The Sixth Circuit Court of Appeals reversed denial of a writ of habeas corpus due to a failure to comply with the Sixth Amendment’s right to counsel.

The Sixth Amendment guarantees the right of a defendant to have counsel present at all critical stages of the prosecution after the initiation of the adversarial process. Thus once charges are filed the prosecution cannot deny the defendant the right to have counsel present at significant events in the case. One of those significant event, of course, is the giving of a statement by the defendant. ¹

David Ayers was a security guard for the Cuyahoga Metropolitan Housing Authority. As part of his compensation and to insure the safety of the residents he was given a low cost apartment in the building. Accompanied by one of the residents he went to the apartment of Dorothy Brown to pick her up after she fell down. The next day her body was found with numerous injuries. Ayers was eventually arrested and indicted.

While he was in custody he was befriended by Donald Hutchinson, a fellow inmate assigned to the same jail pod as Ayers. Hutchinson contacted the inspectors assigned to Ayers’ case and told them that Ayers had admitted to murdering Brown. After the officers apparently hinted ² to Hutchinson that they needed to know what weapon Ayers used and how much money he stole from Brown, Hutchinson returned to the cell and obtained the information from Ayers. He then contacted the officers again and gave them the information.

In the trial court Ayers moved to suppress the statements given to the officers at their second meeting with Hutchinson. The trial court denied the motion but the appellate courts granted the writ of habeas corpus finding that the police use of Hutchinson to “intentionally create a situation likely to induce Ayers to make incriminating statements without the assistance of counsel” violated the Sixth Amendment.

Here is the problem with jail house snitches. Hutchinson, who was in custody for crimes of moral turpitude involving financial misconduct, gave three different stories on different occasions regarding what he had been told by Ayers. Therefore he is not very trustworthy and the use of his testimony at trial is questionable. Furthermore since the police could not questions Ayers without his attorney present without violating the Sixth Amendment, they should not be allowed to manipulate the situation by either hinting to Hutchinson that he find out the nature of the weapon and the money stolen or by asking him to find out the information.

The Supreme Court, last week, in Kansas v. Ventris ruled that statements given to jailhouse informants in violation of the Sixth Amendment can be used to impeach a defendant at trial.

In 1964 the Supreme Court ruled in Massiah v. United States that it was a violation of the Sixth Amendment right to counsel to allow a police informant to elicit incriminating evidence from a defendant after the defendant has been indicted and in the absence of the defendant’s attorney.

But now the Supreme Court has ruled that while a prosecutor cannot use the illegally gained evidence in its case in chief it can use it to impeach the defendant. Donnie Ray Ventris and Rhonda Theel were charged with various crime including the murder of Ernest Hicks. Theel plead guilty to robbery and her murder charge was dismissed. The prosecutor placed an informant in Ventris’ cell who elicited comments from Ventris incriminating himself on the murder charge. After Ventris testified at trial that Theel committed the murder, the informant testified as to what he had been told by Ventris in the cell.

Justice Scalia, speaking for a seven member majority of the Supreme Court compared the Sixth Amendment violation to a Fourth Amendment violation. He said that since exclusion of the illegally seized evidence in both cases was not directly mandated by the Constitution, a defendant should not be allowed to take advantage of the fact that the government illegally obtained evidence to lie at trial and therefore the illegally obtained evidence should be usable for impeachment.

But the problem with Scalia’s analogy to the Fourth Amendment, is that evidence illegally seized under the Fourth Amendment it is excluded solely because of the government’s wrong doing. There is no question about its validity. In the Case of Massiah error not only is the evidence seized illegally but there is considerable question about its credibility. An informant who is being rewarded in one way or another by the government for providing incriminating evidence against someone such as Ventis has considerable reason to lie. The government is not going to dismiss his case or give him favors if he does not provide them with incriminating evidence.

Also, a defendant, such as Ventris has reason to lie when talking to a cellmate who he does not know to be working for the police. A person in jail has considerable reason to want to appear to be tough in jail. Jails are not nice places and your cell mates may not be nice people. By telling them that you killed someone, they are less likely to attack you. After all would you want to attack someone who killed a man in cold blood. Thus Ventris may have lied to the agent/cellmate just to protect himself.