The Ventris Interview and a Nomination for the Supreme Court

The Supreme Court’s decision in Kansas v. Ventris is one of the strangest things I’ve seen from them in a long time.

I’m not a lawyer, but as I understand the law, it has been normal procedure for many years that once a defendant invokes his right to a lawyer, the cops have to stop questioning him. From that moment forward—all the way to end of the trial if need be—-neither the prosecution nor the cops can ask him any more questions. If they do, the answers can’t be used in court.

The prohibition applies as well to agents of the police. If the defendant confesses to a snitch, the snitch can testify, but if the police send a snitch to question the defendant, he can’t testify to the defendant’s confession because he was acting as an agent of the police.

Until now. In Ventris, the Court carved out an exception to the rule. Basically, they said that if the defendant testifies on his own behalf, a defendant’s prior contradictory statements to an agent can still be introduce at trial even if the statements were made after invoking the right to counsel. The ruling doesn’t seem to be limited to agents of the police, either. It looks like the police can question the defendant directly, despite his asking for a lawyer.

The court’s reasoning demonstrates Scalia’s boundless trust in police professionalism:

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.

(See Radley Balko’s continuing series of anecdotes about Scalia’s new Police Professionalism.)

Scott Greenfield had some choice words about it yesterday:

Again, the reasoning is so strained as to require a few moments of reflection.  Since statements lawfully obtained can be used for any purpose, cops have a strong incentive to comply with the Constitution, and therefore have no incentive to violate the Constitution by doing precisely what they did here.  Of course, they did precisely what they did here, so apparently they have enough of an incentive to do it, as proven by the fact that they did it.  

Aside from the fact that it happened, a possibility Scalia calls “exceedingly small,”  the Court ignores the “incentive” structure when the defendant has a lawyer and the time to obtain a confession lawfully has come and gone.  At that point, the only potential for nailing the sucker is by violating Massiah, which is exactly what they did.  Moreover, when the defense seems awfully clear that it’s going to be two defendants pointing fingers at each other as the shooter, the “exceedingly small” chance that the defendant will testify becomes exceeding large.

For a guy who talks so much about incentives, Scalia is remarkably daft. Sure, police would rather get a statement from the defendant that can be used for all purposes, but that just means the police want to get in as many questions as possible before the defendant realizes he should lawyer up.

Once that happens, “all purpose” statements are off the table, but the Ventris decision now allows them to gather additional special purpose statements—even though they’re violating the defendant’s rights—with no penalty whatsoever. It’s easy to see what that’s an incentive for. How long will it be before it becomes standard procedure?

When the defendant asks for a lawyer, the police will simply keep questioning him in the hope he’ll say something they can hang him for if he testifies. I’m imagine they’ll call it “proceeding to the Ventris interview.” Or if a prosecutor thinks a defendant is preparing to take the stand, he can send an investigator to “try to get a Ventris statement.” You know it’s coming.

Amazingly, an even stronger criticism of Ventris comes from a prosecutor. As a criminal defense lawyer, Ken Lammers was never a true believer, and now that he’s switched sides, he once again shows he’s still his own man with his withering argument that Ventris is not just bad for defendants’ rights, it’s badly wrong.

Here are a few excerpts:

…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.

…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?

Ken’s whole takedown of Ventris is logical, clear, and well worth reading.

In other news, Supreme Court Justice David Souter has announced his retirement, and speculation has begun as to his replacement.

I hearby nominate CrimLaw blogger Ken Lammers. His even-handed approach and clear writing style should make for some good opinions, and more importantly, the Supreme Court clearly needs more justices who have experience practicing criminal law.

Besides, as George W. Bush’s nomination of Harriet Miers showed, the Supreme Court is not just for mental giants anymore.

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