We all remember Massiah v. U.S. from law school. That is the 1964 case where the Supreme Court ruled that the police may not plant an informant in a cell with a represented defendant because it violates the Sixth Amendment. Apparently that landmark decision was excluded from some police manuals in Kansas, because after Donnie Ray Ventris was arrested for murder, an informant was placed into the cell with him and instructed to obtain evidence. After Ventris took the stand at trial and denied involvement in the crime, the prosecution, although conceding the police had "probably violated" the Sixth Amendment by placing the informant in the cell, sought to use the informant as a witness to rebut Ventris' current denials of criminality. The trial court allowed the evidence and Ventris was convicted.
In an opinion characterized by the dissent as "another occasion in which the Court has privileged the prosecution at the expense of the Constitution", the U.S. Supreme Court reversed the Supreme Court of Kansas, which had over-turned Ventris' conviction due to this illegal police tactic. See, Kansas v. Ventris, No. 07-1356, decided April 29, 2009. Declaring the "game of excluding tainted evidence for impeachment purposes is not worth the candle", and the need to prevent perjury superior to the Sixth Amendment right to counsel in this case, the majority reinstated the conviction.
I think we all agree that perjury is intolerable. Yet, what about equally intolerable intentional governmental misconduct? Has this case given police an incentive to "cut off" defense testimony through deliberate violation of the Sixth Amendment? Where will it stop? What happens in the next case when the defendant's wife or brother testifies that the accused was at a birthday party and could not be the shooter? Will the concern to prevent perjury open the gate to use the unconstitutionally obtained statement to impeach the wife? What if the defense lawyer merely argues the defendant is innocent, will that be taken as a prosecutor's license to admit illegally obtained evidence to prevent a deception or miscarriage of justice? Is not deterring police misconduct and upholding the Sixth Amendment right to counsel worth the price of the candle that prevents these violations?
Bottom line, once a court starts justifying illegal police conduct, it starts down the proverbial slippery slope. Look for prosecutors to begin to use Ventris to justify all sorts of police misdeeds in the interest of preventing perjury and deceptions upon juries and courts. As Justice Stevens wrote in dissent, "shabby tactics are intolerable in all cases."
Until next time,
Todd