Comedians in Jail and the Right to Counsel

The WaPo has this story about a strange case on the U.S. Supreme Court’s Jan. 6 conference list.

A Texas inmate filmed as part of a Comedy Central roast by comedian Jeff Ross while in jail is appealing his case to the U.S. Supreme Court, arguing that the stand-up’s footage was improperly used to sentence him to death for attacking an elderly married couple.

Gabriel Hall was awaiting trial for a high-profile capital murder charge when Ross, known as the “Roastmaster General” for his insult comedy, was invited to Brazos County Jail and interviewed Hall and other inmates in 2015.

Though it never aired, the video was later subpoenaed and presented to the jury by the prosecutor, who argued Hall did not show remorse four years after the 2011 killing. But Hall’s legal team has argued that the taping happened without his lawyers’ knowledge and violated the inmate’s Sixth Amendment right to counsel.

Here is a brief summary of the facts of the crime, from further down in the article:

On Oct. 20, 2011, then-18-year-old Hall broke into the garage of a College Station home in an attempted burglary, repeatedly stabbing one of the residents, 68-year-old Edwin “Ed” Shaar Jr., a Navy veteran who had Parkinson’s disease. He then shot and killed Ed at point-blank range. Hall also tried to shoot Ed’s wife, Linda, who was in a wheelchair, but the gun jammed, so he stabbed her as she was on the phone with 911. Hall fled, not taking anything, while Linda survived and described Hall to police. He was arrested shortly after and indicted.

Here is what’s on the video:

The camera appears to focus on Hall for most of the conversation, as Ross comments on his intimidating demeanor and references his Asian heritage.

Ross asks Hall what he is in jail for and suggests, “Hacking somebody’s computer?”

“Something like that, yes,” Hall answers.

“‘Hacking’ being the operative word,” another inmate says.

“Yeah. Yeah, used a machete on someone’s screen,” Hall says.

In another part of the conversation, Ross talks with the inmates about life behind bars and brings up Texas’s aggressive use of the death penalty. Texas kills more prisoners than any other state.

“Well … they’ll basically screw you over, over the most … ah, petty s—,” Hall says.

The reporter asked me for my comment, and I responded by email. This is what I told her, in pertinent part:

Hall’s lawyers are trying to stretch the constitutional right to counsel to an absurd degree. The Supreme Court has held that a state may violate the right to counsel by placing an agent in the inmate’s cell to try to extract information from him without notice to his lawyer. In this case, a comedian went into the jail with no intent to gather evidence and for his own purposes, not the state’s. He was not an agent of the state, not even remotely. The defendant voluntarily talked to him. The precedents about planted informants do not apply to this situation.

I also doubt the claim that this video made much of a difference. It does not sound very damaging to me, and it certainly pales in comparison to the facts of the horrific crime.

And here is what made it into the article:

Ross did not seek Hall out for the prosecution like a state agent, and Hall could have not talked with the comedian or shared anything that could implicate him, said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, an organization advocating for capital punishment. It’s also possible that the video was not what swayed the jury during sentencing, Scheidegger said.

You be the judge. Or the editor.

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