Sherry F. Colb

Kansas v. Ventris: The Supreme Court Misconstrues the Right to Counsel

By SHERRY F. COLB


Wednesday, June 10, 2009

On April 29th, the U.S. Supreme Court decided the important Sixth Amendment case of Kansas v. Ventris. In Ventris, the defendant gave an incriminating statement to a jailhouse informant, in response to interrogation (by the informant) during which the prosecution now concedes that counsel was illegally withheld. At trial, the prosecution moved successfully to introduce the defendant's earlier incriminating statement to the informant, to impeach the defendant's testimony.

Though the government acknowledged that it had violated the Sixth Amendment right to counsel, it argued – and the trial court found – that the confession was admissible for the limited purpose of discrediting contrary testimony by the defendant (here, testimony claiming that he did not commit the crimes charged). The U.S. Supreme Court affirmed this holding.

The Court reasoned – unpersuasively, in my view – that violations of the so-called Massiah right (the right to have counsel present at all post-indictment interrogations) occur during interrogation (not later, at trial, when the evidence yielded by the interrogation is introduced). It concluded, accordingly, that suppression of the resulting statements at trial is not a rigid right, but rather a flexible remedy, subject to cost/benefit analysis.

In this column, I will argue that the Ventris ruling is incoherent, even though the Court's earlier Massiah holding (which Ventris attempts to apply) is itself problematic.

The Facts of Ventris

The Ventris case began when the State of Kansas brought charges against Donnie Ray Ventris for a variety of crimes that resulted in the shooting death of Ernest Hicks, as well as the unlawful removal of several hundred dollars and a cellular phone from Hicks's home. Ventris's alleged partner in crime, Rhonda Theel, eventually pleaded guilty to robbery (after she, too, was charged with crimes including murder) and testified against Ventris, in exchange for which the government dropped the murder charge for Theel. In his defense, Ventris took the witness stand and blamed the most serious of the crimes with which he was charged on Theel.

Prior to trial, but after the State had charged Ventris with the crimes, police planted a jailhouse informant in Ventris's cell with instructions to listen for incriminating statements. The informant (according to his own testimony) remarked to Ventris that the latter seemed to have something serious on his mind. In response, Ventris (again, according to the informant) confessed to shooting a man in the head and chest and taking various items of his property.

Because, by the time of this exchange, Ventris had already been charged with the crimes to which he was confessing, the Sixth Amendment barred police from interrogating him in the absence of counsel. Under Massiah v. United States, such interrogation – for Sixth Amendment purposes – occurs when police deliberately elicit an incriminating response from a suspect, even if via an informant. The State of Kansas has, in fact, conceded a Sixth Amendment violation in this case.

In response to the State's concession, the Ventris Court assumed (but did not decide) that the police had violated Massiah by planting the informant. Even on that assumption, however, the Ventris Court ultimately held that the trial court properly admitted the resulting confession to impeach the defendant's credibility.

When Does the Sixth Amendment Right-to-Counsel Violation Take Place?

To determine whether the trial court should have suppressed the defendant's statement, the Ventris Court embarked on an analysis of when the Sixth Amendment violation at issue would have taken place – was it at the time of the uncounselled interrogation in the cell, or was it at the time that the evidence was introduced at trial?

The answer to this question is important, the Court explained, because, on the one hand, if the admission of Ventris's confession itself constituted a Sixth Amendment violation, then there was no legal room for the lawful introduction of the confession, even for the limited purpose of impeachment.

If, on the other hand, the violation had already begun and ended by the time of the trial (because it occurred in the jail cell when the conversation took place), then the exclusion of evidence would merely represent a deterrent remedy for the Sixth Amendment violation. Remedies, by their nature, are more flexible and are subject to courts' cost/benefit analysis. If suppression were simply a remedy in this context, then it could be limited to the affirmative use of the confession, permitting the impeachment that took place here.

The Court has long employed this reasoning to distinguish between mandatory and optional instances of suppression. To illustrate the distinction, Justice Scalia, in the Ventris opinion, discussed the difference between Fourth Amendment and Fifth Amendment violations, respectively:

"The Fifth Amendment guarantees that no person shall be compelled to give evidence against himself, and so is violated whenever a truly coerced confession is introduced at trial, whether by way of impeachment or otherwise. The Fourth Amendment, on the other hand, guarantees that no person shall be subjected to unreasonable searches or seizures . . . exclusion comes by way of deterrent sanction rather than to avoid violation of the substantive guarantee. Inadmissibility has not been automatic, therefore, but we have instead applied an exclusionary-rule balancing test. [citation omitted] The same is true for violations of the Fifth and Sixth Amendment prophylactic rules forbidding certain pretrial police conduct." (Emphasis added).

The Court's Holding and Reasoning in Massiah v. United States – and the Connection Between Massiah and Miranda

As I discussed in greater detail in an earlier column, the Massiah decision was one of the stops along the way to the Court's development of Miranda rights (which entitle people in custody to the familiar list of warnings that begin with "You have the right to remain silent…."). Miranda offered an approach to confessions that was intended to replace the unpredictable and unmanageable voluntariness inquiry that had preceded it. In Massiah, the Supreme Court used the Sixth (rather than the Fifth) Amendment as a basis for protecting suspects from unlawful questioning – by prohibiting all uncounselled interrogation after indictment.

Shortly after issuing its decision in Massiah, the Court decided Miranda. Though Miranda seemingly (and, I have argued, actually) obviated the need for Massiah, Massiah has nevertheless survived Miranda and has created a distinct set of rights for suspects that sometimes overlaps with Miranda entitlements.

The premise of Massiah is that to ensure that your attorney can effectively represent you at trial, you must have your lawyer with you at any questioning regarding a crime, if the questioning occurs after you have been charged with that crime. For Massiah purposes, what matters is the stage of the proceeding at which you are questioned, not whether you are in police custody, which is the decisive factor in Miranda.

While Miranda focuses on the inherently coercive atmosphere that prevails in the interrogation of a captive suspect, Massiah emphasizes instead the fact that if a charged suspect is interrogated without a lawyer, he is likely to say things that will vitiate the lawyer's later ability to provide adequate representation.

Though Massiah is not a model of clarity, the underlying philosophy is apparent: In an important sense, the charged suspect is effectively on trial already and thus the suspect needs, and ought to be assisted by, counsel during any questioning. As Justice Scalia explains, "the right covers pretrial interrogations to ensure that police manipulation does not render counsel entirely impotent."

My quarrel with Massiah is that the risk that interrogation and police manipulation will undermine a lawyer's later ability to represent his client does not turn on whether the client was already charged with the crime at the time of questioning. In other words, either such protection is necessary at all times prior to trial, or it isn't.

By keeping Massiah alive, however, the Court has necessarily taken a different approach – it has treated interrogations about a charged crime in the way it would treat questioning of the defendant on the witness stand, as something that simply should not take place in the absence of counsel. Why? Because otherwise, the jury will be in a position to consider evidence that has not been sufficiently mediated by the adversarial process.

Contrasting the Massiah Sixth Amendment Right with Fourth Amendment Rights

This latter point (regarding the adversarial process) demonstrates how distinct the Massiah Sixth Amendment right is from the Fourth Amendment right against unreasonable searches and seizures. What makes an illegal search objectionable is the unjustified invasion of a person's privacy and security. What makes an illegal seizure objectionable is the unjustified interference with a person's property or liberty.

Though such conduct may be motivated by a desire for evidence for a later prosecution (a motive which suggests that the misbehavior will be responsive to an exclusionary rule), the harm has already occurred by the time of trial and indeed requires no trial to be cognizable: If you are searched in violation of the Fourth Amendment, you may sue the police whether or not you are charged with a crime and, indeed, whether or not the police even found evidence in the course of their search.

What makes an uncounselled interrogation objectionable, by contrast, has everything to do with the later trial and evidence. Justice Scalia misleadingly indicates in his opinion that "[w]e have never said … that officers may badger counseled defendants about charged crimes so long as they do not use information they gain." This is a misleading statement because Massiah does not target "badgering" – with its connotation of coerciveness and pressure. Badgering is the bailiwick of Miranda. Massiah instead targets as "interrogation" the sort of conduct that often does not even qualify as interrogation at all for purposes of Miranda: police deliberately eliciting an incriminating response. For Massiah purposes, then, "interrogation" does not inflict any harm unless a trial follows at which resulting statements are offered in evidence.

The Problem with Justice Scalia's Argument: An Illustration

In Brewer v. Williams, the Court found a Sixth Amendment violation when a police officer said to a murder suspect (outside the presence of counsel), that he should tell the police where the victim is buried so she can get a proper Christian burial. This one statement can hardly be called "badgering"; yet it deliberately (and successfully) yielded an incriminating statement from the suspect. The Supreme Court accordingly found a Sixth Amendment violation.

Had the police made the same statement, however, in an effort to locate the body, understanding (and later conceding) that the statement could never be used in evidence against the suspect, there would be no cognizable constitutional harm against Williams.

There is nothing inherently objectionable, in other words, about deliberately saying something to a suspect that motivates him to confess (assuming the police have not behaved in a coercive manner that would trigger Fifth Amendment concerns). Indeed, under Massiah, there would have been nothing objectionable – even if the evidence were to be used – if the same question had been posed prior to the suspect's arraignment for the murder at issue.

It is thus very peculiar for Justice Scalia to suggest that even absent later admission into evidence, police conduct whose illegality turns entirely on whether a suspect has already been charged, would represent a Sixth Amendment violation. If no trial takes place, the suspect in our hypothetical example (though asked, without counsel, where the body was buried) suffers no Sixth Amendment harm. He would presumably not, therefore, be able to sue the police under §1983 – the federal statute providing a damages remedy for constitutional violations – for a deprivation of his right to counsel.

An Analogy That Further Illustrates the Problem with Scalia's Reasoning

Consider now the following analogy: A witness to a murder provides a statement to police and prosecutors, prior to trial, recounting the events that he witnessed. By the time the murder trial takes place, the witness has died (of natural causes). The prosecution wishes to introduce into evidence the witness's statement, but the defense argues that because no defense attorney was present, the introduction of the witness's statement would constitute testimony without cross-examination, in violation of the Sixth Amendment. The defense would almost certainly prevail in this battle.

The reason he would prevail is the lack of an opportunity for cross-examination during the witness's testimony (or thereafter). It would be absurd, however, to suggest that the police and prosecutors violated the Sixth Amendment rights of the defense (or of anyone else) at the time that they took the witness's statement, even though the defendant's lawyer was, indeed, not present for the interview.

Instead, the violation would occur if and only if the statement were introduced at trial, because its use at trial would render the inability of the defense attorney to cross-examine the witness a violation of the defendant's Sixth Amendment right of confrontation. In other words, it is the consequences of the lack of cross-examination for trial that make the interview constitutionally deficient.

Similarly, in Ventris's case, it was not improper for the police to plant an informant in the defendant's cell or for the informant to observe that Ventris seemed to have something serious on his mind. Despite the fact that Ventris was already charged with murder, this conversation did not amount to harassment or an invasion of privacy of the sort that is always and inherently objectionable, independent of what use is made of the resulting evidence.

Thus, if the prosecution were to have decided after the jailhouse "interrogation" to drop all charges, then Ventris would have had nothing to complain about regarding his exchange with the informant. Only a criminal trial for the crime to which Ventris confessed brings the Sixth Amendment harm here to fruition.

Indeed, the "police manipulation" of which the Court speaks in connection with Massiah could not be said to "render counsel entirely impotent" and unable to provide "effective representation" unless and until the statements obtained were introduced into evidence. If they were not, then the earlier interrogation would have no impact on counsel's ability to represent her client.

The "Real" Basis for the Opinion

Though the Court's opinion does not emphasize this aspect of the case, it seems in reality to be relying on the assumption that the Massiah right is "prophylactic," rather than being at the "core" of the Sixth Amendment. As the Court had previously held, violations of "prophylactic" constitutional rules (including Miranda) need not necessarily result in suppression of all resulting evidence, for all purposes.

Though the Court did not explicitly say that Massiah is a prophylactic rule, its analysis appears best to fit that paradigm: The goal of suppressing the evidence is to ensure that "core" or genuine Sixth (or Fifth) Amendment violations do not occur; therefore, suppression is merely a remedy and may be employed or abandoned, depending on the costs and benefits at stake.

Once we accept that Massiah is merely prophylactic, it seems to follow quite readily that confessions resulting from Massiah violations might be admissible to impeach the defendant's testimony. At that point, it no longer matters very much whether the Massiah violation occurs prior to trial or at trial, because the violation is not truly of constitutional stature. Though the Fifth Amendment, for example, governs the admission of coerced confessions at trial, and though Miranda is intended to operationalize Fifth Amendment coercion for police interrogations, the Court nonetheless admits non-Mirandized statements for impeachment at trial, because Miranda is prophylactic. (It is worth noting here that the Supreme Court arguably elevated Miranda beyond mere prophylaxis in Dickerson v. United States, but its continuing adherence to pre-Dickerson precedents that treat Miranda as subordinate to genuine constitutional requirements suggests that it remains a prophylactic rule intended to guard against true Fifth Amendment violations).

Why Did a Majority of the Justices Endorse the Unconvincing View that the Sixth Amendment Violation Occurred Prior to Trial?

The remaining question, then, is why Justice Scalia, on behalf of the majority, felt it necessary to provide an unpersuasive and incoherent account of the Sixth Amendment Massiah violation as occurring prior to trial.

It is difficult to know the answer without questioning the Justices in the majority (perhaps without benefit of counsel). One guess, though, is that not all seven of the Justices agreed that Massiah announced a prophylactic rule.

Unlike in the case of Miranda, there is not a history of qualifying Massiah as merely prophylactic. The Court had previously referred to the Massiah right as a Sixth Amendment protection. Yet seven of the nine Justices liked the idea of allowing Ventris's statements to impeach his credibility. They perhaps felt more comfortable with characterizing the nature of Massiah as a pre-trial right than with adding yet another "prophylactic" category of sub-constitutional common law.

Despite his discussion of prophylactic protections, Justice Scalia himself has made it clear in past opinions (including his dissent in Dickerson) that he does not believe in the Supreme Court's authority to fashion rules for state courts that are not actually constitutionally required – such judicial "legislation" violates the separation of powers, in his view.

There is thus something deeply dishonest about the Ventris opinion. To sustain the viability of a dubious constitutional right to the presence of counsel at (and only at) post-charge interrogation, while simultaneously admitting for impeachment purposes the confession yielded by the violation of that right, the Court provides a wholly unpersuasive account of the violation at issue as occurring only at the time of questioning. The simpler thing would have been for the Court to overrule Massiah. It could then have avoided suppression without compromising its integrity in applying constitutional principles.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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