Arrington was being held at the Brown County Jail for 1st-degree homicide when another inmate, Miller, began chatting with him about his case. Turns out Miller was a snitch for State. With the assistance of police, Miller recorded his conversations with Arrington. Then the State used Arrington’s statements to obtain a homicide conviction. The court of appeals held that the State’s use of the snitch violated Arrington’s 6th Amendment right to counsel, and his trial lawyer was ineffective for failing to move to suppress the evidence.
Miller approached police saying that he thought he could get Arrington to tell him about his case. In exchange for working as a confidential informant, Miller wanted consideration in his own case. Police provided a small digital recorder that Miller could tuck into his waistband. After Miller made a recording, an officer retrieved the device transferred the contents to a CD, then returned it to Miller for use the next day.
The State provided the recordings to Arrington’s trial counsel, and he listened to them. But counsel never considered the fact that the State was eliciting incriminating statements from Arrington without his knowledge or consent. Plus defense counsel thought the quality of the recordings was poor so they couldn’t do much harm.
Several SCOTUS cases have addressed similar situations. The Court held that a defendant is denied his 6th Amendment right to counsel where a federal agent elicits incriminating information without his lawyer’s consent. Massiah v. United States, 377 U.S. 201 (1964). It also found a 6th Amendment violation where federal agents told a prisoner to be on alert to statements made by a defendant and paid him only if the statements proved useful. United States v. Henry, 447 U.S. 264 (1980). See also Maine v. Moulton, 474 U.S. 159 (1985)(6th Amendment violation where co-defendant agreed to cooperate with law enforcement in return promise of no further charges).
On the other hand, the Court found no 6th Amendment violation where detectives instructed an inmate not to ask the defendant questions about the crime, but just to listen to him. Kuhlmann v. Wilson, 477 U.S. 436 (1986) (abrogated on other grounds). Likewise, the Wisconsin court of appeals found no 6th Amendment violation where a jailhouse informant obtained information from a defendant and offered it to authorities unprompted and received nothing in exchange for it. State v. Lewis, 2010 WI App 52, 324 Wis. 2d 536, 781 N.W.2d 730.
The court of appeals held that under Massiah, Henry, and Moulton, Miller was acting as an agent for the State. Although Miller approached police first, he obtained an agreement from them to secretly record his conversations with Arrington for the purpose of giving it to them. Police facilitated the arrangement by outfitting Miller with a recording device, picking it up, transferring the information, and returning it each day. Police also knew that Miller was seeking consideration for his work, although he was never told specifically what that would be. Opinion, ¶¶31-35.
The court of appeals said: “What occurred here was the intentional, surreptitious creation of an opportunity to confront Arrington without counsel present.” Opinion, ¶36
It held that trial counsel’s failure to object or seek suppression of the unlawfully obtained statements amounted to deficient performance. Trial counsel did not have a strategic reason for this omission. He simply missed the issue. And even though he thought the recordings were too poor to be useful, he should have anticipated that the State would call Miller to testify about what was being said on them. Opinion, ¶41.
It also found that counsel’s deficient performance prejudiced Arrington. His defense was that he shot the victim in self-defense. Without the recordings and Miller’s testimony, there would have been a reasonable doubt about whether he acted with intent. Accordingly, the court of appeals reversed the homicide conviction and remanded the case for further proceedings. Opinion, ¶¶45-48.