Can somebody please think of a clever way to convince him to resign? A $20 million a year job at the Scaife or the Koch or the Bradley Foundation, or the Hoover Institute, or something?
Dahlia Lithwick:
Clarence Thomas' dissent in Smith v. Cain: A “single witness” linked Juan Smith to the five murders for which he was convicted in New Orleans in 1995. The Supreme Court reversed Smith’s conviction yesterday, dwelling on that single witness in the 8-1 opinion it handed down… with seven justices joining Chief Justice Roberts’ short and sweet three-and-a-half page opinion….
At trial, the witness said he saw the attacker face to face and was sure Smith was the one. He said he had “[n]o doubt.”… Everything in this case hinged on that single witness. The police explained that “[a]s amazing as it may seem,” no fingerprints matching Smith were found…. This was a terrible mass murder, where men stormed into an apartment, demanded money and marijuana, told everyone inside to lie on the floor, then shot five people. Smith was sentenced to life without parole. The problems in the case emerged only during state habeas proceedings. That’s when Smith obtained for the first time notes from the detective stating that the eyewitness said on the night of the murder that he “could not ... supply a description of the perpetrators other then [sic] they were black males.” Again, five days after the crime, the ostensible eyewitness said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” The detective wrote these statements down—and then wrote down “Could not ID.” It’s understandable that the eyewitness was, as he later said, “too scared to look at anybody” under the circumstances. But usually police know that a person who didn’t see a face is not an eyewitness at all….
New Orleans police… showed 14 separate photo arrays to another witness…. Months after the crime, they finally succeeded in getting him to identify Smith. How did this happen? Smith’s briefs describe how the New Orleans Times-Picayune ran a story naming Smith as a suspect, including a photo. After seeing that newspaper story, all of a sudden the single witness became the single eyewitness.
It was easy for the Supreme Court to decide that such powerful evidence undermining the testimony of the state’s only evidence was “material” and that there was a “reasonable probability” that it would have made a difference at trial and that the conviction needed to be reversed (the standard under Brady v. Maryland, which entitles the defense to have such exculpatory evidence). It was, said eight justices, serious misconduct to hide such evidence. All the jury heard about was the photo array, four months after the crime, when the eyewitness first identified Smith, and then they saw him at trial, testifying with absolute confidence….
Justice Thomas wrote a long, long (17-page) dissent…. Justice Thomas calls the witness “the eyewitness.”… Justice Thomas emphasizes how, even months after the crime, the eyewitness saw Smith’s photo and said, “This is it. I’ll never forget that face.”… Justice Thomas details why he concluded that the witness “evince[d] a discriminating, careful eye over a 4-month investigative period.” This was a model and “confident” eyewitness—moreover, one who was extensively cross-examined at trial….
This analysis indicates little familiarity with the vast body of research on eyewitness memory…
