A defendant in a criminal trial not only has the Sixth Amendment right to counsel but the right to competent counsel. To win a grant of habeas corpus, alleging incompetence of counsel, a defendant carries the burden to prove that “(1) that counsel’s representation was deficient and (2) that he suffered prejudice as a result.”

The writ was granted and the government appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit ruled that the in limine motion even if counsel was deficient in failing to make the motion ¹would not have had any effect on the trial since there was “overwhelming” evidence of the defendant’s guilt. Likewise the court found that Bass was not prejudiced by the failure of counsel to object to the testimony of a second witness due to the evidence against him.

“Vouching” for a witness occurs when an attorney claims to have knowledge, outside the evidence, that a witness is truthful. For example, an attorney cannot say in closing that I’ve known witness X for twenty years and he has never lied to me.” The alleged vouching occurred when the prosecutor said:

Most of them [the government's witnesses] have testified before this trial, but not all. And they know what the truth is, and they understand it’s important, and they came before you and told you the truth about Jerome Bass. Sergeant Langam explained it best when he testified about his personal barometer, how he gauges the truthfulness in proffer interviews. He corroborates the interviews against each other . . . .

But the appellate court found that the prosecutor was merely explaining why the jury could find the witnesses credible and she was not giving her personal opinion.

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.

Share/Save

When the court rejected Brindley, Smith requested that Rogers continue to represent him. With the court’s prodding, Rogers refused. The Court appointed Ronald Jenkins to represent Smith.

Three weeks later Smith plead guilty with a written plea agreement that among other points surrendered the right to appeal unless the sentence exceeded the guidelines.

Federal Rules of Criminal Procedure Section 11(b)(1)(N) requires that the district court “must inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Though the appellate waiver was in the agreement the Court made no effort to independently inform Smith of the parameters of the waiver. The court mentioned it only in passing and then only to ask Jenkins whether there was a waiver.

The right to counsel of one’s choice is so fundamental that one should not be able to waive an appeal of its denial. The denial of the right to counsel of one’s choice brings into question the value of the waiver. Different counsel will handle different issues in different ways. If Smith had been granted the substitution he may not have plead guilty and if he had plead guilty he may not have agreed to waive the right to appeal. As the appellate court stated, “[i]f a defendant is erroneously denied the counsel of his choice, it is a structural error in the trial that brings into question the voluntary and intelligent character of the guilty plea itself. ”

The Seventh Circuit Court of Appeals found a clear violation of the Sixth Amendment right to counsel. Since no trial date had been set at the time the motion to substitute counsel was made, the interference with the court’s calendar was minimal and the court’s refusal to set a trial date when Brindley was available was uncalled for and a violation of Smith’s Sixth Amendment right to counsel.

Share/Save

In United States v. Turner The Seventh Circuit Court of Appeals faced the question of conflicting rights when one member of a multi-defendant drug case was arrested after all of the other defendants had either plead of been convicted. The same lawyer who represented one of the other defendants in sentencing was hired to represent Roosevelt Turner who had recently been arrested. The United States Attorney complained about a possible conflict and the United States District Judge removed Turner’s attorney. Turner went to trial with another attorney and appealed. The appellate court reversed the conviction because Turner had been denied the attorney of his choice.

The only evidence the United States Attorney raised to show a conflict was that either Roosevelt or Anthony Womack both of whom were represented by Irl Baris might want to testify against the other or that one of them might be subpoened to testify against the other. But the appellate court said that the fact that something might happen was not enough to deny a defendant his choice of attorneys. In fact neither turned against the other or was subpoenaed to testify against the other.

Since the denial of Turner the right to the attorney of his choice is a structural error Turner is entitled to a new trial. Afterall no one could tell if he would have been convicted with a different attorney.

Share/Save

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.

Share/Save