So there Donnie Ray Ventris was, sitting in a Kansas jail. Some time before, in the wee small hours of January 7, 2004, after two days of no sleep and some drug use, he and Rhonda Theel ... well, let me let the Court explain:
... reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash.
The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery.
The prosecutors made a deal with Theel, dropping the murder charge and having her plead guilty to robbery instead, agreeing to testify that Donnie Ray was the shooter.
But in Donnie Ray's jail cell, the police had a backup plan. They planted an informant in his holding cell, instructing him to "keep [his] ear open and listen" for incriminating statements. And the informant, who you should feel free to call Snitchy McSnitcherson if you like, he said to Donnie Ray that he appeared to have "something more serious weighing in on his mind," to which Donnie Ray said, yeah, "[h]e’d shot this man in his head and in his chest" and taken "his keys, his wallet, about $350.00, and ... a vehicle."
Oops. So when at trial Donnie Ray Ventris testified that he didn't do it, that Theel was the shooter, the prosecutors said, a-ha!, please let Snitchy McSnitcherson testify, because he knows the truth. And, yes, they argued, normally Ventris has the right to counsel whenever police or their agents are interrogating him, but in this case it should be allowed because we're not using it in our main case, but just to rebut and impeach Ventris' own testimony ... and you want to hear the truth, right?
The Court allowed the testimony, instructing the jury to "consider with caution" all testimony given in exchange for benefits from the State, and the jury did -- acquitting Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts. He appealed the convictions on the grounds that McSnitcherson should not have been allowed to testify, leading to the Supreme Court's ruling today.
In a 7-2 opinion authored by Justice Scalia, the Court ruled that Ventris' statement to the informant, while concededly elicited in violation of his Sixth Amendment right to counsel, was still admissible to impeach his inconsistent testimony at trial.
How was that right violated? Let me edit the opinion of the Court down a little:
[Ventris] argues that the Sixth Amendment ’s right to counsel is a "right an accused is to enjoy a[t] trial." The core of the right to counsel is indeed a trial right, ensuring that the prosecution’s case is subjected to "the crucible of meaningful adversarial testing." But our opinions under the Sixth Amendment, as under the Fifth, have held that the right covers pretrial interrogations to ensure that police manipulation does not render counsel entirely impotent -- depriving the defendant of "‘effective representation by counsel at the only stage when legal aid and advice would help him.’ "
Our opinion in Massiah, to be sure, was equivocal on what precisely constituted the violation. It quoted various authorities indicating that the violation occurred at the moment of the postindictment interrogation because such questioning " ‘contravenes the basic dictates of fairness in the conduct of criminal causes.’ " But the opinion later suggested that the violation occurred only when the improperly obtained evidence was "used against [the defendant] at his trial." That question was irrelevant to the decision in Massiah in any event. Now that we are confronted with the question, we conclude that the Massiah right is a right to be free of uncounseled interrogation, and is infringed at the time of the interrogation. That, we think, is when the "Assistance of Counsel" is denied.
It is illogical to say that the right is not violated until trial counsel’s task of opposing conviction has been undermined by the statement’s admission into evidence. A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt -- even evidence so overwhelming that the attorney’s job of gaining an acquittal is rendered impossible. In such circumstances the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much. The assistance of counsel has been denied, however, at the prior critical stage which produced the inculpatory evidence. Our cases acknowledge that reality in holding that the stringency of the warnings necessary for a waiver of the assistance of counsel varies according to "the usefulness of counsel to the accused at the particular [pretrial] proceeding." It is that deprivation which demands a remedy....
We have never said [] that officers may badger counseled defendants about charged crimes so long as they do not use information they gain. The constitutional violation occurs when the uncounseled interrogation is conducted.
Yes, but what remedy? On this main point, the Court's analysis is succinct:
Our precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle. The interests safeguarded by such exclusion are "outweighed by the need to prevent perjury and to assure the integrity of the trial process." "It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can ... provide himself with a shield against contradiction of his untruths." Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of "the traditional truth-testing devices of the adversary process," is a high price to pay for vindication of the right to counsel at the prior stage.
On the other side of the scale, preventing impeachment use of statements taken in violation of Massiah would add little appreciable deterrence. Officers have significant incentive to ensure that they and their informants comply with the Constitution’s demands, since statements lawfully obtained can be used for all purposes rather than simply for impeachment. And the ex ante probability that evidence gained in violation of Massiah would be of use for impeachment is exceedingly small. An investigator would have to anticipate both that the defendant would choose to testify at trial (an unusual occurrence to begin with) and that he would testify inconsistently despite the admissibility of his prior statement for impeachment. Not likely to happen -- or at least not likely enough to risk squandering the opportunity of using a properly obtained statement for the prosecution’s case in chief.
In any event, even if "the officer may be said to have little to lose and perhaps something to gain by way of possibly uncovering impeachment material," we have multiple times rejected the argument that this "speculative possibility" can trump the costs of allowing perjurious statements to go unchallenged. We have held in every other context that tainted evidence—evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid—is admissible for impeachment. We see no distinction that would alter the balance here.
And, in a footnote, the Court says that it's up to jurors to determine whether to trust snitches:
Respondent’s amicus insists that jailhouse snitches are so inherently unreliable that this Court should craft a broader exclusionary rule for uncorroborated statements obtained by that means. Brief for National Association of Criminal Defense Lawyers 25–26. Our legal system, however, is built on the premise that it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid "establish[ing] this Court as a rule-making organ for the promulgation of state rules of criminal procedure." It would be especially inappropriate to fabricate such a rule in this case, where it appears the jury took to heart the trial judge’s cautionary instruction on the unreliability of rewarded informant testimony by acquitting Ventris of felony murder.
Justices Stevens and Ginsburg dissent:
In Michigan v. Harvey, 494 U. S. 344 (1990), the Court held that a statement obtained from a defendant in violation of the Sixth Amendment could be used to impeach his testimony at trial. As I explained in a dissent joined by three other Members of the Court, that holding eroded the principle that "those who are entrusted with the power of government have the same duty to respect and obey the law as the ordinary citizen." It was my view then, as it is now, that "the Sixth Amendment is violated when the fruits of the State’s impermissible encounter with the represented defendant are used for impeachment just as it is when the fruits are used in the prosecutor’s case in chief."
In this case, the State has conceded that it violated the Sixth Amendment as interpreted in Massiah v. United States, when it used a jailhouse informant to elicit a statement from the defendant. No Miranda warnings were given to the defendant, nor was he otherwise alerted to the fact that he was speaking to a state agent. Even though the jury apparently did not credit the informant’s testimony, the Kansas Supreme Court correctly concluded that the prosecution should not be allowed to exploit its pretrial constitutional violation during the trial itself. The Kansas Court’s judgment should be affirmed.
They would read the protections of the Sixth Amendment more strongly:
The pretrial right to counsel is not ancillary to, or of lesser importance than, the right to rely on counsel at trial. The Sixth Amendment grants the right to counsel "[i]n all criminal prosecutions," and we have long recognized that the right applies in periods before trial commences. We have never endorsed the notion that the pretrial right to counsel stands at the periphery of the Sixth Amendment. To the contrary, we have explained that the pretrial period is "perhaps the most critical period of the proceedings" during which a defendant "requires the guiding hand of counsel." Placing the prophylactic label on a core Sixth Amendment right mischaracterizes the sweep of the constitutional guarantee.
Treating the State’s actions in this case as a violation of a prophylactic right, the Court concludes that introducing the illegally obtained evidence at trial does not itself violate the Constitution. I strongly disagree. While the constitutional breach began at the time of interrogation, the State’s use of that evidence at trial compounded the violation. The logic that compels the exclusion of the evidence during the State’s case in chief extends to any attempt by the State to rely on the evidence, even for impeachment. The use of ill-gotten evidence during any phase of criminal prosecution does damage to the adversarial process -- the fairness of which the Sixth Amendment was designed to protect.
When counsel is excluded from a critical pretrial interaction between the defendant and the State, she may be unable to effectively counter the potentially devastating, and potentially false, evidence subsequently introduced at trial. Inexplicably, today’s Court refuses to recognize that this is a constitutional harm. Yet in Massiah, the Court forcefully explained that a defendant is "denied the basic protections of the [ Sixth Amendment ] guarantee when there [is] used against him at his trial evidence of his own incriminating words" that were "deliberately elicited from him after he had been indicted and in the absence of counsel."Sadly, the majority has retreated from this robust understanding of the right to counsel.
Today’s decision is lamentable not only because of its flawed underpinnings, but also because it is another occasion in which the Court has privileged the prosecution at the expense of the Constitution. Permitting the State to cut corners in criminal proceedings taxes the legitimacy of the entire criminal process. "The State’s interest in truthseeking is congruent with the defendant’s interest in representation by counsel, for it is an elementary premise of our system of criminal justice ‘that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’ " Although the Court may not be concerned with the use of ill-gotten evidence in derogation of the right to counsel, I remain convinced that such shabby tactics are intolerable in all cases. I respectfully dissent.
Now-standard-but-temporary disclaimer I'm involved in a matter currently pending in the cert pool; as such, any reporting I'm doing on the Court will be descriptive and not analytical. You'll have to draw your own conclusions as to which side ought to have prevailed.