Government responsibility for the acts of jailhouse informants under the Sixth Amendment.

• Author: Goodell, Maia

TABLE OF CONTENTS

INTRODUCTION I. THE JAILHOUSE INFORMANT'S AGREEMENT TO PROVIDE INFORMATION TO THE GOVERNMENT A. The "Informant at Large" B. Equality in the Adversarial System II. CONTOURS OF THE AGREEMENT A. Scope B. Benefit C. Formality III. THE GOVERNMENT'S ACTION IN TARGETING A DEFENDANT TO OBTAIN INFORMATION CONCLUSION INTRODUCTION

Once a criminal investigation has identified a suspect, and adversarial proceedings have begun, the Sixth Amendment (1) confers a right to be represented by counsel at the "critical stages" of the process. (2) The Supreme Court has made clear that the government cannot circumvent this requirement merely by designating a civilian informant to engage in questioning on its behalf. (3) Less clear is when the government is responsible for the actions of an informant; particularly in the case of jailhouse informants, incarcerated individuals who question fellow inmates, government responsibility is a difficult issue for which no clear legal standard has emerged. (4) An examination of federal appellate and state supreme court case law reveals two distinct factors that courts accord the most weight in making their decisions: the agreement between the informant and the government, and the government's targeting of a particular defendant. Federal appellate and state supreme courts disagree about whether one, both, or either are required. (5)

The relevant Sixth Amendment principle was first articulated in 1964 in United States v. Massiah. (6) The defendant was a merchant seaman accused of possession of narcotics, and released on bail (7) Unbeknownst to him, government agents had struck a deal with his co-defendant to allow them to install a radio transmitter in his car and listen in on their conversation. (8) The court held that the defendant's "Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which Government agents had deliberately elicited from him after he had been indicted and in absence of his retained counsel." (9) This is the core Massiah standard.

In 1980, the Court applied this rule to jailhouse informants in United States v. Henry, (10) holding that the government's use of an informant to elicit information from a postindictment jailmate violated the Sixth Amendment as interpreted by Massiah. Looking at the circumstances, the Court determined that the government, and not the informant, had responsibility for creating a situation in which it was likely that information would be elicited from the accused in violation of the Sixth Amendment. (11) The FBI agent "must have known" that the informant would question the defendant in the absence of counsel (12) The Court thus focused on the government's responsibility--as determined by what it "must have known"--not the informant's actions.

In 1986, in Kuhlmann v. Wilson, (13) the Court held that the government does not offend the Sixth Amendment by using a passive informant who asks no questions of the accused, (14) settling the "listening post" question, which Henry had left open. (15) There was no question that the state was responsible for the informant's actions. (16) Thus, where the government is responsible for the actions of an informant, the informant's behavior must constitute active elicitation (17) to violate the Sixth Amendment right to counsel. (18)

The fundamental standard remains constant in these cases: the state is prohibited from deliberately eliciting incriminating information to further its case after indictment in the absence of counsel--directly or indirectly. (19) In the jailhouse context, lower courts have broken this standard into two prongs. The first prong focuses on government responsibility for the informant's actions; the second part focuses on whether the informant's elicitation was active. (20)

There is substantially less guidance for the first prong of the inquiry than for the second prong. (21) Although sometimes referred to as "agency," (22) the first prong's analysis is more analogous to state action (23) than to commercial agency. (24) The Sixth Amendment inquiry, like the state action inquiry, focuses on the government's unique constitutional obligation. (25) Lower courts generally agree that the fundamental concern is to distinguish the situation in which the state has deliberately elicited information in violation of the Massiah right to counsel, and the one in which an enterprising informant or good citizen has undertaken to question the defendant about the crime and furnished this information to the prosecution. (26) The Court laid down the standard in Henry: the government is responsible for acts that it "must have known" will lead to rights violations. (27) Similarly, in Maine v. Moulton, (28) the Court barred "knowing exploitation by the state of an opportunity to confront the accused without counsel being present." (29) As for state action, and unlike for commercial agency, (30) the focus here is on the principal's motivation, and not on objective appearance; the aim of the rule is "to assure that constitutional standards are invoked 'when it can be said that the State is responsible for the specific conduct'" (31) that violates the defendant's right to counsel. (32)

Two factors emerge from discussions of government responsibility: agreement and targeting. The first factor is that the government and the informant have agreed that the informant will provide the government with information about fellow inmates. (33) Among courts that emphasize agreement, different courts place emphasis on various dimensions of this agreement: for example, some courts are interested in the degree of control the government has over the informant; (34) others emphasize the benefit the informant gained from providing the information--the quid pro quo. (35) There remains the common strand among these courts of an agreement factor.

Second, some courts look at whether the government has targeted this particular defendant. (36) Targeting, or singling out a particular defendant from whom to obtain information, is distinct from agreement. The state can target a defendant in the complete absence of any agreement with an informant, for example by placing an informant who is known to be talkative in proximity to the suspect, without telling the potential informant anything. (37) This factor recognizes that the government's attempts to circumvent the right to counsel need not take the form of an agreement with an informant. (38)

This Note argues that either an agreement with the informant to provide information about fellow inmates or the targeting of a particular defendant is sufficient to show that the government is responsible for the informant's questioning, thus furthering its case in violation of the Sixth Amendment right to counsel. The government, in agreement or targeting, has knowingly caused the informant to "deliberately elicit" statements from the accused in contravention of the Massiah standard. Part I argues that an agreement alone confers government responsibility for the informant's actions. Part II delimits the contours of an agreement sufficient to make the state responsible for the informant, arguing that the government is responsible for the informant's actions within the scope of the agreement. Part III asserts that targeting is also government misconduct that independently creates responsibility for an informant's actions.

1. THE JAILHOUSE INFORMANT'S AGREEMENT TO PROVIDE INFORMATION TO THE GOVERNMENT

   In focusing on the agreement, express or implied, standing or targeted, courts correctly discern that if the government deputizes a private citizen to gather information, that informant becomes an extension of the state. (39) This satisfies the first part of the two-part standard for Massiah violations: (1) government responsibility; (2) active elicitation. The agreement allows the informant's targeting of the defendant for elicitation to be imputed to the government. (40) Thus, government officials need not have personally targeted the defendant. Section I.A argues that, under Supreme Court precedent, an agreement is sufficient to confer government responsibility where it creates an "informant at large." Section I.B argues that the underlying rationale for the Sixth Amendment right to counsel--preservation of the adversarial system--requires that the government be responsible for creation of informants at large via agreements.

   1. The "Informant at Large"

      Courts that require targeting, refusing to find government responsibility based on agreement alone, exclude a significant type of government circumvention of the right to counsel. By implicitly or explicitly tasking an inmate with obtaining information from jailmiates, usually for rewards on a contingency basis, the government encourages that inmate to question suspects who, overwhelmingly, have acquired the right to counsel, which vests approximately at indictment. (41) The government creates what the D.C. Circuit has termed an "informant at large"--the agreement does not, then, have to be targeted to a particular defendant to show government responsibility for the constitutional violation. (42)

      Soon after the Supreme Court applied the Sixth Amendment to bar the government's use of a jailhouse informant in Henry, the D.C. Circuit recognized that Henry forbade government creation of jailhouse informants at large when the court held that the government was responsible for the informant in United States v. Sampol. (43) The informant did not apply for bail, according to the prosecutor in part because "his ability to demonstrate his good faith and his cooperation, seem to be enhanced, strangely enough, by his continued incarceration" (44)--he was staying in jail to be a jailhouse informant. Pursuant to an agreement, the informant used "his ability to 'ingratiate' himself with criminals" to coax incriminating statements from a jailmate toward whom the prosecutor had not initially directed...