This July, the Wisconsin Supreme Court held that recordings against the defendant was constitutional because the defendant’s cellmate had not acted as a government agent in making the recordings. State v. Arrington, 2022 WI 53 (July 1, 2022), https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=540596 If the facts of this case accurately reflected that holding, I would have no complaint. Unfortunately, the court choose to omit a glaring fact in its decision.
The prosecution’s critical evidence to refute the defendant’s self defense claim to the homicide charge several recordings made by Miller, the defendant’s jail cellmate. Miller testified that Arrington hold him that when he saw the first person, all he could think about was the stabbing and “just got to shooting.” Miller also testified that Arrington said that one of his bullets hit the decedent because the first person jumped out of the way when he began shooting.
The Arrington court began with a truism: that federal courts interpreting U.S. Supreme Court case law have concluded that the admission of jailhouse statements to informants violate a defendant’s Sixth Amendment right to counsel only where 1) the statements were deliberately elicited by the information and 2) were made to a government agent.
Miller had not been acting as a government agent because he had no agreement with the government to record Arrington. The court based that conclusion on the following:
- Miller unilaterally approached detectives about recording Arrington;
- Detectives told Miller that he could record Arrington if he wanted to, rather than directing him to do so;
- The detectives didn’t pay Miller or promise him payment if he recorded Arrington; and
- A previous agreement between the detectives and Miller to record another inmate had nothing to do with Arrington;
“Here, the detectives did not direct or control Miller’s questioning of Arrington….Furthermore, when Miller did choose to record, he was in control of what was recorded … The detectives could not listen into the conversations in real-time. They did not control Miller’s recording or questioning.”
However, there was one fact not taken into account by the court in this reasoning. As stated by the court itself, the recording device Miller used was supplied by law enforcement. When law enforcement furnishes the very means to record evidence, it is beyond incredible to say law enforcement did not control the recording.
Control the means to make the recording is controlling the recording. Quite simply, the court should have recognized that without law enforcement involvement the recording could not have been made. They controlled whether the recording could be made at all. In so doing, law enforcement was involved in obtaining the statement. By disregarding this fact, the court has invited the police to subvert a defendant’s Sixth Amendment rights by furnishing the tool to end run constitutional requirements. See, The Bad-Apple Myth of Policing: Violence perpetrated by cops doesn’t simply boil down to individual bad actors—it’s also a systemic, judicial failing, https://www.theatlantic.com/politics/archive/2019/08/how-courts-judge-police-use-force/594832/