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Outrageous Governmental Conduct

State v. William Thomas Hudson, III, 2010AP1598-CR, District 4, 9/13/12

court of appeals decision (not recommended for publication); case activity

¶9        “The concept of outrageous governmental conduct originates from the Due Process Clause of the Fifth Amendment.” [State v. Givens, 217 Wis. 2d 180, 188, 580 N.W.2d 340 (Ct. App. 1998).] Outrageous governmental conduct may arise where the government’s conduct is so enmeshed in the criminal activity that prosecution of the defendant would be repugnant to the American criminal justice system.  State v. Steadman, 152 Wis. 2d 293, 301, 448 N.W.2d 267 (Ct. App. 1989).  To successfully assert the defense of outrageous governmental conduct, “the defendant must show that ‘the prosecution … violate[s] fundamental fairness [and is] shocking to the universal sense of justice [] mandated by [due process].’”  State v. Albrecht, 184 Wis. 2d 287, 297, 516 N.W.2d 776 (citation omitted).  Hudson is entitled to a hearing only if he asserts sufficient facts to demonstrate that the conduct violated a specific constitutional right.  See Steadman, 152 Wis. 2d at 302.

As part of a sting operation, a state agent posing as a lawyer advanced a phony scheme by which Hudson would commit murder and arson. Stressing that the faux attorney acted merely as a go-between, without creating the illusion he represented Hudson, the court rejects an outrageous-conduct defense:

¶16      The police tactics that produced the evidence used against Hudson are very similar to those used in Albrecht.  That is, while Agent Fassbender posed as an attorney, he used that role only to act as a coconspirator to obtain evidence of Hudson’s willingness to commit murder, and did not use that role to violate Hudson’s constitutional rights.  While the persona that was utilized was that of a lawyer, no compromise of Hudson’s right to counsel took place, as no illusion of representation of Hudson was created.  Throughout, “Michaels” was just a go-between, a coconspirator, just as in Albrecht.  See id.

¶17      We cannot pretend not to be disturbed by the use of a lawyer as the persona in this conspiracy.  Because there is a constitutional right to counsel and confidentiality is an inherent part of that right, we have examined the record on appeal very closely to determine that no reasonable expectation of representation was created.  We find none.  The conversations that Hudson relies on reveal only that Fassbender adopted the “Attorney Michaels” persona to enhance his credibility, not to utilize the persona to do anything that had an impact on Hudson’s constitutional right to counsel.  Hudson has pointed us to nothing in the record to the contrary.[4]

¶18      We therefore conclude that this sting operation, while utilizing deception, did no more than give Hudson the opportunity to commit crimes and was not outrageous governmental conduct. …

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