Stacey Barker Hails The Massiah!

Today was another pre trial hearing in the murder case of Stacey Barker, 26, at the Michael Antonovich Antelope Valley Courthouse in Lancaster, CA. Barker is accused of killing her 18 month old daughter, Emma Leigh Barker, on March 18, 2009. When I titled this story, "Stacey Barker Hails the Massiah!" I'm not referring to her praising the lord, Messiah, I have no idea what her religious tenets are. I'm referring to a motion her defense has filed that claims that the State of CA has violated her 6th amendment rights. I'll get into that soon, but first a little background to a case that seems to get stranger and stranger.

Barker originally reported to police that she was loading her daughter into the car after playtime at the Lancaster City Park, when she was attacked and rendered unconscious for several hours before she came to and realized her daughter was missing. After a trip to the hospital to treat her injuries, Stacey Barker was taken to the sheriff's department for questioning. Eleven hours after Emma was reported missing, Barker led law enforcement to her daughter's body that she had left in tall grass on the side of the freeway. Barker claimed her daughter's death was an accident, but because she was afraid of being blamed she disposed of her baby's body then inflicted injuries ( that were consistent with an attack )on herself,  removed and hid parts of her clothing and reported the kidnapping claim. It should be noted that Barker didn't call 911, she called her brother who made the 911 call to law enforcement. When LE arrived at the scene her brother and boyfriend were already there.( Just one more thing in this case that makes you go hmmmm.)

It was nearly a month after Emma's death, before Barker was arrested on April 23, 2009. The charges filed against the Stacey Barker included one count of Second-degree murder, one count of Assault on a Child Causing Death and one count of Child Abuse. Barker has been held at the Century Regional Detention Facility on a one million dollar bond since her arrest. Stacey Barker pled not guilty to all counts at her formal Arraignment on August 12, 2009.

The proceedings today, January 24, 2011 lasted only about a half hour. Stacey Barker's case wasn't called until 11:30 a.m.. The court lists her hearing as starting at 8:30 so Tori and our other friends did have to wait a while. ( I know that sometimes it can be an interesting wait because the court hears other cases in the mean time, but just the same.....Thanks again guys for your time and sharing what you see and hear!)

Defendant Barker didn't look so good when she came in today. Her hair looked like she had been wearing braids that she just took out and hadn't brushed, no makeup today either. Barker's mood seemed to match her appearance, she didn't make eye contact with her family or boyfriend in the courtroom.

I almost feel like I'm putting the cart before the horse by talking about the hearing before explaining the Massiah motion the defense has filed. I'll do that and then go back to the hearing.There have been no issues raised ( that we are aware of ) regarding "Miranda" warnings in this case, but as I said above the defense has filed a "Massiah" motion to suppress any testimonial evidence gathered by Witness X  and the content of the hearing was related to the motion. Let's go over both because the Massiah doctrine supplements Miranda, even though it is a separate and distinct rule.

Most US citizens know that law enforcement must give a  Miranda warning  before subjecting someone to any interrogation when being arrested ( taken into custody and are not free to leave, a situation the court ruled was inherently coercive ).  The purpose of the warning is to ensure the accused is aware of, and reminded of, their rights under the U.S. Constitution. The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present at anytime during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him. A person must clearly waive their fifth Amendment right against self incrimination and the right to an attorney before any evidence gathered in the interrogation will be considered admissible in court.

Just as Miranda gives us Fifth Amendment protection after an arrest, according to the Massiah Doctrine, after the initiation of adversary judicial proceedings (by indictment or by information, preliminary hearing or arraignment), the Sixth Amendment guarantees a defendant the right to rely on counsel as the “medium” between himself and the government. Thus, once adversary proceedings have begun, the government cannot bypass the defendant's lawyer and deliberately elicit statements from the defendant himself.. Massiah is based on the right to counsel. It's application turns not on the conditions surrounding police questioning, but on whether, at the time the government attempts to elicit incriminating statements from an individual, the criminal proceedings against that individual have reached the point at which the Sixth Amendment right to counsel attaches.

The difference between Massiah and Miranda is underscored by the “jail plant” situation, the case where a secret government agent is placed in the same cell with a person and instructed to induce him to implicate himself in the crime for which he has been incarcerated. Miranda does not apply, for the inherent coercion generated by custodial police interrogation is not present when a prisoner speaks freely to a person he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. Therefore, unless a person realizes he is dealing with a government agent, the government's efforts to elicit damaging admissions from him do not constitute “police interrogation” within the meaning of Miranda.

However, the Massiah doctrine would prohibit the government from using such tactics if adversary proceedings had already been initiated against the person. But the secret government agent was not completely passive in that case; he stimulated conversations about the crime charged. The Court, however, has permitted the government to place a completely “passive listener” in a person's cell and use the statements acquired by such an agent even though adversary proceedings have commenced against the person.

In order for a court to determine that a Massiah violation has occurred two conditions must exist:

1) There must have been an indictment, preliminary hearing or arraignment already held when the violation   occurred..
 2) The informant has to be acting as a government agent, he had to have acted under the direction of the government and there is a preexisting arrangement between the informant and the police.

The line between “active” and “passive” agents—between eliciting incriminating statements and merely listening—is an exceedingly difficult one to draw.

The Supreme Court held that when an inmate working for the government actively prompts an accused to make incriminating statements, this involves active interrogation and is a violation of the accused's Sixth Amendment right to counsel (United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 [1980]). However, when a government agent passively listens to the accused's incriminating statements, there is no violation of the accused's Sixth Amendment right to counsel (Kuhlmann v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 [1986]). In Kuhlmann, the Court held that, to prove a violation of the Sixth Amendment, "the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks."

Deputy District Attorney Kelly Cromer presented one witness today. Her name is Ellen Aragon. We learn she was the DA in the case which Witness X reportedly testified for the state against, in his own words, " a local street gang that I was trying to get out from under...."  Aragon said that Witness X was subpoenaed to testify in that case, it wasn't voluntary and his life and family had been threatened so he was placed in witness protection. I'll spare you a play by play of the questions Ms. Aragon was asked by DDA Cromer and Stacey Barker's Public Defender, Roberto F. Dager, because the questions were repetitive and in some cases vague, but the jest of it is....the state is trying to show that Witness X is/was NOT a government agent and the defense is trying to show that he IS/WAS.

The burden is the defendants to show that a Massiah violation has occurred and to be fair their efforts have been hampered somewhat by the fact that the case, X admits testifying in, is under seal. The state gave the defense transcripts concerning X's testimony in that case and recordings of Witness X interviews with the state about testifying. Judge Zackey made it very clear that no one except Dager and his investigator are allowed to see the information and neither are allowed to even talk about the contents with anyone else, including the defendant and her family.

Evidently the receipt of a benefit for testifying for the state implies an informant is an agent for the state ??? It's confusing because jailhouse snitches testify all the time for benefits, I guess the question is when was the agreement for benefits made.

Dager tried repeatedly to get Aragon to admit that X asked for benefits in exchange for his testimony (and convince the court?) that when Witness X was put into the Witness Protection Program that was the same as receiving a benefit. Judge Zackey said that Dager's use of the term "benefits" was vague and he didn't agree that entering a witness protection program is a benefit. The next hearing is February 7, hopefully at that hearing we will learn how the judge rules on the defense Massiah motion, if Witness X will be allowed to testify and regardless of his decision a trial date will be set. Judge Zackey stated again he wanted no more delays unless for an important reason adding that this delay caused by the introduction of Witness X to this case is very important.

Superior Court Judge Hayden Zackey has his hands full with this decision.  No one wants a do-over in the event of a conviction in this case. Constitutional violations are definitely a consideration of an appellate court.

Preliminary hearing coverage

read more about Miranda and Massiah at answers.com

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