Monday, January 19, 2009

We respect your rights, but we reserve the right to violate them

The United States Supreme Court will hear an interesting case on Wednesday. I don't think I find it interesting just because I know the people arguing it, either. Though it is more fun to read the oral argument transcript when you know the people interacting with the justices.

The case is Kansas v. Ventris. As Mr. Ventris waited in jail for his trial, after he'd been charged and was represented by counsel, the prosecution decided to put a snitch near Ventris to try to get an incriminating statement out of the defendant. After Mr. Ventris testified at trial and denied his involvement in the crime, the state put on this snitch as a rebuttal witness because the snitch claimed that Ventris made incriminating statements in the jail. The Kansas Supreme Court ruled that the statements should not have come in, even as rebuttal evidence, because statements obtained in violation of the 6th Amendment right to counsel can never be admitted at trial. I guess we'll find out on Wednesday a little something about how the US Supreme Court feels about this.

Now, the state does not dispute that they violated Ventris' 6th Amendment right to counsel by using an agent of the state to solicit statements from him after he was represented by counsel. The state says it would never seek to introduce these statements in its case in chief because that would be bad, unfair, and a violation of Mr. Ventris' rights. But, they say, they must be allowed to offer these statements in rebuttal to protect the criminal justice system against perjury. Because if a defendant gets on the stand and denies culpability, s/he must be lying and that lying must be addressed.

The state's argument seems to require the assumption that the defendant who denies involvement is committing perjury while the snitch who claims the defendant confessed in jail is entirely truthful. The snitch in this case was related to the prosecutor or the sheriff (I can't remember which) and got some tremendous benefit for his testimony. It seems pretty obvious to me that the snitch would have known going in as an agent for the state that he might receive a big benefit if he could get Ventris to talk. Given what a big benefit was available to him if he could get Ventris to talk, it seems likely to me that the snitch would at least have incentive to seriously misconstrue any of Ventris' words if not flat-out make them up. But the state doesn't see it that way. They don't see any need to question the honesty of the snitch's testimony. They accept on faith that the snitch is telling the truth and the defendant is lying. Therefore, they say, it's essential that they be allowed to use evidence, even evidence obtained in violation of a constitutional right, to protect the integrity of the criminal justice system.

Does that seem odd to anyone else? That the state can protect the integrity of the system by violating a defendant's constitutional right? If the state really wants to protect the integrity of the system, shouldn't they start by respecting as inviolate the right of an accused to the effective assistance of representation? If they aren't willing to respect that most basic right, why should I trust that they're doing anything else by the book?

I remember in my first year of law school when we first studied Mapp v. Ohio. (For you non-lawyers, that's the case that established the states were bound by the exclusionary rule, which prohibits the use of evidence obtained in an illegal search.) I was stunned to learn that the exclusionary rule was at all controversial. I still have a hard time comprehending how anyone can think the exclusionary rule is wrong. It seems so basic to me, so clear. Evidence obtained in violation of the constitution should not be admitted at trial. No, the 4th, 5th, and 6th Amendments don't explicitly say that, but they shouldn't have to. It just naturally follows. There has to be a remedy, and that remedy most logically should be that the state can't use whatever evidence they obtain through the rights violation. After all, what good is a right if the state can violate it at will?

I've always believed that evidence obtained in violation of a constitutional right is inherently suspect. If you'll break the rules to get the evidence, why should I trust that the evidence was found where you say it was found or that the defendant said what you claim he said? The state of Kansas freely admits they violated Mr. Ventris' 6th Amendment right. But I'm supposed to take their word for it that the snitch testimony itself is reliable?

If the state of Kansas gets its way, prosecutors throughout the country would be empowered to violate defendants' 6th Amendment rights whenever they want. They could arrange willing inmates near big target defendants and hope they got good testimony from those willing inmates. Maybe they could even go so far as to record conversations between attorneys and their clients, with nothing but their discretion to guide them in deciding when the defense had opened the door to use of those conversations at trial.

I sincerely hope the US Supreme Court doesn't fall for this line. They can't protect the integrity of the criminal justice system by allowing for wholesale violations of the rules of that system. I hope the Court knows it shouldn't trust the prosecutor who tells them otherwise.


Anonymous said...

What makes me laugh every time is how the State's brief says that statements from snitches are sometimes more reliable than those obtained by cops. But it's true. Cops are the ultimate snitches. Also, the problem with tying the analysis to the snitch's lack of credibility is that they'll just make him wear a wire next time, or they'll put an under cover cop in there.

S said...

I just think the state's whole theory about perjury and snitches is silly. And a red herring. The reality is they claim they need to do this to "protect the integrity of the system." What kind of a system has integrity if it allows for one side to break the rules just in case it thinks the other side is breaking the rules?

They've totally obscured the basic problem here with doctrine and logistics and cries of "we must prevent perjury"! How about we shouldn't create case law that basically would encourage cops and prosecutors to knowingly and intentionally violate defendants' constitutional rights? That really ought to be all anyone should talk about in this case.

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