Just because Justice Antonin Scalia’s life is an open book doesn’t mean everyone’s should be.  For Donnie Ray Ventris, unfortunately, there are no secrets.  Ventris was in jail awaiting trial for the robbery and murder of Ernest Hicks when the cops decided that it would be a good idea to convince another fellow inside to get Ventris to talk.  Donnie Ray Ventris had a lawyer, but that didn’t seem to bother them much when they turned the prisoner into their agent.

At trial, Ventris took the stand to testify in his own defense, one of those rights enumerated in the 6th Amendment but observed primarily in the breach.  Given the defense, that it wasn’t Ventris but his co-defendant Heel who pulled the trigger, his testifying could be seen a mile away.  Afterward, the prosecution called their snitch to impeach Ventris’ denial of shooting Hicks.

The Kansas Supreme Court reversed, holding that once a defendant is represented by counsel, the police cannot use an agent to elicit statements, and that the statements can’t be used for any purpose, in chief or impeachment.  Enter Scalia in  Kanas v. Ventris.

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can . . . provide himself with a shield against contradiction of his untruths.” Walder, supra, at 65. Once the defendant testifies in a way that contradicts prior statements, denying the prosecution use of “the traditional truth-testing devices of the adversary process,” Harris, supra, at 225, is a high price to pay for vindication of the right to counsel at the prior stage.

What a strangely backward way to claim that the defendant has created “a shield against contradiction,” by blaming the defendant for the police having deliberately violated his constitutional rights.  It’s as if it was the defendant who forced the cops to plant an unlawful snitch in jail for the purpose of denying them the opportunity to use the snitch’s testimony to impeach his testimony at trial.  The reasoning is so fundamentally circular that it takes a few tries to make sense of how the majority ultimately comes to blame the defendant for the cops unconstitutional acts.

But the Court takes it a step further, since it’s still stuck with the cops violating Ventris’ rights by planting the snitch. 

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.

Thus, the Court returns to its basic foolery with the exclusionary rule, holding that the 4th Amendment prohibition against unreasonable searches and seizures isn’t a sufficient wrong in itself to warrant a remedy, but only serves to require exclusion if it provides an adequate incentive to get the cops to stop violating those darn constitutional rights.  For Scalia, he’s just not seeing it here.

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. 

While it’s true that the cases in which a defendant is likely to exercise his right to testify in his own defense represents a small subset of all criminal cases, the fact remains that there are certain defenses where a defendant’s testimony is a necessary part, and within this subset, the likelihood that the defendant will testify is huge.  Say, wouldn’t that be a great time to violate Massiah?

The logic of the majority decision is staggeringly flawed, as noted by Justice Stevens’ dissent, but what’s worse is that the Court lays the burden of the police facially unconstitutional conduct on the defendant, as if it’s all his fault that they did this because he later testified in a way that they believed to be deceptive.  If the question comes down to incentives, trading off the risk of a defendant giving perjurious testimony versus the police violating the Constitution, Justice Scalia clearly comes down on violating the Constitution as the lesser of two evils.  After all, it’s not like the Constitution is the Supreme Law of the Land or anything.

Mind you, it’s still considered the better practice for defendants, particularly those like Ventris, to keep their blabbing yaps shut at all times.  But the fact that people just can’t seem to get that “remain silent” concept doesn’t mean that cops should enlist jailhouse snitches whenever convenient, just in case they get a chance to use the ill-gotten evidence later.  And as long as he’s authorizing unlawful conduct by police, our favorite Jurist throws in the fact that the right to counsel “simply isn’t worth much” for good measure, just so we know that it’s not like the 6th Amendment violation he’s giving away is a big deal anyway.

Witnesses lie all the time.  No one is asking for the Court’s approval of it.  But that doesn’t justify the opposite, the Court’s approval of clearly and concededly unconstitutional conduct by police, just in case. 

Update:  Ken Lammers, former defense lawyer who found his niche prosecuting, dissects the Ventris decision at CrimLaw, in a very thorough and lawyerly review.  Lacking the “incentives” I have in concluding that this decision is nuts, Ken nonetheless reaches the same conclusion:

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?

[Correction per Gideon’s comment below] Even more extraordinary, Tom McKenna, a prosecutor whose blog Seeking Justice would make John Yoo blush, adds this comment to Ken’s post: left a comment which gave rise to Ken responding:

I have a problem with the Court promoting violations of the constitution. In this decision the Court states that what the government did was clearly unconstitutional. Then it says “Go ahead and do it anyway. We won’t use the only remedy we have for this violation against you.”

To my knowledge, there’s no “enhancement” to prosecuting that McKenna doesn’t support.  Until now.  When even McKenna finds the Supremes conclusion unpalatable and incomprehensible, you know we’re talking off-the-wall daffy.  In his three sentences, he sums up the basic failure of Ventris, as well as many of the decisions, as well as complaints, about the application of the exclusionof evidence at trial.  If it violates the Constitution and you won’t do anything about it, then the Constitution ceases to matter. Game over.  Thankfully, Ken possesses the thoughtfulness and fairness that reflects the best in a prosecutor.  McKenna is the alternative.