ATTORNEY PAUL A. KSICINSKI 414-530-5214
ATTORNEY PAUL A. KSICINSKI
TOP 100 WISCONSIN CRIMINAL DEFENSE LAWYER
​414-530-5214
  • Home
  • References
  • PEER ENDORSEMENTS
  • PAST CASES
  • Blog
  • Contact
  • KNOW YOUR RIGHTS
  • How to deal with police
  • Practice Areas
  • About
  • Criminal Law Links
  • News

Discussion of current legal issues

Henry Nellum case selected by USA Network as a compelling homicide trial to keep an eye on in 2018

Button Text

Judicial invitation for police to attack Sixth Amendment by furnishing defendant’s cellmate the tool to make recordings of defendant’s statements State v. Arrington

8/27/2022

0 Comments

 
Picture

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/
0 Comments



Leave a Reply.

    Author

    These are reflections I have had about our criminal justice system.  Some of it may make sense, some of it might not.

    Archives

    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    February 2021
    January 2021
    November 2020
    October 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    February 2019
    January 2019
    December 2018
    October 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    January 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    May 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    June 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.