All interesting stuff. But if true history is in the details, I hope Justice Thomas' future biographers will also take a long look at his dubious work in cases involving prosecutorial misconduct. At a time when Americans are just now awakening to the ugly truth about their justice systems, when dozens of capital defendants each year are exonerated, it's remarkable that Justice Thomas continues to adhere to a grim philosophy that justifies constitutional violations and excuses cheating on the part of prosecutors.
Last year, for example, in Connick v. Thompson, Justice Thomas wrote a 5-4 opinion [ http://www.supremecourt.gov/opinions/10pdf/09-571.pdf ] that protected the Orleans Parish District Attorney's Office from a civil lawsuit brought by a man who had been wrongfully convicted and spent 14 years on death row before investigators discovered that his prosecutors had failed to turn over to him a crime lab report. Justice Thomas contorted both logic and justice [ http://www.theatlantic.com/national/archive/2011/03/prosecutors-get-a-mulligan-wrongfully-convicted-man-gets-squat/73197/ ] when he protected the cheating prosecutors from a $14 million jury verdict that had been affirmed by both lower federal courts.
On Tuesday, in Smith v. Cain, Justice Thomas was back at it again, coming to the defense of Orleans Parish and its corroded [ http://www.nytimes.com/2011/11/09/us/supreme-court-rebukes-a-new-orleans-prosecutor.html ] brand of justice. Only this time, the justice was unable to convince any of his colleagues to indulge the notion that judges should bend over backwards to protect cheating prosecutors. In Smith v. Cain, an 8-1 ruling [ http://www.supremecourt.gov/opinions/11pdf/10-8145.pdf ] authored by Chief Justice John Roberts himself, Justice Thomas spoke alone. (The difference between Connick and Smith is easy to define: The first case was about money, the second about a man's freedom).
It took the Chief Justice less than four pages to declare that the defendant's rights had been violated. Juan Smith was convicted of murder based upon the testimony of a lone witness, a man named Larry Boatner. A detective's notes, which included "statements by Boatner that conflict with his testimony identifying Smith as a perpetrator," were not turned over to Smith before his trial. This, Chief Justice Roberts wrote, violated the rule of Brady v. Maryland [ http://scholar.google.com/scholar_case?case=9550433126269674519&hl=en&as_sdt=2&as_vis=1&oi=scholarr ] that requires prosecutors to turn over to the defense all potentially exculpatory information.
Here's what Chief Justice Roberts wrote:
The State and the dissent advance various reasons why the jury might have discounted Boatner's undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that they could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner's contradictory declarations the jury would have believed. The State also contends that Boatner's statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State's argument offers a reason that the jury could have disbelieved Boatner's undisclosed statements, but gives us no confidence that it would have done so.
Case closed for the Chief Justice and all of his other colleagues save for Justice Thomas. For 19 pages -- nearly five times as long as the majority opinion -- Justice Thomas reconstructed the case against Smith by seeking to buttress Boatner's credibility. The dissent is remarkable because it reads like a crime novel or a brief written by a prosecutor or policeman. In Justice Thomas' world, the jury would have been so underwhelmed by the undisclosed evidence of Boatner's unreliability as a witness that it would have convicted Smith anyway.
The majority failed to properly apply the Brady test, Justice Thomas argued, because it failed to take into account other evidence at the trial that would have tended, in his view, to reduce the importance of the undisclosed notes about Boatner. After what amounted to an exhaustive closing argument on behalf of the prosecutors, and Boatner, and predicting jury minds more than most jurists would dare to try, Justice Thomas concluded that "Smith has not shown a reasonable probability that that the jury would have reached a different verdict."
So, in Justice Thomas' world, a tie in a Brady case goes to the prosecutors, the same ones who were caught cheating and violating the constitutional rights of criminal defendants by withholding exculpatory evidence from defense attorneys. If he cannot get rid of the command of Brady outright, it's seems clear from the past two cases at least that he is going to try to undermine its premise and promise by subjecting it to tests and standards that would make its remedies meaningless.
A single witness identified Smith. Prosecutors didn't tell the defense about problems with that witness. Could there be a simpler case of misconduct? Could there be a more textbook example of a Brady violation? That Justice Thomas would spend 19 pages in dissent, writing at times like Dashiell Hammett [ http://en.wikipedia.org/wiki/Dashiell_Hammett ], trying to defend an indefensible conviction, is what his future biographers ought to write about. This, and heartless dissents like this one [ http://www.cbsnews.com/8301-504084_162-5113184-504084.html (below)], are also what his contemporaries talk about when they talk about the jurisprudence of Clarence Thomas.
What kind of world does Justice Clarence Thomas live in? Alone among his colleagues on the Supreme Court, he declared Thursday in dissent in Safford v. Redding [ http://www.supremecourtus.gov/opinions/08pdf/08-479.pdf ] that an "abusive" and "humiliating" strip search of a middle school student for prescription Ibuprofen was actually a constitutional exercise by school officials who not only deserved immunity from liability but praise for their zealous dedication to student safety.
Less concerned about a forced and unnecessary intrusion into a young girl's pants and bra than he was about judicial intrusion into school safety policies, Thomas declared that the odious search was legal because administrators could have found what they were looking for. The majority ruling, he wrote, gives "judges sweeping authority to second-guess" school administrators trying to ensure the health and safety of students. His long dissent did not include a single sympathetic remark about the ordeal suffered by the victim in the case.
Fortunately, the other eight Justices on the Court live in the real world, where outrageous conduct by bureaucrats is frowned upon, and so they unsurprisingly agreed that school officials violated the Fourth Amendment in 2003 when they checked (then) 13-year-old Savanna Redding's bra and underwear for pills. "She was told to pull her bra out and to the side and shake it," Justice David H. Souter wrote for the majority, "and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found." Other students were searched in a similar fashion that day.
"The content of the suspicion, Justice Souter wrote, "failed to match the degree of intrusion" into Redding's privacy rights. The school officials who conducted the search, he noted, knew at the time that they were looking for Ibuprofen pills (or other, equally innocuous pills) and not for weapons or illegal drugs. Nor was there any reason for them to believe that Redding (or any of the other students) was hiding any pills in their underwear. No pills were found in the earlier searches of the other students, none of whom were willing, as Redding was, to make a federal case out of the matter.
The lone woman currently on the Court, Justice Ruth Bader Ginsburg, called the search "abusive" and "humiliating" and cited other relevant facts to argue why school officials should not have been afforded immunity from the lawsuit that Redding's folks brought. "Any reasonable search for the pills would have ended when inspection of Redding's backpack and jacket pockets yielded nothing," Justice Ginsburg wrote, and, "to make matters worse, [the school official] did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity."
Which brings us back to Justice Thomas. Not only was he unwilling to acknowledge that school officials went too far when they searched Redding and her friends. He also continued his reactionary push for the Court to get even less involved in school cases like this; to return to the old and discredited common law concept of in loco parentis, a doctrine which gave school administrators virtually unfettered discretion to discipline and control students. "Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution," Thomas wrote. "And, common sense is not a judicial monopoly or a Constitutional imperative."
I leave it to you to determine where common sense lies in this case. I suggest it lies with the eight Justices who recognized egregiously unlawful conduct when they saw it and not with the lone Justice who couldn't muster a sentence worth of disdain over what happened to Redding. In the end, there is only one question you need to ask yourself: would you have been okay if it had been your child searched as Redding was, for the reasons she was, and in the manner she was? I didn't think so.
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