Archive for the ‘US Supreme Court’ Category

Donnie Ventris loses the rest of his appeal

July 25, 2009

July 24th. When the United States Supreme Court recently overturned the Kansas Supreme Court’s ruling in Kansas v. Ventris, it remanded the case for further proceedings. The Kansas Supreme Court has now issued its ruling on the remainder of the case. In a unanimous opinion, written by Justice Eric Rosen, the Court vacated its previous ruling in favor of Donnie Ventris and reinstated and affirmed the Court of Appeals’ decision affirming his conviction for aggravated robbery and aggravated burglary. In doing so it dispensed with two arguments Ventris had made which it had not addressed previously.

The background to this case has been covered extensively on this blog, linked articles all bear the KSvVentris tag. Ventris and his girlfriend, Rhonda Theel, were involved in the shooting death of Ernest Hicks, and left the scene of his murder with money and other possessions of his. Theel turned state’s evidence. A cellmate of Ventris’ (placed in the cell as a mole) spoke to him about the killing and also presented evidence at trial. Ventris was actually acquitted of the murder charge, but convicted of aggravated burglary and aggravated robbery. Ventris’ argued that the cellmate’s testimony should have been barred, even for the limited use (counteracting Ventris’ own testimony). The Kansas Supreme Court initially agreed with Ventris but the U.S. Supreme Court overturned that decision.

In its first opinion the Kansas Supreme Court did not address Ventris’ argument that testimony by Theel that he had forcibly strip-searched her a month before the killing should have been disallowed. Ventris argued that this error entitled him to a new trial. The Kansas Supreme Court has now addressed this issue and found that while the testimony should not have been allowed, it constituted a harmless error and thus Ventris does not get a new trial. The Court ruled that since the evidence did not go towards proving anything that was before the jury it failed the test for whether evidence is probative under State v. Gunby.

The Court also rejected Ventris’ Apprendi claim regarding his sentence based on his prior criminal history score.

The full text of the Court’s opinion is here.

Ventris’ argued that the cellmate’s testimony should have been barred, even for the limited use (counteracting Ventris’ own testminony). The Kansas Supreme Court initially agreed with Ventris but the U.S. Supreme Court overturned that decision.

Decision: State v. Henning

July 9, 2009

June 26th. The Kansas Supreme Court has issued its decision in State v. Henning (No. 98,118) a Fourth Amendment unreasonable search case. In a unanimous opinion, written by Justice Carol Beier, the Court held that the Kansas Law which allowed police to search vehicles of arrestees for evidence related to ‘a’ crime is unconstitutional. In doing so it applied the recent United States Supreme Court decision of Arizona v. Gant.

Randy Henning had a warrant out for his arrest. Lyon County Deputy Sheriff Patrick Stevenson noticed him and arrested him when he went to his car. After the arrest, Stevenson searched the car and found drug paraphernalia. Henning and Kelly Zabriskie (who had been in the driving seat of the car) were arrested for possession. Defence Counsel moved to suppress the drug evidence, but its presence was upheld.

Kansas Law had previously stated that in a search incident to arrest one of the reasons for searching the area immediately surrounding the arrestee would be ‘Discovering the fruits, instrumentalities, or evidence of the crime’. In a 1996 decision, the Kansas Supreme Court had held in State v. Anderson, that the word ‘the’ in that sentence meant that the State could not introduce evidence that was found that was unrelated to the crime that was the reason for the search. In 2006 the Legislature reworded the law to use the word ‘a’ instead of ‘the’.

The Kansas Supreme Court held that this change had the effect of altering the Statute so that the police would be authorized to search for evidence of any crime. This law had taken effect five days before Stevenson searched the car.

The Court then analyzed the law under the 2009 U.S. Supreme Court decision Arizona v. Gant. In that case that Court held that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Applying Gant to this case, meant that the Court concluded that the statute was unconstitutional since it authorized searches outside of those narrow limits.

Opinion: While we believe the decision in this case was correct, in ruling this way the Court delved into legislative history to prove what the Legislature intended to do when it replaced ‘the’ with ‘a’. This strikes us as unnecessary as contrary to the Court’s opinion, the Legislature’s intent was apparent from the plain words of the change. We will therefore watch for the circumstances in which this case is cited supporting the use of legislative history.

U.S. Supreme Court not reviewing controversial adoption case

May 11, 2009

It has just come to our attention that the controversial case, In re A.A.T. from December (which produced a rare 4-3 split among the Justices of the Kansas Supreme Court) will not be taken up by the United States Supreme Court. In an order issued on April 20th, the U.S. Supreme Court denied certiorari, without any comment. This was a case in which the Kansas Supreme Court refused to re-open a finalized adoption proceeding in order to give a chance for the unmarried father of the child to attempt to dispute the adoption.

Disclosure: In previously published commentary on this case, this blog has stated that we strongly agree with the majority’s decision.

Kansas v. Ventris – Decision

April 29, 2009

April 29th. As reported earlier, today the United States Supreme Court reversed the decision of the Kansas Supreme Court in a 7-2 decision. The case of Kansas v. Ventris revolved around whether prosecutors could use evidence gained in admitted violation of the 6th Amendment right to counsel to impeach a defendants testimony at trial (i.e. where a defendant claimed one thing in their testimony, could the prosecution bring otherwise inadmissible evidence in to show that the defendant was likely lying). The Kansas Supreme Court had said “No”, the U.S. Supreme Court said “Yes”.

Donnie Ray Ventris and Rhonda Theel were involved in the (decidedly murky) killing of Ernest Hicks in 2004. They left his property with $300 and his truck. After a tip-off police arrested the pair, but charges against Theel were dropped in return for her testimony that Ventris had shot Hicks. While in police custody, Ventris was placed in a cell with Johnny Doser, who had agreed to act as an informant. Doser was to testify at trial that Ventris admitted shooting Hicks. Ventris was charged with aggravated burglary and felony murder and chose to testify in his defense that Theel was the shooter. His attorney successfully objected to Doser’s testimony on the grounds that Doser’s presence in the cell amounted to uncounselled interrogation in violation of the 6th amendment. The State conceded this, but convinced the trial court to allow Doser to testify to impeach Ventris’ own testimony. The jury acquitted Ventris of murder but convicted him of aggravated burglary, which conviction was vacated by the Kansas Supreme Court in its State v. Ventris decision.

Today’s U.S. Supreme Court decision reverses this. Justice Scalia’s brief opinion contains two principle holdings. The first of these concerns when the 6th Amendment violation took place in this case. The second concerns what the appropriate remedy is for the violation. In her dissent in the State case, former Chief Justice Kay McFarland had suggested that there had been no 6th Amendment violation at all here. The State of Kansas did not raise this argument before the Supreme Court, and Justice Scalia’s opinion assumes (without ruling on the matter) that what happened did violate the 6th.

The U.S. Supreme Court decision found that the 6th Amendment was violated when Doser spoke with Ventris in the cell. As such, the violation had already occurred by the time of the trial. Ventris’ lawyers had argued that the violation of the right to counsel persisted into the trial itself at the point that the evidence was admitted since the evidence gathered while Ventris was without a lawyer prevented effective assistance of counsel. Justice Scalia rejects this, stating “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.”

Having determined that the violation was already past at the time of the trial, the U.S. Supreme Court determined what the proper remedy would be. As suggested by the State of Kansas it draws analogies here with the 4th Amendment exclusionary rule which prevents admission of evidence found during an unreasonable search or seizure from being admitted, except where a defendant testifies to something that can be directly contradicted by raising the excluded evidence. The Court applied the same test that results in this rule (which balances the interests of preventing perjury against the deterrant effect the rule has against police misconduct) arriving at the same result: the evidence can be admitted for impeachment purposes. Justice Scalia notes that the deterrant effect is still present – since it would be easier to abide by the rules than gather inadmissable evidence of this sort in the hope that the defendant puts themself on the stand thus allowing impeachment evidence to be presented.

Accordingly the Kansas Supreme Court’s decision was reversed.

Justice Stevens (joined by Justice Ginsburg) dissented, arguing that allowing the State to benefit in any way from evidence gained in violation of a constitutional right weakens the deterrent effect of exclusionary rules and weakens the adversarial process at trial and the essential fairness it creates. Justice Stevens was also in dissent in the 1990 case of Michigan v. Harvey which allowed the admission of this kind of evidence under different circumstances. In that case he was joined by three other Justices rather than only one.

U.S. Supreme Court overrules Kansas Supreme Court

April 29, 2009

April 29th. Splitting 7-2 the United States Supreme Court today overturned a ruling of the Kansas Supreme Court in the case of Kansas v. Ventris (formerly State v. Ventris). Justice Scalia wrote the opinion and was joined by Chief Justice Roberts, Justice Kennedy, Justice Souter, Justice Thomas, Justice Breyer and Justice Alito. Justice Stevens and Justice Ginsburg dissented. The ruling reversed a 6-1 decision of the Kansas Supreme Court, written by Justice Rosen with former Chief Justice McFarland in dissent. This is the second time in the past four years that the Kansas Supreme Court has been reversed by the U.S. Supreme Court.

Our earlier coverage of this case is located here.

The U.S. Supreme Court opinion is here.

We will have further analysis posted later tonight.

US Supreme Court delivers bad news for State budget

March 9, 2009

March 9th. The State of Kansas lost today in the United States Supreme Court, in a defeat which means that Colorado will not be sending $9m our way to help with the budget crisis. In a unanimous decision, the U.S. Supreme Court decided that the $40 per day limit set by Congress for expert witness fees where costs are awarded, should apply to the long-running dispute between Kansas and Colorado over the Arkansas river. In an artfully worded opinion, Justice Alito made it clear that the Court took no position over whether Congress had the authority to set such a limit in cases in the Court’s original jurisdiction. The Court simply assumed for the sake of argument that Congress could not do such a thing, but nevertheless held that there was no reason for different rules to apply in original jurisdiction cases.  The name of the case was Kansas v. Colorado.

Chief Justice Roberts (joined by Justice Souter) penned a brief concurrence stating that Congress does not have the authority to regulate costs in original jurisdiction cases but joining the main opinion because it did not make a holding on this topic.

The result is unsurprising and Justice Alito’s opinion was anticipated by the question he posed to Attorney General Stephen Six at oral argument, as covered here at the time:

“Ultimately the case may come down to a question Justice Alito asked of Six fairly early on in proceedings where he asked what limit, if any, the court should set if Kansas won the argument, and why the Court should not follow the Federal rule on its own authority and set a limit of $40 per day itself. Six never managed to answer this question in a convincing way and a number of the other Justices returned to it asking him what was different about this case compared to non-original jurisdiction cases that would justify a limit higher than $40. In retrospect it seems surprising that for all the preparation put into the case that there was no answer to this question readily available to Six.”

More generally, this case seems to be a textbook example of Chief Justice Roberts’ and Justice Alito’s goal of advancing judicial minimalism. The Court resolved the case at hand, but made no constitutional holdings whatsoever, and made no determination as to whether Congress was attempting to regulate original jurisdiction cases either. In its dicta it made reference to the ‘American Rule’ that litigants should bear their own costs, but neither endorsed not criticized it, thus avoiding dueling concurrences from the liberal and conservative wings of the court.

Attorney General Six thus fails to emulate his predecessor (but one) Phill Kline and win a case at the U.S. Supreme Court. Yet, his office does get a second bite of the cherry, since that Court is still considering its opinion in Kansas v. Ventris where Kansas seeks to overrule the Kansas Supreme Court on a matter of criminal law. Six did not personally argue that case, however.

Oral Argument in Kansas v. Ventris

January 22, 2009

January 21st. The United States Supreme Court today heard oral arguments in Kansas v. Ventris, an appeal by the State of Kansas against the ruling of the Kansas Supreme Court that evidence gathered by a police informant in violation of a defendant’s Sixth Amendment right to counsel could not be admitted to contradict the defendant’s testimony at trial (impeachment purposes). Background on this case can be read here and here. Argument time was divided between Stephen McAllister (Solicitor General of Kansas), Nicole Saharsky (of the United States Solicitor General’s Office, in support of Kansas) and Matthew Edge (Kansas Appellate Defenders Office).

The argument was surprisingly muted – normally counsel appearing before the Court have a great deal of trouble getting through their arguments without questions from the Justices. On this occasion however pages of the transcript go by between questions! Perhaps the most memorable thing about it will be that Justice Ginsburg used the word ‘snitch’ instead of the more neutral ‘informant’ no fewer than six times.

Justice Scalia’s questioning revolved around where the Sixth Amendment violation occurred – with the informant in the cell or with the testimony at trial, something that none of the three lawyers arguing the case was able to answer in a convincing manner. This will be important since Ventris’ argument depends upon casting the Sixth Amendment as a right which guarantees certain procedural aspects of the entire prosecution process, while Kansas and the United States argue that the rule against questioning someone without a lawyer present from Massiah is more akin to  Miranda rights, evidence gathered in violation of which can be brought up for impeachment purposes. However, Scalia left few hints about which way he was thinking.

This distinction will also be important to Justice Breyer, who stated that he viewed the purpose of the Right to Counsel to be to ensure that if you ask for a lawyer you get one. He thought that the conduct of the police here was more akin to an ethical violation (talking to someone without a lawyer present after they had asked for one/were eligible for one) but did not seem willing to constitutionalize that ethical rule.

In addition, Justices Thomas, Souter and Kennedy asked no questions at all, making the case a hard one to predict. However, since Justice Alito and the Chief Justice were clearly on the side of Kansas while only Justice Ginsburg was on Ventris’ side, coupled with the fact that expansions of the exclusionary rule are pretty uncommon these days, I’d expect a reversal. Several of the Justices were a little uneasy about the idea of appearing to license the police to violate the constitution so if they do reverse, we might expect some narrowing language that talks about the specifics of this case.

US Supreme Court Preview – Kansas v. Ventris (Analysis)

January 1, 2009

This post continues from the background to the case which was published previously. Since the Kansas Supreme Court’s decision in State v. Ventris was based on rights guaranteed in the Federal Constitution the U.S. Supreme Court has jurisdiction to review it. The State of Kansas filed a certiorari petition which the Supreme Court granted, and the case will be argued on January 21st 2009.

Before proceeding any further, it should be noted that in the background of this case is a much bigger issue than the immediate concerns of Mr Ventris, or even the main issue of the introduction of this type of evidence for impeachment purposes. The Warren court decided in Massiah v. United States (1964) that once criminal proceedings had commenced (the right to counsel is said to be attached at this point), statements made by the defendant without his lawyer present were inadmissible. Massiah is a far reaching case, but one which the Court has seemed to back away from in more recent years. When the issue was last addressed in Michigan v. Harvey (1990) the Court explicitly noted that it was not addressing the use of such statements for impeachment purposes. Now, that that latter issue is before it there is clearly fear on the part of the Respondents that the U.S. Supreme Court will trim back Massiah if it finds for Kansas.

In its appeal, Kansas argues that the Kansas Supreme Court erred in its application of an exclusionary rule to evidence used for impeachment purposes. The state argues that as it has crafted its exclusionary rules the U.S. Supreme Court has clearly differentiated between evidence that is admissible in the case in chief and evidence that is only available for purposes of impeaching a defendant’s testimony. Citing caselaw concerning the 4th, 5th and 6th amendment exclusionary rules the state argues that to disallow the use of this kind of evidence for this purpose would create a ‘license to commit perjury’ and that any exclusionary rule crafted should balance between the protection of the underlying constitutional rights and the Trial Court’s role as a truth-seeker. The proper balance it says is to block such evidence only in the case in chief. It notes that well known exclusionary rules such as those stemming from illegal seizures and Miranda rights do not prevent the use of such evidence for impeachment purposes.

The State further argues that the purpose of exclusionary rules is to deter future misconduct by police. Losing the evidence for those purposes is bad enough to deter future miss-steps. It is worth noting at this point that this is an appeal of a conviction for aggravated robbery. Had Ventris’ statements to Doser been admissible in the main case, perhaps he would not have been acquitted of felony murder. The State also makes the argument that other deterrents exist given the increasing professionalization of the police and the existence of Bivens actions and 1983 suits.

The State also takes issue with the Kansas Supreme Court’s use of the term ‘prophylactic rule’. It argues that ,while this is a useful analytical term to describe how the U.S. Supreme Court has crafted its rules, citing it in the way it did the Kansas Supreme Court elevated it to the status of a ‘legal talisman’ that it does not warrant. Perhaps this argument is designed to show a lack of textual fidelity to get the attention of the conservative Justices.

Ventris’ argument takes a different approach. His brief draws a distinction between different types of exclusionary rules – those that protect a constitutional right itself and those that are ancillary to the right. It is these latter ones which have exceptions for impeachment purposes. For example, in the case of the Fourth Amendment and an illegal search, it is the police search which was the violation, not the admission of the evidence at trial. Thus the rule excludes the evidence from the case in chief as a deterrent but does not eliminate it altogether. In contrast, the right to avoid self incrimination concerns the trial itself and is therefore totally exclusionary. At its heart, Ventris’ argument is that the 6th Amendment right to counsel is fundamental to the adversarial process which in turn is fundamental to justice, and that since it is inextricably connected to the trial the only remedy for a violation is total exclusion. His brief cites Powell v. Alabama (1932) for an eloquent argument of why a defendant needs a lawyer in the pre-trial process. This case, he reminds the Court, was why the right to counsel was extended to apply before trial, since today much interrogation happens before any trial which was not the case at the time of the Founding.

As a backup position the brief argues that even if the U.S. Supreme Court does find an exception to the exclusionary rule it should not be as broad as that sought by Kansas but should be limited to cases where a defendant is clearly lying.

Kansas is supported by three amicus briefs. The first two of these (from the United States, and from 24 of the States) break no new ground but underpin and expand on Kansas’ core arguments. The third, submitted by the Criminal Justice Legal Foundation is noteworthy.  While the first section of this brief ties back to the Ventris case, much of it is devoted to an analysis of Massiah, its origins and an argument that Massiah has been superseded by the Court’s holding in Kuhlmann v. Wilson (1986) which allowed confessions collected by a passive listener. The brief focuses on the voluntary nature of Ventris’ conversation with Doser and makes the argument that it should not be classed as an interrogation at all, and therefore Ventris should have no 6th Amendment rights at issue. The brief suggests that the decision of the Kansas Supreme Court was motivated by hostility to informants.

An interesting piece of trivia is that the same passage from Powell, which the Respondents’ brief cited is contained in the CJLF brief too, where it is used to argue that the purpose of the 6th Amendment is to protect a right which exists in the critical stages of a prosecution and that extending those to include the circumstances of this case is too much.

We will have more coverage of this case, when it is argued before the U.S. Supreme Court.

US Supreme Court Preview – Kansas v. Ventris – Background

December 30, 2008

In January of 2004, after a night spent abusing marijuana and methamphetamine Donnie Ray Ventris and his girlfriend Rhonda Theel went to the house of Ernest Hicks to confront him over rumors that he was abusing his girlfriend’s children. What happened inside the house remains clouded, with conflicting accounts but a few facts are undisputed. Hicks was shot to death and both Theel and Ventris made off with his truck, cell phone and several hundred dollars in cash. Ventris and Theel were apprehended a few days later, and Theel entered into a plea agreement to testify that Ventris was the shooter. The State charged Ventris with Felony Murder, Aggravated Burglary, Aggravated Robbery and misdemeanor theft. In a classic he-said she-said situation, both Ventris and Theel testified that the other had produced the gun and shot Hicks.

While in police custody, detectives had recruited Johnny Doser, a probation violator, to share a cell with Ventris and listen to what he had to say. In the course of the time they were in the cell together Ventris told Doser that he had been involved in a robbery that ‘went sour’ and that he had shot and robbed Hicks. At trial, Ventris’ attorney objected to Doser’s testimony arguing that his deliberate placement in the cell to have conversations with Ventris amounted to an interrogation without the benefit of counsel, a 6th Amendment violation. The State conceded the constitutional violation, but successfully persuaded the Trial Court that the testimony be allowed to impeach (i.e. contradict) Ventris’ testimony that Theel was the guilty party.

The jury acquitted Ventris of the murder and theft charges but convicted him of the robbery and burglary ones. Ventris appealed, and after losing in the Court of Appeals won a 6-1 decision of the Kansas Supreme Court, which held that statements obtained in breach of the 6th Amendment Right to Counsel are not able to be introduced at trial for any purposes at all. In reaching this decision, in an opinion by Justice Rosen, the Court looked at the history of 6th Amendment Right to Counsel claims, along with the history of exclusionary rules.

The Court found that some exclusionary rules (such as Miranda) are ‘prophylactic’ ones created to protect a constitutional right but not embodying a right in themselves. In these cases evidence may be admitted which was collected in breach of them to impeach the contradictory testimony of the accused, per existing U.S. Supreme Court precedent. It found in other cases where exclusionary rules are part of the constitutional right itself, that the exclusion was total. Noting that the United States Supreme Court had not ruled on this issue, it found that while most courts that had addressed it had ruled in the same way as the Trial Court, the Supreme Court of Maine had decided the issue the other way. Having discerned the two approaches it opted for the latter and blocked the admission of this type of evidence. The opinion itself dwells a great deal on the clandestine nature of the use of jailhouse informants. It notes that the 6th Amendment requires a defendant to make a knowing and voluntary waiver of their right to counsel once prosecution has commenced and holds that this cannot happen with an undercover informant.

Chief Justice McFarland dissented. In her view not only was the evidence admissible, but the State was wrong to have accepted that the evidence was obtained in violation of any constitutional right. She felt that an argument could me made to allow it in the main case. Her argument was that the U.S. Supreme Court’s case law on the subject was driven by the issue of whether the statements were made voluntarily or not (in this case they clearly were), and that they would only be barred if involuntarily made.

US Supreme Court: you’ve got our attention. Now what?

December 15, 2008

This post originally appeared at The Kansas Progress, before this blog went live. Consequently the date in the title does not tally with the date on the post.

December 1st. Kansas Attorney General Stephen Six spent Monday morning in Washington DC where he argued on behalf of his state in the Supreme Court in the case of Kansas v. Colorado. This is (potentially) the final chapter in over a century’s disputes over water rights to the Arkansas River. The merits of who did what are long settled (Colorado took water it should not have and has now paid compensation) but this action popped up over a question of whether the costs (which Colorado must pay) of Kansas’ expert witnesses in the case should be capped at the Federal limit of $40 a day as specified by Congress. Kansas argues that since the case is being heard in the Court’s original jurisdiction and not on appeal, the Federal rule should not apply. Victory in this case is worth about $9m to Kansas.

Six squared off against his counterpart from Colorado John Suthers. While questioning is not dispositive of results it is obvious from the transcript that the Justices were more skeptical of Six’s arguments than those of Suthers and spent more time questioning him. At the same time there was obvious sympathy from some of the liberal justices towards Kansas since the $40 per day allowed does not come close to covering the true cost of an expert witness. Justice Breyer went furthest, hinting at his dissatisfaction with the way costs are capped by statute. Justices Kennedy and Stevens were concerned about what other fees (e.g. Attorney’s fees) might be recovered differently in future original jurisdiction cases if Kansas won. At the same time Chief Justice Roberts and Justice Scalia were most responsive to Kansas’ argument that since the case was in the Court’s original jurisdiction, Congress could not limit costs in such cases. The Justices were sensitive to their own independence in this area and Colorado did  little to answer them.

Ultimately the case may come down to a question Justice Alito asked of Six fairly early on in proceedings where he asked what limit, if any, the court should set if Kansas won the argument, and why the Court should not follow the Federal rule on its own authority and set a limit of $40 per day itself. Six never managed to answer this question in a convincing way and a number of the other Justices returned to it asking him what was different about this case compared to non-original jurisdiction cases that would justify a limit higher than $40. In retrospect it seems surprising that for all the preparation put into the case that there was no answer to this question readily available to Six. So, should the Court subtly tweak Congress’s nose on this and rule that the Federal law in question does not apply here, Kansas may yet not recover its $9m.

Or the court might send that item back to the Special Master who has been trying this case since 1986 (and thought he was done) for a final, final report.


In other Kansas-related news the Supreme Court denied review of Kansas v. Smith, where the Kansas Supreme Court held that police may not seek consent to search a passenger’s purse if that is unrelated to the reasons for the traffic stop. The ruling from Topeka therefore stands. [H/T ScotusBlog]