State Supreme Court rules against man secretly recorded by jail inmate

In a unanimous decision, the Wisconsin Supreme Court upheld the homicide conviction of a Green Bay man who challenged the use of secret recordings of him making incriminating comments that were made by another person in jail. 

Richard Arrington was convicted of the April 2016 killing of Ricardo Gomez. His conviction was partially based on comments he made to Jason Miller, who was also in the Brown County Jail and had been provided with a recording device by law enforcement. 

Arrington had asked for a new trial, arguing that the recordings shouldn’t have been allowed as evidence and that he had ineffective counsel because his lawyer didn’t object to their admission. An appeals court agreed with him and granted a new trial, but that decision was reversed by the Supreme Court on Friday. 

“Because the detectives did not have an agreement with Miller or control his questioning, we conclude that there was no agency relationship between Miller and law enforcement and no violation of Arrington’s Sixth Amendment right to counsel,” Justice Patience Roggensack wrote in her majority opinion. 

In a concurring opinion, Justice Rebecca Dallet wrote that law enforcement giving another inmate a recording device and other police uses of jailhouse informants are a clear violation of the Sixth Amendment, but that Arrington’s conviction shouldn’t be overturned because other evidence in the case clearly showed he was guilty. 

“The majority misapplies that law, concluding that Arrington’s right to counsel was somehow not violated when a jailhouse informant, using a recording device provided by the police, interrogated Arrington and recorded him making incriminating statements,” Dallet wrote. “That said, there is no reasonable probability the jury would have reached a different outcome if Arrington’s recorded statements or the informant’s testimony had been suppressed, because neither was inconsistent with Arrington’s defense theory. And so, although Arrington’s trial counsel’s performance was deficient for failing to move to suppress those statements, it did not prejudice Arrington’s defense.”

In 2020, Propublica found that law enforcement frequently use jailhouse informants to get convictions, but that those informants often lie about what they were told and exchange false information in exchange for leniency in their own cases.