John G. Roberts, Jr.: We will hear argument next in Case 08-7621, Sullivan v. Florida. Mr. Stevenson.
Bryan Stevenson: Mr. Chief Justice, and may it please the Court: Joe Sullivan was 13 years of age when he was arrested with two older boys, one 15 and one 17, charged with sexual assault, ultimately convicted, and sentenced to life without parole. Joe is one of only two children this age who have ever been sentenced to life without parole for a non-homicide, and no child has received this sentence for non-homicide in the last 18 years.
Ruth Bader Ginsburg: Mr. Stevenson, there's a serious question before we get to the particulars of this case. Justice Kennedy suggested it in the last argument. This -- the time ran out for postconviction relief in 1993, and this petition is brought in 2007. There's a 2-year statute of limitations. Florida said there's a procedural bar; we don't get to the merits of this case.
Bryan Stevenson: Yes, there are two responses. I mean, first of all, with regard to challenges to sentences, Florida law, under Rule 3.850, makes it very clear that a challenge to a sentence can be brought at any time. What the trial court--
Ruth Bader Ginsburg: They said there's a question whether that means an illegal sentence, like the judge gave more than the maximum punishment. Do you have any indication in Florida law that correcting a sentence any time overtakes the limitation on postconviction relief?
Bryan Stevenson: --Yes, we cite in our brief Summers v. State, which is an example of someone challenging their sentence after this Court's decision in Apprendi long after the time would have run.
Sonia Sotomayor: Except the court there applied 39(a) and said: Yes, it's a change in law, but it hasn't been made retroactive.
Bryan Stevenson: That -- that's correct. But the propriety of that determination is exactly what can be -- is engaged in by the State courts, and that's what we simply sought here.
Sonia Sotomayor: But isn't that what the court said here? It said, first of all, Roper doesn't command the results you are seeking; and, second, it didn't make its application retroactive. So wasn't it really consistent with 39(a), the Florida court?
Bryan Stevenson: No, Justice Sotomayor. The only thing the judge said here was that I don't think the reasoning of Roper can be applied to someone serving life in prison without parole.
Sonia Sotomayor: No, that's an unfair characterization. What the judge said was Roper didn't say that it applied to life without parole. That's a very -- vastly different thing than saying that the reasoning shouldn't be applied. It said that we are not choosing to, but that's not what Roper said.
Bryan Stevenson: But our argument -- and I accept that. Our argument was we recognized that Roper dealt with the death penalty as opposed to life without parole, but our argument was that the reasoning of Roper is similarly applicable to someone sentenced to life imprisonment without parole. The trial judge could not evaluate the procedural question without analyzing Roper, and that's what the trial court did. The trial court conceded that if Roper applies, Joe Sullivan is entitled to review.
Antonin Scalia: But Roper was decided under a regime, which I -- I think still exists, that death is different. How could it possibly be thought to apply to this case, which is not a death case?
Bryan Stevenson: Well, because -- because what the Court said in Roper categorically for the first time is that kids are different, and in this context we were arguing--
Antonin Scalia: It said kids are different for purposes of the death penalty, which is different.
Bryan Stevenson: --Well, I think our argument was that they are different for the purposes of sentencing. And what triggered this -- and this is why this is relevant to this procedural question -- was that the State of Florida did apply Roper to juveniles who had been sentenced to death after this Court's decision. And the case we cited to the Florida appeals court, Bonifay v. Florida -- it's on page 38 of our joint appendix -- was a case where Florida implemented that law, and the law under Florida was that death row prisoners sentenced at the time of Joe Sullivan--
Ruth Bader Ginsburg: Let me -- let me--
Bryan Stevenson: --had their sentences reduced to life in prison with parole.
Ruth Bader Ginsburg: --But this judge said: Yes, there's a Federal question in this case: Does Roper render unconstitutional life without parole for juveniles? He answered that question: no. And then he said: There is no other Federal question in the case; I do not reach the question that you are raising, that is, life without parole being cruel and unusual. All -- the only Federal question that, under our rules, I reach is, does Roper cover this case? No. Anything else is procedurally barred. What was wrong with that?
Bryan Stevenson: Well, because under your precedent, if the question -- if the judgment of procedural default is dependent on an analysis, an assessment of Federal law, in any context, then it is not an independent and adequate State ground, and that's the basis on which we--
Anthony M. Kennedy: Well, suppose arguendo we assume that the judge is right, that Roper did not establish a rule that applies in this case. Then what position are you in with reference to the procedural bar? Do you have any other arguments that overcome the procedural bar?
Bryan Stevenson: --Yes, that is the rule would still allow us to challenge the sentence under the notime restriction as it relates to the sentence--
Antonin Scalia: No, no. The only Federal question in the case now -- or at least the preliminary Federal question, the threshold Federal question, is simply whether the State court was right about what Roper did. And if we agree with the State court about what Roper did, then the State's bar automatically applies and that's the end of the case.
Bryan Stevenson: --Well, yes, but if you agree with the State court about Roper did, then we don't -- we are not entitled to relief under -- under either theory, under a merits theory or a default theory, but the point is--
Antonin Scalia: Oh, I don't -- I don't know about that. We -- is the argument here that, unless Roper mandates this result, you don't urge that the Constitution requires it? I don't think so.
Bryan Stevenson: --No. Our argument simply is that the question that the trial judge dealt with here was, in part, dependent on an assessment of the Federal Constitution, whether the Eighth Amendment does constrain a sentence like this. We relied on Roper. The court found that Roper was not available to Mr. Sullivan when his case was on appeal, prior to 1993. Based on that determination, the court then engaged in an analysis. And, again, what triggered this -- and I just want to make this really clear, that death row prisoners after Roper in Florida got a better sentence than Joe Sullivan. They got life with parole eligibility after 25 years. The argument was that that established a reasonable basis for Joe Sullivan--
Ruth Bader Ginsburg: I thought -- I thought Simmons got life without parole. I thought that Simmons's sentence was life without parole.
Bryan Stevenson: --Simmons did, Your Honor, in Missouri. But in Florida, at the point at which these sentences were being imposed, there was no life without parole for capital murder. People convicted of capital murder could -- could only be sentenced to life in prison, with parole eligibility after 25 years. And so the question was generated by this Court's decision in Roper, how is it constitutional under the Eighth Amendment for the death sentence prisoner to get life with parole after 25 years, and Joe Sullivan at 13, convicted of a non-homicide--
Samuel A. Alito, Jr.: Your argument is that because the -- the State judge had to decide whether Roper dictated or required the result that you were asking for, that -- that it's not an independent State ground. That's the argument?
Bryan Stevenson: --My argument is that if Roper applied -- if Roper is relevant -- because what the State courts of Florida have said is that when you are looking at this question there are three things. One, is it a rule from the Florida Supreme Court or United States Supreme Court? Two, is it a rule of constitutional -- of a constitutional nature? Which, obviously, this would be. Three, is it a rule of fundamental significance? That's all. We don't have to establish that--
Samuel A. Alito, Jr.: No, but I'm -- I'm interested in how we decide whether it's independent. If you had cited -- if you said Marbury v. Madison dictates this result, well, the judge would have to decide what Marbury v. Madison required. That's a Federal -- that can be characterized as a Federal question. That would make the -- that would make it -- the State law ground not an independent ground?
Bryan Stevenson: --No, Your Honor. I mean, we could say that -- that some rule that has to do with antitrust applies, but the judge wouldn't have to consider that, wouldn't have to evaluate that; it wouldn't be determinative. Here, the judge could not reject our claim without an analysis of Roper. The judge engaged in that, and let -- let me just point out, this is not a case of procedural default, State court ruling, we are now in Federal habeas. This is a question about jurisdiction. The question that the State is raising is: Does this Court have jurisdiction to review the Federal question that was presented below, when the trial court itself engaged in an analysis of Roper? This Court doesn't lose its jurisdiction to deal with a Federal question when the State court analyzed that question to reach its--
Antonin Scalia: Well, that's true, but once we analyze the question, if we decide, as the trial court decided, that in fact Roper does not demand the result in this case and, therefore, there is no exception to the procedural bar of Florida, which makes an exception where the fundamental constitutional right asserted was not established within the period provided for, once we decide that in fact Roper didn't establish it, you're out of court, it seems to me. Then -- then, automatically, the -- the procedural bar of Florida applies.
Bryan Stevenson: --No, Justice Scalia. The other provision of 3.850 would still allow us to challenge this sentence because it is a challenge to a sentence, and Florida says that there is no time limitation on the challenge of a sentence.
Ruth Bader Ginsburg: Then that would completely overtake the specific provision. I mean, if you say the catchall illegal sentence, open to challenge at any time, then there's nothing left to the specific provision that says 2-year statute of limitations, unless three things.
Bryan Stevenson: That's correct, Justice Ginsburg. Florida applies the provision, the construct that, with regard to challenges to sentences, at least, there is no time limitation. We contend that the more relevant challenge is generated by this Court's decision in Roper. But, even without that, we are entitled to merits review, and no one has argued against that. I mean, it's worth stating here that there was no responsive pleading filed by the State in the trial court. There was no responsive pleading. No one asserted an affirmative defense arguing that these procedural defaults be--
Anthony M. Kennedy: And you say the -- under Florida law, the question is not whether the right was, to use the phrase, "clearly established"?
Bryan Stevenson: --That's correct.
Anthony M. Kennedy: But the right is whether or not -- it had -- what was your phrase? "A significant bearing"?
Bryan Stevenson: That's right. That comes from Summers v. State, which is cited in our brief, Justice Kennedy, where the court has made it clear, because they have to sometimes engage in these questions about what's retroactive, how does it apply? They have done that with regard to Apprendi. They have done that with regard to some of this Court's other decisions in a vast array of areas. Eighth Amendment questions come up all the time before the Florida Supreme Court under that analysis. And with that in context, I don't think there is any real question that this Court has jurisdiction, and that's the issue here: Do you have jurisdiction to review the Federal question that was considered below?
Sonia Sotomayor: Can I--
Antonin Scalia: Did -- did you raise below your assertion that the exception -- that there is an exception for challenging -- for vacating sentences, that there is -- that that is an exception to the normal rule of 2 years' limitation? Did you make that argument below?
Bryan Stevenson: No, because at no point did the State make any argument that we were barred or precluded in any way. On appeal, we did reference the provision in the -- in Bonifay v. State, which was a case that talked about how these provisions can be challenged, how these sentences can be challenged at any time. That was the way the case was presented, Justice Scalia, because at no point did the State ever argue an affirmative defense of procedural default. And that's how the case gets here. It gets here in the posture of a very rare sentence. And I do want to respond to the notion that we are uncertain about what will happen. There's no uncertainty about what will happen to Joe Sullivan if this Court rules in his favor. Florida law clearly states what the next sentencing option is. He could only be sentenced to 40 years in prison with good time and credits available. That's what Florida law says. Under 775.082, anyone not sentenced to life in prison can only receive a maximum sentence of 40 years. And that--
John G. Roberts, Jr.: Why won't the next case we get be an argument that for a juvenile, particularly one as young as -- as your client, 40 years is too long; 40 years doesn't recognize his capacity for moral development within a reasonable period?
Bryan Stevenson: --Mr. Chief Justice, you may get that case and this Court will have to evaluate that. But I think here what we haven't resolved, which I think we have to resolve, is the question of whether life without parole is unconstitutional, whether that's excessive. And I think there's a great deal of evidence to support that this Court should make that finding, in part because of its lack of consensus. There are only nine kids in the entire country that have been sentenced to life without parole for any crime.
John G. Roberts, Jr.: No, but -- I mean, you look at the Federal Government allows this sentence, right? Thirty-eight States allow this sentence. I just don't understand how you can say there is a consensus--
Bryan Stevenson: Yes.
John G. Roberts, Jr.: --that this type of sentence is unconstitutional.
Bryan Stevenson: I think with regard to very young kids, I -- I don't think we can say that the States have adopted or considered or approached this kind of sentence, in part because--
Antonin Scalia: All you have established is that there is a consensus that that sentence should be rare, not a consensus that that sentence should not be available, because most States make it available.
Bryan Stevenson: --I -- I think, Your Honor, that -- that the judgment that they have made it available in some conscious way can't really be defended, because no one who has set the minimum age for imposing a sentence of life without parole has set it as young as -- as 13. When States have taken up this question, they have never said that a child of 13 should be subject to life without parole. What they said is--
John G. Roberts, Jr.: So it would be -- it would be reasonable under your approach to have a different result in these two cases? A difference in terms of consensus or when sentencing is allowed would result in a different result in your case than in Mr. Graham's case?
Bryan Stevenson: --It would be conceivable. It wouldn't be desirable. I'll concede that. But, yes, it's conceivable only in the sense that we know that States like Florida that have created no minimum age for trying children as adults, but have created life without parole for these adult sentencers have created this world where these things are possible. But if you accept that Florida has adopted life without parole for a child of 13, you also have to accept that they have adopted it for a child of 6 or 5, because--
John G. Roberts, Jr.: It seems to me, once -- excuse me.
Bryan Stevenson: --Sorry.
John G. Roberts, Jr.: It seems to me that one way to take that into effect is through our normal proportionality review and in a case by case. Your -- your client -- his crime is horrendously violent. At the same time, he is much younger than in the typical case. And it seems to me that requiring under the Eighth Amendment consideration of his age, as I said earlier, I guess, avoids all these line-drawing problems which seem -- the arbitrariness of the line-drawing seems inconsistent with the notion of the Eighth Amendment.
Bryan Stevenson: I understand your point, Mr. Chief Justice, but I don't think that's the way the Court should proceed, for two reasons: One -- one is that that kind of case by case analysis hasn't worked well for children. It is in part because these kids are so vulnerable, are so at risk in this system, that they end up--
John G. Roberts, Jr.: Well, I thought -- I would have thought your argument that this is so rare suggests that maybe that analysis, to the extent it's permitted under State law, has worked well for children.
Bryan Stevenson: --Well, but -- but I -- I think in many ways it -- it hasn't. I mean, Joe Sullivan never had his case reviewed, never had his sentence reviewed. The lawyer filed an Anders brief on direct appeal. He's been in prison for 20 years and wouldn't be in this Court but for this Court's decision in Roper that created some new categorical exemptions. And I think the problem with the individualized review, as Justice Kennedy wrote actually in Roper, is that in this context, age can actually be an aggravating factor. I mean, the Court could have said in the death penalty context, let's deal with this on a case-by-case basis. We actually have a proportionality review that's enshrined in our capital jurisprudence. States have to do that. But we didn't, because we recognize that there are distinctions between kids and adults that have to be respected by our Constitution, that have to be reflected in our constitutional norms. And I think--
John G. Roberts, Jr.: Well, that's because death is different, is what we said, and because death is reserved, as this Court said in Roper, for the worst of the worst. And we know that life without parole is not reserved for the worst of the worst.
Bryan Stevenson: --But I think it is, Your Honor, for -- for -- for the kinds of crimes that we are talking -- for non-homicides, life without parole is reserved for the worst of the worst. That's what this Court effectively created with its decision in Kennedy. And in that context, the same difference that can be made between kids and adults in the death penalty context, we believe, needs to be made here. To equate the crime of a 13-year-old with a 25 or a 30-year-old, particularly one like Joe Sullivan--
Antonin Scalia: There are a lot of murderers who get life without parole. Not every murderer gets -- gets executed. So how can you say that these are worst of the worst? Murderers are the worst of the worst, and they get life without parole.
Bryan Stevenson: --Yes, they do, Justice Scalia. But my point is that, with regard to non-homicides, life without parole occupies the same kind of end-of-the-line status that the death penalty does with homicide. And to fail to make a distinction between--
Antonin Scalia: Call them the "worse of the worse" maybe, but they are not the worst of the worst.
Bryan Stevenson: --Well, that's one way of characterizing it. I think, though, whatever we say about children and adults, we know that there are distinctions, and those distinctions that were articulated in Roper are applicable here.
Samuel A. Alito, Jr.: What is the categorical rule that you would like us to adopt?
Bryan Stevenson: I would like you to adopt a rule that bans life without parole for any child under the age of 14. And I think that would be supported by the judgment -- that ruling wouldn't actually invalidate a single State law.
Ruth Bader Ginsburg: But that would leave out Graham, then? Your rule, you say under the age of 14, so you are distinguishing your case from Graham's? You are not saying all juveniles, just -- you are setting the line at 14?
Bryan Stevenson: Well, I support -- my client is 13, and there are differences between kids who are 14 and younger and kids who are older. But I support a line that actual draws the line at 18. I think that that distinction can and should be made.
Ruth Bader Ginsburg: Why not Thompson, where the line was 16?
Bryan Stevenson: Well, I mean, the difficulty of course, is that -- and Thompson was a plurality opinion. We don't -- you could draw the line anywhere. And we briefed our case recognizing that this Court has discretion. There could be distinctions that could be made between younger kids and older kids, but we certainly support a judgment that all children should be shielded from this age difference. The reason why we make that distinction is because that there are legal distinctions. There are States that have set the minimum age for trying kids or imposing these sentences of life without parole at 16 or 17. We do recognize long traditions on the age of 14. In the Court's opinion in Stanford v. Kentucky authored by Justice Scalia -- you referenced this earlier -- at common law we recognize that there was a rebuttable presumption that children 14 and younger could not be tried for felonies, that they were incapable. And so, we are just arguing that these distinctions can be made.
Ruth Bader Ginsburg: What -- what about a homicide, a 13-year-old?
Bryan Stevenson: It's our position that, based on the incidence of these sentences, that even between non-homicide and homicide, no child of 13 should be sentenced to life imprisonment without parole. That is, only -- in 44 States, no child for any kind of crime has received that kind of sentence. And this notion that we -- we have to think about who children are in the context of this -- for the crime of rape, the median sentence in this country is 10 years.
Ruth Bader Ginsburg: But you -- you are differentiating your position based on young age from Graham's counsel, who said for murder, even in the case of a youthful offender, life without parole is an appropriate -- is an available sentence?
Bryan Stevenson: That's -- that's right, Your Honor. That -- that is, we think that the data, that is the consensus, would support both from an age perspective and from a consensus perspective an absolute ban on life without parole for any child of 13. It -- it has been rejected by virtually every State in terms of its application. It has been rejected by many States in terms of its even concept. I mean, there are a lot of States in this country where you can't get any kind of adult sentence for a crime at 13. We don't--
John G. Roberts, Jr.: So your line is 13, and for obvious reasons. Another line is going to be 16 for obvious reasons. When the 15-year-old comes in, he is going to say 15, the 17-year-old -- and that it seems to me is why drawing the line on the basis of the Eighth Amendment -- there's certainly nothing in the Eighth Amendment that suggests there is a difference between 16 and 17. Everybody with a different client is going to have a different line, which suggests to me that it ought to be considered in each individual case.
Bryan Stevenson: --I guess we make these categorical distinctions in lots of contexts, not just in the death penalty context. We appended to our brief hundreds of laws that draw lines, that say if you are 14 you can't drive, you can't enter into a contract.
John G. Roberts, Jr.: Well, but that's because that's a policy judgment by the legislature. Here we are talking about the dictates of the Eighth Amendment. And the idea that the Eighth Amendment draws those kinds of arbitrary distinctions is one that I don't understand.
Bryan Stevenson: Well, it is this Court's history. That is, in Thompson you drew a line between 15 and those who are younger. In -- in -- in Roper you have drawn the line at 18 and 17. In other contexts, we wrestle with this all the time. In Atkins, you had to draw a line of defining mental retardation in some sphere. What we are ultimately arguing is that there are people who are vulnerable, that there are people who need protection, and children are some of those people. Their diminished capacity, their diminished culpability, their inability to be responsible, their vulnerability to negative peer pressures, and their capacity to change and reform is what we think generates this question, and we think it's an honest question.
Antonin Scalia: It depends on how horrible the crime is that they've committed, doesn't it? But you say it doesn't. It doesn't depend upon how horrible it is and how much retribution society demands.
Bryan Stevenson: I think for -- for a child of 13 with regard to a sentence of life imprisonment without parole, that is correct, Justice Scalia. I think in our construct, where we don't always impose these sentences even for those horrible offenders, to not recognize the difference between a child and an adult is cruel and unusual. To say to the 13-year-old in this case that you get life without parole, but to the 17-year-old you get 4 years and you are released in 6 months, or to the 15-year-old you get juvenile treatment, speaks to the kind of difficulty we have with the absence of a categorical ban. We make these bans all the time. And I think that the States are capable of implementing them. We cite Gerstein v. Pugh as an example where this Court found time between arrest and presentation to be violative of constitutional norms, and the States were empowered to implement that. With regard to Joe Sullivan, we don't have to speculate. We know what the sentence will be. If he is returned and resentenced, he will be sentenced up to 40 years, or actually the points that were applied to him would recommend a sentence between 27 years and 40 years. And we don't contend that that would be violative of the Constitution, because there is--
Sonia Sotomayor: --Could you go back through the statistics for me? For children under 14, how many are in prison for life without parole for homicide and non-homicide cases?
Bryan Stevenson: --There are 73 children 14 and younger who have been imprisoned for life without parole. They can be found in only 18 States. For the age of 13 and younger, there are only nine kids, and that's including both kids convicted of homicide and non-homicide. For non-homicide, there are only two. They are both in Florida, and Joe Sullivan is one of them. So the universe of children under 14 and younger is very, very small, smaller than what this Court was dealing with in Roper in terms of the number of death sentences, smaller than what this Court was likely dealing with in Atkins. It's what this Court has looked at generally to find consensus. And here, where only 18 States have imposed these sentences, a judgment that this is rejected, this is outside the norms, would be consistent with this Court's precedents in Roper and Atkins and Coker and Kennedy and the other cases.
Stephen G. Breyer: Can you do what you have just done with the category non-homicide cases?
Bryan Stevenson: Yes.
Stephen G. Breyer: Life without parole?
Bryan Stevenson: Yes.
Stephen G. Breyer: Under the age of 18 when committed?
Bryan Stevenson: Yes. That would be 111.
Stephen G. Breyer: One hundred and eleven. Of those 111, how many are in Florida?
Bryan Stevenson: Seventy-seven.
Stephen G. Breyer: Seventy-seven. And of the remaining, how many States are they in?
Bryan Stevenson: Six.
Stephen G. Breyer: Six.
Bryan Stevenson: And with regard to children younger, we're also talking about just the universe of six, 14 and younger, all in Florida. And so it is this absence--
Antonin Scalia: This is non-homicide. Six--
Bryan Stevenson: --Non-homicide, yes, sir. Yes, sir. And so it is this absence of a categorical rule that has created some of these results. There are some other arbitrary features about this population that we've raised in our brief that are concerning. They are disproportionately kids of color--
Samuel A. Alito, Jr.: What is your response to the State's argument that these statistics are not peer-reviewed? And these are statistics, am I right, that you generated yourself?
Bryan Stevenson: --Well, these statistics come from the States' Departments of Corrections, Your Honor. I mean, we -- we gave the State -- the State doesn't contest our data, at least in their pleading, and we don't control these numbers. The Departments of Corrections control these numbers, and where these data are within their power of the State to present, we don't think there's any real question about the reliability of the data that we are relying on.
Sonia Sotomayor: There's a certain number of States that didn't respond at all.
Bryan Stevenson: There are very few. In one study, there were only two States. In the report that we generated, we got the information from all States. I see my white light is on. I'd like to reserve the rest of my time for rebuttal.
John G. Roberts, Jr.: Thank you, Mr. Stevenson. Mr. Makar.
Petitioner Scott D Makar: May it please the Court: As to the data, in our view, the data is unreliable. The data -- unlike the death penalty context, where there is a rich literature of data that's been generated over years on mitigating factors and so forth and there's full regard, the data here is suspect--
Stephen G. Breyer: You say it's suspect. What is your opinion, so far as you can do it, following category: Non-homicide, life without parole, under the age of 18 when committed?
Petitioner Scott D Makar: --Justice Breyer, we have no data on--
Stephen G. Breyer: Not in your own system?
Petitioner Scott D Makar: --Oh, I'm sorry.
Stephen G. Breyer: You don't know how many people in Florida--
Petitioner Scott D Makar: I'm sorry, let me -- in Florida, it was the non-homicide. We--
Stephen G. Breyer: --Non-homicide, life without parole, under the age of 18 when committed.
Petitioner Scott D Makar: --One hundred and fifty.
Stephen G. Breyer: And they say 77?
Petitioner Scott D Makar: They say 77. That's correct. The reason being is that the study they're relying upon, which was generated this summer while this case was pending--
Stephen G. Breyer: What? Sorry.
Petitioner Scott D Makar: --I'm sorry. The reason it's--
Antonin Scalia: You are speaking too fast. I can't understand you.
Petitioner Scott D Makar: --I apologize, Your Honor.
Ruth Bader Ginsburg: Maybe if you raise the -- raise the lectern a bit -- no, the other way.
Petitioner Scott D Makar: The reason why is that the Annino study upon which they rely, which was generated just this past summer, doesn't count a non-homicide offense that happens to also be bundled with a homicide offense. So, for example, if someone went down the street, committed an armed burglary as Graham did, but then they went across the--
Stephen G. Breyer: Okay. Let's -- let's count it their way. Let's say that a -- non-homicide--
Antonin Scalia: Wait. I -- I don't understand what he's saying. Can I understand this first? He's there for the homicide offense or for the non-homicide offense?
Petitioner Scott D Makar: --This is an individual that they don't count.
Antonin Scalia: Yes.
Petitioner Scott D Makar: And this is a person who committed, for example, an armed burglary.
Antonin Scalia: Right.
Petitioner Scott D Makar: And then -- and put in jail and sentenced to life without parole.
Antonin Scalia: For the burglary, not for the--
Petitioner Scott D Makar: Right, non-homicide. But they happened, as the course of a crime spree, to commit a homicide offense down the road at a different location. They don't count that sentence for the non-homicide offense in their data. They undercount the data dramatically. And in addition, the States -- this is not an easy issue. The States have primary offenses and secondary offenses.
Stephen G. Breyer: --So -- so in your example, Mr. Smith was sentenced to life without parole for a robbery. Then you said Mr. Smith also killed someone. Now, was he convicted of killing someone?
Petitioner Scott D Makar: Yes, and he was--
Stephen G. Breyer: Yes. Okay. And so did the judge have in front of him the conviction for the killing of the person as well as for the burglary or whatever?
Petitioner Scott D Makar: --Yes, sir.
Stephen G. Breyer: Yes. Okay. So I think I could count that as a homicide offense. I understand your point. Now, let's suppose that we take those out of it; in other words, for argument's purpose, concede that where there is also a homicide offense, it counts as homicide, not in the set I am asking you about. I'm asking you about the set of those non-homicide offenses, life without parole, and they were under the age of 18 when committed. How many in Florida?
Petitioner Scott D Makar: By our number, it's 150. They say 77.
Stephen G. Breyer: Even though you gave -- said that the reason for the difference was a set of instances that I just asked you to put to the side.
Petitioner Scott D Makar: Well, okay. If you are asking me to accept their number, if they use that definition, that is correct. It would be 77 individuals that would be life without parole. That's correct. And--
John G. Roberts, Jr.: Which of these cases is worse? A 16-year-old committing the crimes that Graham committed; a 13-year-old committing the crimes that Sullivan committed?
Petitioner Scott D Makar: --Well, worse in which sense? I mean, under the Eighth Amendment, which would be--
John G. Roberts, Jr.: My point is, if you had to consider youth as one of the factors that we consider under proportionality analysis, how do you come out?
Petitioner Scott D Makar: --Well, I think certainly in this case we are at the far extreme. We're off the charts. This is one of those unfathomable--
John G. Roberts, Jr.: Off the charts on age or off the charts on violence?
Petitioner Scott D Makar: --Violence, I'm sorry. The violence meaning that this is one of the most severe violent acts that any human being could perpetuate upon anyone else. It was done twice; there was two counts. So in that regard--
Ruth Bader Ginsburg: I'm sorry, which one?
Sonia Sotomayor: What do you mean it was done twice? I thought he raped only one person.
Petitioner Scott D Makar: --Two different -- the woman -- there was two counts of -- of sexual battery in the -- he committed the offense in two different ways upon this woman, and--
Sonia Sotomayor: So your adversary provided statistics to show that other people who have committed rapes have gotten much smaller terms of imprisonment, the average being, I think we were told, 10 years. So explain to me why someone who commits a rape is getting 10 years and this 13-year-old -- it's the most heinous crime for a 13-year-old that justifies life without parole.
Petitioner Scott D Makar: --Well, when we look at the data for sexual battery, there's a distribution, and there's all kinds of factors underlying each of those sentences, and we have hundreds of sexual battery sentences in Florida. Each one is unique, and each one is presented to the trial judge who makes the determination about the sentence. And there are very harsh sentences, certainly, for some offenses and not for others. But to take the notion that one could average them together and walk into court and say, I'm way above the average, I should somehow get an Eighth Amendment remedy, we believe is just the wrong methodology.
John G. Roberts, Jr.: My--
Stephen G. Breyer: So, what is the right -- go ahead.
John G. Roberts, Jr.: --Go ahead.
Stephen G. Breyer: I mean, I think if you want to address it, that the basic argument here is we want a bright line. And the justification for the bright line is (a) it's pretty unusual to have this. So that is one part of the clause. And in respect to it being cruel, you go back to what is supposed to be some kind of rough, basic connection between criminal law and generally accepted principles of morality. And the confusion and uncertainty about the moral responsibility of a 13-year-old is such that it is not -- it is a cruel thing to do to remove from that individual his entire life. You say we're at the extreme. Now that's roughly what's perking around in my mind, and I would like you to reply to that.
Petitioner Scott D Makar: Well, certainly -- and I've got, Mr. Chief Justice, questions about how does age play a role in proportionality and so forth. And I think here that a 13-year-old can commit the most heinous of crimes.
Stephen G. Breyer: That wasn't my point. I guess I wasn't clear. My point was, of course, there can be cases in any set which go in all kinds of different directions. But, as a general matter, human beings are uncertain about how much moral responsibility to assign to individuals in a particular category, and that category roughly corresponds with an age of maturity. So you get into arguments when you get to 10, no; 11, no; 17, yes maybe; 16, yes maybe. But as long as we are around 3 years old, 5, 7, 9, 12, and they want to say certainly 14, we are in that area of ambiguity. And not just we, people all over America, some thinking one way, some thinking another. And that's enough to cut the connection with morality, a strong enough connection that could justify taking the person's entire life away. You see, I'm trying to make a general argument, and maybe I haven't stated it perfectly. But if you can get the drift of what I'm talking about, I would like to hear your reply.
Petitioner Scott D Makar: Sure. Well, I think what you are getting to, Justice Breyer, is that -- two things: One is that the distribution as a function of age. We know that at younger ages the crime occurrence, the incidence, goes down. And that goes to the second point, which is that this is a good thing. It's -- it's a lawful sentence that can be imposed, but it's rare. And we are -- we should be proud of that, that it doesn't occur with a -- with a great regularity. It's an unfortunate thing that it happens, that we have these gross acts of depravity that would justify it even for someone that's very young. Sullivan is not here to tell the Court: I should not be punished. He has told the Court: I can be in jail for the rest of my life. All he is asking for is this opportunity to get out, this parole opportunity. That's what -- what we are talking about. And this issue that he has presented obviously was not one the Florida trial court could have addressed whatsoever. Justice Ginsburg, you hit the nail on the head. To interpret the rules the way they are interpreting our rules in Florida would swallow the 3.850(b)(2) exception that says--
Ruth Bader Ginsburg: Can you tell -- tell us something about that catchall that says an illegal sentence can be reopened at any time, illegal sentence? What -- Mr. Stevenson said that is not limited to just -- the maximum is 15 years and the defendant got 20.
Petitioner Scott D Makar: --Well, that's incorrect. The two rules he is citing to at this point -- one raised in the reply brief -- deal with motions to correct a sentence that exceeds limits provided by law -- that exceeds the limits provided by law. And the Florida courts have held that this is -- in these situations, it's the law in effect at the time of the sentencing. In other words, if -- and -- and then there's the exception under 3.850(b)(2) that says--
Anthony M. Kennedy: That wouldn't apply to the Eighth Amendment?
Petitioner Scott D Makar: --No, because 3.850(b)(2) -- well, I think if, for example, at the time of sentencing--
Anthony M. Kennedy: We're talking about the first sentence of (B), I take it?
Petitioner Scott D Makar: --Right. That's the one they're relying upon: A motion to vacate a sentence that exceeds the time limits provided by law may be filed at any time. That has been interpreted in the Florida courts not to allow a new constitutional right that has been applied retroactively to be raised. It's applied to say: At the time of your sentencing, on the face of it, can -- was there an error that was made? Okay. And -- and to interpret it their way would swallow the exception. Florida is entitled, like every other State, to create a limited exception under its postconviction rules to say: We are only going to consider new fundamental constitutional rights that are applied retroactively. I think, simply put, the Florida trial court couldn't answer the question they want this Court to now answer. It was beyond the trial court's jurisdiction. The court below couldn't create a new right, extend one, or make it retroactive. The trial court did what we would expect the trial court to do here, is take a quick look: What are you asking me to do? Do you want me to apply Roper in a context that it doesn't state? I can't do that. The rule 3.850(b)(2) says I can't do that. And the judge said it on the record here, Joint Appendix 56, 57, and 58: The claim does not fit into the limited category of claims allowed to be brought after the expiration of the 2-year period.
Ruth Bader Ginsburg: Now, what -- during the -- during the time, the postconviction period, would he -- he had an appointed lawyer at trial. Then we know that he has a lawyer in 2007. In between, was counsel available to Sullivan?
Petitioner Scott D Makar: Not as a matter of right, and he did file, I believe, a habeas--
Ruth Bader Ginsburg: No, I mean -- I mean, he does -- he had representation in 2007. He didn't for his first postconviction motion. I'm not asking as a matter of right, but did he, in fact, have counsel during this stage, this--
Petitioner Scott D Makar: --Not -- not that I am aware of, Justice Ginsburg. I mean, he did file a pro se State postconviction challenging the -- the failure to have a semen sample taken and the failure to examine one of his -- his codefendants at trial. And that was a pro se pleading. I have looked at it, and it -- it is actually not bad. It was one, I guess, that was probably done while -- along the -- in the--
Anthony M. Kennedy: What age was he at that point?
Petitioner Scott D Makar: --He would have been approximately, I think, 16, somewhere late teens, I believe; it was a few years after, '89, or '90. It was about 4, so he was about 17, I think, or thereabouts.
Stephen G. Breyer: Do you want to comment on the district court, the -- the -- what -- what the -- your opponent says is that this Florida rule is a rule as the district court applied it that said the following: You have to file a challenge within 2 years. There are three exceptions to that. One and three clearly don't apply. And as to two, Roper isn't clear enough to make it apply. Their response to that is there is no Florida law that says you have to challenge a sentence within 2 years. That Florida courts -- and then they have, like, 14 cases listed here. And the Supreme Court of Florida has said that when you are trying to correct an illegal sentence, that whole part of the statute does not apply. Okay? What's the response to that?
Petitioner Scott D Makar: That's not what those cases stand for.
Stephen G. Breyer: Okay. So what I should do is go look up and see what those cases hold, and -- and you said to the lower court or the court of appeals -- you said their argument is wrong. The 2-year statute does apply. There are three exceptions, and you do not fit within section (B) because. Where did you say that?
Petitioner Scott D Makar: I don't believe there was any State brief filed in opposition to his appeal. That the first district PCA--
Stephen G. Breyer: So the State didn't even deny what he was saying?
Petitioner Scott D Makar: --Didn't deny -- I'm sorry.
Stephen G. Breyer: So the State -- he says that whole section doesn't apply. There is no 2-year statute. And you say Florida did not reply in a brief to that argument?
Petitioner Scott D Makar: No, because I think it was so obvious from the trial judge's order that he was relying on the procedural bar of 3.850(b)(2). The trial court had no -- the trial court couldn't do anything. The trial court couldn't say--
Stephen G. Breyer: All right.
Petitioner Scott D Makar: --I think -- I think Roper applies. And he said it just doesn't apply here. It's barred. I -- I can't do anything more with it. So -- and I think the fact that he took a quick look at the Roper decision and made that determination under Florida law -- this Court said in footnote 10 in Harris v. Reed that the trial court shouldn't be fearful of looking at the Federal issue for -- for fear of having it come up as being a -- establishing Federal jurisdiction. And then in Tyler v. Cain, this Court had a retroactivity issue presented to it as well.
Stephen G. Breyer: In any case, there is a circularity point here, I guess. If we were to say in our opinion -- if we were to say that Roper does hold that there is a fundamental constitutional right which we extend to this case and it applies here, and it applies to the -- retroactively to those whose -- certainly those who are raising the issue, then we would send it back and Florida now would not bar it under this statute, because it would fall squarely within the exception. Is that right?
Petitioner Scott D Makar: That's exactly right, Justice Breyer. If in the Graham case you have a categorical rule that says 18 and under, then prospectively that line is established, and Sullivan could file a postconviction motion under 3.850(b)(2) and pursue it.
Ruth Bader Ginsburg: --You did say in -- in your brief that if Graham should prevail in his petition, that Sullivan would get the benefit of that decision. How, if we -- if we say -- just say there was an adequate independent State ground and we have no authority to do anything more, how would -- how would Sullivan get the benefit of the--
Petitioner Scott D Makar: Well, he could file -- the next day he could file a--
Ruth Bader Ginsburg: --A new -- a new postconviction motion?
Petitioner Scott D Makar: --Absolutely. Absolutely. And that the Florida court would have jurisdiction under the exception to consider, given that it would establish a fundamental constitutional right that's retroactive in application to his situation. So--
John G. Roberts, Jr.: Would -- would the standards applied in that situation be any different than the standards that would apply if you prevailed on his reading of the procedural bar?
Petitioner Scott D Makar: --I'm--
John G. Roberts, Jr.: I'm just trying to see if this jurisdictional issue makes any difference. If you are saying -- it sounds to me like you're saying, well, if he wins, he wins, and, if he loses, he loses. I don't think he cares whether it's under the procedural bar or some other basis.
Petitioner Scott D Makar: --Well, I think that -- but his winning would be hinging upon Graham, rather than winning in this forum today, on a new claim, that the trial court had no jurisdiction to consider in the first instance.
Antonin Scalia: --If I understand you correctly, you are saying he could lose here on the procedural bar, and then win later in the State courts. Is that right?
Petitioner Scott D Makar: But that's premised upon this Court establishing a new fundamental right in Graham, a categorical rule, that would apply to him in his case, retroactive application. That's -- that's possible, and we -- we acknowledge that.
Sonia Sotomayor: What did the Florida -- what do the Florida courts do with that series of cases in your footnote, in the yellow brief, where it did apply Apprendi after? Did it rule that it wasn't retroactive? What did it do in those cases--
Petitioner Scott D Makar: Well, my--
Sonia Sotomayor: --to consider the Apprendi challenges?
Petitioner Scott D Makar: --My recollection is that the retroactivity was there, so that they would apply it, but, frankly, I cannot, as I stand here, I can't tell you all -- what all the--
Sonia Sotomayor: If you are wrong and they did do exactly what your adversary said and considered the issue of the legality of the sentence under Apprendi, does that vitiate your argument here? Is your -- does that make your adversary's argument correct?
Petitioner Scott D Makar: --Well, I don't think that a court here or there that may deviate from the rule would establish the precedent. I think they -- they've cited, in their -- in their brief, the -- the decision of Carter v. State of the Florida Supreme Court, which I think has a pretty good recitation of how the rule operates. And it may be that there's a Fifth District case they rely upon, where the -- the language is a little squishy, but those are -- those are anomalies, and they are not the rule in Florida.
Ruth Bader Ginsburg: Well, if it's not consistently applied, then it's not an adequate ground. If so -- if the citations are correct and Florida sometimes treats it as rigid and sometimes doesn't, then it's not a consistently applied -- not an adequate State ground.
Petitioner Scott D Makar: Well, there is no question that 3.850(b)(2) is consistently and regularly applied. These other rules, I would submit, are consistently and regularly applied. The one -- the two Fifth District opinions they cite -- I have looked at them and the language there, it's ambiguous, it's not exactly clear, but I don't think that the lower court, the lower appellate court's rulings would override the Florida Supreme Court who controls the rules. They set the rules in Florida. They have rulemaking authority. That, somehow, that would throw out the adequacy of the -- of the State law ground. In conclusion, if there are no other questions, we ask that the Court dismiss this on jurisdictional grounds. Alternatively, we ask, as to this case and the others, that -- that the questions presented should be addressed and answered, which is whether there's a categorical ban and -- that they do not -- a categorical ban does not exist. Thank you.
John G. Roberts, Jr.: Thank you, Mr. Makar. Mr. Stevenson, you have 4 minutes remaining.
Bryan Stevenson: Thank you, Mr. Chief Justice. Justice Sotomayor, the case is Hughes v. State. It is cited. It is an application of Apprendi, where the defendant does not prevail but, nonetheless, is entitled to that review. And I don't think there's any question in this case that, if a death row prisoner who was a juvenile was still on death row in Florida, had not sought the relief and obtained the relief that he is entitled to under Roper, he would be barred from such relief because he did not file within the 2 years.
Sonia Sotomayor: You are missing the point. What Florida says and what your adversary is saying is -- you're absolutely right, if you win under Graham, you could go under 39.a -- if you win under Graham, and Graham makes its rule retroactive, that fits right into (b)(2) directly, and so those cases you have no problems with. What he is saying, however, is you can't go in to Florida and ask them to announce the constitutional rule under a case where it hasn't been already held.
Bryan Stevenson: Well, I -- and that's what I disagree with, Your Honor. That's exactly what the court is doing in Hughes. That's exactly what the court is doing in these other cases. Otherwise, a lot of this Court's rules don't have clear and direct categorical lines. You have to apply them. You have to apply them in context. And it would mean that people whose sentences are now illegal under the law, only when applied, would be so banned, and that's what I don't think the Florida legislature or the Florida courts are saying.
Samuel A. Alito, Jr.: And you address this in footnote 35 of your reply brief, and it would have been a little bit helpful if you had raised it initially, so that the State would have had an opportunity to reply, but you introduced the citation there with "for example", and then you cite some cases. Are there others?
Bryan Stevenson: Yes -- yes, there are, Justice Alito, and -- and, again, I just want to contextualize why this is the way it is. At no point did the State make any of these arguments in the lower courts. They did make it at trial. They did not make it on appeal. This issue was raised for the first time in this Court.
Samuel A. Alito, Jr.: There are -- there are other cases in which the lower Florida courts have used -- have said that this particular subsection is appropriate for raising a constitutional challenge.
Bryan Stevenson: That's correct. There are other situations where they have made Eighth Amendment claims and analyses, and sometimes the petitioners lose; sometimes they prevail. They have done it in other contexts. And so I do think that it's quite clear, from the way Florida applies these cases, that this Court has jurisdiction.
Ruth Bader Ginsburg: I thought that in your cert petition, which I don't have with me, you raised the question of the adequate State ground in the second question.
Bryan Stevenson: We did -- well, what we raised was that, without this Court intervening, that people like Joe Sullivan would likely never get review. Our point was that, without an intervention from this Court, people like Joe Sullivan -- there hasn't been a sentence like--
Ruth Bader Ginsburg: But there was a question that you raised, and then your opening brief doesn't discuss it at all. Your reply brief responds to the State and then brings up something in a footnote that the State doesn't have a chance to answer. That doesn't seem, to me, a very sound way to approach a question that you, yourself, raised.
Bryan Stevenson: --Yes. Justice Ginsburg, we read that second question to be should this Court take an interest in a case? Should this Court be barred? Should this Court intervene where a child of 13 has been sentenced to life without parole, and there may never be another example? He can't go to Federal habeas corpus because he is time-barred from that. So this Court's opportunity to review the case is critical. That's what we thought we were raising in the second question. Frankly, we thought that the jurisdictional question was a question that was pretty clear -- plain on its face because the trial court's disposition of the this case was completely dependent on its interpretation of Roper, and I think that's what gives this Court jurisdiction. You have said, repeatedly, in Ohio v. Reiner, in Ake v. Oklahoma, when the analysis of a State procedural rule does depend on an assessment of the Federal law, you have jurisdiction. And I think that jurisdiction should be exercised in this case to declare that this sentence is unconstitutional. It is unquestionably unusual to have -- no child of 13 in this country sentenced to life without parole in 44 States makes it clear that this is an unusual sentence. But we also contend to say to any child of 13 that you are only fit to die in prison is cruel. It can't be reconciled with what we know about the nature of children, about the character of children. It cannot be reconciled with our standards of decency, and we believe that the Constitution obligates us to enforce those standards and reverse this judgment. My time is up. Thank you.
John G. Roberts, Jr.: Thank you, Mr. Stevenson, Mr. Makar. The case is submitted.


John G. Roberts, Jr.: We'll hear argument next in Case 07-1356, Kansas v. Ventris. General McAllister.
Stephen R. McAllister: Mr. Chief Justice, and may it please the Court: The Court has always held that a defendant's voluntary statements obtained in violation of constitutional standards may be used for impeachment purposes when the defendant testifies at trial. The Court has excluded statements for all purposes only when they are involuntary or have been compelled. The question in this case is whether voluntary statements obtained in violation of the rule of Massiah v. United States should be treated differently than all other voluntary statements. The answer is no for at least three reasons. First, permitting the impeachment use of voluntary statements obtained in violation of constitutional standards is necessary to prevent perjury by criminal defendants. Second, in terms of the effect at trial, there's no basis for distinguishing a voluntary statement obtained in violation of the Massiah rule from Fourth Amendment violations, Miranda violations, or violations of the rule of Michigan v. Jackson. In all of those situations the resulting evidence may limit defense counsel's options at trial, but there's no basis in that respect for distinguishing a Massiah violation. It has no different effect than those others. Also, the Sixth Amendment right to counsel does not include a right to commit perjury or to have the assistance of counsel in presenting false testimony.
Antonin Scalia: When does -- when does the Sixth Amendment violation occur?
Stephen R. McAllister: That question, Your Honor, as you realize, is debated a bit in the briefs. It's -- Kansas, for purposes of deciding this case, is willing to accept the position of the United States and the Respondent that it occurs when the statement is admitted at trial, although the cases have not necessarily definitively resolved that question. We, frankly, think it's unnecessary to answer the question because it's a minimal point in terms of potential deterrent -- deterrents that operate in this setting--
Antonin Scalia: Do you -- do we have any other situation in which, for purposes of impeaching testimony, a constitutional violation is allowed?
Stephen R. McAllister: --Well, that's the -- that's one of the intricacies of -- of this particular question, although arguably in the -- in the Fifth Amendment context certainly, the Miranda warnings are given. The police don't do that. And -- and if that is the completion of the violation, it's -- it's analogous in many ways, if one looks back at the cases. The Court has suggested that the actual violation is the use of the statement at trial against the defendant, not simply obtaining it without the necessary warnings being given. So we would argue that is, in fact--
Antonin Scalia: It's parallel to the Fifth.
Stephen R. McAllister: --It's parallel to the Fifth in this respect, and certainly, distinct from the Fourth in that respect. But we don't think it matters at the end of the day. If -- if one were to treat it like the Fourth Amendment, so that the violation is complete when the police send in an informant and he works hard to elicit statements in violation of the Messiah rule, if it's complete at that time, then all of the analysis from the Fourth Amendment cases is equally applicable here. If the violation does not incur -- occur until it's presented at trial, then it's analogous more to the Fifth Amendment and also to the Michigan v. Jackson and Michigan v. Harvey cases, which were a Sixth Amendment right to counsel violation, in which case the Court says it was wrong for the police to initiate interrogation after he had invoked his rights, but will let the statement be admitted for impeachment purposes. So it's exactly analogous to what the Court did in Harvey itself.
Ruth Bader Ginsburg: It would make no difference, I take it, General McAllister, if this had been a police officer who was pretending to be a cellmate. In this case it was a snitch, but it could be the police officer doing inside the cell what he couldn't do outside. That is, the police officer outside who wants to interrogate must inform the arrestee of his Miranda rights, but inside the cell, the police could pretend to be a jailbird and they can -- can get the information that way. Is that--
Stephen R. McAllister: Well, Justice Ginsburg, I believe that is correct if -- if it's for example, an undercover officer, someone has gone in -- and in fact, there are cases such as Weatherford v. Bursey that involved an undercover agent who was present for meetings with the defendant and his counsel, and the Court indicated that the presence alone would not violate the right to counsel. It's the deliberate elicitation and use of statements obtained from the defendant that would violate the Sixth Amendment. So if a -- a cellmate, another defendant, is the informant who listens and hears, it wouldn't make any difference under the Court's cases if, in fact, it was a police officer pretending to be a cellmate who listens and hears, just as it wouldn't make -- it wouldn't be a violation if there were a recording device in the cell and the defendant talked to himself, which there are cases of that, and it was picked up on the recording device. The mere listening -- that goes to whether there's a violation at all. But the who, there is -- it wouldn't matter for our purposes.
Ruth Bader Ginsburg: --So the police know that they -- they can get around the clear prohibition on their questioning without Miranda warnings by pretending to be a jailbird.
Stephen R. McAllister: Potentially, yes. But, again, the -- the violation would go to what happens in the cell. So if the police officer is pretending to be another defendant and sits in the cell and the defendant starts telling the officer things, that would not violate the Sixth Amendment at all under the--
Ruth Bader Ginsburg: No, I'm -- I'm assuming we're not in the area where the jail mate is -- is simply passive. In -- in this case, the -- the jail mate made a statement that encouraged the defendant. He wasn't just passive. He was encouraging the defendant to speak.
Stephen R. McAllister: --There is certainly testimony about what he was told to do and what he did. It does not suggest aggressive efforts, certainly, to find out. He may not have been completely silent, but he certainly didn't say, tell me what you did, let's talk about your crimes. But he did make one arguably suggestive statement to the defendant.
Ruth Bader Ginsburg: Anyway, your answer is that a police officer could affirmatively elicit testimony?
Stephen R. McAllister: No, not that he could affirmatively elicit. That's the dividing line between the Massiah and Kuhlmann case. If he was in the cell -- well, I guess what I'm suggesting--
Ruth Bader Ginsburg: But you're -- you're talking about impeachment only. We're not talking about the case-in-chief. So if the police -- he can't -- outside, when he questions the defendant and gives no Miranda warnings, that's inadmissible. Right?
Stephen R. McAllister: --Outside of -- well, it would still be admissible for impeachment. And we're asking for basically the same rule. So it would be the same thing if he were in the cell, deliberately elicits, knows he's violating Massiah, it couldn't be used in the government's case-in-chief, but it could be used for impeachment purposes. But that would be true of Miranda. If the officer deliberately failed to give the warnings, got a statement, they would not be admissible in the case-in-chief; but -- the Court cases are very clear -- they would be admissible for impeachment purposes. So we're asking for the precise parallel rule.
Ruth Bader Ginsburg: But you're -- you're making no distinction, then, between the Fifth and Sixth Amendment.
Stephen R. McAllister: Well, there may be distinctions, and -- and there is an distinction in the text of the Fifth Amendment -- suggests actually a rule of exclusion when you truly have -- when there truly is a compelled statement. And the Court has recognized that in cases such as Portash, where the -- the witness is given use immunity, testifies before the grand jury and the government later tries to use it against him. The Court says, no, you cannot use that testimony for any purpose. So there is a difference between the Sixth Amendment and Fifth Amendment in that respect. But what I was suggesting is the way Massiah and Miranda operate is similar in this context, that a violation results in suppression of the evidence from the government's case-in-chief, but it remains available for use as impeachment.
Ruth Bader Ginsburg: What about the argument that essentially this is like taking a pretrial deposition, only one side isn't represented?
Stephen R. McAllister: Well, with all due respect to that argument, Your Honor, we disagree with that. There are strong incentives for the police, frankly, not to do this. And in part one of the reasons -- well, there's two. One is the police know if this is truly in violation of the Sixth Amendment, then nothing can be used in the case-in-chief. So, at most, it is impeachment if the defendant testifies and if the defendant testifies inconsistently with whatever is elicited. But furthermore, given the line the court has drawn between Massiah and Kuhlmann and what goes on with the informant in the cell, if they can hear the statements without deliberately eliciting them, if you will, if the informant is present, the defendant wants to talk, starts chatting, they discuss the crime, those statements, the Court has held in Kuhlmann, are admissible for all purposes, because they are not a Sixth Amendment violation at all. So, the police do have some -- some strong incentives to actually try to gather the evidence, if they're going to, in a way that makes it usable in the prosecution's case-in-chief. There's much less value to having it solely for impeachment, which is always going to be speculative if it would ever going to be used. It would depend on if the defendant testifies and if he testifies inconsistently with what he has told an informant. And in that regard, there are other deterrents I'd like to mention here as well. The informant in this case, for example, in jail recognized that he did not want to be an aggressive questioner or -- or obvious as a government agent. In fact, he said, I didn't really want to ask him questions because I was afraid if he felt I was being too nosey, I might get hurt. And so, the informants have their own incentives to be careful here. And in this case, it's also important to remember that deterrence is simply one side of the balance. And the Court has said many times even if there would be some deterrent effect to extending the rule to include impeachment, that doesn't answer the question whether it should, in fact, be excluded. That still must be weighed against the costs on the other side. And the Court has numerous cases emphasizing the costs that are present on the other side of this case. Perjury by criminal defendants is a primary one, but also cases talking about the importance of allowing the jury to hear the truth and to search for truth. The jury here gets to evaluate and did, I would argue, quite effectively from Mr. Ventris' standpoint, evaluate the informant's credibility. The jury was -- was informed, cross-examination of the informant's circumstances, what benefit he received, who he was, all -- all the things they might want to know in deciding whether to believe him. His testimony went not solely but primarily to the question of who was the shooter in the murder in the case, and the jury acquitted Mr. Ventris of the murder charge. So they did not believe, at least beyond a reasonable doubt, that he in fact was the shooter. And that is precisely how this should work. We're not saying informants are always 100 percent reliable, but we're saying the Court has a long tradition, the country has a long tradition of putting this evidence in front of a jury. It's tested by crossexamination, knowledge of what the incentives are, bringing that out in front of the jury, and then the jury decides. There are many of these cases where it's -- this was a typical, one codefendant saying, he was the shooter, the other defendant saying, no, she was the shooter. And the informant simply had information that was relevant to the credibility. And that's the way it was used in this case, was as impeachment on rebuttal to evaluate Mr. Ventris's testimony and whether the jury believed him or not. The other thing I would remind the Court is we are simply saying that the rule should be no exclusion under the Sixth Amendment for impeachment purposes, but that does not mean that the normal rules of evidence and other rules of trial procedure do not apply. They do. And they might well result in the exclusion of some potential informant's testimony. So if the government were to want to put on an informant who had been convicted many times of perjury and the judge said, no, I just do not think this evidence is credible enough to even put in front of the jury, not this person, the ordinary rules of evidence and trial procedure would operate. Furthermore, as happened in this case, the judge can, and often will, give cautionary instructions, limiting instructions. All of that remains appropriate. But there's simply no reason to exclude the evidence as a matter of the Sixth Amendment right to counsel. It would be inconsistent, frankly, with -- with, really, the general tone and holdings of the cases in the -- in the Fourth Amendment, Miranda, and even Sixth Amendment territory, including primarily Michigan v. Harvey and Nix v. Williams. Unless the Court has further questions, I'll reserve the remainder of my time for rebuttal.
John G. Roberts, Jr.: Thank you, counsel. Ms. Saharsky.
Nicole A. Saharsky: Mr. Chief Justice, and may it please the Court: This Court has consistently allowed the use of voluntary statements obtained in violation of constitutional standards for impeachment purposes, and that same rule should apply here. There's no question that Respondent's statements were voluntary, and the substantial societal costs of allowing him to commit perjury unchecked greatly outweigh any speculative deterrence benefits that would flow from a per se rule of exclusion. The purpose of the right to counsel is to provide an adversary process to ensure the defendant gets a fair trial. And to effectuate that right, the Court has excluded deliberately elicited statements from the government's case-in-chief. But not allowing the statements for impeachment purposes doesn't further that right. Instead, what it does is allow the defendant to distort the truth-seeking process, and that's just too high a price to pay.
John G. Roberts, Jr.: Well, you say there's no deterrent value, since the police are -- are not going to do this, that they know they're not going to be able to use this in their case-in-chief. But there's also no down side, is there? I mean, you say it's only for impeachment purposes, but, you know, why not? He may take the stand. He may lie. Better to have this in the bank instead of not.
Nicole A. Saharsky: But there is a down side. I mean, as this Court recognized in cases versus -- like Hudson v. Michigan, for example, the police have their own codes of conduct. They have training on constitutional rules and standards. And if they violate those constitutional rules and standards, it has real effect for the police. It has effect in terms of internal discipline, in -- in terms of limiting their career opportunities.
Ruth Bader Ginsburg: Is that really verifiable? Do police officers who engage snitches, do they get disciplined, especially if they are then able to accomplish what was accomplished here? That is, the -- the testimony -- the snitch is then able to testify after the defendant testifies.
Nicole A. Saharsky: I don't think that there's any evidence in the briefs, and I am not aware of specific instances of discipline, but I think that that's because this situation arises pretty infrequently. You know, when this came up in the Kansas Supreme Court, it was a case of first impression. And as General McAllister noted, there are a lot of reasons why the police would want to just follow the rule in Kuhlman and send the informant in to be a passive listening post because if--
Ruth Bader Ginsburg: At the Federal level, is there anything one way or another, any manual that instructs a U.S. attorney about the use of snitches to extract confessions?
Nicole A. Saharsky: --I think the Department of Justice manual sets out this Court's rules in terms of the Kuhlman case and the Henry case. And then, of course, there are also State and the Model Professional Ethics Rules that talk about when a prosecutor can contact a person who is represented by counsel. And there are limitations there as well, both in terms of the prosecutor contacting a person represented or using an agent contacting a person represented. But I mean, those are -- those are deterrents. I think the police discipline is a deterrent. But I think we also need to -- to focus on this Court's cases in the Fourth and Fifth and Sixth Amendment Jackson context that taking the evidence and making it unavailable in the government's case-in-chief is a substantial deterrent. This Court said in each of those previous case that not having the evidence available in the government's case-in-chief is a very high price to pay, because that means that the government has to come up with other evidence that can meet its burden of proving all of the elements of the case beyond a reasonable doubt. And, as General McAllister noted, it's really very speculative, and the police certainly wouldn't know at the time they're asking questions of the defendant, whether this rebuttal impeachment evidence could ever be used. It's entirely within the control of the defendant. It's only if the defendant -- if the government first meets its burden of proof with other evidence at trial, and then the defendant decides to testify, and then he testifies inconsistently with his prior statements. And our position is at that point that the jury should hear the conflicting evidence just as it has heard it in all of these other previous cases and be allowed to make a decision about who's telling the truth.
John Paul Stevens: It seems to me you're just confirming the answer to the Chief Justice's question. There really isn't any down side. The worst -- the worst that happens is maybe they can't use the stuff. But what -- what's the down side?
Nicole A. Saharsky: Again, I -- I think that there is a down side in terms of police discipline and the deterrence--
John Paul Stevens: Has any police officer ever been disciplined for doing this, do you know?
Nicole A. Saharsky: --I -- I--
John Paul Stevens: I'd find it rather amazing if he has.
Nicole A. Saharsky: --Again, I think that most police officers just follow the rule that this Court set forth in Kuhlmann, so that this -- this issue has not arisen frequently. But, you know, even if you thought that there would be some type of minimal deterrence benefit that would arise from -- from not making the evidence available for impeachment purposes, you have to balance it against the cost to the truth-seeking process that would be incurred if the defendant--
John Paul Stevens: Well, defendants sometimes lie, but sometimes people who are in this position in prison are not the most trustworthy people either.
Nicole A. Saharsky: --I think if they're--
John Paul Stevens: You could bring that out on cross-examination. I understand that.
Nicole A. Saharsky: --That -- that is what I was going to say. I mean, as General McAllister noted, that -- that happened in this case. The prosecutor himself got up and talked about the -- the informant's prior offenses, why the informant was in jail, whether the informant received anything in exchange for his testimony, the fact that the informant had actually gone back to jail after testifying -- or after serving as an informant in this case.
John Paul Stevens: It seems to me that -- that all confirms the fact, well, they have nothing to lose. Maybe we've got one witness who's not very persuasive, but no harm in giving it a try.
Nicole A. Saharsky: I think that the -- the fact that the evidence would be unavailable in the government's case-in-chief really is a strong price that the government pays. And -- and this Court recognized it in -- in Havens, in Walder, in Harris, in Hass, in Harvey, and -- and all of those prior cases. And there's just -- there's not any reason to depart from them because the -- the other side of the balance is that, you know, you're letting a defendant to get up and take the stand and -- and not subject himself to this prior statement. And this -- this prior statement, if believed by the jury, is incredibly important to his credibility, probative with respect to whether the crimes were committed and the defendant is telling the truth.
John Paul Stevens: If it is truthfully reported. Of course, this is all an issue of credibility in all of these cases.
Nicole A. Saharsky: Yes. Every case has a question about someone's credibility, some witness's credibility, and that's for the jury to decide. And in -- in this case there was ample cross-examination. There was the limiting instruction that the State mentioned. I mean, clearly the jury did its job here because it went back and it considered all this information. And it didn't come back with a -- a verdict -- although you, of course, never know exactly what the jury is thinking, it didn't come back with a verdict suggesting it just reflexively believed the informant's testimony. So--
Antonin Scalia: Ms. Saharsky, I'm -- I'm still a little hung up on -- on whether we would be allowing a constitutional violation. General McAllister said that in the Fifth Amendment area, we -- we indeed allow -- allow it to be introduced in rebuttal even though that is the actual constitutional violation. Is that the case other than in the Miranda situation? I mean, suppose you have a generally coerced confession. Would we -- would we permit that to go in?
Nicole A. Saharsky: --Certainly not. In the Fifth Amendment context, the text of the amendment itself would prohibit the use of that statement for any purposes.
Antonin Scalia: Exactly. Well, why -- why is not that the case with the -- the right to counsel?
Nicole A. Saharsky: Because the text of the Sixth Amendment doesn't say anything about the exclusion of evidence at trial. What it does is it guarantees counsel for a purpose, and that purpose is to ensure an adversary process at trial. And if counsel is not afforded, then it's up to the courts to determine what the remedy is.
Antonin Scalia: But its real meaning is that counsel is guaranteed at trial. Isn't that right?
Nicole A. Saharsky: I'm sorry. I missed the first part.
Antonin Scalia: Its root purpose is that counsel is guaranteed at trial. And here we're saying it's okay not to have counsel at trial so long as it's refuting a lie by the defendant.
Nicole A. Saharsky: That's not true. I mean, certainly counsel is available at trial. The question is just whether statements that were obtained without counsel prior to trial can be used for impeachment purposes. The answer--
Antonin Scalia: So you say that -- you say the Sixth Amendment violation occurs before trial.
Nicole A. Saharsky: --I'm sorry if I suggested that. No, the Sixth Amendment violation occurs when the statements are introduced in the government's case-in-chief at trial.
Antonin Scalia: Right.
Nicole A. Saharsky: And that's because the government should not be allowed to go behind counsel prior to trial and gather up statements, and then use them to prove guilt at trial. That subverts the adversary process. When you're talking about impeachment, you're not talking about proving guilt at trial. You're not talking about the government distorting the adversary process. If there's any distortion of the adversary process, it's with the defendant attempting to commit perjury at that point. The Sixth Amendment is just different from the Fifth Amendment in that it does not say anything about statements that are obtained and if they can be used at trial. And that means that it's up to courts to balance the costs and benefits of exclusion of evidence. And in the case of the government's case-in-chief, that balance means that that the statements cannot come in because it would be too much of a cost to the adversary process that the Sixth Amendment guarantees to allow the statements in. But, when you switch over to looking at impeachment, this Court said 50 years ago impeachment is a very different story than the government's case-in-chief. The interest that you're talking about furthering there, the adversary process interest, would not be furthered by allowing the defendant to take the stand and be able to commit perjury unchecked. It would not be furthered, and it would -- it would not lead to greater deterrence by simply allowing the statements to be unavailable for impeachment purposes because the great deterrent comes with the statements being unavailable in the government's case-in-chief. We just don't think that there's any reason to depart from this Court's rule that so long as statements are not involuntary, they can be used for impeachment purposes. If there are no further questions, we submit the judgment below should be reversed.
John G. Roberts, Jr.: Thank you, counsel. Mr. Edge.
Matthew J. Edge: Mr. Chief Justice, and may it please the Court: I guess I have basically three arguments with the -- or problems with the State's position First of all, what we're dealing with in the Sixth Amendment case here is a violation of a core enumerated trial right, and this makes it a very different animal from all the other cases that we're talking about. If we're talking about the Fourth Amendment, we're talking about something that isn't a trial right. It's a right of the people to be secure in their -- in their homes and possessions. The violation occurs when the police commit whatever misconduct makes the search of the evidence illegal. But the use of that evidence at trial doesn't work any further constitutional--
Stephen G. Breyer: Wasn't this individual represented by counsel? Was he represented by counsel?
Matthew J. Edge: --Yes, he was.
Stephen G. Breyer: And he was represented by counsel at the time that the informant took the statement, got the statement elicited. Is that right?
Matthew J. Edge: No, I don't think so. The--
Stephen G. Breyer: I have my memo that I haven't looked through carefully, but I'd be quite interested. I -- I thought he asked for counsel. He was given counsel. Subsequent to that, this statement was elicited. I'd like to know that because the Sixth Amendment says you have a right to assistance of counsel in your defense. Period. And I guess, if he had a lawyer, the lawyer could have told him, don't talk to informants in the jailhouse. He could have said, I'm going to talk to who I want. Or he might not have. But I'd be interested in knowing, did he have assistance of counsel at the time the statement was elicited? It's one thing to me if he did; another if he didn't. Don't know?
Matthew J. Edge: --No.
Stephen G. Breyer: How can I find out?
Matthew J. Edge: No, the -- I don't know exactly the day that this happened. I do know that he was arrested on the 16th of January, 2004, and there was a search of his cell on January 20th. And we know from that testimony that why that's relevant is that he was cellmates with Mr. Doser by that time, and Mr. Doser testifies that he was the cellmate of Mr. Ventris for 2 days. And on the second day, Mr. Ventris supposedly made these statements. So my best guess is that the -- this conversation occurred sometime between the 17th and the 20th. Now, the order of appointing counsel is entered on January 21st, and counsel doesn't enter his appearance until January 27th.
Stephen G. Breyer: So it might be he asked for counsel but hadn't yet received counsel.
Matthew J. Edge: Correct, Your Honor.
John G. Roberts, Jr.: Counsel, do -- do I understand the first sentence on page 6 of your brief to concede that there's no deterrent value from prohibiting the introduction of these statements for impeachment? The sentence says: "A Sixth Amendment exclusionary rule that allowed use of uncounseled statements for impeachment would not deter violations of the right to counsel. "
Matthew J. Edge: That is correct, Your Honor. And the reason I believe this is that, as long as there's some kind of incentive for the prosecutor to use informants in this manner, then the only -- then even if they're not usable in the case-in-chief, there's still an incentive to use this kind of evidence, and the prosecutor and the police will attempt to obtain it. There's simply very little downside. The prosecutor instructs the informant not to deliberately elicit the statement. The prosecutor is still responsible for the informant because the informant is his agent, so even if -- when the informant goes ahead and deliberately elicits the statement, it's still a constitutional violation. But so long as you allow it for some kind of purpose, then there isn't a deterrent effect, and--
Samuel A. Alito, Jr.: So in a situation like we have here where the law enforcement officers do not instruct the informant to do anything that would violate the Sixth Amendment and in fact, according to their testimony, instruct him to engage in conduct that's consistent with the Sixth Amendment, there's no deterrent value in later suppressing the use of the statements for impeachment purposes.
Matthew J. Edge: --I mean, I guess, maybe I'm confused. There's a deterrent -- there is a deterrent effect from suppressing it in the case-in-chief, but it's not sufficient unless it's also extended to use in rebuttal as well.
Samuel A. Alito, Jr.: What do you want to deter? You want -- you want to deter them from using informants at all, even in -- even in a manner that's consistent with the Sixth Amendment?
Matthew J. Edge: No, Your Honor. What I'm attempting to deter is the sort of up-ending of the adversarial system that this represents. There was a question that was presented earlier about when does this violation occur. And I think that gets to the manner of -- the nature of the Sixth Amendment violation. And our contention is that the violation occurs when the statement is extracted, and then it's further aggravated when it's used at trial. When the police obtain these kinds of statements, even if they're not used at trial, it does work a harm on the defendant and his relationship with counsel. It affects defendant's--
Stephen G. Breyer: Yes, I see the problem. I wonder if you have an answer to another question. You may not. I can't find it. It seems to me it's been 20 years since this -- nearly 20 -- since the Court decided the Michigan case. The other cases were decided even earlier. And it's just surprising to me that it's never come up or rarely, rarely come up, the -- the question of whether the -- the State can introduce into evidence a -- a statement made when the State questioned an individual who'd asked for counsel or had counsel out of the presence of the counsel. I mean, does that normally happen, or does it never happen? Why is there so little law on it? Have you any idea?
Matthew J. Edge: --I do not, Your Honor. And I'm really at a loss to speculate as to why that would be.
John G. Roberts, Jr.: You -- you agree with the representations on -- from your friends on the other side that there's no case of ours where we've excluded a statement or evidence submitted for impeachment, even though it would have been excluded in this case-in-chief. If you prevail here, it would be the first time that any evidence or statement has been excluded when submitted for purposes of impeachment.
Matthew J. Edge: It would be a very different rule. I think the only rule that this would be the case so far is in Portash with the self-incrimination clause. We're saying that the same type of rule should apply to the Sixth Amendment. Otherwise, no, that's correct, whenever you're talking about the Fourth Amendment or one of the prophylactic rules like Miranda or Jackson, then they are admissible for impeachment purposes. What makes this case different is that it -- it involves a violation of an enumerated Constitutional trial right.
Stephen G. Breyer: That's what I'm not certain about. And this is why I -- I've been asking these questions. What I can't figure out in my own mind is this. I ask for a lawyer. The State has some period of time to give me a lawyer. Now, it's one thing if what's going on is once I ask for a lawyer, the State should deal with me through my lawyer. That's how they're supposed to do it. But that isn't as basic -- that's like a rule of ethics in most States in the civil context and other contexts. That's not as basic as if I ask for a lawyer, and then the State just doesn't give me one, though it should. That's a different violation, a different kind of violation. One is a kind of a rule of ethics incorporated in the Constitution. The second is what the cases -- is what the Constitution is really about, give him a lawyer when he asks for one. And which is this case? That's why I'm having hard time. Is it the first or the second?
Matthew J. Edge: Well, in -- I think one of the complicating factors here, Your Honor, is that the State in this particular case didn't try a straightforward interrogation. They sent in an undercover informant.
Stephen G. Breyer: No, no. But that -- that -- I mean, I'll amalgamate that for you. I'll say they're exactly the same thing. But what I want to know is what rule was violated, what Sixth Amendment rule -- rule. You know, you heard what I said, the rule, don't talk to a guy who wants a lawyer until you talk to the lawyer. No communications with a client. It's a communication with the lawyer. That's one rule. And the other rule is he's asked for a lawyer, but you never gave him one. Now, which is this case? I mean, I first thought, well, if he didn't have a lawyer at all, then it must be the second, but then I thought they must have a reasonable time to give him a lawyer, and they haven't violated that second. If you have any view on that, it would be helpful to me.
Matthew J. Edge: I don't know whether he had asked for a lawyer or not. I know that he was entitled to one at the time, and one would be appointed for him. But otherwise--
Ruth Bader Ginsburg: But we do know that unlike the police giving Miranda warnings, there's no warning here at all. I mean, he thinks he's talking to a cellmate. Nobody tells him, remember, you've got a right to be represented by counsel, and he's essentially giving a statement without the Miranda warnings.
Matthew J. Edge: --That's correct, Your Honor.
Ruth Bader Ginsburg: But the other side says well, practically the defendant is much more likely to say something that's really involuntary when he's confronting police officers -- that the reason that we exclude in the case of a police officer is the intimidating setting when the defendant is in the police station or in the cell and there are these police officers. Now he thinks he's just with a cellmate, so there isn't -- there isn't the coercive atmosphere that there is when the police do the questioning.
Matthew J. Edge: Well, Your Honor, I think that there certainly can be a coercive atmosphere even if you're not talking to a known police agent. Now, those aren't the facts of this particular case and there is no claim that the statement was involuntary. However, one of the advantages of speaking to known police officers is that a defendant can simply end the interrogation by invoking his right to counsel, and that is not necessarily a course of action that's available to him if he thinks he's merely talking to a cellmate, somebody who -- whether he wants to speak to him or not, he's going to be in the cell with him for some time.
John G. Roberts, Jr.: Counsel, you've -- you've emphasized that what distinguishes this case from the other ones where we've allowed evidence that would be excluded from the case-in-chief and for impeachment purposes is that this is a trial right. But the Sixth Amendment says in criminal prosecutions you have the right to the assistance of counsel. Well, he had assistance of counsel here, and -- and one of the things that counsel did was point out the problems with relying on the snitch's evidence and all the bad things that he did. But -- but just like in the case of a Fourth Amendment violation, where we allow the evidence to be admitted at trial, this Sixth Amendment problem, you know -- it doesn't -- I just don't see the -- the strength of that distinction.
Matthew J. Edge: Your Honor, I think it goes to the nature of the harm that comes from a Sixth Amendment violation. The Sixth Amendment simply doesn't limit itself to the trial. The exact wording of the -- the constitutional provision is in all criminal prosecutions and it talks about--
John G. Roberts, Jr.: Well, it seems to me you're getting away from the basis for your distinction then, saying, well, it's not just at trial. Well, these other constitutional rights where we've allowed the evidence to come in for impeachment are indistinguishable from the Sixth Amendment right outside of trial.
Matthew J. Edge: --Well, because the harm isn't something that just affects the outcome of the trial, it also affects -- it affects the litigation in a much, much deeper way. It affects counsel's trial strategy. It affects a defendant's decision whether or not to testify. It also--
John G. Roberts, Jr.: Just to pause on that, it affects his decision to testify because it makes it more likely that he'll testify truthfully if he is going to testify.
Matthew J. Edge: --Not necessarily.
John G. Roberts, Jr.: The focus -- the focus on the trial context is at least a double-edged sword since the harm that we're facilitating under your rule is to allow -- allow perjured testimony.
Matthew J. Edge: Yes, Your Honor, in some contexts it would. I think one of the underlying assumptions of the State's argument in this with regard to perjury is that the mere existence of a prior inconsistent statement is necessarily indicative of perjury, and we know that there are many reasons why a defendant may have given a prior inconsistent statement.
John G. Roberts, Jr.: Yes, and if he has the assistance of counsel at trial, consistent with the Sixth Amendment, those -- those problems could be pointed out. He wasn't -- he was -- he's not lying now. The reason he said something different then was, you know, he likes to brag in prison or whatever the basis is.
Matthew J. Edge: In some cases, it will be possible for counsel to vigorously cross-examine the informant. In others, it may not. But in addition to that, Your Honor, I would also say that it doesn't simply affect the decision of whether or not to go to trial or whether or not to testify at trial. It also affects the litigation in a very deep way, inasmuch as a defendant is burdened in trying to negotiate a favorable plea deal. Every statement or every piece of evidence that the State has affects their willingness to plea bargain, and when the State obtains this kind of evidence illegally, it puts the defendant in a bind for -- puts their counsel in a bind.
John G. Roberts, Jr.: Oh, I think it would. That's -- I think that's quite right. But I don't see how excluding the evidence, even on impeachment, helps that. I mean, they've still got the statement, and they -- you know, I guess your point is, you know, maybe they'll get some leads from it even if they can't use it. But excluding the evidence for impeachment purposes doesn't eliminate that harm.
Matthew J. Edge: It would, Your Honor, inasmuch as it would remove any disincentive for the police to obtain this evidence by this manner in the first place. So there would be that marginal deterrent factor.
Samuel A. Alito, Jr.: Which of the things that you've just said that result from the use of this for impeachment would not be true with respect to the other situations where illegally obtained evidence has been used for impeachment purposes? Take the Fourth Amendment, for example.
Matthew J. Edge: I think they would be largely the same, Your Honor. The difference would be in the interests protected. The self-incrimination clause in the Fifth Amendment is aimed primarily at the coercion of the defendant; whereas, the Sixth Amendment aims primarily at the preservation of an adversarial process, that relationship between counsel and his attorney.
Samuel A. Alito, Jr.: You don't dispute that there was a Sixth Amendment violation at the time when the statement was taken, do you?
Matthew J. Edge: No, I do not.
Ruth Bader Ginsburg: You urged a -- a fall-back position. You said at least there should be a determination by the judge that the defendant intentionally testified falsely. And I was wondering how that would operate. You're here in the -- the heat of the trial, and the prosecutor says, I want to call snitch so-and-so. And then what do we do? Just interrupt the trial and have kind of a mini-trial to test the credibility of -- of the informant?
Matthew J. Edge: Yes, you could, Your Honor. Also, you could have it as part of the pretrial suppression hearings. I would anticipate that even if the -- if the Court were to adopt our position, these kinds of Sixth Amendment cases are still going to be litigated. The issue is simply going to be whether or not the -- the States -- or the police agent is deliberately eliciting the statement or not. So there -- there's likely going to be some kind of pretrial litigation regarding the admissibility of the statements, and it could be handled at that time. If there are no further questions from the Court, I'll yield my remaining time.
John G. Roberts, Jr.: Thank you, counsel. Mr. McAllister, you have 6 minutes remaining.
Stephen R. McAllister: Two quick points by way of rebuttal. The balancing of the interests here is sprinkling water under the bridge even in the Sixth Amendment context. In both Nix v. Williams and Michigan v. Harvey where the Court was dealing with Sixth Amendment interests and -- and Sixth Amendment right-to-counsel violations, both of those cases make clear that the question of what exclusionary effect to give a violation is subject to a balancing analysis. And that's what we're asking for here. That's why it's treated for these purposes like the Fourth Amendment in the Miranda context. And Nix itself, to paraphrase the Court, makes a fundamental point which I think illustrates how this works, and it worked effectively to defendant's advantage in this case. In Nix v. Williams, the Court said the Sixth Amendment right to counsel -- and I'm paraphrasing slightly -- protects against unfairness by assuring an adversary process in which proffered evidence is tested by crossexamination. And it's done in front of a jury. It is not about requiring the exclusion of entire categories of witnesses or types of evidence for all purposes. So the right to counsel was exercised. It was exercised effectively in this case when Mr. Doser was strongly cross-examined by defense counsel.
John Paul Stevens: Wouldn't that apply equally to use of the statement on--
Stephen R. McAllister: It could, Your Honor. I realize a logical extension is you could say just test all of it. But that's where the -- the police here and the prosecutor paid the price of the way in which the evidence was obtained. It's excluded from the government's case-in-chief. Unless there are further questions, we would respectfully ask that this Court reverse the decision below.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.