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.

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.