Sixth Amendment Right to Counsel: No Talk, Perp Walks
District of Columbia Court of Appeals: Kelvin L. Martin v. United States
Kelvin Martin was convicted of assaulting US Park Police Officer Ross Dykman after he was halted in traffic because his front seat passenger was drinking from a bottle in a paper bag. After refusing to surrender the bag at the officer’s request, Dykman reached into the vehicle to commandeer the bag and examine the contents himself. Martin’s passenger had other plans, however, and yelled “Go!” to Martin, who, in a flash of bravado and really bad judgment, took off in his Suburban, dragging Officer Dykman along for the getaway as he hung from the open window. During the “wild ride” Dykman drew his service revolver, fired several shots hitting the passenger before he fell from the vehicle. Martin was apprehended shortly thereafter. At trial he and his brown-bagging passenger testified that they thought Dykman was a carjacker, having failed to notice his Park Police uniform, badge, name plate, Park Police patch and police equipment belt.
Apparently, the jury didn’t buy Martin’s defense. He was convicted of assault. Given the facts, Martin needed something more substantive to continue the fight.
Martin had testified in his own behalf. His testimony started on Friday afternoon. So too did the cross examination. At 4:45 court recessed for the day. Before leaving, however, the prosecutor requested an instruction to defendant Martin that he not be permitted to talk to his lawyer about his testimony during the weekend recess. Without objection or argument from Martin’s lawyer, the court directed Martin “not to speak to anyone pending the examination on Monday…” This appeal followed. It challenged as unconstitutional the un-objected-to instruction that prevented him from speaking to his lawyer about his testimony.
The DC Court of Appeals agreed, finding that the instruction (the sequestration order) violated Martin’s Sixth Amendment right to counsel and was plain error. Citing Supreme Court rulings that spoke to the issue, the court held that any order prohibiting a defendant from conferring with his counsel during an overnight break, was a denial of the right to counsel. Moreover, defendant need not show he wanted to speak, planned to speak or even thought about speaking to his attorney—he need only show he was prohibited from doing so. Accordingly, the order was reversible error and the conviction was overturned.
While “sequestration orders are appropriate when directed to ordinary witnesses,” they do not fly when applied to criminal defendants. Kelvin Martin has an absolute right to counsel, and implied therein is an absolute right to speak to his attorney during a substantial recess, even about his own testimony. As the court indicated, “the goal of preventing improper influence or witness ‘coaching,’ which suffices to justify lengthy sequestration orders directed at ordinary witnesses, must be pursued by other means when the witness is the defendant in a criminal trial.”
For prosecutors, “other means” are found in the power of cross examination: If a good cross can’t show that a defendant is changing, tailoring, modifying or finagling his testimony after a court recess, then that prosecutor is in the wrong business.
Given the underlying facts and Martin’s seemingly ridiculous carjacking defense, one would think the government could obtain a conviction without any help from the court. And in truth, it probably would have, only prosecutors are so used to simply asking for and receiving sequestration orders that they never stopped to consider the constitutional implications.
In DC, they will from now on.
