When does an informant become an agent?

Today, the Court issued a very helpful opinion in the case of Ayers v. Hudson. 10a0324p.06 The defendant in Ayers was charged with murder, and detained prior to trial. As so happens with many cases, he allegedly confessed to another inmate, who promptly cooperated with authorities against the defendant. Sound familiar? The twist in this case, however, was that after the inmate cooperated with authorities, he went back to the defendant, and obtained additional information. This additional information was used against him at trial, despite the defendant's claim that it was obtained in violation of his right to counsel.

The Court granted habeas relief, finding that the inmate's discussions with the defendant, after initial contact with investigators, violated the defendant's right to counsel. The Court determined that investigators armed the inmate with information, and that the inmate elicited, during a second interview with the defendant, information investigators were looking for to incriminate the defendant. The Court noted "Here, the 'combination of circumstances is sufficient to support the . . . determination' that the State intentionally created a situation likely to violate Ayers’ Sixth Amendment rights when it returned Hutchinson to Ayers’ jail pod and he thereafter deliberately elicited statements from Ayers regarding the murder weapon and the amount of money allegedly taken from Brown’s apartment."

The Court further held that whether or not investigators gave specific instruction to an inmate to elicit information was not determinative of this issue. The Court noted that "we hold that although direct written or oral instructions by the State to a jailhouse informant to obtain evidence from a defendant would be sufficient to demonstrate agency, it is not the only relevant factor. A court must also analyze the facts and circumstances of a particular case to determine whether there exists an express or implied agreement between the State and the informant at the time the elicitation took place that supports a finding of agency. To hold otherwise would
allow the State to accomplish 'with a wink and a nod' what it cannot do overtly."

Kudos to the Cuyahoga County Public Defender's office on this significant win, and the precedent it creates!