These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the [...]]]> Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Shane starts by distinguishing between “presidentialism” and “pluralism.” “Presidentialism” embraces the idea of a unitary executive with vast powers to operate unchecked by other branches of government, often acting in secrecy, and free of the need to consult with other branches. “Pluralism,” on the other hand, understands the notion of interacting branches checking and consulting each other in setting policy, doing so as not only a constitutional command but also as a prerequisite to setting sound policy. It is Shane’s position that each of these attitudes is supported by a matching culture and that government lawyers have a critical role to play in sustaining or contesting those cultures.

Shane is no fan of presidentialism, which he sees as depending upon a culture of isolation and arrogance that promotes bad policy and, by subsituting executive preferences for legal mandates (because anything the executive does is almost always seen as within its power, therefore ”legal,” ending any real rule-like limits on executive power), presidentialism makes a joke out of the “rule of law.” Bad policy results in part because “[f]acts and opinions are always filtered through officials’ ideological prisms, prisms that shape how facts are weighed and options comprehended.” Without a counterweight to ideology, important flaws in information-gathering and reasoning are missed. Pluralism, by contrast, helps to minimize ideological distortion by compelling executive decisionmakers seriously to consider opposing views, while engaging in dialogue with other institutional actors.

Lawyers are essential to standing in the way of a creeping culture of presidentialism. That culture, argues Shane, “bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.” This light-bending distorts the lawyer’s vision not only of the law’s scope but of the process by which quality lawyers determine legal “meaning.” Moreover, most executive decisions are too low-level or visible to capture the attention of congressional oversight committees or of the courts, even though cumulatively these decisions may do much damage. The government lawyer is thus often the only voice of conscience available to give sound legal advice and check foolishness and overreaching.

Shane traces the process of legal decisionmaking and the outcomes of it concerning two major issues: warrantless electronic surveillance and the treatment of enemy combatants. In a convincing display, Shane condemns the lawyering involved as steeped in presidentialism. He concludes that two factors explain this poor lawyering by otherwise talented individuals. First, the legal and broader culture of the executive must have sent the message to the lawyers that they had no real choice but to approve what their client sought. Second, they worked in an atmosphere in which they would face scorn for reluctance to express any argument, no matter how minimally plausible, supporting their client’s preferred conclusion. That might be acceptable conduct for an advocate, says Shane, but it is reprehensible for an advisor.

To avoid such “ethically blinkered” results, insists Shane, government lawyers “must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.” Lawyer-advisors must give conscientious opinions not only about outcomes but about the proper procedures clients must follow before making policy choices. The lawyer is neither a potted plant nor a lackey. And a lawyer without a spine is really no lawyer at all.

Donnie Rae Ventris and Rhonda Teel allegedly shot and killed Ernest Hicks in his home, driving off in Hicks’s truck with $300 of his money and his cell phone. The chief charges filed against the two were murder and aggravated robbery. But the state dropped the murder charge [...]]]> I plan for several of my blog entries this month to address the United States Supreme Court’s confused conception of the role of truth-seeking at trial, particularly as revealed in its constitutional criminal procedure jurisprudence. My primary examples will be drawn from the Court’s various opinions this term concerning the scope of the exclusionary rule. Today’s entry focuses on the rule’s application in the Sixth Amendment right to counsel context in Kansas v. Ventris, 556 U.S. __ (2009).

Donnie Rae Ventris and Rhonda Teel allegedly shot and killed Ernest Hicks in his home, driving off in Hicks’s truck with $300 of his money and his cell phone. The chief charges filed against the two were murder and aggravated robbery. But the state dropped the murder charge against Teel in exchange for her pleading guilty to robbery and testifying that Ventris was the shooter. Before Ventris’s trial, officers planted an informant in Ventris’s jail cell, an informant willing to testify that during his conversations with Ventris, Ventris admitted that “he’d shot this man in his head and his chest” and taken “his keys, his wallet, about $350.00, and…a vehicle.”

The state would later admit that this statement was obtained in violation of Ventris’s Sixth Amendment right to counsel on the pending charges, a right triggered by the start of formal criminal proceedings. At trial, Ventris testified, blaming the robbery and shooting entirely on Teel. The state argued that even if Ventris’s statement to the jailhouse informant could be excluded in the state’s case-in-chief as violative of the Sixth Amendment, the statement was now admissible to impeach Ventris by contradicting his testimony. Such contradiction would demonstrate that Ventris had lied to the jury.

The trial court agreed, admitting the statement allegedly made by Ventris to the jailhouse informant, though giving the jury an instruction to “consider with caution” all testimony given in exchange for benefits from the state. The jury acquitted Ventris of felony murder and misdemeanor theft but convicted him of the aggravated burglary and robbery counts. The Kansas Supreme Court reversed on Sixth Amendment grounds, but the United States Supreme Court instead agreed with the trial judge. Impeachment of the accused by an uncounseled statement allegedly made to a jailhouse snitch absent the presence of the accused’s counsel — whose presence the Sixith Amendment mandated — was entirely constitutional, at least in the high Court’s eyes.

Here is where the Court’s troubling notions of truth kicked in.

The Ventris Court justified its new rule permitting impeachment by creating a dichotomy — distinguishing between constitutional rights that by the terms of their text mandate exclusion of evidence if violated and those that do not. The fomer class of rules almost always required exclusion, while the latter class of rules were subject to balancing to decide whether exclusion would so further deter wrongful police conduct as to justify suppression’s cost in reducing the ability to determine the truth at trial. The Court also distinguished between “core” constitutional rights and “prophylactic rules forbidding certain pretrial conduct,” applying balancing as well to these latter rules.

The exclusion of a Sixth Amendment-violative statement for impeachment purposes, concluded the Court, fell into the balancing class of cases. Given that police could not in advance know that a defendant would take the stand (a relatively rare event) and lie, the police could not assume the admissibility of the statement. Accordingly, the deterrent effect of excluding the statement in the state’s case-in-chief will not be diminished by failing to exclude the statement for impeachment purposes, continued the Court. Correspondingly, however, explained the Court, impeachment by contradiction is key to deter defendant perjury and to protect the integrity of the trial process. The exclusionary game was thus not worth the candle, for, once lit, that candle would burn away truth.

I address this rationale, and its problematic nature, in more detail below.

1. The Distinction between Textual and Non-textual Exclusion: Although this distinction is at least implicitly oft-made by the Court, it lacks substance. Thus, in the Fourth Amendment context, the Court, or at least numerous Justices, repeatedly note that the Amendment’s text never mentions a remedy. The Court thus describes the exclusionary rule as a judicially-created remedy designed to deter Fourth Amendment violations, and thus subject to being balanced away given the costs to truth-seeking imposed by suppression.

But, as Justice Brennan wisely explained in his dissent to United States v. Leon, 468 U.S. 897 (1984), seizures are generally conducted precisely for the purpose of “bringing proof to the aid of Government” at trial. Moreover, the Fourth Amendment restrains the power of the government as a whole, including the judciary, not only restraining police. Accordingly, the wrongful seizure of evidence and its use at trial are part of a single continuing governmental violation. Said Brennan, “[I]f the Amendment is to have any meaning, police and the courts cannot be regarded as constitutional strangers to each other.” Indeed, “because the evidence-gathering role of the police is directly linked to the evidence-admitting function of the courts, an individual’s Fourth Amendment rights may be undermined as completely by one as the other.” Furthermore, if police had complied with the Fourth Amendment, they would have had no evidence in the first place, so the Amendment seems to contemplate loss of inculpatory evidence as a cost of the privacy, property, and locomotive rights that the Amendment protects.

But all this can be said equally, indeed, as I discuss below, more strongly, about the Sixth Amendment right to counsel.. The denial of counsel during deliberate state elicitation of defendant statements post-indictment and the admissibility of that statement in court are part of a single governmental action, and had the counsel right been respected, the police would not have had Ventris’s alleged statement in the first place. The exclusionary rule is thus not simply a judicially-created device but part and parcel of the right to counsel itself.

2. The Multiple Meanings of the Assistance of Counsel: The Court’s logic concerning the meaning of the “assistance of counsel” and its formalist distinction among sub-types of right to counsel rules is internally inconsistent. The Court agrees that the “core of the right to counsel is indeed a trial right, ensuring that the prosecution’s case is subjected to ‘the crucible of meaningful adversarial testing.’” The Court cites for this proposition, moreover, a case that recognizes that this core trial right is to the effective assistance of counsel. See United States v. Cronic, 466 U.S. 648 (1984).

But the Court is fuzzier on whether the right to counsel at post-indictment pre-trial interrogations is a “core” right or a “prophylactic” one, cryptic language at various points supporting either interpretation. Nevertheless, the Court agrees that the point of the right is to “ensure that police manipulation does not render counsel entirely impotent — depriving the defendant of ‘effective representation by counsel at the only stage when legal aid and advice would help him.’” (emphasis added). Yet the Court describes the effect of admitting evidence at trial for violation of this pretrial right as follows:

It is illogical to say that the right is not violated until trial counsel’s task of opposing conviction has been undermined by the statement’s admission into evidence. A defendant is not denied counsel merely because the prosecution has been permitted to introduce evidence of guilt—even evidence so overwhelming that the attorney’s job of gaining an acquittal is rendered impossible. In such circumstances the accused continues to enjoy the assistance of counsel; the assistance is simply not worth much.

This is an odd sort of logic. I fail to understand how both the trial right and the pretrial right guarantee the effective assistance of counsel but the suppression at trial of a statement obtained by violating the pretrial right requires merely representation by counsel that is “simply not worth much.” Not only is this an inconsistency that the Court does not justify other than labeling the exclusionary rule in that circumstance a rule created merely to deter the police, but the inconsistency ignores one of the central reasons for creating the pretrial right in the first place: pretrial events may create evidence that in effect, by their admission at trial, render the trial virtually useless, the outcome a foregone conclusion.

The Court’s clearest articulation of this position was in its holding in United States v. Wade, 388 U.S. 218 (1967), that the Sixth Amendment right to counsel applied at pretrial but postindictment eyewitness identification procedures like lineups. The Wade Court first emphasized the danger of unreliable lineup identifications, then linked the need for counsel closely to the out-of-court identification’s impact at trial and to the therefore necessary existence of an exclusionary rule. Explained the Court,

any protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury’s choice is between the accused’s unsupported version and that of the police officers present. In short, the Court’s ability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’s courtroom identification.

Elsewhere in its opinion, the Wade Court made the link among effective representation by counsel, a serious opportunity for cross-examination of witnesses at trial, and yet the limits of even cross itself as aiding truth under such circumstances even clearer:

Insofar as the accused’s conviction may rest on a courtroom identification in fact the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him. And even though cross-examination is a precious safeguard to a fair trial, it cannot be viewed as an absolute assurance of accuracy and reliability. Thus in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the over-reaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — “that’s the man.”

Although less fully,clearly, and eloquently, the Court followed a logic similar to Wade’s in Massiah v. United States, the leading case recognizing a right to counsel at post-indictment but pretrial interrogations, noting there that the denial of counsel at such a time “might deny a defendant effective representation by counsel at the only stage when legal advice would help him….”

The tremendous inter-connectedness of trial and pretrial proceedings underscores the absurdity of separating out counsel rights based on the stage at which they are triggered, as Massiah particularly recognized, concluding that “the most critical period of the proceedings” is from “the time of arraignment until the beginning of … trial,” for it is during that time span when “consultation, thorough-going investigation and preparation [are] vitally important” so that defendants are “as much entitled to such aid [of counsel] during that period as at the trial itself.”

The Sixth Amendment’s text by itself also seems to contemplate the counsel right as one seamlessly continuing across a time span, rather than being limited to trial or subdivided into pockets of differing ranges of discrete bundless of protection, for the Amendment declares that the right to counsel applies “in all criminal prosecutions,” not in all “trials” or only other specified events. Only such seamless interconnection gives the counsel right real meaning.

3. Informants, Compelled Confessions, and the Wrongly-Convicted: Wade further recognized that the right to counsel advances truth rather than impeding it. Granted, most, though far from all, defendants are likely guilty of something, though not necessarily that with which they are charged. Any effort to acquit the guilty thus seems, at least in the popular mind, inconsistent with truth-finding. And constitutional rights, importantly including the right to counsel, serve many goals other than truth-finding, including protecting privacy, avoiding compulsion, deterring unjustified humiliation, and so on.

Yet the very assumption behind the adversary system is that the clash of equally-matched adversaries will produce truth. In practice, of course, that assumption is often unfounded, as the many proven instances of wrongful convictions of the innocent demonstrate. But flawed eyewitness identification procedures, like those in Wade, are not the only causes of wrongful convictions. Indeed, Ventris involved two other major causes: (1) flawed confession procedures and (2) jailhouse informants.

The literature on both subjects is vast and need not be reviewed here, though I refer readers to concise literature summaries in the comments to two documents: American Bar Association, Achieving Justice: Freeing the Innocent, Convicting the Guilty, The Report of the ABA Criminal Justice Sections’ Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process (2006), and The Death Penalty Initiative of The Constitution Project, Mandatory Justice: The Death Penalty Revisited (2006).

The Ventris Court seems to assume that counsel can only be a hindrance to obtaining truthful confessions, a premise it expressly rejected in Miranda v. Arizona, 384 U.S. 436 (1966), and that is contradicted by the vigorous efforts of counsel to reveal wrongful convictions in the many cases that have caught the public’s attention. Likewise the Ventris Court blithely dismisses concerns about the unreliability of “jailhouse snitches” by simply asserting that “it is the province of the jury to weigh the credibility of competing witnesses, and we have long purported to avoid ‘establishing this Court as a rule-making organ for the promulgation of state rules of criminal procedure.”

Yet the Court in Wade recognized quite to the contrary that juries are not anywhere near foolproof and that minimal constitutional guarantees of procedures designed to promote reliable evidence are as necessary in state as in federal trials. The Ventris Court, by contrast, entirely ignores the empirical literature, repeated anecdotal evidence, and lessons of experience demonstrating the special dangers to reliable factfinding of jailhouse snitch testimony, dangers well-recognized by numerous judges, prosecutors, defense attorneys, police, academics, and well-respected bar groups and law reform organizations.

The Ventris Court’s sole implicit response is its noting that in the case before it the jury apparently disbelieved the snitch, who had said Ventris admitted to murder, because the jury acquitted him of that charge. But that outcome in a single case is a poor basis for crafting a rule for the broad run of cases that ample evidence suggests should embody far more skepticism about jailhouse informant testimony than the Ventris . Court chose to embrace.

4. Conclusion: I had originally planned to point out as well the inconsistencies of the Ventris Court’s reasoning with its reasoning in its Miranda and Fourth Amendment line of exclusionary rule cases, but this posting is already too long. Perhaps I will return to the point at a later date. Nor am I necessarily rejecting the idea that under certain circumstances permitting impeachment of defense witnesses by uncounseled statements may make constitutional sense. But the reasoning of the seven member (amazingly lopsided!) Ventris Court majority seems to me likely in many instances to undermine truth-finding, ostensibly in the name of doing quite the opposite. Moreover, the Court sets the stage for its awkward concept of truth-seeking at trial by an artificial division of the nature of the Sixth Amendment right to counsel into a set of rigid categories that neither the Amendment’s text nor logic nor sound constitutional policy will bear. Furthermore, the Court reaches its conclusions by completely ignoring a raft of social science evidence, surely an approach hard to square as well with truth-finding about the “normative facts” underlying a constitutional rule.

At a minimum, therefore, the Court’s concern about truth-seeking at trial is ill-defined, ill-defended, ill-reasoned. More likely, its conception is plainly wrong, especially in its reliance on artificial categorical distinctions. Justice Stevens, joined by Justice Ginsubrg in dissent, had the better of the argument, concluding that while “the constitutional breach began at the time of interrogation, the State’s use of that evidence at trial compounded the violation.” For Stevens, the pretrial counsel right is of a piece, and thus as important as, the trial right, with the Court sanctioning “shabby tactics” that do violence to the “adversarial process — the fairness of which the Sixth Amendment was designed to protect,” while disabling the accused from any effective response to potentially false evidence introduced at trial. Sanctioning such wounds to the adversary process is, concludes Stevens, “intolerable.” Quite so.