative duty to disclose exculpatory evidence.

Kyles, however, did not change Orleans Parish practices; earlier this year, the Court ruled in Connick v. Thompson, another Brady violation case, that District Attorney Harry Connick, Sr. could not be held personally liable to an exonerated defendant for the prosecutor's decision to withhold the exculpatory evidence.

On Tuesday, the Supreme Court will hear arguments regarding whether there is a reasonable probability that the outcome of petitioner Juan Smith's trial would have been different but for Orleans Parish prosecutors' Brady and Giglio/Napue errors.

The Orleans Parish Public Defenders Office, in an amicus brief in Smith, argues that New Orleans prosecutors have chronically disregarded their Brady obligations, and that Smith should receive a new trial. Prosecutors acknowledges that witness statements were withheld from Smith's attorneys, but claims that the errors were harmless.

The Supreme Court's decision in Smith v. Cain will provide additional clarification regarding what kinds of evidence the prosecution must disclose to the defense, but will it actually prompt practical change in the Orleans Parish District Attorney's office? Beyond Smith, what will put an end to prosecutorial misconduct? The Court has already ruled out personal liability; are attorney sanctions the best way to compel compliance?

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