Massiah violation?

By G. Patrick Callahan, Prisoner of the Drug War

I have a pre-indictment Massiah violation in my particular case, now pending in the district court. I assumed it was a rare bird until my cellie­­through the Freedom Of Information Act (FOIA)­­found out he may have had one too. I got to thinking, just how common are Massiah violations? I suspect they are very routine, and a Massiah violation can reverse your case sportsfans. - Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246 (1964).

The gist of Massiah is that, once you have been formally charged, invoked your Fifth Amendment right and retained counsel, the government is prohibited from interrogating you upon the charges you are arrested on: the ones you have retained counsel for. This does not apply if you are arrested, for example, on a drug charge and have invoked your rights for that charge and are merely suspected of some other unrelated crime and the police or a snitch question you on the uncharged unrelated offense. They can do that.

In the Massiah context, therefore, the invocation of your Fifth Amendment right against self-incrimination and your Sixth Amendment right to counsel is "offense specific" covering you on pending charges only. The Massiah doctrine cannot be applied if you were openly or secretly interrogated before being formally charged, before you invoked your Fifth Amendment privilege and before you retained counsel. If you attempt to raise a Massiah claim under those circumstances the court will promptly deny your petition, so don't waste your time.

What constitutes an interrogation, you may be wondering? Obviously, if you have had formal adversarial charges lodged against you and the authorities disregard your Fifth Amendment right against self-incrimination and ask you questions without your attorney being present upon your pending charges, this is an overt Massiah violation. But there are other, more insidious methods. The government might have compromised your attorney, or an acquaintance or relative might have been working for the police. A jailhouse informant might have questioned you, and you may or may not have been tape-recorded. However it is done, a Massiah violation exists when an agent of the state deliberately elicits information from you concerning the discrete crime for which you are charged, especially of a nature that would tend to incriminate you. See also Michigan v. Harvey, 494 U.S. 344, 108 L.Ed.2d 293 (1990); Maine v. Moulton, 474 U.S. 159, 88 L.Ed.2d 481 (1985). If you can show that this information or more likely the informant's live-witness testimony has been used against you at trial, your case should be reversed.

There is emerging case law that the Massiah doctrine also applies in the pre-indictment phase as well, a natural assumption. It could be that these kinds of violations are pandemic in the American criminal justice system, another extension of the drug war exception to the Bill of Rights. Perhaps the best treatise on the subject is found in U.S. v. Lopez, 765 F. Supp. 1433, 1450 (N.D., Cal. 1991) vacated 989 F.2d 1032 (9th Cir.) amended and superseded, 4 F.3d 1455 (9th Cir. 1993). With the advent of the Thornburgh Memorandum on June 8 1989, which attempted to give prosecutors carte blanche power to disregard the so-called "anti-contact rule," DR 7-104(A)(1), many prosecutors felt they could cast aside the constitutional rights of an accused by overtly or surreptitiously contacting the represented person without his lawyer's consent. Judge Marilyn Patel rendered an excellent dissertation of this abuse of power in Lopez, and declared that these violations promised to wreak havoc in criminal trial courts across the United States. Since that time courts have rejected the Thornburgh Memorandum and the notion that U.S. Attorneys are exempt from the ethical rules, see U.S. v. Ex Rel. O'Keefe v. McDonnell Douglas Corp., 961 F. Supp. 1288, 1294 and n.7 (E.D. Mo. 1997). U.S. Attorneys could well be disbarred for such violations, see Matter of Doe, 801 F. Supp. 478 (D.N.M. 1992); United States v. Ferrara, 847 F. Supp. 964 (D.D.C., 1993) and ultimately United States v. Ferrara, 54 F.3d 825 (D.C. Cir. 1995).

The Lopez case was reversed because, although the Ninth Circuit agreed with the premise, it decided that actual prejudice to Lopez had not occurred. While we agree with Judge Patel (that once you lose your attorney of choice through purposeful government meddling you ought to have been deemed prejudiced), under the Supreme Court's holding in Bank of Nova Scotia v. United States, 487 U.S. 250, 101 L.Ed.2d

228 (1988), a defendant must show actual prejudice for a finding of plain error. To show actual prejudice in the pre-indictment grand jury phase or at trial, you must show that the fruits of the government intrusion were used against you.

See U.S. v. Marshank, 777 F. Supp. 1507 (N.D., Cal. 1991); U.S. v. Lin Lyn Trading, Ltd., 925 F. Supp. 1433 (D. Utah 1996); U.S. v. Sabri, 973 F. Supp. 134 (W.D., N.Y. 1996). Take a look at Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) and United States v. Sam Goody, Inc., 518 F. Supp. 1223 (E.D., N.Y. 1981). In Marshank the accused's own attorney was helping the government, but more usually it is a surreptitious interrogation of an accused without the knowledge of his attorney that will spark a Massiah violation.

If the government tried to tack on a witness tampering charge to "justify" its interrogation on your pending case, that won't cut it, see United States v. Mitcheltree, 940 F. 2d 1329 (10th Cir. 1991). A witness tampering charge cannot be used to "exploit" a Sixth Amendment violation. If all this occurs between your arrest and indictment, your indictment itself may be tainted, a real possibility in the Constitution smashing era of the Thornburgh Memorandum. This is another reason for you to pursue your rights under the FOIA/PA. The November Coalition is now providing you with a step by step guide. (Click here for a downloadable PDF copy.) So stay tuned.