The Supreme Court engaged in unusually detailed questioning yesterday of the facts surrounding the brutal beating death of a woman about 2 kilometres from Washington, the US capital, in 1984.
The court is considering overturning the convictions of seven men who were convicted of murdering 48-year-old Catherine Fuller. The men are trying to persuade the justices that prosecutors withheld key evidence that cast doubt on their responsibility for Fuller's murder.
The justices heard competing accounts of the attack on Fuller. Police said the mother of six was attacked on a street, dragged into an alley, beaten and brutally sodomised with a pole in a group attack by members of a neighbourhood gang. Her body was left in a garage tucked into an alley near Eighth and H streets NE on October 1, 1984.
Sixteen boys and young men, and one teenage girl, were arrested. They ranged in age from 16 to 26 and were known as the Eighth and H Street Crew.
Each of the 13 ultimately charged initially claimed innocence. Eight of the men were convicted and sentenced to as much as 35 years to life in prison in 1985. One died in prison and one has since been released. The other six remain in prison.
Lawyers for the men said prosecutors did not turn over evidence implicating another man with a record of violent attacks against women as Fuller's killer.
The justices could set aside the convictions if they determine there is a reasonable probability that jurors in Fuller's murder trial would have come to a different decision had defence lawyers been given the evidence about the other man.
"We don't how the trial would have shaped up and how the jury would have reacted if the defendants had put on this alternative theory," Justice Ruth Bader Ginsburg said.
Michael Dreeben, a Justice Department lawyer who has argued more than 100 cases at the Supreme Court, said the defendants' theory that someone else killed Fuller is weak and speculative. "The court can have confidence in the integrity of these verdicts," he said.
The Justice Department is involved in the case because it prosecutes violent crimes in the nation's capital.
Lower courts considering the case rejected the defendants' argument, ruling that the undisclosed evidence would not have made a difference.
Supreme Court arguments can bog down in references to clauses and subsections of obscure federal statutes. On Wednesday, though, the justices at times asked the kinds of questions jurors might as they deliberate over a verdict. Was this witness credible? Did the story change?
Justice Anthony Kennedy said he was bothered by a detail concerning James McMillan, then 19, the man the defendants said might be Fuller's real killer.
"Why, if McMillan was the perpetrator, would he have been hanging around the scene?" Kennedy asked. "If you commit a murder, you don't hang around for an hour."
James Williams, the lawyer for the convicted men, disputed that McMillan stayed at the scene for an hour and also said he may have returned because he thought he left identifying information in the garage.
He gave Kennedy one more reason: Criminals are not clever. "Mr McMillan was not shrewd and sophisticated," Williams said.
Had prosecutors given defence lawyers information about McMillan, "the jury would have instead really wondered why he was there," he said.
Dreeben suggested a more benign answer, that McMillan lived nearby. "This is a shortcut to his house," he said.
McMillan was later convicted of the 1992 murder of a woman in the same neighbourhood, a crime strikingly similar in some details to the one against Fuller. He remains in prison.
Justice Elena Kagan said she couldn't understand how police couldn't turn up more witnesses to a crime that began near a busy street at the end of a work day. "Why is it that in the end, the government's witnesses were two people who were charged and were making a deal with the government ... a couple of really drug-addled people and a 14-year-old boy?" she asked.
Community fear, Dreeben said. He relayed the story of the 14-year-old witness, who went home and told his aunt what had happened. "She says, 'Don't tell anybody else about what you saw,'" Dreeben said.
A decision in Turner v. United States, 15-1503, and Overton v. United States, 15-1504, is expected by late June.