Jailhouse Inmate or Government Agent? People v. Johnsen (CA Supreme Court Case)

The California Supreme Court in People v. Johnsen, 10 Cal. 5th 1116 (2021) recently provided further analysis as to when a jailhouse inmate who elicits incriminating statements from another inmate and provides that information to law enforcement becomes a government agent. The 6th Amendment guarantees a person the assistance of counsel at all stages of a criminal prosecution. According to Massiah v. United States (1964) 377 U.S. 201, once a defendant has been charged with any crime, a law enforcement officer (government agent) who elicits incriminating statements from the defendant regarding that crime, outside the presence of his attorney, violates defendant’s 6th Amendment right and the statements are inadmissible. These cases are always fact driven and the court will look at the totality of the circumstances to determine if the inmate informant was eliciting the statements of his own accord or at the direction of law enforcement. Factors that are often considered include if the inmate had acted as an informant for law enforcement in the past, if promises of leniency were made, either literally or implied, if the officer suggested specific types of information or if the officer directed the informant to a specific person.

Defendant Johnsen was convicted of first-degree murder, attempted murder, some robberies, burglaries, and five counts of solicitation to commit murder for crimes he committed in 1991 and 1992. The jury returned a verdict of death. Here are the facts. Johnsen began breaking into his neighbor Sylvia Rudy’s house in 1991. He stole various items, including the key to her apartment, on several occasions. The night before Johnsen was set to move out of the apartment complex, he decided he would rape and kill Rudy just to see if he could do it. Unbeknownst to Johnsen, Rudy was out of town and her parents were staying the night in her apartment. Johnsen used the key to enter the apartment, and when he found Rudy’s bed empty, he continued to the guest room where he stabbed and crushed the skulls of her elderly parents. Her mother died. Her father survived but was forever impaired. Detectives ultimately followed a trail of Rudy’s stolen property that Johnsen had given or sold to various family and friends and arrested Johnsen.

While in custody, Johnsen was constantly trying to convince other inmates to kill friends and police officers who might testify against him. To shut Johnsen up, Eric Holland, an inmate in the cell next to Johnsen, convinced Johnsen that he could get someone to kill the witnesses, but wanted some collateral from Johnsen. Johnsen initially offered up a written confession describing his participation in the murder of his pregnant girlfriend, but Holland did not think he could verify that crime. Instead, he insisted it be a confession regarding the pending charges. Johnsen wrote and passed 35 notes to Holland, answering Holland’s questions and describing the burglaries leading up to the murder and the actual murder and attempted murder of Rudy’s parents. He also told Holland of his involvement in his pregnant girlfriend’s murder a year earlier. Upset with Johnsen’s lack of motive for the killings, Holland told his attorney to let the district attorney know about the confession because he thought Johnsen was “sick” and did not want him to get off. However, he did not want his attorney to say anything about Holland because he did not want to be labeled a snitch. Holland was also under the impression that he would not be required to testify, thinking the written notes would be admissible. Holland had not provided the handwritten notes to his attorney yet.

Antone, the DA Investigator, arranged a meeting with Holland and his attorney, where Antone told Holland that he would need to testify, or the confessions would be inadmissible. It was at this meeting that Holland told Antone that he would only testify if his state sentence could run concurrent to his federal sentence. Antone made no promises and told Holland clearly that he was not asking him to be a police agent “and do these things for me.” Holland asked Antone if he should try to get a written confession to Johnsen’s girlfriend’s murder from Johnsen and Antone told Holland that it was up to him. Holland’s attorney explained to Holland that the only agreement the district attorney was making now was to not use any of this information against Holland. Antone further had Holland sign a written acknowledgment that he was receiving nothing in return for his continued interactions with Johnsen. A week later, Antone and Holland met again. Holland told Antone he could get Johnsen’s written confession, but he would not hand it over unless the prosecutor cut him a deal. Antone again refused and told Holland, “If you have any idea that you even think you’re working for us, stop…I don’t want you to do anything to try and make my case better.” Johnsen p. 1135.

In the weeks that followed, on Holland’s prompting, Johnsen wrote out a 14-page detailed confession and some other detailed notes for Holland. Holland continued to refuse to testify because the district attorney would not enter an agreement with him. However, law enforcement served a search warrant on Holland’s cell, and confiscated Johnsen’s notes, including the 14-page confession. With knowledge he’d be subpoenaed, Holland finally agreed to testify truthfully and for that, the district attorney agreed to have his state sentence run concurrently with his federal sentence.

So why so much detail? Because as I noted above, these cases are driven by the facts. Johnsen had asked the trial court to throw out his confession because he alleged that Holland was acting as an agent of law enforcement when he solicited his confession without his attorney present. The trial court found, and the California Supreme Court affirmed, Holland was not a government agent when he obtained the confessions. To constitute an agent, or extension of law enforcement, Johnsen had to show that Holland was 1) under the direction of law enforcement pursuant to a preexisting arrangement with the expectation of some benefit, and 2) Holland deliberately elicited incriminating statements. Clearly the second prong is met. The Supreme Court held that the first prong fails to be met where law enforcement merely accepts information elicited by an informant-inmate on his own initiative, with no official promises or inducement. Here, Antone continued to tell Holland that the district attorney would accept any useful information Holland wanted to give but would not make any promises of leniency. Holland acknowledged that he did this all on his own both in his meetings with Antone and testified to the same on the stand.

The Court also noted, however, that Antone’s instruction that Holland should not consider himself a police agent does not by itself establish that no agency relationship existed. Johnsen p. 1153. What was helpful here was the fact that Holland had never given information to authorities so there was no evidence of any preexisting agreement or continuing practice of collaboration with law enforcement, and Holland signed an acknowledgment after every meeting that he was receiving nothing in return. Lastly, the fact that Holland refused to hand over the written confessions and law enforcement had to execute a search warrant to obtain them further demonstrates he was not working for law enforcement. So, the court considered the totality of the circumstances in deciding that Holland was not acting at the direction of law enforcement when he obtained Johnsen’s confessions. As usual, good facts make good law, and here there are not only strong facts showing Holland acted of his own accord, but also that Johnsen committed the murder. Of further note, the fact that Holland ultimately received leniency for his cooperation did not transform him into an agent because this deal came about months after Holland had already elicited the confessions.

As to the confessions regarding the murder of his pregnant girlfriend, no statements obtained by Holland regarding those crimes implicate Johnsen’s 6th Amendment rights because Johnsen was not charged with that crime at the time, so the 6th Amendment did not apply.

What does this mean for you? Inmates absolutely have a motive when they bring law enforcement confessions of other inmates, but timing is important. We must be able to show the court that no promises were made, no directions given, no target sighted, before the inmate went out into the jail and sought that confession. And, absolutely no “winks and nods”!