7 1 2009 Legal Update

Three Recent US Supreme Court Cases Impacting Law Enforcement ©2009 by Jack Ryan, J.D. PATC / LLRMI Written For and Distributed by Public Agency Training Council. For duplication & redistribution of this article, please contact the Public Agency Training Council by phone at 1.800.365.0119.

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CASES: ARTICLE 1: Montejo v. Louisiana (Miranda and the consequences of Interrogation) ARTICLE 2: Melendez-Diaz v. Massachusetts (Defendant cross-examination of Toxicology report) ARTICLE3: Kansas v. Ventris (Statements taken in violation of 6th Amendment and Impeachment)

ARTICLE 1: Montejo v. Louisiana

Supreme Court Overturns Michigan v. Jackson

Miranda Sufficiently Informs a Defendant of the Consequences of Interrogation On May 26th 2009 the United States Supreme Court overturned its prior decision in Michigan v. Jackson which precluded law enforcement from attempting to interrogate a defendant once the defendant was arraigned and requested the appointment of counsel. The facts on Montejo v. Louisiana1 were outlined by the Court as follows:

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Montejo v. Louisiana, 556 U.S. ___; slip op. 07-1529 ----------------------------------------------------------------------------------------------------------------------------------------------------©2009 Article published in the free PATC E-Newsletter: 800.365.0119 Link to Article online: http://www.patc.com/weeklyarticles/7-1-2009_legal_update.shtml http://www.patc.com | http://www.llrmi.com | http://www.fsti.com | http://www.school-training.com | http://www.patctech.com/ Legal / Liability Online Training Portal: http://www.patc-online.com

“Jesse Montejo was arrested on September 6, 2002, in connection with the robbery and murder of Lewis Ferrari, who had been found dead in his own home one day earlier. Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari’s dry cleaning business. Police sought to question Montejo, who was a known associate of Moore. Montejo waived his rights under Miranda v. Arizona, and was interrogated at the sheriff’s office by police detectives through the late afternoon and evening of September 6 and the early morning of September 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that he had only driven Moore to the victim’s home, and ultimately admitting that he had shot and killed Ferrari in the course of a botched burglary. These police interrogations were videotaped. On September 10, Montejo was brought before a judge for what is known in Louisiana as a ‘72-hour hearing’— a preliminary hearing required under state law. Although the proceedings were not transcribed, the minute record indicates what transpired: ‘The defendant being charged with First Degree Murder, Court ordered N[o] Bond set in this matter. Further, Court ordered the Office of Indigent Defender be appointed to represent the defendant.’ Later that same day, two police detectives visited Montejo back at the prison and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake).After some back-and-forth, the substance of which remains in dispute, Montejo was again read his Miranda rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence. At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death.” In Michigan v. Jackson2 the United States Supreme Court looked at two separate murder cases where the defendants had been arraigned and requested that counsel be appointed to them. In both cases, before the defendants had an opportunity to speak with the requested counsel, the police approached them, gave them Miranda warnings and interrogated them following a waiver. Both of the defendants confessed to the murders and the confessions were used at trial. In 1986, the Court ruled in favor of these defendants and held that once the defendants had requested the appointment of counsel at arraignment, any subsequent interrogation without the presence of counsel would be invalid. In ruling on Montejo’s claim that the letter of apology should not have been introduced, the United States Supreme Court, in a five to four decision, overruled their prior holding in Michigan v. Jackson. The Court concluded that as long as defendant is given Miranda warnings and a proper waiver occurs, the subsequent statement is valid. The Court asserted: “In determining whether a Sixth Amendment waiver was knowing and voluntary, there is no reason categorically to distinguish an unrepresented defendant from a represented one. It is equally true for each that, as we held in Patterson, the Miranda warnings adequately inform him ‘of his right to have counsel present during the questioning,’ and make him ‘aware of the consequences of a decision by him to waive his Sixth Amendment rights.’”

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Michigan v. Jackson, 475 U.S.625 (1986). ----------------------------------------------------------------------------------------------------------------------------------------------------©2009 Article published in the free PATC E-Newsletter: 800.365.0119 Link to Article online: http://www.patc.com/weeklyarticles/7-1-2009_legal_update.shtml http://www.patc.com | http://www.llrmi.com | http://www.fsti.com | http://www.school-training.com | http://www.patctech.com/ Legal / Liability Online Training Portal: http://www.patc-online.com

In its reasoning the Court asserted cited to prior decisions related to interrogation which arise from Miranda. First, a the suspect is told of their right to counsel and may invoke that right for purposes of the interrogation; second, once the right is invoked all questioning must cease; and third, no further interrogation can occur until counsel is actually present. The Court asserted: “These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited. If that regime suffices to protect the integrity of ‘a suspect’s voluntary choice not to speak outside his lawyer’s presence’ before his arraignment, Cobb, 532 U. S., at 175 (KENNEDY, J., concurring), it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.” Thus, law enforcement may now approach a suspect after they have been arraigned and have requested the appointment of counsel. Officers must still give a proper Miranda warning in order for a subsequent confession to be valid. It must be recognized that officers may not badger the defendant into waiving their rights and must still cease all questioning if the defendant invokes their right to counsel upon being advised of their Miranda warnings.

CONTINUE DOWN FOR ARTICLE 2

----------------------------------------------------------------------------------------------------------------------------------------------------©2009 Article published in the free PATC E-Newsletter: 800.365.0119 Link to Article online: http://www.patc.com/weeklyarticles/7-1-2009_legal_update.shtml http://www.patc.com | http://www.llrmi.com | http://www.fsti.com | http://www.school-training.com | http://www.patctech.com/ Legal / Liability Online Training Portal: http://www.patc-online.com

ARTICLE 2: Melendez-Diaz v. Massachusetts

Defendant has Sixth Amendment Right to Confront and Cross-Examine Toxicologist Toxicology Report Insufficient “In 2001, Boston police officers received a tip that a Kmart employee, Thomas Wright, was engaging in suspicious activity. The informant reported that Wright repeatedly received phone calls at work, after each of which he would be picked up in front of the store by a blue sedan, and would return to the store a short time later. The police set up surveillance in the Kmart parking lot and witnessed this precise sequence of events. When Wright got out of the car upon his return, one of the officers detained and searched him, finding four clear white plastic bags containing a substance resembling cocaine. The officer then signaled other officers on the scene to arrest the two men in the car—one of whom was petitioner Luis Melendez-Diaz. The officers placed all three men in a police cruiser. During the short drive to the police station, the officers observed their passengers fidgeting and making furtive movements in the back of the car. After depositing the men at the station, they searched the police cruiser and found a plastic bag containing 19 smaller plastic bags hidden in the partition between the front and back seats. They submitted the seized evidence to a state laboratory required by law to conduct chemical analysis upon police request. Melendez-Diaz was charged with distributing cocaine and with trafficking in cocaine in an amount between 14 and 28 grams. At trial, the prosecution placed into evidence the bags seized from Wright and from the police cruiser. It also submitted three ‘certificates of analysis’ showing the results of the forensic analysis performed on the seized substances. The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.” The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health, as required under Massachusetts law.” Following his conviction, Melendez-Diaz appealed arguing that the admission of the three certificates as opposed to the analyst deprived him of the opportunity to cross-examine the testimonial evidence used against him. The United States Supreme Court, in a five to four decision held that the Melendez-Diaz was deprived of his rights under the Sixth Amendment to confront and cross-examine a witness against him b the introduction of the reports instead of the analyst who conducted the testing. The Court held: “In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were “witnesses” for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be confronted with’ the analysts at trial.”3

CONTINUE DOWN FOR ARTICLE 3

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Melendez-Diaz v. Massachusetts, 557 U.S. ___; Slip Op. 07-591 (2009) ----------------------------------------------------------------------------------------------------------------------------------------------------©2009 Article published in the free PATC E-Newsletter: 800.365.0119 Link to Article online: http://www.patc.com/weeklyarticles/7-1-2009_legal_update.shtml http://www.patc.com | http://www.llrmi.com | http://www.fsti.com | http://www.school-training.com | http://www.patctech.com/ Legal / Liability Online Training Portal: http://www.patc-online.com

ARTICLE3: Kansas v. Ventris

Statement Taken in Violation of the Sixth Amendment is Admissible for Impeachment In Kansas v. Ventris,4 the United States Supreme Court examined whether or not a statement obtained by law enforcement in violation of the Sixth Amendment right to counsel can be used against the defendant for impeachment purposes when the defendant takes the stand and denied that he committed the crime. In its review of the case, the Court outlined the facts as follows: “In the early hours of January 7, 2004, after two days of no sleep and some drug use, Rhonda Theel and respondent Donnie Ray Ventris reached an ill-conceived agreement to confront Ernest Hicks in his home. The couple testified that the aim of the visit was simply to investigate rumors that Hicks abused children, but the couple may have been inspired by the potential for financial gain: Theel had recently learned that Hicks carried large amounts of cash. The encounter did not end well. One or both of the pair shot and killed Hicks with shots from a .38-caliber revolver, and the companions drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On receiving a tip from two friends of the couple who had helped transport them 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. App. 146. 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.” Id., at 154, 150. At trial, Ventris took the stand and blamed the robbery and shooting entirely on Theel. The government sought to call the informant, to testify to Ventris’s prior contradictory statement; Ventris objected. The State conceded that there was “probably a violation” of Ventris’s Sixth Amendment right to counsel but nonetheless argued that the statement was admissible for impeachment purposes because the violation “doesn’t give the Defendant . . . a license to just get on the stand and lie.” Id., at 143. The trial court agreed and allowed the informant’s testimony, but instructed the jury to “consider with caution” all testimony given in exchange for benefits from the State. Id., at 30. The jury ultimately acquitted Ventris of felony murder and misdemeanor theft but returned a guilty verdict on the aggravated burglary and aggravated robbery counts. The Kansas Supreme Court reversed the conviction, holding that “[o]nce a criminal prosecution has commenced, the defendant’s statements made to an undercover informant surreptitiously acting as an agent for the State are not admissible at trial for any reason, including the impeachment of the defendant’s testimony.” In its review the Court noted that the nature of the Constitutional violation impacts whether or not the statement obtained can be used for impeachment purposes. The determination largely depends on whether an explicit 4

Kansas v. Ventris, 556 U.S. ___; slip op. 07-1356 (2009). ----------------------------------------------------------------------------------------------------------------------------------------------------©2009 Article published in the free PATC E-Newsletter: 800.365.0119 Link to Article online: http://www.patc.com/weeklyarticles/7-1-2009_legal_update.shtml http://www.patc.com | http://www.llrmi.com | http://www.fsti.com | http://www.school-training.com | http://www.patctech.com/ Legal / Liability Online Training Portal: http://www.patc-online.com

Constitutional right has been violated or whether the violation was of a Court created rule which enhances a right. For example, if a confession was coerced from a defendant, it would not be available for any purpose at all due to the fact that right against coerced self-incrimination is expressly outlined in the Fifth Amendment to the Constitution. The Court concluded that Ventris’s statement, taken in violation of the Sixth Amendment could be used against him for impeachment of his testimony denying his role in the crime.

----------------------------------------------------------------------------------------------------------------------------------------------------©2009 Article published in the free PATC E-Newsletter: 800.365.0119 Link to Article online: http://www.patc.com/weeklyarticles/7-1-2009_legal_update.shtml http://www.patc.com | http://www.llrmi.com | http://www.fsti.com | http://www.school-training.com | http://www.patctech.com/ Legal / Liability Online Training Portal: http://www.patc-online.com