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KU law professor wins Supreme Court case for Kansas

Wednesday, June 3, 2009

LAWRENCE – Assisting the state of Kansas and Attorney General Steve Six, L’93, a University of Kansas School of Law professor won a U.S. Supreme Court case that allows incriminating statements obtained by a jailhouse informant to be used to contradict a criminal defendant’s testimony.

Stephen McAllister, professor of law and a 1988 KU Law graduate, argued for the state in the case of Kansas v. Ventris in January in his role as Solicitor General of Kansas. In a 7-2 decision issued April 29, the Court held that such statements, obtained in violation of the Sixth Amendment right to counsel, are admissible even though the prosecution would be barred from using such tainted evidence as part of its case in chief.

The decision arose from the case of Donnie Ray Ventris, who, with his girlfriend, Rhonda Theel, confronted Ernest Hicks in Hicks’ home in 2004. Hicks was shot and killed during the confrontation, though Ventris testified at trial that Theel robbed and murdered the victim. As rebuttal to Ventris’ denial that he shot Hicks, the state offered testimony from a jailhouse informant who prior to trial had been placed in Ventris’ cell, and who testified that Ventris admitted the crimes.

Although the state conceded that placing the informant in Ventris’ cell to elicit statements violated Ventris’ Sixth Amendment rights, the state argued that the informant’s testimony was still admissible for impeachment purposes when Ventris testified and denied wrongdoing. The trial court agreed and admitted the informant’s testimony. The jury acquitted Ventris of murder but convicted him of aggravated robbery. The Kansas Supreme Court reversed Ventris’ conviction, holding that a defendant’s statements to an undercover informant after the right to counsel has attached are not admissible under any circumstances.

In an opinion by Justice Scalia, the Supreme Court of the United States reversed, holding that statements obtained in violation of a defendant’s Sixth Amendment rights are admissible for impeachment purposes.

Matthew Edge, an assistant appellate defender and 2002 KU Law graduate, represented Ventris.

McAllister has argued four cases before the Supreme Court, two for Kansas and two for private clients. He has also second-chaired and done the briefing for three other Supreme Court oral arguments.

His law students were keenly interested in his experience litigating the Ventris case.

“My own experience litigating Supreme Court cases makes me a more effective teacher of constitutional law because I have not just read the end product – a Supreme Court opinion – but actually have participated in the creation of that product. Standing in front of the justices, looking them in the eye and responding to their questions gives one a deep appreciation of the human aspects of Supreme Court litigation, aspects that I hope to convey to my students,” McAllister said. “Those aspects include the personalities of the justices, the nature of the decisional process and the difficulties and anxieties that lawyers face when appearing before the Court. 

“I hope my appellate experiences convey a couple of other points to our students, too, including that KU Law graduates have the skills and talent to appear before the Supreme Court and that even the students’ professors continue to learn about the law and tackle new challenges. Legal education does not end with law school; in many ways, it only begins.”

McAllister said Ventris is not likely to have much impact on most future cases, although it will affect criminal cases occasionally. And, he said, the decision makes the exclusionary rule consistent across several constitutional rights – Fourth Amendment and Miranda, for example – where the Court has said that excluding tainted evidence from the government’s case in chief is a sufficient deterrent to police misconduct.

“Going further and excluding evidence for all purposes, including impeachment, can permit defendants to perjure themselves if they testify,” McAllister said.

McAllister, a former KU Law dean, teaches Constitutional Law, Constitutional Litigation and Torts. Prior to joining the faculty in 1993, he clerked for Justices Byron White and Clarence Thomas at the U.S. Supreme Court, and Judge Richard Posner at the U.S. Court of Appeals for the Seventh Circuit.