In a majority opinion written by Roggensack, SCOW holds that the State did not violate Arrington’s 6th Amendment right to counsel by using a jailhouse snitch to help cinch a 1st-degree homicide conviction against him. Thus, Arrington’s lawyer did not perform deficiently by failing to file a suppression motion. Dallet wrote a concurrence joined by A.W. Bradley and Karofsky arguing that a 6th Amendment violation did occur and that Arrington’s lawyer performed deficiently by not moving to suppress the snitch evidence. The concurrence agrees, however, that Arrington was not prejudiced by counsel’s conduct.
Arrington was being held at the Brown County Jail for 1st-degree homicide when another inmate, Miller, began chatting with him about his case. Miller had approached police saying that he thought he could get Arrington to talk about it. 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. He listened to them but did not move to suppress them or Miller’s testimony. The State used this evidence to convict Arrington. In a published opinion, the court of appeals held that this violated his 6th Amendment right to counsel. That’s now overturned.
Once the 6th Amendment right to counsel attaches, police cannot directly question the defendant without his layer present. Maine v. Moulton, 474 U.S. 159, 176 (1985). Nor may police use an informant to deliberately elicit incriminating information from him. Massiah v. United States, 377 U.S. 201, 206 (1964). That means the State cannot use an agent, such as a jailhouse snitch, to indirectly elicit information that the defendant would not intentionally reveal to government agents. United States v. Henry, 447 U.S. 264, 273 (1980)
Determining whether police use of an informant violates the defendant’s 6th Amendment right to counsel turns on whether (1) the informant is an agent of the police, (2) the informant is ostensibly no more than a fellow inmate of the defendant, and (3) the informant takes some action to deliberately elicit incriminating information after the defendant has been indicted and placed in custody. Id. at 270.
In this case, the second factor was not in dispute. Relying in part on Wisconsin law governing agency relationships, the majority held that Miller did not satisfy the first factor. Miller was not acting as a government agent because he approached detectives about recording conversations with Arrington and the detectives said yes but that they could not pay him. Payment or consideration would have to come from the D.A. Majority, ¶¶61-63. Also, the detectives did not have direct control over Miller’s questions.
The concurrence points out that Wisconsin law on agency relationships can’t deprive a person of a federal constitutional right. Under federal case law, a person is an agent if he obtains information from the defendant pursuant to an agreement with law enforcement. The agreement doesn’t have to be formal. The informant just has to be assured that his good deed will not go unrewarded. Furthermore, Henry rejected the assertion that police must tell the informant what questions to ask. Concurrence, ¶¶94-100.
Thus, the concurrence (like the unanimous court of appeals) stresses that while Miller approached the police, the police gave Miller a police-issued recording device and assured him the information he gathered would be part of his consideration (he was also working on another case for them), but the DA would make the decision (as the D.A. always does). For three days Miller recorded conversations with Arrington and gave the tape to the police at the end of each day. Concurrence, ¶¶91-94, 97. Clearly, he had an arrangement with the police.
The concurrence also thinks Miller satisfied the third factor–he took action to deliberately elicit information from Arrington. He wore a government recording device and engaged Arrington in a prolonged discussion of the pending charges. Miller didn’t just listen to Arrington as in Kuhlmann v. Wilson, 477 U.S. 436 (1986). He asked questions and strategized with Arrington about how to obtain an acquittal. Concurrence, ¶¶98-99.
Because the majority found no 6th Amendment violation, it also found that defense counsel did not perform deficiently in failing to move for suppression. But it went further. It reiterated that even if the law were unsettled, counsel had no duty to argue an unsettled point of law. Majority, ¶73 (citing State v. Maday, 2017 WI 28, ¶55, 374 Wis. 2d 164, 892 N.W.2d 611).
The majority and concurrence agreed that Arrington was not prejudiced but for different reasons.