By Gretchen Schuldt
Police use of a jailhouse snitch after his target retained a lawyer amounted to an improper government interrogation, the State Court of Appeals ruled Tuesday.
"What occurred here was the intentional, surreptitious creation of an opportunity to confront (Richard Michael) Arrington without counsel present," Appeals Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel.
In addition, Arrington's trial lawyer failed to provide effective counsel when he did not object to or try to suppress recordings of Arrington made by the informant, the panel said.
Seidl was joined in his opinion by Appeals Judges Lisa K. Stark and Thomas M. Hruz.
Arrington was charged in 2016 in connection with the shooting death of Ricardo Gomez in Green Bay.
A witness, 17, testified that Arrington fired a gun after exchanging words with another man, Shorty. Shorty was standing near another Gomez and one of the bullets instead struck Gomez in the chest, killing him.
There was no dispute during the jury trial that Arrington fired shots toward the house where Gomez and Shorty stood, Seidl wrote. Arrington, though, argued he fired in self-defense and that he believed that Shorty was reaching for a gun to shoot him.
Another witness testified that it appeared "Shorty reached for his waist as though he was reaching for a weapon," according to a brief filed in the appeal. The 17-year-old said it looked like Shorty was reaching for something, according to the brief.
"Arrington also claimed that it looked as if Shorty accidentally shot Gomez..." Seidl wrote.
Arrington turned himself into police after learning they were looking for him.
Arrington was housed in the Brown County Jail with the informant, Miller. Miller already was working with Green Bay Police Detectives Michael Wanta and Bradley Linzmeier in an effort to get information from two other inmates about a different homicide not involving Arrington.
"Miller believed Arrington would tell him things about the pending charges against him," Seidl wrote. "Miller asked the detectives if he should record his conversations with Arrington, and the detectives told him that he could."
The detectives supplied a tape recorder that Miller could turn on and off and that he wore in a band around his waist.
Miller recorded several conversations with Arrington. While the officers did not promise him anything specific, Wanta testified that Miller was seeking a break in his own pending cases as payment for his informant work. The state granted him that break, which it confirmed at Arrington's trial.
Excerpts of the profanity-laced recordings were played at Arrington's trial and Miller testified as well. Arrington's lawyer, Michael Hughes, did not object to the moves.
In one instance, Miller testified that he and Arrington discussed convincing the 17-year-old witness not to appear at trial; in another, he said that a comment by Arrington meant that he kept shooting at the house.
Arrington was found guilty of first-degree intentional homicide and felon in possession of a weapon. He was sentenced to life in prison, with eligibility for extended supervision after 35 years.
Arrington got a new lawyer, Suzanne Lois Hagopian, who filed a motion alleging the state violated Arrington's right to counsel. She also argued that Hughes had not provided effective assistance of counsel.
"What occurred here was the intentional, surreptitious creation of an opportunity to confront Arrington without counsel present." – Appeals Judge Mark A. Seidl
Hinkfuss rejected the motion, concluding that Miller was not acting as an agent for the state when he made his recordings and that Hughes was not ineffective.
The appeals court disagreed on both counts. Miller was a state agent, Seidl wrote.
"Miller was a prior confidential informant..." he said. "Miller ultimately reached an agreement with police to secretly record conversations with identified inmates, including Arrington, who had been charged and were represented by counsel....(T)his attempt to gain information was planned between Miller and law enforcement in advance."
The detective also knew that Miller was expecting some sort of consideration for his informant work.
Such conduct was "the very conduct that is prohibited" by legal precedent, Seidl wrote.
"Further, the detectives’ actions violated the Sixth Amendment because they created a situation likely to induce Arrington to make incriminating statements without his counsel’s assistance," he said.
The panel also found that attorney Hughes provided ineffective assistance.
"Hughes did not have a strategic reason for failing to object to the confidential informant evidence," Seidl wrote. "Even though Hughes testified at the Machner hearing that he had the recordings 'for quite some time' and had reviewed them 'long before trial,' he did not move to suppress the statements nor did he object at trial to Miller’s testimony," Seidl wrote.
Hughes also acknowledged after the trial "that the recordings cast Arrington’s positive demeanor on the witness stand in a different light due to the 'profanity' and lack of 'appropriate English,'” Seidl wrote.
There also was some evidence that supported Arrington's self-defense claim, he said.
"The prosecutor conceded in the State’s closing argument that '[s]cience in this case hasn’t been able to prove anything really for sure,' ” he said.
That made Hughes' failure to object to the recordings "all the more prejudicial," Seidl wrote.
"Hughes’ failure to seek suppression of the recording, or to object to Miller’s testimony at trial, for no strategic reason, fell far below an objective standard of reasonableness," he wrote.
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