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Convicted Murderer May Go Free After Improper Use of Informant

October 10, 2010, by The McKellar Law Firm, PLLC

Being a federal criminal defense attorney, I often hear people complain about how criminal defense attorneys will have their clients escape responsibility based on "technicalities" or "loopholes." If you are such a person, you will not be pleased with the Sixth Circuit Court of Appeals decision in Ayers v. Hudson, which was decided on October 5, 2010.


Ohio resident David Ayers was convicted of murdering 76-year-old Dorothy Brown by striking her repeatedly with a small, black iron. Ayers stole $700 from the victim. Ayers' conviction was based in part on the testimony of a jailhouse informant, who claimed that Ayers had confessed his role in the murder. Ayers appealed his conviction on the basis that his Sixth Amendment right to counsel was violated by allowing the jailhouse informant to testify against him.

The Sixth Circuit summarizes this area of the Sixth Amendment:

The Sixth Amendment guarantees a criminal defendant the right "to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "This right has been
accorded, . . . 'not for its own sake, but because of the effect it has on the ability of the
accused to receive a fair trial.'" Mickens v. Taylor, 535 U.S. 162, 166 (2002) (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). Thus, "once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." Montejo v. Louisiana, 129 S. Ct. 2079, 2085 (2009) (citations omitted). "Interrogation by the State is such a stage." Id. at 2085 (citing Massiah v. United States, 377 U.S. 201, 204-05 (1964); Henry, 447 U.S. at 274). See also Cronic, 466 U.S. at 659 n.25 ("The [Supreme] Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.") (emphasis added).

The Sixth Circuit ultimately decided that the Government's use of the jailhouse informant in Ayers' case violated the Sixth Amendment, and they ordered that Ayers receive a new trial or be released. The Court's reasoning behind its decision rested greatly on the fact that the Court viewed the jailhouse informant as a government agent once the informant had spoken to the police and returned to Ayers for additional questioning.

Additional Resources
David Ayers v. Stuart Hudson, Sixth Circuit Court of Appeals, October 5, 2010