Incredulous Supreme Court justices on Tuesday repeatedly questioned why the New Orleans district attorney’s office never gave defense lawyers statements from the only witness in a murder trial that could have cast doubt on a death row inmate’s conviction of killing five people.

Justices were hearing an appeal from Juan Smith, who was convicted of five murders at a 1995 party. The only witness to identify Smith, however, gave inconsistent statements about whether he could recognize or identify Smith as one of the killers. 

Prosecutors under former New Orleans district attorney Harry Connick never gave Smith’s lawyers the statements, which would have aided in his defense. Prosecutors are required to do this under Supreme Court precedent.

Several justices seemed surprised that Assistant District Attorney Donna Andrieu would even try to argue that the inconsistent statements would not have to be turned over under Brady.

The so-called Brady rights are named after the Supreme Court’s Brady v. Maryland case, which says prosecutors violate a defendant’s constitutional rights by not turning over evidence that could prove a person’s innocence.

“Surely it should have been turned over,” Justice Antonin Scalia said. “Why don’t you give that up?”

This is the second time in two terms that the Supreme Court has dealt with Brady violations in the New Orleans prosecutor’s office. The high court earlier this year overturned a $14 million judgment given to a former death row inmate who was convicted of murder after the same New Orleans office withheld evidence in his trial. Justice Ruth Bader Ginsburg, in a rare oral dissent, called the prosecutors’ actions “gross” and “deliberately indifferent.”

New Orleans prosecutors knew that this case was going to be heard by the Supreme Court, Justice Elena Kagan said.

“Did your office ever consider just confessing error in this case?” Kagan asked. 

Andrieu said that a “prudent” prosecutor would have turned the material over to defense lawyers but in this case they did not feel it was required. Prosecutors now turn over everything to the defense that they’re supposed to relinquish, she said.

But “if those statements had been presented to the jury” Andrieu argued, “the outcome would have been the same.”

Ginsburg told her she couldn’t be certain of that. By not acknowledging the existence of the statements, Ginsburg told Andrieu, “you’re taking that judgment away from the jury.”

Smith was convicted in eight 1995 killings. His Supreme Court appeal deals with a quintuple murder known in New Orleans as the Roman Street massacre, where armed intruders killed four people at a party. A fifth person died later, and the only witness, Larry Boatner, escaped death by pretending to be unconscious.

Boatner gave differing statements about whether he could identify the shooters, but eventually identified Smith at his murder trial.  Boatner’s earlier statements, however, were not shared with Smith’s lawyers.

The convictions in the Roman Street murder case were used against Smith at his next trial, a triple murder in which the ex-wife and 3-year-old child of New Orleans Saints defensive back Bennie Thompson were fatally shot, along with the ex-wife’s fiancee. Conviction in that case landed Smith on death row. His appeal in that case is on hold pending the outcome of the Roman Street case.

The high court is expected to rule next year.

The case is Smith v. Cain, 10-8145.