Wired Co-Defendants

Wired Co-Defendants

The jailhouse cases placed a paid informant beside an accused who was already locked up, and Maine v. Moulton returns to the setting of Massiah itself, where a co-defendant changes sides and carries a recording device into a conversation with the indicted defendant. Moulton and his co-defendant Colson were arrested for stealing automotive parts from a dealership, indicted on four counts of theft and two counts of burglary, and represented by the same lawyer.¹ At arraignment Moulton pleaded not guilty and was released on his own recognizance, and his lawyer then warned him not to discuss the charges with anyone except on the lawyer's advice.² Months later Colson agreed to cooperate with the police. He wore a transmitter to a meeting with Moulton, discussed the pending charges, repeatedly asked Moulton to remind him of the details of the crime, and encouraged Moulton to describe his plan for killing witnesses.³ The pattern is the one in Massiah, where an indicted and represented defendant on bail talked in a car with a co-defendant who had agreed to cooperate while a government agent listened over a radio transmitter.⁴

The State tried to confine Massiah and Henry to their facts. It argued that the decisive fact in both cases was that the police set up the confrontation between the accused and their agent, so the Sixth Amendment is violated only when police take that step or an equivalent one, and it pointed out that Moulton, not Colson, initiated the recorded telephone conversations and asked for the meeting.⁵ The argument has surface appeal, because the government did plant its agent in both earlier cases. Its weakness is that it treats the staging as the entire wrong, which would make the right to counsel depend on who dialed the telephone.

The Court rejected the argument by asking what the Sixth Amendment requires of the State. After formal charges the accused is entitled to rely on counsel as a medium between himself and the State.⁶ That entitlement imposes more than a duty to leave the accused's efforts to obtain a lawyer alone, because the State also carries an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection counsel provides.⁷ Circumvention is measured by what the State does with the situation it has created, and the identity of the person who opens the conversation does not control that question. A defendant whose lawyer has told him to stay silent, and who telephones an old friend anyway, is exposed precisely because he does not know the friend has become the State's ear, so the call he places is the opening the State hoped to exploit. For that reason the Court held that the Sixth Amendment is violated when police arrange to record conversations between an indicted defendant and his co-defendant in order to deliberately obtain incriminating statements about the charged offense.⁸

Nothing in Massiah or Henry made police initiation a requirement, and Moulton states the governing measure directly: “knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to assistance of counsel as is the intentional creation of such an opportunity.”⁹ So when the police send a wired co-defendant to a meeting the defendant requested, the State has exploited an opportunity of the kind that sentence describes. Students lose this issue when they treat who started the conversation as the test, since the inquiry looks to what the State arranged and knew and not to who spoke first.

The duty is framed in terms of elicitation rather than Miranda-style interrogation: the State must refrain from deliberately eliciting incriminating statements from the accused, whether or not what the informant does would count as interrogation in the technical sense used for custodial questioning.¹⁰ That framing disposes of the State's remaining point, that the police had told Colson not to question Moulton about the pending charges. The police knew Moulton had been indicted, that he had a lawyer who had warned him to keep quiet about the case, and that the two men, jointly indicted, were likely to discuss it, so they must have known the charges would come up.¹¹ The recorded meeting bore this out, since Colson himself raised the charges and pressed for details, participation that Kuhlmann v. Wilson later described as the functional equivalent of interrogation.¹² The instruction therefore did the State no more good than the identical instruction did in Henry, for the reason developed in the preceding section.

Moulton also marks the edge of the rule. The Sixth Amendment is not violated whenever, “by luck or happenstance,” the State obtains incriminating statements from the accused after the right to counsel has attached.¹³ The boundary follows from the source of the duty. The duty is an obligation not to circumvent counsel, and circumvention requires some State conduct, either an arrangement the State made or an opportunity it knowingly used. When an indicted defendant's words reach the police through someone else's independent choice to repeat them, the State has circumvented nothing. A rule reaching those cases would turn every confidence an indicted defendant shares with an acquaintance into a potential constitutional violation the moment the acquaintance decided to call the police, and it would make the State answerable for conduct it neither arranged nor used.

Set that scene beside Moulton and the variable that decides the result is State participation. In Moulton the State secured Colson's cooperation, equipped him with a transmitter, and received a conversation in which he raised the charges and pressed for details. At the dinner table the State did none of those things. Who proposed the meeting changes nothing in either scene. What remains unsettled is the middle ground, where the police do arrange for an informant but the informant only listens, and that is the question Kuhlmann answered in the next section.