Wisconsin High Court Admits Into Evidence Secret Tape of Prisoner Made by Fellow Prisoner
by David M. Reutter
On July 1, 2022, the Supreme Court of Wisconsin decided that just because a jailhouse snitch used a government-provided device to tape incriminating statements made by a fellow pretrial detainee, he was not acting as a “state agent,” so the defendant’s right to counsel was not violated by allowing the statements to be admitted into evidence.
The Court’s opinion was issued in the case of Richard Michael Arrington, who was convicted of first-degree murder with use of a dangerous weapon and being a felon in possession of a firearm, after a violent incident on April 2, 2016, which capped a weeks-long feud when a “drug deal [went] bad.”
During that earlier botched drug deal, Arrington was cut by “Shorty,” a person he was attempting to rob. Arrington then said he would handle his business with Shorty and waited outside a home Shorty was visiting. When Shorty came out the door, Arrington let loose with a barrage of bullets, striking and killing an innocent bystander, Ricardo Gomez.
Arrington turned himself in and was booked into the Brown County Jail. While there, he had conversations with another detainee, Jason Miller, who used a recording device given to him by law enforcement to record incriminating statements Arrington made regarding his feud with Shorty and his role in Gomez’s shooting. Later, at Arrington’s trial, those statements were entered into evidence without objection.
After he was convicted on both counts as charged, Arrington obtained new counsel and moved for post-conviction relief. He alleged that admitting the statements into evidence violated his Sixth Amendment right to counsel and that his trial attorney was ineffective for failing to raise the objection. The circuit court denied the motion, but the Court of Appeals reversed that decision. The state then appealed to the Wisconsin Supreme Court.
That Court began its review by noting that federal courts have held “there is no [Sixth Amendment] infringement unless the informant was a government agent, and there is no agency absent the government’s agreement to reward the informant for his services,” quoting United States v. York,933 F.2d 1343 (7th Cir. 1991). Additionally, “[w]hat matters in forming an agency relationship is that the principal has the right to control that conduct,” the Court added, quoting Lang v. Lions Club of Cudahy Wis., Inc., 2020 WI 25.
Based on this, the Court said Miller was not acting as a state agent. While law enforcement said he could record conversations, “they made no promises to Mr. Miller that the fact that he was giving information would lead to a reduced sentence,” the Court said. Law enforcement also had no control over the recording device, and “the mere act of providing Miller with a recording device is not enough to constitute control of his questioning,” the Court added. Since the device “was nothing more than an avenue for the police to place a ‘listening ear’ into Arrington’s cell,” the Court said, quoting Kuhlmann v. Wilson, 477 U.S. 436 (1986), “this act did not elicit information from Arrington and did not violate his Sixth Amendment rights.”
Thus, the appellate court’s ruling was reversed and the conviction entered by the circuit court was affirmed. Since the Supreme Court found sufficient evidence to support the conviction absent the recorded statements, the ineffective-assistance-of-counsel claim also failed.
In a lengthy concurring opinion joined by Justices Ann Walsh Bradley and Jill J. Karofsky, Justice Rebecca F. Dallet reached the same conclusion, but for different reasons.
She faulted the majority for misapplying the law, saying “[w]hat matters for determining whether someone is a government agent isn’t whether they have a promise of specific consideration in hand before gathering information, but whether there was a ‘prearrangement’ with the police to gather the information,” quoting United States v. Henry, 447 U.S. 264 (1980), “and whether the police and the informant ‘behaved as though’ there was an agreement between them,” quoting York.
Since both conditions were met in this case, the Justice said Arrington’s Sixth Amendment right to counsel was violated, and his counsel was ineffective for failing to raise the challenge. But though the “counsel’s performance was deficient,” there was “no reasonable probability that the jury would have reached a different verdict,” she continued — meaning the ineffective-assistance-of-counsel claim died on the second prong of the test laid out in Strickland v. Washington, 466 U.S. 668 (1984).
Arrington was represented on appeal by an assistant state public defender, Suzanne L. Hagopian. See: State v. Arrington, 2022 WI 53.
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