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People v. Whitt8/27/1984
Henry, the informant was "specifically contacted by the government and given his charge respecting the procurement of possibly incriminating information . . . ." (Thomas v. Cox, supra, 708 F.2d at p. 135.) Also, the informant in Henry was working on a contingent fee arrangement, for he was to be paid for information actually delivered. (Ibid.)
The Thomas court recognized that such a "fee" may be in the form of lenient sentencing rather than cash. (Thomas v. Cox, supra, 708 F.2d at pp. 135-136; see also United States v. Sampol, supra, 636 F.2d at pp. 632-638.) However, if the informant has been given no reason to anticipate lenient treatment and does not actually receive any reduction in sentencing, there is no "quid pro quo" arrangement to support a finding that the informant acted as a government agent. (Thomas v. Cox, supra, 708 F.2d at pp. 135-137, and fn. 4.)
Similarly, in United States v. Malik (7th Cir. 1982) 680 F.2d 1162, the informant (Richards) obtained damaging statements from two fellow inmates who were awaiting trial. Richards had previously been an informant for the Federal Bureau of Investigation (FBI) in other cases. However, at the time of his conversations with the Maliks, Richards was angry with the FBI agents, who had arrested him on an extradition warrant when he understood that they would not do so. (Id., at p. 1164.) There was testimony that Richards was planning to make a deal with the Maliks at the time of his conversations with them, and only later decided to report those conversations to the government instead. (Id., at p. 1165.)
As in Thomas, the court found that the government had not deliberately elicited the conversations with the Maliks. It "[refused] to extend the rule of Massiah and Henry to situations where an individual, acting on his own initiative, deliberately elicits incriminating information." (United States v. Malik, supra, 680 F.2d at p. 1165.) It observed that " Maliks suggest that the Government must go to extraordinary lengths to protect defendants from their own loose talk; they suggest that potential informants be segregated from other inmates. We do not believe that the Sixth Amendment right to counsel requires the Government to take such steps." (Ibid.)
In light of the foregoing cases, this court concludes that Whitt's statements to deLoach were not deliberately elicited. The question is a very close and difficult one. The detectives' offer to speak to the prosecutor on deLoach's behalf on July 8th raises a serious concern as to whether the state gave deLoach an incentive to extract further statements from Whitt. Furthermore, the fact that the police must have realized on July 8th that deLoach was interested in informing and hoped for a reward for his information gives pause. If the police had had any working arrangements of this sort with deLoach in the past, their acceptance of his information and their agreement to speak to the prosecutor might well have been enough to attribute deLoach's post-July 8th activities to them. Under those circumstances, the inference that deLoach expected a quid pro quo and that the police encouraged this expectation would be compelling.
However, absent such a prior relationship with deLoach, the mere acceptance of his information, even with the promise to talk to the prosecutor, is not sufficient encouragement to hold the police accountable for deLoach's subsequent actions. Furthermore, the promise to speak to the prosecutor was in no way conditioned on deLoach providing any further information. The police did not indicate that more information would help influence the prosecutor towards leniency. Finally, the police made no arrangements to contact deLoach again after Jul
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