by Douglas Ankney

The Supreme Court of Connecticut ruled that under Massiah v. United States, 377 U.S. 201 (1964), and its progeny, a jailhouse informant can be an agent of the State—even in the absence of any formal agreement between the government and an informant—and use of evidence obtained by the informant violates a defendant’s Sixth Amendment right to counsel.

Lazale Ashby was formally charged with nine counts, including two capital felonies, in connection with the rape and murder of a Hartford, Connecticut, woman. He was held at the Northern Correctional Institution (“NCI”). Kenneth Pladsen, Jr. was also confined at NCI with Ashby. Pladsen wrote a letter to Detective Andrew Weaver, offering to provide information about Ashby that could prove “very useful” to Weaver and stating to Weaver: “You want my help, come [and] see me [and] we’ll talk.”

Weaver promptly met with Pladsen in a private office at NCI. During the conversation, Weaver learned that Pladsen did not have any specific information regarding Ashby. Weaver suggested to Pladsen the type of information police would need and told Pladsen that due to his criminal record, his word wouldn’t be any good. Weaver asked Pladsen if he would wear a wire. Pladsen asked if he would receive any benefit. Weaver replied that any “deals” or plans to use a wire would have to be approved by the Office of the State’s Attorney (“OSA”), adding that the police are “always interested” in gathering information about criminal matters from reliable sources. He told Pladsen he would “get back with him.”

The OSA subsequently advised Weaver to take no further action with Pladsen. However, Weaver did not convey that information to Pladsen. Over the next three months, a prison guard repeatedly contacted Weaver on behalf of Pladsen. Eventually, on May 17, 2007, Weaver instructed the corrections officer to inform Pladsen that “nothing ... had changed” and that Weaver would try to get in touch soon.

Pladsen then told Ashby about his meeting with Weaver. According to Pladsen, Ashby then asked for Pladsen’s assistance in a planned ruse to destroy Weaver’s credibility. Ashby instructed Pladsen to feed details of the crime to Weaver. Then when Pladsen was called to testify, Pladsen would lie and say that it was Weaver who had fed the details to Pladsen. Pladsen then asked Ashby to write down the details, and Ashby wrote that he had “used the bloody tank top on the floor to strangle [the victim], and that’s the murder weapon.”
Pladsen contacted Weaver, read Ashby’s note to Weaver, and explained the planned ruse. The State immediately notified the defense of its plan to call Pladsen as a witness and disclosed the preceding events to the defense.

Ashby filed a motion to suppress, arguing that Pladsen’s testimony violated Ashby’s Sixth Amendment right to counsel. At a hearing on the motion, Pladsen testified that he acted on his own accord and that he hadn’t been promised anything. The trial court found Pladsen’s testimony credible. The court also reasoned that it was Pladsen who initiated contact with the State; the OSA had made no attempt to enlist Pladsen’s assistance and had instructed Weaver not to pursue the matter with Pladsen; no one from law enforcement was involved in housing Pladsen with Ashby; Weaver told Pladsen that any action would require approval by the OSA; Weaver made no further attempts to enlist Pladsen’s assistance; and Weaver’s later contact with Pladsen was the result of Pladsen contacting Weaver.

The court found that Pladsen was not acting as an agent of the State and denied the suppression motion. Pladsen then testified to the above events. Ashby was convicted and appealed, arguing inter alia, that the trial court erred in denying his suppression motion.

While the appeal was pending, Pladsen filed a motion in the superior court seeking modification of a 25-year sentence he’d received for assaulting a corrections officer. The State consented to a hearing on the motion where Senior Assistant State’s Attorney John Fahey told the court he had promised Pladsen that the State would make the court aware of what Pladsen had done to assist the State in its prosecution of Ashby. It was also revealed that prior to Pladsen testifying at Ashby’s trial, the OSA had informed both the correctional officer who had been assaulted by Pladsen and Pladsen’s mother that the State wouldn’t oppose reduction of Plasden’s sentence for his assistance in the prosecution of Ashby.

The Connecticut Supreme Court observed “the United States Supreme Court has held that a state violates the sixth amendment when, acting through an undisclosed agent, it ‘deliberately elicit[s]’ incriminating statements from an accused ‘after he [has] been indicted’ and his right to counsel has attached.” Massiah. The State has an affirmative obligation to respect and preserve the accused’s choice to seek the assistance of counsel. Maine v. Moulton, 474 U.S. 159 (1985).
In United States v. Henry, 447 U.S. 264 (1980), law enforcement contacted a prisoner who had been assigned to the same cell block as the defendant. They instructed the informant to neither initiate any conversations with the defendant nor question him about the crime but to listen for incriminating statements. The informant disobeyed those instructions, engaged the defendant in a series of conversations, and elicited incriminating statements that were used at trial. The government argued on appeal that, because the informant disobeyed instructions he wasn’t an agent of the state. The Supreme Court of the United States (“SCOTUS”) rejected that argument, concluding that because of the defendant’s history with and proximity to the informant, law enforcement “must have known that such propinquity [close proximity] likely would lead to that result.” SCOTUS also explained that “the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover government agents.” SCOTUS concluded the government violated the defendant’s rights by “intentionally creating a situation likely to induce [the defendant] to make incriminating statements without the assistance of counsel....”

In Moulton, a cooperating defendant-informant who wore a wire to a meeting requested by the defendant had been previously instructed not to question the defendant. Disregarding those instructions, the informant prompted the defendant to make incriminating statements that were later used at trial. In deciding the case, SCOTUS first characterized the Sixth Amendment right as follows: “Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek this assistance. We have on several occasions ... made clear that, at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” Id.

The State argued in Moulton that the Sixth Amendment was not violated because the defendant had initiated the meeting. SCOTUS rejected that argument, concluding that the “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.” Id.
The Connecticut Supreme Court observed that SCOTUS “has yet to articulate a test for determining agency under Massiah.” But in State v. Marshall, 882 N.W.2d 68 (Iowa 2016), the Iowa Supreme Court determined “it seems clear ... that agency under Massiah does not rely too heavily on traditional principles of private contract or agency law, but instead seems closer to the doctrine of state action. The question, for constitutional purposes, is whether the actions of an informant may be fairly attributed to the state.” And in Thompson v. Davis, 916 F.3d 444 (5th Cir. 2019), the Fifth Circuit instructed: “To determine whether an informant was a governmental agent for purposes of a Massiah claim, the court asks whether the informant was promised, reasonably led to believe, or actually received benefit in exchange for soliciting information from the defendant ... and whether he acted pursuant to instructions from the State or otherwise submitted to the State’s control.”

In the instant case, while it was true that the OSA neither initiated contact with Pladsen nor entered into an agreement with Pladsen, the Court determined that the facts demonstrated Pladsen was acting as an agent of the State. Weaver asked Pladsen if he would wear a wire and told him that the police were always looking for reliable information regarding criminal activity. Weaver told Pladsen that the OSA would have to approve any deals, but Weaver never told Pladsen that the OSA had declined his offer to wear a wire and never told Pladsen to desist from his efforts to obtain information. Instead, Weaver informed Pladsen that nothing had changed. Pladsen continued to seek information from Ashby with the belief that he would receive benefit, and he did, in fact, receive benefit for his testimony.

The Court explained that “the question of agency must be resolved by an examination of the facts relating to the nature of the relationship between the state and the defendant’s interrogator.” It further explained that “an agency relationship may be established through either implicit or explicit conduct.” After thoroughly examining the facts of the case, the Court concluded “that the defendant has satisfied his burden of demonstrating the existence of an agency relationship under Massiah. Thus, the Court concluded that Ashby’s Sixth Amendment right to counsel had been violated.

Accordingly, the Court reversed and remanded for a new trial. See: State v. Ashby, 247 A.3d 521 (Conn. 2020).

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