Wednesday, April 29, 2009

Why Judges Matter, Part 3

U.S. Supreme Court decisions are issued throughout the year, from October to June, so rarely are two decisions issued on the same day that so clearly illustrate the vast judicial philosophy gulf separating conservative from liberal judges. This rare event occurred today, however, with the Court's decisions in Kansas v Ventris and Dean v U.S. Fortunately, the majority opinions were authored by Justice Scalia and Chief Justice Roberts. Both were 7-2 decisions, with Justice Stevens in dissent in both cases.

In the Ventris case, Donnie Ray Ventris and his girlfriend, Rhonda Theel, shot and killed one Ernest Hicks with a .38-caliber revolver, and then drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On a tip from the "friends" who drove Ventris and Theel to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter. Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and … a vehicle.”

At trial, Ventris took the stand and blamed everything on Theel (who says chivalry is dead?). The prosecutor then asked to call the jail cell informant to impeach Ventris's testimony. The trial court let the testimony in and Ventris was convicted. The Kansas Supreme Court reversed the conviction, holding that allowing the informant to testify violated Ventris's Sixth Amendment right to counsel during all custodial interrogation. The US Supreme Court then reversed and reinstated the conviction, finding that the Sixth Amendment would prohibit the prosecution from using the informant's testimony as part of its case in chief, but once Ventris testified, the informant could be used to impeach him. As the prosecution put it at trial, the Sixth Amendment “doesn’t give the Defendant … a license to just get on the stand and lie.”

In the Dean case, Christopher Michael Dean, wearing a mask, entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. Fortunately, no one was hurt. At trial, Dean admitted the robbery and was convicted.

Federal law imposes additional, mandatory sentences on defendants for using firearms during crimes -- 5 years for carrying one, 7 years “if the firearm is brandished” and 10 years “if the firearm is discharged.” Dean appealed the additional 10-year sentence he got because the gun went off, claiming that it was an accident. The Supreme Court affirmed the added sentence, finding no requirement that the defendant intend for the gun to discharge. In part of his opinion, Chief Justice Roberts quoted from one of history's greatest legal writers, on whom much of our common law relies:

“[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.” 4 W. Blackstone, Commentaries on the Laws of England 26–27 (1769).

Justice Stevens dissented in both cases, finding on behalf of the criminal each time, despite the fact that there was no doubt about guilt in either case. He described the Ventris decision as "another occasion in which the Court has privileged the prosecution at the expense of the Constitution," despite the fact that, as Justice Scalia observed, "we have multiple times rejected the argument that this “speculative possibility” [that police will use informants solely to gain impeachment material for the unlikely event that the defendant will testify] can trump the costs of allowing perjurious statements to go unchallenged. *** We have held in every other context that tainted evidence—evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid—is admissible for impeachment."

In Dean, Justice Stevens found that an intent to discharge the weapon must be found, despite the absence of any statutory requirement for intent. This conclusion is so obviously inconsistent with his decision in Ventris that the only way it can be reconciled is to observe that, in both cases, Stevens would have ruled for the guilty defendant instead of the prosecution.

Stevens would exclude the informant's testimony in Ventris, despite the fact that it was being used to impeach perjury by the defendant, and regardless of the intention of law enforcement. On the other hand, in Dean, Stevens would protect a criminal who takes a loaded gun to a bank robbery by requiring that the prosecution prove that, if the gun went off, the criminal intended for the gun to go off.

Thus, in Dean, where the criminal is concerned, intent is everything, while in Ventris, where the focus is on the prosecution's conduct, intent is irrelevant.

We expect this kind of flip-flopping inconsistency from our politicians. Are we now relegated to getting it from our judges also? And, what's worse, we're getting it from our Supreme Court justices, who have the highest responsibility of all -- defining, defending, and applying our magnificent Constitution.

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