Justice Clarence Thomas rehabilitates an eyewitness who may not have seen anything.

http://www.slate.com/articles/news_and_politics/jurisprudence/2012/01/clarence_thomas_in_juan_smith_eyewitness_dissent_after_another_harry_connick_sr_case.html

See No Evil

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. The justices had been “incredulous” at oral arguments at the conduct of New Orleans prosecutors. So it was an easy case, decided early in the season, with seven justices joining Chief Justice Roberts’ short and sweet three-and-a-half page opinion. But sometimes it is the easy decision that disguises insidious problems. The head prosecutor in New Orleans at the time, Harry Connick Sr., was nowhere to be found in the court’s opinion.

Before we get to him however, it is noteworthy that the court nowhere called the single witness who identified the culprit in this case the “single eyewitness.” Was he even really an eyewitness? 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.” That sure sounds like the testimony of an eyewitness.

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. And jurors place great stock in the testimony of a confident eyewitness. 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.