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16 Lewis & Clark L. Rev. [i] (2012)

handle is hein.journals/lewclr16 and id is 1 raw text is: Lewis & Clark Law Review VOLUME 16 SPRING 2012 NUMBER I ARTICLES Sacrificing Massiah: Confusion Over Exclusion and Erosion of the Right to Counsel James J Tomkovicz.................................. In this Article, Professor Tomkovicz examines the Sixth Amendment right-to-counsel-based exclusionary rule first announced in 1964, in Massiah v. United States. The impetus for this examination is the Supreme Court's 2009 ruling in Kansas v. Ventis-more specifically, that decision's dubious and disingenuous explanation of the constitu- tional rationale for Massiah's exclusion doctrine. The Article describes the original vision of suppression that seemed to animate the ruling in Massiah. It then traces the cryptic development of the Sixth Amend- ment exclusion doctrine through nearly a half-century of post-Massiah opinions. Next, Professor Tomkovicz focuses his attention on Ventris- the first definitive exploration of the justification for barring admis- sions deliberately elicited from uncounseled defendants. The Ventris majority classified Massiah suppression as a mere deterrent safeguard designed to prevent pretrial counsel deprivations. The Court rejected the view that exclusion is a right-that is, that an accused has a per- sonal entitlement not to be convicted based on uncounseled admis- sions elicited by government agents. The Court's understanding of Massiah exclusion runs contrary to the original conception. More important, it is utterly irreconcilable with the nature of the guarantee of pretrial legal assistance that is Massiah's foundation. It ignores the core reasons for the pretrial extension of the right to trial assistance- to preserve a fair adversarial process and to guard the accused against negative courtroom consequences of imbalanced pretrial clashes. Ven- tris rests on the indefensible premises that pretrial assistance exists for its own sake, that constitutional harm is inflicted only before trial, and that damage to an accused's chances for acquittal at trial is not the constitutional concern. This Article proffers reasons why the Justices might have arrived at this hopelessly misguided conception. Those reasons include uncritical, monolithic thinking about exclusionary rules, palpable, abiding hostility toward constitutional suppression doctrines that defeat the search for truth, and dissatisfaction with Mas- siah's extension of the right to counsel's assistance. Finally, the Article discusses the pragmatic consequences of Ventriss impoverished vision, concluding that constraints imposed on Fourth Amendment exclu- sion-another purely deterrent bar to evidence-will surely be imposed on Sixth Amendment suppression. As a result, the right-to- counsel exclusionary rule will be constrained in ways that would be impossible if the Justices acknowledged the true constitutional right character of Massiah's evidentiary bar. According to Professor Tomkovicz, Ventis's legacy-an array of restrictions on the reach of the Sixth Amendment exclusionary rule-will pose a genuine threat to the vitality of the fundamental right to the assistance of counsel.

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