The state has an obligation to turn over all evidence to the defense.  This case highlights how important it is that a prosecutor not attempt to give only ‘material’ evidence.  As a defense lawyer it is imperative that all evidence be obtained. 
An angry Court gives New Orleans prosecutors a scolding
The National Law Journal
November 08, 2011
Description: Williams & Connolly's Kannon
Williams & Connolly’s Kannon Shanmugam 
The Supreme Court took the New Orleans prosecutor’s office to the woodshed on Tuesday, scolding its lawyer for what one justice said was a long history of accusations that the office has ignored the right of defendants to receive exculpatory evidence before trial.

Justice after justice, including conservative Antonin Scalia, admonished Assistant District Attorney Donna Andrieu for her office’s failure, in the case before the Court, to turn over what they viewed as evidence that could have changed the course of the trial. “Surely it should have been turned over,” Scalia said at one point. “Why don’t you give that up?”

The setting for the Court’s unusual display of anger was the oral argument in Smith v. Cain, a challenge to prosecutorial misconduct in the case of Juan Smith, convicted of murder in a 1995 rampage that left five people dead. Lawyers for Smith are asking for a new trial, citing statements that were withheld from defense lawyers impeaching the credibility of the only eyewitness to the crime.

The Court agreed in June to hear the case, even though it did not involve a new legal issue or a doctrinal split among circuits. This led to speculation – borne out Tuesday — that the justices docketed the Smith case to continue their scrutiny of the New Orleans prosecutor’s office in the aftermath of last term’s high court decision in Connick v. Thompson. That controversial 5-4 ruling reversed a $14 million civil rights judgment against the New Orleans prosecutor’s office for similar withholding of evidence during the tenure of former prosecutor Harry Connick Sr.

Connick had also prosecuted Smith, and justices made it clear Tuesday that the win last term did not mean they were happy with Connick’s legacy. The father of the famed musician, Connick served as New Orleans Parish prosecutor from 1973 to 2003.

Kannon Shanmugam of Williams & Connolly argued on behalf of Smith, forcefully laying out what he described as the prosecutor’s “flagrant disregard” of his obligations under Brady v. Maryland, the 1963 ruling that requires prosecutors to supply defense lawyers with exculpatory evidence.

Shanmugam said the defense at trial was not given documents showing that the main eyewitness to the murders had told police more than once that he could not identify those responsible for the murders. The witness identified Smith in a photo lineup only after seeing Smith’s picture in a New Orleans newspaper speculating about his connection to the case. “None of this material was handed over,” Shanmugam told the Court.

From the moment she stood to answer Shanmugam’s arguments, Andrieu was on the defensive. She made her situation worse by insisting through most of her half-hour that the evidence that her office had not turned over was not Brady material that had to be given to the defense – even though it could have been used to cast doubt on the prosecution’s main witness. She said it was not material and would not have changed the outcome of the case if it had been revealed to the defense.

“How could it not be material?” asked Justice Ruth Bader Ginsburg. “Here is the only eyewitness, and we have inconsistent statements.”

Justice Anthony Kennedy added, “I just can’t believe that.”

Chief Justice John Roberts Jr. also piled on, telling Andrieu, “If you were the defense lawyer, you would really like to have that statement where he said, ‘I couldn’t identify them.'”

Andrieu finally relented to the pressure, allowing that “a prudent prosecutor could have disclosed” the conflicting evidence to the defense. “I believe we were tacking a little bit too close to the wind.”

But that concession did not mollify the Court. Justice Elena Kagan bluntly asked, “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it.”

Taken aback, Andrieu said no, asserting she still had a plausible argument that the evidence her office withheld was not material to the case.

Then it was Justice Sonia Sotomayor’s turn to scold Andrieu. “There have been serious accusations against the practices of your office, not yours in particular but prior ones,” she 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. ‘It didn’t need to be. It would have been prudent, but it didn’t need to be.’ That’s really troubling.”

Andrieu’s next position was that she had misunderstood Sotomayor’s question. “Today we turn all of this over,” she said, just as the red light went on, signifying the merciful end of her argument time.

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