There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles. It is a heavy burden for a lawyer from that oft-criticized office to mount any defense of its prosecutions, but Andrieu repeatedly found ways to botch virtually every point as she argued Smith v. Cain . . .
. . . . The aggressive exchanges [between her and the justices] were getting to Andrieu, and the phrase “I’m sorry” began appearing regularly in her answers, as she suggested, now and then, that she had misunderstood the questions. As her argument was winding down, Justice Elena Kagan leaned forward and asked: “Ms. Andrieu, did your office ever consider just confessing error in this case?” Stunned, the prosecutor said: “I’m sorry?” Kagan repeated: “Did your office ever consider just confessing error in this case? You’ve had a bunch of time to think about it. Do you know? We took cert a while ago. I’m just wondering whether you’ve ever considered confessing error.” The prosecutor answered: “Your Honor, we believe that we have an argument . . .
It only got worse for Andrieu. Justice Antonin Scalia suggested that the prosecutor “stop fighting as to whether it should be turned over. Of course it should have been turned over…Why don’t you give that up?” . . .
At that point, it seemed that nothing more could embarrass the New Orleans prosecutor. But Justice Sotomayor then brought up the “serious accusations against the practices of your office, not yours in particular but prior ones. 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.” Andrieu weakly suggested that she had misunderstood the question.
But Sotomayor pressed on: “It is somewhat disconcerting that your office is still answering equivocally on a basic obligation as one that requires you to have turned these materials over, whether it caused harm or not.” Andrieu still did not seem to understand. . . .I guess this should not be surprising, given the nature of the allegations and the arguments involved, but it is upsetting that it comes a year too late for John Thompson, who spent years in prison because of prosecutorial misconduct in the same office. The Supreme Court reversed a verdict in his favor last year. (Go here and scroll down for a lot of information on that case.)
You can read the full article on the oral argument here.
You can read the transcript of the oral argument here.
UPDATE 11/12/11: The audio of the oral argument in Smith v Cain is now available. To listen to is now click here here.
UPDATE 1/12/12: The Supreme Court announced the decision in Smith v Cain today. Go here for more information.