Reply Brief — John Farrow, et al., Petitioners v. Contra Costa County, California

No. 20-549

In the

Supreme Court of the United States

JOHN FARROW, et al.,

Petitioners,

v.

CONTRA COSTA COUNTY, CALIFORNIA,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

REPLY BRIEF FOR PETITIONERS

Christopher A lan Martin

Counsel of Record

Martin Law Offices

607 Hearst Avenue

Berkeley, CA 94610

(510) 206-2142

m305@icloud.com

Attorney for Petitioners

January 15, 2021

301198

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

REPLY BRIEF FOR PETITIONERS . . . . . . . . . . . . . . 1

(1) Petitioners Argued the Heck Issue in Their

Opening Brief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

(2) Heck does not Bar this Action. . . . . . . . . . . . . . . . 3

(3) Respondent Raises Another Compelling

Reason for Granting Certiorari. . . . . . . . . . . . . . . 4

(4) Collateral Estoppel Was Not Addressed Below. 6

(5) Due Process and Equal Protection Violations

Occur at Arraignment if Counsel is Not

Present. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Due Process was Violated. . . . . . . . . . . . . . . 6

B. Equal Protection was Violated. . . . . . . . . . . 7

(6)

This Case is not Moot. . . . . . . . . . . . . . . . . . . . . . 8

(7) There is a Sufficient Record to Determine that

Respondent’s Policy was Constitutionally

Invalid on its Face. . . . . . . . . . . . . . . . . . . . . . . . . . 9

ii

Table of Contents

Page

(8) The Absence of Judicial Defendants and a

Certified Class Clarifies the Issues. . . . . . . . . . 10

(9) The Procedural Issues in this Case are

Anything but Mundane. . . . . . . . . . . . . . . . . . . . 11

(10) The Issues in this Case are not of “Relative

Unimportance.” . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Already, LLC v. Nike, Inc.,

568 U.S. 85 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Ayala v. Wong,

756 F.3d 656 (9th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 5

Coleman v. Alabama,

399 U.S. 1 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Cutter v. Wilkinson,

544 U.S. 709 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Douglas v. California,

372 U.S. 353 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Gideon v. Wainwright,

372 U.S. 335 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hamilton v. Alabama,

368 U.S. 352 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Heck v. Humphrey,

512 U.S. 477, (1994) . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4

Hurst v. Florida,

577 U.S. 92 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iv

Cited Authorities

Page

Kolstad v. American Dental Ass’n,

527 U.S. 526 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Lane v. Brown,

372 U.S. 477 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mathews v. Eldridge,

424 U.S. 319 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

McNeal v. Adams,

623 F.3d 1283 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 5

People v. Cox,

193 Cal. App. 3d 1437 (1987) . . . . . . . . . . . . . . . . . . . . 4

Ross v. Moffitt,

417 U.S. 600 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Rothgery v. Gillespie County, Tex.,

554 U.S. 191 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Cronic,

466 U.S. 648 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

United States v. Morrison,

449 U.S. 361 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

United States v. Owen,

407 F.3d 222 (4th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 5

v

Cited Authorities

Page

United States v. Roy,

855 F.3d 1133 (11th Cir. 2017) . . . . . . . . . . . . . . . . . . . 5

United States v. Wade,

388 U.S. 218 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

White v. Maryland,

373 U.S. 59 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Wisconsin v. Constantineau,

400 U.S. 433 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statutes and Other Authorities

U.S. Const., Amend. VI . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1

REPLY BRIEF FOR PETITIONERS

Respondent attempts to avoid a grant of certiorari

by trivializing the importance of the issues and by

retreating to the notion that this case is not the proper

vehicle for addressing these profound constitutional issues,

which affect the entire nation. It reframes the questions

presented, shifting the focus from the constitutional issues

to specious assertions in support of its only real argument,

which is that this case is not the appropriate vehicle

because it is “not clean” and is circumscribed by statespecific facts. The transparent falsity of Respondent’s

claims is exposed below, revealing that the simplicity of

this case makes it the ideal vehicle for addressing the

constitutional questions at issue.

Petitioners identified widening splits among the

federal circuit courts, federal district courts and the

highest courts of eight states pertaining to each of the

doctrines related to when the state must provide counsel to

indigent detainees. Petitioners also provided a statement

from Senator Grassley as well as many law review articles

explaining why uncounseled pretrial detention presents

an urgent matter of national importance. They further

explained that the lower courts departed from the normal

course of judicial proceedings in several ways, including

announcement of new standards of review after the matter

had been submitted, standards which sharply deviated

from the standard set forth by Judge Fletcher in the first

Ninth Circuit opinion in this case. They also demonstrated

that the second Ninth Circuit opinion sanctioned new

constitutional standards answering the question left open

by this Court in Rothgery v. Gillespie County, Tex., 554

U.S. 191 (2008), which are dangerous and conspicuously

erroneous.

2

Respondent’s Brief in Opposition does not mention

the standards of review at all. It does not refute that the

case was evaluated based upon new standards that were

announced after the matter had been submitted. It does

not dispute that there are widening splits among the

various federal and state courts on all of the pertinent

legal doctrines; it does not dispute that ambiguities in

the legal framework enable some jurisdictions to detain

citizens for more than a year without legal representation;

it does not dispute that unnecessary detention exacts a

heavy toll on detainees, their families, their communities,

and the Judiciary. Rather, through its silence, Respondent

implicitly concedes these issues; and it explicitly states

that its policy of automatically denying counsel to all

indigent detainees for a period of one to two weeks was

based exclusively upon its own unexplained failure to

adequately fund its public defender office. Opp. 7.

(1) Petitioners Argued the Heck Issue in Their Opening

Brief.

The Ninth Circuit determined that Petitioners

waived the issue of whether the Heck doctrine precluded

a civil remedy for denial of counsel at the critical stage

of arraignment because they did not argue it in their

Opening Brief. It makes perfect sense for appellate courts

to refuse to address issues that have not been clearly

argued in opening briefs. The contrary position would

waste precious judicial resources and prejudice appellees

who would rightfully gloss over buried issues in opening

briefs.

This doctrine, however, is not meant to serve as a

device for avoiding potentially dispositive issues because

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they do not fall under their own subheadings. The County

stated on page thirty-three of its Answering Brief in the

Ninth Circuit that, “Farrow and Wade contend here that

their “critical stage” claim is subject to the harmless error

doctrine and, thus, not barred by Heck. AOB at 8-11.”1

It then spent 5 pages of its Answering Brief rebutting

this argument, which Petitioners refuted in their Brief

in Response. Therefore, the County recognized that

Petitioners argued the issue in their Opening Brief; the

County did not object to Petitioners’ presentation of the

argument; it does not allege prejudice now; and the Ninth

Circuit was exhaustively briefed on the argument by both

sides. Therefore, the rationale behind the waiver doctrine

does not apply here.

Additionally, even if the issue had not been argued, this

Court could still consider it as it is integral to resolution of

the ultimate question of whether Respondent satisfied its

constitutional obligation to provide counsel at all critical

stages of the proceedings. Kolstad v. American Dental

Ass’n, 527 U.S. 526, 540 (1999).

(2) Heck does not Bar this Action.

In Heck v. Humphrey, 512 U.S. 477, 487, fn. 7 (1994),

this Court stated that 42 U.S.C. § 1983 actions alleging

constitutional violations amounting to harmless error are

not barred because the violations would not necessarily

invalidate the conviction. This Court stated in Hurst v.

Florida, 577 U.S. 92, 102 (2016) that, “This Court normally

leaves it to state courts to consider whether an error

1. The district court’s erroneous interpretation of Heck was

also explicitly argued on page 75 of the opening brief.

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is harmless, and we see no reason to depart from that

pattern here.” California has determined that,

Although the arraignment is a critical stage

of the proceeding entitling the defendant to

an attorney, the absence of an attorney at

the arraignment is not such a grievous error

that it compels a reversal without a showing

of prejudice. In Coleman v. Alabama (1970)

399 U.S. 1, 10–11, 90 S.Ct. 1999, 2003–2004, 26

L.Ed.2d 387, the majority of our highest court

determined that a complete denial of counsel

at a preliminary hearing is not reversible

per se, but should be evaluated under the

Chapman “harmless beyond a reasonable

doubt” standard. People v. Cox, 193 Cal.App.3d

1437, 1440 (1987).

Therefore, the Heck doctrine does not apply to Petitioners’

claim that they were denied counsel at the critical stage of

arraignment. Consequently, Respondent’s chief argument

for opposing a writ of certiorari is a fallacy.

(3) Respondent Raises Another Compelling Reason for

Granting Certiorari.

In the context of its Heck argument, Respondent

raises another compelling reason for granting certiorari as

there is a conflict among this Court’s opinions concerning

the question of whether the absence of counsel at a critical

stage of the proceedings necessarily requires per se

reversal of a criminal conviction. The district court thought

so, stating that, “Assuming for the sake of argument that

Petitioners are correct that their first appearances were

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critical stages based on their rights to enter pleas, then

Hamilton, White, and Cronic all indicate that failure to

provide counsel at that appearance would be structural

error requiring per se reversal.” Pet. App. C 132a.

This interpretation of Hamilton v. Alabama, 368 U.S.

352 (1961) (an Alabama-specific capital case, involving

denial of counsel at arraignment), White v. Maryland, 373

U.S. 59 (1963) (a Maryland-specific capital case, involving

denial of counsel at preliminary hearing), and United

States v. Cronic, 466 U.S. 648, 659 (1984), which states that

denial of counsel at a critical stage of trial requires per se

reversal, runs afoul of this Court’s analysis of harmless

error in the Sixth Amendment context as expressed

in United States v. Morrison, 449 U.S. 361, 365 (1981),

where it stated that, “[C]ertain violations of the right

to counsel may be disregarded as harmless error,” and

Coleman v. Alabama, 399 U.S. 1 (1970), which found that

counsel’s absence at the critical stage of the preliminary

hearing was harmless error. 2 Consequently, Respondent

2. See also Ayala v. Wong, 756 F.3d 656, 673 (9th Cir. 2014,

overruled on separate grounds in Davis v. Ayala, 135 S.Ct. 2187

(2015)); McNeal v. Adams, 623 F.3d 1283, 1289 (9th Cir. 2010)

(Berzon, J., concurring) (“I believe the majority confuses the

“critical stage” standard applicable to United States v. Cronic, 466

U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) with the separate

“critical stage” standard applicable to all claims under the Sixth

Amendment.”); U.S. v. Owen, 407 F.3d 222, 227 (4th Cir. 2005)

(“Our conclusion that Owen’s arraignment without counsel is

subject to harmless-error analysis is abundantly supported by

Supreme Court cases applying harmless-error analysis to the

denial of the Sixth Amendment right to counsel at various “critical

stages” of criminal process”); U.S. v. Roy, 855 F.3d 1133, 1144

(11th Cir. 2017) (discussion of harmless error under the Sixth

Amendment).

6

has identified a split in Supreme Court authority that only

this Court can resolve. Indeed, on page 7 of Respondent’s

earlier Petition for a Writ of Certiorari, it urged this Court

to grant certiorari on the basis that the Sixth Amendment

right to counsel cannot be violated in the absence of a

showing of actual prejudice.

(4) Collateral Estoppel Was Not Addressed Below.

The district court did not address Respondent’s

collateral estoppel argument. App. B at 92a. Given that

this is a court of review and not first view, this is not an

appropriate argument here. Cutter v. Wilkinson, 544 U.S.

709, 719 (2005).

(5) Due Process and Equal Protection Violations

Occur at Arraignment if Counsel is Not Present.

A.

Due Process was Violated.

Denial of counsel at arraignment is the most important

and pervasive criminal procedure issue litigated in the

country today, consuming thousands of hours of judicial

time in federal and state courts. As expressed in the

Petition for a Writ of Certiorari, the nationwide litigation

focuses on denial of counsel under the Sixth Amendment

and Due Process and Equal Protection Clauses of the

Fourteenth Amendment. In each of these cases there is

unavoidable overlap with state procedures. This case is

not an exception. However, as this Court stated in U.S.

v. Cronic 466 U.S. 648, 654 (1984), “Of all the rights

that an accused person has, the right to be represented

by counsel is by far the most pervasive for it affects his

ability to assert any other rights he may have.”

7

Respondent seeks to blind the Court to this reality by

suggesting that the Court would be mired in California

criminal procedure and that any remedy would have to

be narrowly tailored to California. This misses the point

because navigating all criminal procedure requires the

guiding hand of counsel. Denial of counsel may result in

denial of the right to be heard in a meaningful way and

at a meaningful time regarding bail in Ohio, or it may

result in denial of the ability to assert the right to enter

a plea, which triggers mandatory statutory speedy trial

rights protecting liberty interests in California. In the

unjustified absence of court-appointed counsel, however,

the right to be heard concerning all rights is silenced, and

that is a due process violation regardless of the state or

the right at issue.

B. Equal Protection was Violated.

Respondent does not dispute that the poor were denied

fundamental rights that the affluent enjoyed, or the fact

that it caused the discrepancy in treatment. Rather, it

asserts that since the public defender represents poor

people only, there can be no equal protection violation in

spite of the fact that Respondent’s policy of withholding

representation for a period of one to two weeks denied

poor detainees statutory speedy trial rights, the right

to argue for release on recognizance or lower bail, and

the right to apply for pretrial diversion or habeas corpus

when the affluent were permitted to assert these rights

immediately. Opp. 33. This flies in the face of Lane v.

Brown, 372 U.S. 477 (1963), which found that equal

protection was violated when the public defender, who

represented poor people only, determined whether or not

an indigent appellant received a transcript on appeal. It

8

also flies in the face of Douglas v. California, 372 U.S. 353

(1963) which holds that counsel must be appointed for a

defendant’s first appeal as of right but more broadly holds

that counsel is required whenever a lay person’s liberty

may be imperiled by his lack of understanding of arcane

matters of criminal procedure.

As to Respondent’s second point, being automatically

required to spend one to two weeks in jail before being

able to assert any rights, when the affluent are permitted

to immediately assert all of their rights, does not satisfy

Ross v. Moffitt, 417 U.S. 600 (1974).

(6) This Case is not Moot.

Respondent concedes that this case is not moot but

argues that it is “effectively moot” because Respondent

provided additional funding to the public defender’s office

to staff arraignment courts after this lawsuit was filed.

Opp. 1. Respondent does not contest standing. Rather,

it states that this case is unworthy of declaratory and

injunctive relief because Respondent now provides

representation to most indigent defendants in most

arraignment courts. Respondent, however, failed to

provide counsel to tens of thousands of indigent detainees

for 28 years pursuant to a written policy; it insists today

that its prior practice was constitutionally acceptable;

it currently fails to provide representation to all out of

custody defendants in some misdemeanor arraignment

courts; and it currently fails to provide counsel, through

the alternative public defender or conflicts panel, to all

indigent detainees at the first appearance when the public

defender has an obvious conflict of interest. Therefore,

declaratory relief, injunctive relief, and nominal damages

9

are appropriate. Already, LLC v. Nike, Inc., 568 U.S. 85,

91 (2013).

(7) There is a Sufficient Record to Determine that

Respondent’s Policy was Constitutionally Invalid

on its Face.

The question of whether there is a sufficient record

to determine something, i.e., proof, is entirely dependent

upon the standard of review. In this case, the standard

of review Petitioners followed was the one set forth in

Judge Fletcher’s Ninth Circuit opinion. The district court

later said that it would rule based upon “the totality of

the circumstances” but could not articulate what those

circumstances were. Doc. No. 117 at pp. 24-26. Given

this mystery, Petitioners were left to guess what factors

the district court would consider, hypothesizing that

it intended to engage in some type of analysis akin to

the balancing test in Mathews v. Eldridge, 424 U.S. 319

(1976) where the “grave potential for prejudice” would

be balanced against the reasons for delaying provision

of counsel. Petitioners developed the record accordingly,

proving that the delay posed the grave potential for

prejudice and was totally unjustified. Respondent provided

nothing in response other than its own failure to fund

public defender services and subterfuges concerning the

facts of the named Petitioners’ criminal cases that had

nothing to do with determining the length of the delay in

their cases. Therefore, Petitioner’s should have prevailed

at the summary judgment stage.

Yet in its opinion on summary judgment, the district

court assigned Petitioners an impossible burden for the

first time, requiring them to prove the circumstances of

10

indigent defense delivery systems nationwide. Pet. App.

B. 78a, 79-80a, fn. 16. Petitioners might have been able

to do so had they known of this requirement in advance.

Given that the standard was announced after the matter

had been submitted, however, the problem was not with

the sufficiency of the record but with the sufficiency of

the standard and the manner in which it was announced.

In this regard, the district court’s failure to articulate a

standard, which left Petitioners to guess at the record

they were required to produce, does not preclude this

Court from promulgating the correct standard by which

municipalities and criminal defendants can conduct their

affairs in the future.

(8) The Absence of Judicial Defendants and a Certified

Class Clarifies the Issues.

The County argues that “[A]ny adjudication of this

issue based on this case would necessarily be narrow”

because there is an absence of judicial defendants, and

an absence of a certified class. 3 Opp. at 21. This argument

overlooks this Court’s broad holdings in Gideon v.

Wainwright, 372 U.S. 335 (1963) and United States v.

Wade, 388 U.S. 218 (1967), which involved neither judicial

defendants nor a certified class. Respondent seems to imply

that Petitioners are inadequate for this Court to assess

whether Respondent’s policy of delaying representation to

all indigent detainees was unconstitutional, but it does not

explain why these Petitioners are inadequate, what type of

detainee would be better, and why this case would benefit

from the complexity attendant to judicial defendants and

3. The district court ordered the parties to litigate summary

judgment motions in advance of class certification. Doc. 117 at 18.

11

class litigation. Indeed, the absence of judicial immunity

issues and class considerations streamlines the process,

making this case an ideal vehicle for directly addressing

the essential issues.

(9) The Procedural Issues in this Case are Anything

but Mundane.

Respondent asserts that the “mundane procedural

questions” in this case do not warrant this Court’s

inter vention. Opp. 7. The announcement of new

constitutional standards answering a question left

open by this Court, however, is anything but mundane.

Additionally, the idea that a district court can make up

the constitutional standards as it goes along, announcing

them after the matter has been submitted, is not mundane.

Indeed, it is one definition of tyranny. See Wisconsin v.

Constantineau, 400 U.S. 433, 436, (1971).

(10) The Issues in this Case are not of “Relative

Unimportance.”

Respondent argues that the question of when counsel

must be appointed is of “relative unimportance” due

to an absence of circuit courts directly answering the

question. Opp. 28. As described in the Petition for a Writ

of Certiorari, however, litigation is raging throughout

this country concerning this question. Respondent’s Brief

in Opposition referred to this as “a multitude of cases.”

Opp. 23. Some of the cases address the question of what

constitutes a critical stage; others ask when counsel must

be appointed under the Sixth Amendment; others ask

whether the absence of counsel at the first appearance

violates due process or equal protection. Regardless of

12

which doctrine is asserted, each of these cases converge on

the fundamental question of how much delay in appointing

counsel to indigent detainees is reasonable? Moreover, the

district court in this case specifically complained about an

absence of guidance on this issue. Pet. App. C at 138a. In

short, this issue has crossed the threshold for requiring

this Court’s intervention.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted,

Christopher A lan Martin

Counsel of Record

Martin Law Offices

607 Hearst Avenue

Berkeley, CA 94610

(510) 206-2142

m305@icloud.com

Attorney for Petitioners

January 15, 2021