CHIEF JUSTICE ROBERTS: Well, and you could argue, presumably you did argue, that before the jury, and that would be compelling evidence for the jury. And if you were the defense lawyer you really would like to have that statement where he said: I couldn't identify them. * * *Pretty much the only way things could get worse would be if the Court just flat asked you why you were even making this argument:
JUSTICE SCALIA: And not only the only eyewitness but if I understand it correctly the only evidence against the defendant. This was the only evidence against him, this one eyewitness identification, right? Was there anything else? * * *
JUSTICE KENNEDY: But just on the materiality point, I -- I just have to agree with Justice Ginsburg. What you're telling us is that when the defense stands up and said, and isn't it true that in this statement which you've just testified to on direct and which the police have put in on direct, you also said you could not identify any perpetrators of the murder -- and then the prosecutor says immaterial and the judge says strike it.
MS. ANDRIEU: But that's not -
JUSTICE KENNEDY: I just can't believe that.
MS. ANDRIEU: But that's not what he says. He says I can tell you about the one, the one who put the pistol in my face.
JUSTICE KENNEDY: I'm talking about the Boatner statement of 3/6/95, in which Boatner told police he could not identify any of the perpetrators of the murder. JA-259/60.
MS. ANDRIEU: Yes.
JUSTICE KENNEDY: And you say that's immaterial. I find that just incredible.
JUSTICE KAGAN: Ms. Andrieu, did your office ever consider just confessing error in this case?Man, I hope she went straight to the bar after this.
MS. ANDRIEU: I'm sorry?
JUSTICE KAGAN: Did your office ever consider just confessing error in this case? You've had a bunch of time to think about it. Do you know? We took cert a while ago. I'm just wondering whether you've ever considered confessing error.
There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case.