State v. Richard Michael Arrington, 2019AP2065, review of a published court of appeals decision granted 9/14/21, case activity (including briefs)

Issues (from the state’s PFR; response here):

Did Arrington prove that his counsel was ineffective for failing to move to suppress the CI’s recordings and testimony on Sixth Amendment grounds?

Did Arrington prove that the State violated his Sixth Amendment right to counsel?

As we’ve written:

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.

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.

As we also noted, the court of appeals was pretty plainly correct. Once the Sixth Amendment right to counsel has attached, the state is obligated to refrain not only from formal police interrogations, but from “surreptitious interrogations,” including those secretly recorded by a person cooperating with police. Maine v. Moulton, 474 U.S. 159, 176 (1985). The state’s argument on the first question–whether Arrington’s counsel, who did not object to the use of the recordings, was ineffective–depends on its claim that this law was “unsettled,” invoking the dubious canard that a lawyer can’t be ineffective for failing to argue such an issue. Why was it unsettled? Because the Wisconsin Court of Appeals–not only the highest, but apparently the only, court in the land–had not addressed such a jailhouse snitch case before. Wait, no, it had, but only one time (in a case presenting very different facts). So the issue is “novel.” Read for yourself.

As to the second issue, the state’s petition argues the informant here was basically freelancing: seeking information on his own that he merely hoped to use for his benefit. The problem with this claim is that it’s totally contrary to the facts, which involved the police outfitting him with a recorder in full knowledge of who he aimed to record and why. The state seems to think the police don’t “direct” an interrogation unless they (1) sign a contract with the interrogator beforehand (2) feed him questions via earpiece and (3) have some unspecified means of forcing him to commence and continue the interrogation. Again, read for yourself. We’ll see whether SCOW thinks as little of the Sixth Amendment right to counsel as does the state.