Winning the Case Before It Begins: Smith v. Cain Question Presented

There are some pieces of writing and advocacy that serve as exemplars. Chief Justice Robert’s brief in Alaska v. EPA is such an exemplar; the same is true of Paul Clement’s individual mandate oral argument in the Affordable Care Act Cases. I propose that we add to that list Kannon Shanmugam’s opening brief in Smith v. Cain. Actually, set aside the rest of the brief -- if you stopped reading at the question presented, it was already a phenomenal piece of writing. 

I doubt there was anyone on the Court who, after reading it, was still undecided about the outcome of the case. Here it is in its entirety:

In 1995, a group of men burst into a house, ordered the occupants to lie down on the floor, and opened fire; five people were killed. Petitioner was the only person brought to trial. He was tried in Orleans Parish, Louisiana, a jurisdiction whose district attorney’s office has a long and disturbing history of failing to produce exculpatory evidence to criminal defendants.

Petitioner was linked to the crime solely on the basis of an identification by one of the survivors. At trial, the witness testified he was certain about his identification. But materials disclosed by the state after trial revealed that the witness had made numerous conflicting statements to the police concerning his ability to identify any of the perpetrators. Other subsequently disclosed materials included statements by other witnesses casting doubt on the witness’s testimony; a statement by an apparent perpetrator seemingly denying petitioner’s involvement; a statement by a firearms examiner that contradicted his trial testimony implying that petitioner was one of the shooters; and a confession from another individual. The question presented is as follows:

Whether the failure of the Orleans Parish district attorney’s office to produce the foregoing information before petitioner’s trial violated his right to due process under Brady v. Maryland, 373 U.S. 83 (1963), and related cases, because the information was material to the issue of guilt.

I’m not normally a fan of this type of long question presented. But Shanmugam was confident that he could distill his theory of the case into a mere three persuasive paragraphs. The result was a perfect bit of advocacy. The question presented does it all: it invokes the Court’s outrage at the district attorney’s office, which everyone knows has a “disturbing history” of violating Brady (the Court has repeatedly rebuked Louisiana for its lax approach to disclosure); it identifies the critical pieces of exculpatory evidence that were not disclosed and explains how the non-disclosure affected the outcome of trial; and it does more than enough to describe the governing law (a citation to Brady suffices, since everybody but the district attorney knows what Brady is).

This isn’t the sort of approach that will always work. But when the facts are this damning for your adversary, why wait to tell the Court about them? All the Court needed to do in this case was to verify that those factual assertions were correct; after that, the law basically applied itself.