Kansas v. Ventris:Trimming Protections Against Unconstitutional Interrogations

[1] In Kansas v. Ventris the question presented to the US Supreme Court was whether a confession gained by police instigated interrogation of a defendant after he has an attorney can be used to impeach the defendant's trial testimony.

Facts

[2] After Ventris had an attorney, police sent an informant into his cell to get information. The informant reported that Ventris confessed the crime to him. At trial, the defendant testified that he did not commit the crime. The prosecution then used the informant in rebuttal to impeach the defendant. After conviction defendant appealed the planting of the informant in his cell as unconstitutional questioning without the defendant's attorney present (or waiver of his presence).

6th Amendment Right to Counsel

[3] Scope of the Right: The Court makes it extremely clear that the right to counsel is not limited merely to the actual trial. The defendant is definitely entitled to his 6th Amendment right to have his counsel present at any pretrial interrogation.

[4] Scope of the Remedy: Unconstitutionally obtained statements shall be allowed in rebuttal. They are still banned from the prosecutor's case in chief.

~~~~~ Lammers ~~~~~

[5] The entire basis of this decision is the Court devaluing the constitutionally guaranteed right to counsel in favor of the a non-constitutional mandate that courts should be protected against possible perjury and disruption of "the integrity of the trial process." This is poorly reasoned, favoring the discouraging of illegal acts over the forbidding of unconstitutional ones. It is badly out of kilter with modern constitutional cases such a Virginia v. Moore which proclaim that illegalities are irrelevant as long as the constitution is followed.

[7] Not every illegal act is unconstitutional. Perjury started out as a common law crime (Blackstone, Book IV Chapter 10 sec. 16), but has long since been a statutory crime. See 18 USC 1621, Kentucky Revised Statute 523.020, Rhode Island General Law 11-33-1, Michigan Penal Code 750.422, and Alaska Statute 11.56.200. Even Virginia, with its fondness for the common law, has made perjury a statutory offense. In either event, perjury is a criminal offense against the orderly pursuit of justice and the constitution is silent upon whether the government has a right to unperjured testimony. This does not mean it approves of it; it just means that it was a matter left to the legislatures to sort out and thus became a matter of law rather than constitution (as demonstrated by the statues enacted).

[8] As well, perjury as a criminal charge is not within the bosom of the courts. As an initial matter, the decision of whether someone has committed perjury is prerogative of the prosecutor - not the courts. Should a prosecutor have proof that perjury has been committed the statutes clearly lay out the remedies which the various legislatures have allowed prosecutors to seek. All of these require a trial specifically on the matter of perjury and its proof beyond a reasonable doubt. None of them rise to the level of a constitutional matter.

[9] What the Court is actually talking about here is impeachment. It's a handy way of short stopping the entire issue of perjury. The level of proof for impeachment is far lower than would be required in giving someone their constitutional right to a trial on perjury and its requirement of proof beyond a reasonable doubt. Impeachment merely requires some rational quantum of evidence tending to show that the testimony of a witness was not truthful. Of course, impeachment is a valid part of any trial and it's not mutually exclusive of a perjury charge. However, it is instructive about what the court actually decided.

[10] The US Supreme Court decided that presenting evidence which does not rise to the level of proof beyond a reasonable doubt of perjury - merely tending to show that a defendant's testimony was not truthful - is more important than a clearly violated constitutional right to have counsel present during questioning. As the Court acknowledges that violation of this right precludes the use of the evidence gained in a prosecutor's trial in chief, this evidence couldn't even be used in a perjury trial. Thus, the Court creates an exception, allowing criminal procedure alone to trump a constitutional right.

[11] Ultimately, in a most amazing paragraph the Court simply states that no harm will come from this because it's not likely a defendant will testify in his own defense anyway and that an officer won't violate the right because then the evidence gained will only be usable to impeach the defendant's testimony and the officer can't anticipate that the defendant will get on the stand and tell a story inconsistent with the story he'll tell the officer when his right to counsel is violate.

[12] 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.

[13] That's correct, a US Supreme Court decision is based on a belief that it is unlikely that the defendant will testify. It's backed up by a statement that shows an amazing lack of understanding of why a statement would be taken by a police officer. The exact purpose that an officer would be taking a statement after the defendant has an attorney is to lock him into a particular version of the facts with the thought that the defendant could tell a different story at trial. After all, if the officer expected the defendant to take the stand and testify exactly in the manner most likely to lead to a conviction, why would he waste time trying to get a statement from the defendant?

Practical Application

[14] As a practical matter, this opens up several tactics to law enforcement. Prior to this decision the further development of the case through human information gathering techniques was severely limited after the defendant had a lawyer. Now the Supreme Court has given its imprimatur to the continued use of human information gathering techniques despite a defense attorney's involvement.

[15] Informants, whether they be planted in jail or sent to approach a defendant on bond, are clearly sanctioned by this opinion. Furthermore, this decision's scope seems to allow police to reinterview the defendant after the appointment of an attorney. Neither of these will produce evidence which can be used in the prosecutor's case in chief. However, the mere fact that a charge has been taken should reflect that the prosecutor already has enough evidence for his case in chief. The purpose of the actions taken after a defendant has an attorney will be to preclude the defendant from testifying or build a crushing case against him should he choose to do so. These are all constitutionally valid tactics per the Ventris decision and if these are the rules we lay down for our law enforcement agencies we should expect they will play by the rules we give them.

Gant: A Sea Change in Car Searches

[1] On 21 April 2009 the US Supreme Court changed decades of law enforcement practice by clamping down on searches of vehicles incident to arrest. Arizona v. Gant is a tour de force by Justice Stevens in which he weaves his way through all the old precedents to change the interpretation most lower courts have given to the ability of officers to search cars after arresting their drivers.

[2] Gant's theory both prunes and widens the circumstances under which an officer may search the car after an offender is arrested. In reality, the effect is a net reduction in the scope of officer searches.

[3] The prior rule was that after any arrest police could search the passenger compartment of a vehicle because of "exigent circumstances." In other words, once the offender was placed under arrest the officer could search the car in order to preclude the possibility that the offender might destroy any evidence or reach a weapon. Of course, any sane officer restrains a person he has placed under arrest before he turns his back on that person in order to search the car. However, this had never seemed to bother lower courts and had even seemingly been given a pass (although never specifically approved) by the US Supreme Court.

[4] The new rule has 2 parts. First, if there are actual exigent circumstances, such that the defendant(s) is not restrained and could actually reach something inside the vehicle, a search can take place; however, "exigent" searches can no longer happen when the offender is handcuffed and properly restrained. Since an arresting officer should always prioritize to his own safety, this situation will be extremely rare.

[5] Second, an officer can search a vehicle if it is reasonable to believe evidence of the crime the offender was arrested for will be found in the car. An example is if an officer arrests someone who has just stolen from Mega^Store and sees two of the stolen items in the car; it'd be reasonable to search the car for the other 4 items the thief stole at the same time.

[6] Every lawyer I spoke to seemed to have pretty much the same reaction: they predicted a great upsurge in vehicle impoundment and inventory searches subsequent to the impoundmment. Typical of such reactions was lawscribe's (via Twitter): "You will [see] a massive jump in inventory searches and careful review of dept policies to make cars consistently easier to impound."

Impounding in Virginia

[7] With this in mind I went looking to see what is allowed vis-a-vis the impounding of vehicles. In Virginia the controlling case is King v. Commonwealth from 2002. King lays out a set of rules under which impoundement can take place. The first rule is that there must be a standard police policy under which the vehicle is impounded. However, even a written policy does not, in and of itself, make the impoundment valid.

[8] Beyond the written policy, there are only two justifications for impounding a vehicle. A vehicle must either be a risk to public safety or need to be safeguarded. Although not absolutely exhaustive, the generally approved circumstances for impoundement are when the vehicle is blocking traffic, trespassing on private property, or violating parking ordinances/laws. Neither the fact that a vehicle is parked next to a busy road nor that it may be vandalized is a satisfactory reason to impound a vehicle.

[9] A vehicle also may not be impounded if the offender is able to arrange for the vehicle to be moved. Generally, the mere fact that an offender is under arrest will preclude such an arrangement. However, if there is another citizen present at the scene, who is a legal driver and who will take the car to where the offender wants it, an officer is required, by Virginia Code sec. 19.2-80.1, to allow that citizen to drive the car from the scene.

[10] Finally, a vehicle may not be impounded for the purpose of performing a search upon it.

[11] Personally, I don't see impoundment becoming a major issue in Virginia. King is solid, long-standing precedent rooted in the 4th Amendment so that the rules cannot be changed by the Virginia General Assembly.

ABA Journals Career Advice

This is an ABA Journal 4-part series on career advice in this economy. Good luck job seekers.

1. 5 Tips to Planning Your Career to Beat the Recession

2. 5 Questions to Ask Before Hiring a Career Coach

3. Why Thinking Like a Lawyer Is Bad for Your Career

4. What If Law Is Not for You?

The law school rankings are out!

Where does your school rank?! I know mine moved up :)

US News and World Report Law School rankings

Yale is at the top

Race, Knives, & Fists: More on the Jason Vassell Case

Back in February I wrote a post complaining that I couldn't figure out whether the charges were justified against Jason Vassell, a black student charged with 2 counts of aggravated assault and battery with a dangerous weapon under (I believe) MGL Chapter 265: Section 15A:

(c) Whoever:

(i) by means of a dangerous weapon, commits an assault and battery upon another and by such assault and battery causes serious bodily injury;
. . .
shall be punished by imprisonment in the state prison for not more than 15 years or in the house of correction for not more than 21/2 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

(d) For the purposes of this section, "serious bodily injury" shall mean bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

There has been a rather strident campaign launched in support of Mr. Vassell and my former post elicited a response which laid out the factual position claimed for Mr. Vassell and asked me to read the Defense's Motion to Dismiss.

I did. It moved me much further along the line toward belief in Mr. Vassell's guilt of A&B (the gradation of the appropriate final conviction I am still uncertain of). Let me explain.

The Law

Apparently Massachusetts allows for the pretrial dismissal of a case if 3 conditions are met:

In order to obtain a dismissal on the basis of selective enforcement, the defendant must initially offer evidence that reasonably permits an inference of unlawful discrimination by showing that

(1) a broader group of persons than those prosecuted has violated the law;

(2) the failure to prosecute others was either consistent or deliberate; and

(3) the decision not to prosecute others was based on an impermissible classification factor such as race, religion, or sex.

If the defendant satisfies that initial burden, the Commonwealth must then rebut the inference that there has been selective enforcement, or the case will be dismissed.

Commonwealth v. Palacios Docket 05-P-52

Defense counsel does yeoman's work trying to stretch this test to cover the facts of the case at hand. He expends a great amount of effort showing that the "victims" in this case were brutish, aggressive, racist cretins. He shows some strong indications that law enforcement jumped to some improper conclusions. Yet, he never gets past the first test.

The way the defense tries to get past the first test is to conflate the assault by one of the "victims" and the assault and battery by the other "victim" on Mr. Vassell with the assault and battery with a weapon by Mr. Vassell. There are two flaws in this. First, neither of the "victims" used a weapon as required by the statute Mr. Vassell is charged under and thus could not have been part of the same group as Mr. Vassell. Second, it's doubtful that the case from which this test comes is talking about a small group. Palacios is about a claim of selective enforcement of DUI and driving with a suspended license against a driver based upon his ethnic background. The "group" would be all drivers - a rather large group.

Even if a group of 3 people was sufficient, the presence of only one weapon, the knife held by Mr. Vassell, causes the defense's argument to fail the second test. There cannot be a consistent or deliberate failure to prosecute the "victims" because it is impossible to charge them under the same law.

The Tactics

Why would defense counsel put this argument forth? Because Mr. Vassell is in a world of hurt. By the defense's own statement of facts after the initial conflict Mr. Vassell picked up a knife, carried it to the location of the second conflict, and drew it before he was physically attacked.

I don't know Massachusetts case law, but if it is anything like Virginia, the use of fists (as the victims did) carries with it a inference that the intent is not lethal while the use of a knife (as Mr. Vassell did) carries the opposite inference. When Mr. Vassell brought and drew a knife he unilaterally escalated to the use of lethal force. On the facts, it appears that Mr. Vassell is guilty of that which he is charged.

On the other hand, Paracios also states that in Massachusetts

If the defendant's charge of racial profiling is not established prior to trial, it may not subsequently be raised again as a defense. However, we distinguish between racial profiling and racial bias. Denial of the motion to dismiss does not by itself eliminate the right of either party to challenge at trial the testimony of a witness on the ground of racial bias. The right to cross-examine a witness regarding racial bias is not unfettered, however, and the judge may reasonably limit the extent and scope of cross- examination on this, as on any other, subject. Where the defendant makes no plausible showing to support his claim of racial bias, the judge may prohibit reference to a witness's alleged bias altogether.

In other words, the defense might not have the law or facts of the second conflict on its side, but it has all sorts of impeachment evidence which it could use to make the prosecution's "victims" look very bad and damage law enforcement witnesses as well. And it's just demonstrated that to the prosecution.

This motion strikes me as a gambit played as part of negotiating a plea. The defense is showing that it will move forward with self defense bolstered by the ability to impeach the victims to shreds. Still, it has to take into account the fact that Mr. Vassell brought a knife to a fist fight and drew it first. In the end, I'd be surprised if this went to trial because of uncertainty on both sides (unless it has become so blown up that one side or the other won't back down or the facts are even more anti-defendant than the motion lets on).

How Long Can a Judge Keep Someone Under Threat of Imprisonment?

As a comment on another post, Tony asks:

Maybe some one can help me understand something as follows. (1) Can a defendant be placed on probation for a term exceeding what the original sentence would have been,i.e. (2) in a class 1 misdemeanor can the defendant be put on probation for three years when the sentence is 12 months with 11 suspended for three years, with "indefinite" local probation? and (3) how long would the [indefinite] probation be, three years or 12 months?

[1]It's an interesting question and the waters are muddied by the fact that there are two separate things which occur under Virginia law, the period of probation and the period of the suspended sentence. As best I can define the two, the period of a suspended sentence is how long an offender can be hauled back into court to receive time "for any cause the court deems sufficient" (§ 19.2-306) and probation is the period of time the offender has someone specifically assigned to be her caretaker. Unfortunately, in both statutes and judicial decisions, there has been a loose usage of these terms. Sometimes they are used in parralell, sometimes they have separate meanings, and sometimes they seem to be used as synonyms. It confuses things.

[2] A defendant can have his sentence suspended for as long as the judge determines to be "a reasonable time, having due regard to the gravity of the offense." Va Code § 19.2-303.1. In other words, if the judge decides an offender's brandishing a firearm misdemeanor needs to have the sentence suspended for a period of 20 years, the judge can so order.

[3] Indefinite probation usually means that probation shall end at the discretion of the probation officer after certain conditions have been met. I couldn't find any limits to the length of probation, but logic would seem to indicate it could go no longer than the period during which the sentence is suspended.

[4] A common practice in Virginia courts is to usually limit most misdemeanors to a single year period of time suspended and in cases that the judge sees as more egregious three years of time suspended. I cannot find any statutory reason for this and suspect it may be ensconced in Virginia law via Smith v. Underwood, 1985, Va. App. No. 0316-85. In this decision a habeas was rejected because it was based upon new claims, but the court also accepted, without any discussion, 3 years time suspended on a misdemeanor.

[5] Furthermore, we find no ambiguity in the June 3, 1982, sentencing order that would support Smith's claim that the misdemeanor sentence suspension could not be revoked. Its terms are clear. Both the felony and misdemeanor sentences were suspended and Smith was placed on probation for a period of three years.

[6] Nevertheless, nothing in the statutes or any cases I've seen seems to limit the length of time a person can have his sentence suspended if the judge is specific about the length.

[7] If the judge is not specific about the length of time for the suspension it defaults to the length of the maximum potential sentence for the crime (ie: 1 year for petit larceny & 20 years for grand larceny). § 19.2-306. However, a judge can extend both probation and suspension. Under § 19.2-306(C), if a judge "finds good cause to believe that the defendant has violated the terms of suspension" the suspension is revoked and the sentence is imposed. However, the judge can resuspend the sentence - leaving him the option of setting a new length of time for the suspension. Under § 19.2-304, the judge can alter probation upon the convening of a hearing; as the statute states no other conditions, it appears that the judge has complete discretion in this.

Jury Today

Sorry folks, no post today. I'm off living the pilot for a new TV show: