Another set of eyes

Appellate courts uphold justice

By A.J. Wagner

When I served as a judge, inexperienced attorneys would sometimes say to me in a threatening manner, “If you do that, Judge, I’ll appeal!”

“That’s what you’re supposed to do,” was my reply. I never felt threatened. I was always grateful that we have an appellate system. I was happy to have my work reviewed by three other judges. Sometimes, the call I made was a close one and to have other judges weigh in was helpful. Sometimes, I was just flat out wrong and having another set of eyes prevented an injustice. Sometimes, I disagreed with the decision of the court of appeals, but they were entitled to their opinion, and it rightfully outweighed mine.

Occasionally, when I was overturned by the court of appeals, the decision was appealed to the Ohio Supreme Court. On more than one occasion the Supreme Court reinstated my ruling telling the court of appeals I had it right to begin with. I must admit that I took pleasure in those outcomes, even when I had become convinced that the court of appeals was right to overrule me.

Continuing on my review of decisions from the 2011 – 2012 term of the U.S. Supreme Court, we look at two decisions that were overturned by the Supremes to preserve justice. The lower courts should have seen this coming and, hopefully, appreciated the correction.

–  In March 1995, Juan Smith and others entered a New Orleans home where they killed five people. Smith was identified by a survivor at the trial and he was sentenced to death. Because the others had taken plea deals, Smith was the only one to go to trial over the murders. A state court of appeals upheld the conviction and the Louisiana Supreme Court refused to look at the case.

Sometime later, attorneys for Smith discovered police files that showed the sole eyewitness who identified Smith at trial had told police at the time of the event that he “could not . . . supply a description of the perpetrators other then [sic] they were black males.” Five days later he was interviewed again and said he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.”

The attorneys used this newly discovered evidence to seek a new trial, but the trial court denied the request. The appeals court and the state Supreme Court wouldn’t even hear the complaint, so the case ended up in the U.S. Supreme Court as the case of Smith v. Cain.

The Supremes applied what is known as the Brady Rule, which requires the prosecutor to reveal any evidence favorable to the defendant prior to the trial. In an 8–1 decision the Court’s syllabus said, “The State does not dispute that the eyewitness’s statements were favorable to Smith and that those statements were not disclosed to Smith. Under Brady, evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A ‘rea­sonable probability’ means that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial. Evidence impeaching an eye­witness’s testimony may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. Here, however, the eyewit­ness’s testimony was the only evidence linking Smith to the crime, and the eyewitness’s undisclosed statements contradicted his testi­mony. The eyewitness’s statements were plainly material, and the State’s failure to disclose those statements to the defense thus violat­ed Brady. (Citations omitted.)

– In National Meat Association. v. Harris, the decision was 9–0 correcting the 9th Circuit Court of Appeals. At issue was California’s law requiring the immediate and humane killing of “downer” animals in slaughterhouses. The state law bans slaughterhouses from buying, butchering or selling livestock that cannot stand or walk. The law requires that the animals immediately and humanely be put to death. It provides for prison and a fine for any violation.

The Federal Meat Inspection Act requires a federal inspector to determine whether such an animal is fit for human consumption prior to euthanasia. Another provision bans states from adding requirements beyond the federal law.

The federal government supported the NMA along with the Chamber of Commerce, veterinarians and pork producers. Thirteen other states, the Humane Society and the American Society for the Prevention of Cruelty to Animals supported California.

Regular readers of this column are not surprised at the outcome of this case. In almost every case, federal law trumps state law. It was no different here as the NMA won their case.

Somewhere there is a district court judge smiling that the court of appeals was wrong when he or she was overruled.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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