Supreme Judicial Court (March 6, 2007)

When the government enters into an articulated agreement containing a specific benefit or promise with an inmate, that inmate becomes an agent of the government, even if the inmate is not directed to target a specific individual.

The defendant was indicted by the District Attorney's office in July, 1998, for first degree murder and various other charges. In October, 1998, an informant, a convicted felon, signed an agreement with the United States Attorney's Office whereby he would plead guilty to firearms sales charges but the sentencing would be held pending the informant providing "substantial assistance" to the government in other investigations. The government made no agreement for the informant to target a specific individual, and no other specifics were agreed upon.

After entering into the agreement with the government, the informant began speaking with the defendant in jail. Eventually, the defendant began talking to the informant about the murder. The defendant disclosed being upset with the victim and in response to a question by the informant, the defendant admitted he "licked" the victim. The informant testified at trial and the defendant was convicted of first degree murder.

The defendant appealed his conviction claiming, among other things, that his right to counsel was violated by the admission of post-indictment statements he made to a jailhouse informant who had signed a cooperation agreement with the United States Attorney's Office. The Court agreed, ruling that because the defendant had been indicted in July, 1998, his Sixth Amendment right to counsel had attached at the time he made his statements to the informant. Under the Sixth Amendment, if the government uses an agent deliberately to elicit statements from a defendant absent his counsel, those statements must be suppressed.