Petition for Writ of Certiorari — Rothgery v. Gillespie County

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i) No.07- O7-440SEP 27 2007

INTHE OFFICE OF THE CLERK

Supreme Court of the United States

WALTER ALLEN ROTHGERY,

i Petitioner, :

I v. ;

GILLESPIE COUNTY, TEXAS, 3

iy Respondent. :

! 4

ki .

i ON PETITION FOR A WRIT OF CERTIORARI TO THE :

| UNITED STATES COURT OF APPEALS :

i] FOR THE FIFTH CIRCUIT

if :

H +

| PETITION FOR A WRIT OF CERTIORARI :

ANDREA MARSH SETH P. WAXMAN

if HARRY WILLIAMS IV CRAIG GOLDBLATT :

i TEXAS FAIR DEFENSE Counsel of Record :

i PROJECT DANIELLE SPINELLI :

i 510 South Congress Ave., D. HIEFN TRAN y

i Suite 208 WILMER CUTLER PICKERING

Hi Austin, TX 78704 HALE AND DORR LLP

i (512) 637-5220 1875 Pennsylvania Ave., N.W.

1 Washington, D.C. 20006

} WILLIAM CHRISTIAN (202) 663-6000

) GRAVES, DOUGHERTY,

| HEARON & Moopy, P.C.

401 Congress Ave., Suite 2200

Austin, TX 78701

(512) 480-5600

QUESTION PRESENTED

The Sixth Amendment right to counsel attaches when

“adversary judicial proceedings have been initiated.” Kirby

v. Illinois, 406 U.S. 682, 688 (1972). This Court has held that

when a defendant is arrested, “arraigned on [an arrest] war-

rant before a judge,” and “committed by the court to con-

finement,” “(t]here can be no doubt . . . that judicial proceed-

ings ha[ve] been initiated.” Brewer v. Williams, 430 U.S.

387, 399 (1977).

In this case, petitioner was arrested and brought before

a magistrate judge who informed petitioner of the accusation

against him, found probable cause that he had committed the

offense based on a police officer’s sworn affidavit, and com-

mitted him to jail pending trial or the posting of bail. The

question presented is whether the Fifth Circuit correctly

held—in a decision that conflicts with those of other federal

courts of appeals and state courts of last resort—that adver-

sary judicial proceedings nevertheless had not commenced,

and petitioner’s Sixth Amendment rights had not attached,

because no prosecutor was involved in petitioner’s arrest or

appearance before the magistrate.

(i)

PARTIES TO THE PROCEEDING

The petitioner is Walter Allen Rothgery, the plaintiff

ana plaintiff-appellant in the courts below. The respondent

is Gillespie County, Texas, the defendant and defendant-

appellee in the courts below.

a te ey

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................cccsccosssssssssscsscosessensessecers i

PARTIES TO THE PROCEEDING .................scscscsssessssseeseees ii

AE FAT COIR BIO con ccevinncscesenestescesuicrwenntsbeneneesansenetie v

I iiss nicdaiahistnebannsdeiteiesinenuianbisemionseniaiiny 1

a let ets ote 4

JURISDICTION ........ seidipnriniisseicisicsicabiibigniomctaaniandi: seston 4

CONSTITUTIONAL PROVISIONS INVOLVED. .............. 4

STATEMENT OF THE CASE ........cccccscsscccossssssosssecesorereseersees 5

REASONS FOR GRANTING THE WRIT..................:0000+- 12

I. THE FIFTH CIRCUIT’S DECISION CONFLICTS

WITH THOSE OF OTHER FEDERAL COURTS OF

APPEALS AND STATE COURTS OF LAST RE-

A. The Fifth Circuit’s Decision Conflicts With

The Decisions Of Other Federal Courts Of

B. The Fifth Circuit’s Decision Conflicts With

The Decisions Of State Courts Of Last Re-

II. THE FIFTH CIRCUITS ANALYSIS CANNOT BE

RECONCILED WITH THIS COURT’S SIXTH

AMENDMENT PRECEDENT ............scecssscssssssscsecrssssesseceoeeees 19

II]. THE FIFTH CIRCUIT’S “PROSECUTORIAL IN-

VOLVEMENT” TEST WILL BE UNWORKABLE

IN PRACTICE AND WILL PERMIT INDIGENT

DEFENDANTS TO BE JAILED FOR LONG PERI-

ODS WITHOUT COUNSEL. ........xcsssscssssersesscsseensensossensenceneoees 23

IIT APE wsnssorenecantnsnapsnsemvenanioassesescanssomptonessosessveasesnenesst 25

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TABLE OF CONTENTS—Continued

APPENDIX A: Opinion of the United States Court

of Appeals for the Fifth Circuit, reported at

491 F.3d 293 (June 29, 2007) .la

APPENDIX B: Opinion of the United States Dis-

trict Court for the Western District of Texas,

reported at 413 F. Supp. 2d 806 (Feb. 2, 2006)............. 13a

APPENDIX C: Excerpt of Affidavit Of Probable

Cause - 33a

35a

APPENDIX D: Warning by insiohinahe Form.

APPENDIX E: Bond Form (Oath of Sureties omit-

Sind hs ae BS ‘“Z Bi at aa PAT er et, ST se ee v= ato nen iS: peal i AB

LIT hy Se TORS er Oa eT ee OAT See) Meee tA ni ee ee SRE Le PUES ge a

TABLE OF AUTHORITIES

CASES

Page(s)

Bradford v. State, 927 S.W.2d 329 (Ark. 1996) ............004. 17, 22

Brewer v. Williams, 430 U.S. 387 (1977) ...........c0ses+e0 1, 2, 5,6

County of Riverside v. McLaughlin, 500 U.S. 44

(APCS ITER ae Se anc ace rot NC eC ao Oa 8

Ex parte Stewart, 853 So. 2d 901 (Ala. 2002)...............000 17, 18

Fleming v. Kemp, 837 F.2d 940 (11th Cir. 1988)............. 14,15

Gerstein v. Pugh, 420 U.S. 103 (1975) ........ccccssssessererceesesseseenees 8

Gideon v. Wainwright, 372 U.S. 335 (1963) ..........ccceeseeee 5, 24

Johnson v. Zerbst, 304 U.S. 458 (1988) ...........:cccccssssesenseeeeeeeee 5

Kirby v. Illinois, 406 U.S. 682 (1972) .0.......cccecceeceeees 1,5, 7, 10

Maine v. Moulton, 474 U.S. 159 (1985) 20.0... eee eeeeeeeeeeeeeeteees 21

Matteo v. Superintendent, SCI Albion, 171 F.3d 877

a a scastidocsvonentclnes 14

McGee v. Estelle, 625 F.2d 1206 (5th Cir. 1980)................ 11-12

Michigan v. Jackson, 475 U.S. 625 (1986) ........cccceceesseees 2,7,8

Mitzel v. Tate, 267 F.3d 524 (6th Cir. 2001).......... 12, 13, 14, 22

Moran v. Burbine, 475 U.S. 412 (1986) ............cccccccecssesseseereees 13

O’Kelley v. State, 604 S.E.2d 509 (Ga. 2004)... cece 15, 16

Owen v. State, 596 So. 2d 985 (Fla. 1992)................ 7, 17, 18, 19

People v. Andersun, 842 P.2d 621 (Colo. 1992) ..........ccceeceess 18

People v. Bladel, 365 N.W.2d 56 (Mich. 1984)................+ 20, 22

Powell v. Alabama, 287 U.S. 45 (1982) .........cccccccccssseeeesersseneees 5

Ross v. State, 326 S.E.2d 194 (Ga. 1985), overruled

by O’Kelley v. State, 604 S.E.2d 509 (Ga. 2004).............. 15

State v. Barrow, 359 S.E.2d 844 (W. Va. 1987) .......ccceeeseeee 17

State v. Jackson, 380 N.W.2d 420 (Iowa 1986)................. 16, 19

State v. Tucker, 645 A.2d 111 (NuJ. 1994) 0... ccceesteeeseeees 17

Stokes v. Singletary, 952 F.2d 1567 (11th Cir. 1992)....... 15, 18

United States v. Gouveia, 467 U.S. 180 (1984)............. 7, 20, 21

ne es. ee

4q TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS,

STATUTES, AND RULES

U.S. Const. amend. VI sialic ae 4

28 U.S.C. § 1254(1) , descbdadbicdndtietamabidiass 4

42 U.S.C. § 1983.. SB we : 3, 10

Tex. Code Crim. Proc.

art. 14.06(a).. in ou ssa

E art. 15.17(a)........ ; sii 8

art. 16.20 as ANIM DS AI ey. 8

art. 17.27(a).. : sens aaa

Ohio R. Crim. P. 4(E)(2).........ccseses0e: eiticisinsalatok 13

OTHER AUTHORITIES

1A Gillespie, Michigan Criminal Law and Proce-

dure (2007) : gulniiioce me,

1 LaFave et al., Criminal Procedure (2d ed. 1999). 6

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IN THE

Supreme Court of the United States

No. 07-

WALTER ALLEN ROTHGERY,

Petitioner,

GILLESPIE COUNTY, TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Petitioner Walter Allen Rothgery respectfully prays

that a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Fifth Circuit in this

case.

INTRODUCTION

As this Court has repeatedly held, “{wJhatever else it

may mean, the right to counsel granted by the Sixth and

Fourteenth Amendments means at least that a person is en-

titled to the help of a lawyer at or after the time that judicial

proceedings have been initiated against him—‘whether by

way of formal charge, preliminary hearing, indictment, in-

formation, or arraignment.” Brewer v. Williams, 430 U.S.

387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689

(1972)).

In Brewer, this Court held that “(tJhere can be no doubt

. . . that judicial proceedings had been initiated,” and the

Sixth Amendment right to counsel had attached, when a de-

fendant was arrested, made an initial appearance before a

court, and was committed by the court to confinement in jail

pending trial. See 430 U.S. at 399. Subsequently, in Michi-

gan v. Jackson, 475 U.S. 625 (1986), the Court reaffirmed

that this sequence of events triggers the Sixth Amendment

right to counsel. See id. at 629-632 & n.3. As Jackson ex-

plained, it is at that time—when a court has confronted a

defendant with the charges against him and imposed restric-

tions on his liberty—that he “finds himself faced with the

prosecutorial forces of organized society,” and with the need

to “rely on counsel as a ‘medium’ between him and the

State.” Jd. at 631-632 (citations omitted).

Since Brewer and Jackson, the overwhelming majority

of courts of appeals and state courts of last resort to address

the question have held that when a defendant is arrested,

brought before a judge who informs the defendant of the

charges against him, and bound over to jail or released on

bond, adversary judicial proceedings have commenced and

the Sixth Amendment right to counsel has attached.

In this case, the Court of Appeals for the Fifth Circuit

joined a small minority of courts to have held otherwise. Ac-

cording to the Fifth Circuit, a defendant has no right to

counsel even after he has been arrested, brought before a

court to hear the accusation against him, and bound over to

custody or released on bail—the sequence of events that

Brewer and Jackson concluded marked the commencement

of judicial proceedings—unless he can demonstrate that a

prosecutor is aware of or involved in those events.

The relevant facts are undisputed. Petitioner Walter

Allen Rothgery was arrested on suspicion of being a felon in

possession of a firearm—when he was not, in fact, a felon.

Rothgery was brought before a magistrate who informed

him of the accusation against him and committed him to jail

pending the posting of bail or the disposition of the charges.

Although Rothgery requested counsel, none was appointed

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until six months following his initial arrest and appearance

before the magistrate, after Rothgery had been indicted, had

his bail increased, and had been rearrested and jailed. Once

appointed, Rothgery’s counsel was able to obtain a reduction

of bail, and Rothgery was released after serving approxi-

mately three weeks in jail on this second arrest. Rothgery’s

counsel obtained records proving that Rothgery was not a

felon, and the charges were dismissed.

Rothgery then filed suit under 42 U.S.C. § 1983 for dam-

ages stemming from the denial of his Sixth Amendment

right to counsel. The district court rejected Rothgery’s

claim, and the Fifth Circuit affirmed, holding that Roth-

gery’s Sixth Amendment right to counsel did not attach until

he was indicted. The Fifth Circuit acknowledged that, in

Brewer and Jackson, this Court had held that adversary ju-

dicial proceedings commenced prior to indictment—after an

initial appearance before a magistrate at which the defen-

dant was committed to confinement—“without mentioning

whether prosecutors were involved” in that initial appear-

ance. App. 7a. But it nevertheless held that because “prose-

cutors were not aware of or involved in Rothgery’s arrest or

appearance before the magistrate,” that appearance did not

initiate adversary judicial proceedings, and Rothgery’s right

to counsel did not attach. Jd.

In so holding, the Fifth Circuit, alone among federal

courts of appeals, created a “prosecutorial involvement” test

to determine when the Sixth Amendment right tu counsel

attaches. Its decision represents a square split of authority

with other courts of appeals that have addressed the ques-

tion. It also conflicts with decisions of state courts of last

resort that have expressly rejected a prosecutorial involve-

ment test as a matter of federal constitutional law. And it

cannot be reconciled with this Court’s holdings in Brewer

and Jackson.

The Fifth Circuit’s analysis converts the straightfor-

ward test for the initiation of adversary judicial proceedings

reflected in this Court’s longstanding precedent into an

unworkably fact-intensive inquiry into what particular

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prosecutors knew and when they knew it. Moreover—

because defendants often make an initial appearance before

a magistrate and are jailed well before formal indictment—

under the Fifth Circuit’s rule, defendants in that circuit will

potentially face protracted incarceration without access to

counsel.

In short, in the Fifth Circuit, defendants who have been

committed to jail by a court based on the charges against

them will have no Sixth Amendment right to counsel unless

they can demonstrate a prosecutor’s knowledge of, or in-

volvement in, the court-ordered deprivation of liberty—

while defendants in other circuits need make no such show-

ing. This disagreement will persist unless and until this

Court intervenes. This Court should grant certiorari to clar-

ify that it meant what it said in Brewer and Jackson and to

resolve the clear split of authority among the lower courts

on this important question.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 491 F.3d 293 (5th Cir. 2007)

(App. la-12a). The opinion of the United States District

Court for the Western District of Texas is reported at 413 F.

Supp. 2d 806 (W.D. Tex. 2006) (App. 13a-31a).

JURISDICTION

The Court of Appeals entered its judgment on June 29,

2007. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides in relevant part:

In all criminal prosecutions, the accused shall enjoy

the right .. . to have the Assistance of Counsel for

his defence.

U.S. Const. amend. VI. The Sixth Amendment is applicable

to the states through the Fourteenth Amendment.

STATEMENT OF THE CASE

1. Legal Background.—This Court has long recog-

nized that the right to appointed counsel is a cornerstone of

our criminal justice system. See, e.g., Powell v. Alabama,

287 U.S. 45, 69 (1932) (a person charged with a crime “re-

quires the guiding hand of counsel at every step in the pro-

ceedings against him”); Johnson v. Zerbst, 304 U.S. 458, 462-

463 (1938) (the Sixth Amendment “embodies a realistic rec-

ognition of the obvious truth that the average defendant

does not have the professional legal skill to protect himself

when brought before a tribunal with power to take his life or

liberty”). In Gideon v. Wainwright, 372 U.S. 335 (1963), this

Court held that the Sixth Amendment right to appointed

counsel is applicable to state criminal proceedings through

the Fourteenth Amendment. See id. at 342-345. As the

Court there explained, it is “an obvious truth” that “in our

adversary system of criminal justice, any person haled into

court, who is too poor to hire a lawyer, cannot be assured a

fair trial unless counsel is provided for him.” /d. at 344.

In subsequent cases, this Court set forth a common-

sense approach to determining when a defendant’s Sixth

Amendment right to counsel attaches:

Whatever else it may mean, the right to counsel

granted by the Sixth and Fourteenth Amendments

means at least that a person is entitled to the help

of a lawyer at or after the time that judicial pro-

ceedings have been initiated against him—

“whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.”

Brewer, 430 U.S. at 398 (quoting Kirby, 406 U.S. at 689).

In Brewer, this Court made clear that adversary judicial

proceedings can commence, and a defendant’s Sixth Amend-

ment right to counsel attach, prior to indictment, at an initial

appearance before a magistrate. In that case, the defendant

turned himself in to the police after a warrant was issued for

his arrest. The next day, he was “arraigned” before a judge

who advised him of his Miranda rights and committed him

to jail. Brewer, 430 U.S. at 391.' After that initial appear-

ance, the police elicited incriminating statements from Wil-

liams during a long automobile ride, although Williams had

indicated that he did not want to speak to the police until he

saw his attorney. See id. at 392. Those statements were in-

troduced at trial, and the jury found Williams guilty of mur-

der. See id. at 393-394.

This Court affirmed the federal habeas court’s ruling

that the incriminating statements should not have been in-

troduced at trial and held that Williams had been deprived of

his Sixth Amendment right to counsel. See Brewer, 430 U.S.

at 397-398, 406. The Court explained:

There can be no doubt in the present case that judi-

cial proceedings had been initiated against Williams

before the start of the automobile ride. ... A war-

rant had been issued for his arrest, he had been ar-

raigned on that warrant before a judge ... , and he

had been committed by the court to confinement in

jail.

Id. at 399. Brewer thus holds that a defendant’s arrest, ap-

pearance before a magistrate who informs him of the

charges against him, and commitment to custody constitute

' An “arraignment” can refer either to an initial appearance before a

magistrate at which a defendant is notified of the accusation against him

or to the step in criminal proceedings where, after information or indict-

ment, a defendant must enter a plea. See LaFave et al., 1 Criminal Pro-

cedure § 1.3(k), at 113 n.176 (2d ed. 1999); id. § 1.3(0), at 124-125. Thus, an

“initial appearance” or “first appearance” before a magistrate may be

called in different jurisdictions a “preliminary arraignment,” “an arraign-

ment on the warrant,” or “an arraignment on the complaint.” Jd. § 1.3(k),

at 113. When a defendant, after information or indictment, is brought

before a trial court and must enter a plea, the proceeding is often termed

an “arraignment on information” or an “arraignment on indictment.” /d.

§ 1.3(0), at 124-125. In Brewer, Williams had not been indicted and was

not asked to enter a plea when he first appeared before the court. This

Court noted that he was arraigned on a “warrant,” 430 U.S. at 391, 399,

indicating that the Court’s use of the term “arraignment” in that case re-

fers to the same type of initial court appearance that occurred in this case.

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the initiation of adversary judicial proceedings that triggers

the Sixth Amendment right to counsel.

This Court confirmed that holding in Michigan v. Jack-

son, which consolidated two cases from the Michigan Su-

preme Court. In both cases, the defendants were arrested,

“arraigned” before a magistrate judge, and bound over to

jail. See 475 U.S. at 627-628. As in Brewer, the arraign-

ments in Jackson were not post-indictment arraignments at

which a defendant enters a plea, but initial appearances be-

fore a magistrate, at which a defendant is informed of the

accusation against him and his constitutional rights, includ-

ing the right to counsel, and is committed to jail or released

on bond.’ This Court rejected as “untenable” the state’s ar-

gument that such an arraignment did not trigger the Sixth

Amendment right to counsel. /d. at 629 n.3. Rather, the

Court confirmed the holding of Brewer that arrest, arraign-

ment before a magistrate, and commitment to custody “sig-

nal[] ‘the initiation of adversary judicial proceedings’ and

thus the attachment of the Sixth Amendment.” Jd. at 629.

As the Court explained, it is at that time that “the govern-

ment has committed itself to prosecute,” and that the “de-

fendant finds himself faced with the prosecutorial forces of

organized society.” Jd. at 631 (quoting l/nited States v.

Gouveia, 467 U.S. 180, 189 (1984) (quoting Kirby, 406 U.S. at

689)).°

? See 1A Gillespie, Michigan Criminal Law and Procedure § 16:1

(2007) (explaining that “arraignment on the warrant [in Michigan] . . . is

the first appearance by the defendant in the case” and provides “formal

notice of the charge against the accused; the magistrate informs the ac-

cused of the right to counsel and inquiry is made to determine whether

the defendant is in need of appointed counsel] . . . and the arraigning judge

may fix bail”); see also Owen v. State, 596 So. 2d 985, 988-989 (Fla. 1992)

(explaining that when this Court stated in Kirby and Jackson that the

Sixth Amendment right to counsel attaches at “arraignment,” it was using

the term in the “initial appearance” sense).

> Jackson also made clear that “(t]he question whether arraignment”

or a functionally similar proceeding “signals the initiation of adversary

judicial proceedings .. . is distinct from the question whether the ar-

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2. The Facts of This Case.—On July 15, 2002, Walter

Allen Rothgery was arrested without a warrant and booked

into the Gillespie County, Texas jail on suspicion of being a

felon in possession of a firearm. The arrest was made on the

mistaken belief that Rothgery had been convicted of a felony

in California.

The next day, Rothgery was brought before a magis-

trate judge. The arresting officer presented to the magis-

trate an “Affidavit of Probable Cause” sworn to by the offi-

cer, “in the name and by the authority of the State of Texas.”

App. 33a. The affidavit described the factual basis for the

accusation against Rothgery and concluded, “I charge that

... Defendant Walter A. Rothgery did . . . commit the of-

fense of unlawful possession of a firearm by a felon—3rd de-

gree felony [Penal Code §] 46.04 against the peace and dig-

nity of the State.” Jd.

Based on the arresting officer’s affidavit, the magistrate

judge signed an order finding that probable cause existed for

Rothgery’s arrest (meaning that probable cause existed to

conclude he had committed the crime in question, see Ger-

stein v. Pugh, 420 U.S. 103, 111 (1975)). App. 34a. As re-

quired by the Texas Code of Criminal Procedure, the magis-

trate informed Rothgery of the accusation against him and

informed him of his rights, including his right to appointed

counsel. App. 35a-37a.*

raignment itself is a critical stage requiring the presence of counsel.” 475

U.S. at 629 n.3. As in Jackson, only the former question is presented here.

* Article 15.17 of the Texas Cade of Criminal Procedure requires,

consistent with this Court’s holdings in Gerstein, 420 U.S. 108, and County

of Riverside v. McLaughlin, 500 U.S. 44 (1991), that a person placed under

arrest must be taken before a magistrate within forty-eight hours. The

magistrate is required at that hearing to inform the arrested person of the

accusation against him and his right to appointed counsel, and is author-

ized to set bail. Tex. Code Crim. Proc. arts. 14.06(a), 15.17(a). The Texas

code also authorizes a magistrate to commit a defendant to jail. Jd. arts.

16.20, 17.27(a). 7. xas magistrates often combine the Article 15.17 pro-

ceeding with the commitment proceedings. These combined proceedings

are referred to as “magistration,” a “magistrate hearing,” “arraignment,”

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Rothgery inquired about having counsel appointed, but

was told that if he wanted to proceed with the hearing and

have his bail set that morning, he would have to waive his

right to an attorney for purposes of the hearing. Otherwise,

Rothgery would have to wait in jail until an attorney was

appointed, and only then would the court set bail. Rothgery

agreed to waive his right to counsel for the limited purpose

of allowing the hearing to continue and permitting the mag-

istrate to set bail. The magistrate recorded Rothgery’s tem-

porary waiver, underlining the words “at this time” on the

relevant form to document that he was waiving only his

right to have counsel present at the hearing. App. 36a.

The magistrate set bail at $5,000 and committed Roth-

gery to jail pending the posting of bail or the disposition of

charges against him. Rothgery posted a surety bond and

was released from the county jail. The surety bond, signed

by a Gillespie County deputy sheriff, stated that Rothgery

“stands charged by complaint duly filed in the Justice of

Peace Court” with the felony charge of unlawful possession

of a firearm by a felon, and conditioned his release on his

personal appearance in court on the charge. App. 39a.

After Rothgery’s release on bond, he repeatedly in-

quired about the status of his request for appointment of

counsel. In July 2002, he submitted a written, notarized re-

quest to Gillespie County jail officials for appointment of

counsel. No counsel was appointed.

On January 17, 2003, a grand jury indicted Rothgery for

the offense of unlawful possession of a firearm by a felon.

Rothgery’s bail was increased to $15,000. He was rearrested

due to the bail increase and again brought before the magis-

trate, where he renewed his request for counsel. Again, no

counsel was appointed, and, unable to post bail, Rothgery

was committed to the Gillespie County Jail. Three days

later, still with no lawyer, he was transferred to the Coman-

“preliminary hearing,” “initial appearance,” or, in Texas, imprecisely as an

“Article 15.17 hearing.”

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che County Jail, where he again completed a written request

for counsel.

On January 23, 2003, a lawyer finally was appointed to

represent Rothgery. The attorney secured an order reduc-

ing Rothgery’s bail, allowing his release from jail after he

had served approximately three weeks due to his second ar-

rest. The attorney also obtained records establishing that

Rothgery had not, in fact, been convicted of a felony. Ac-

cordingly, the district attorney moved to dismiss the indict-

ment, and the court duly dismissed the charge.

3. Proceedings Below.—Rothgery sued Gillespie

County under 42 U.S.C. § 1983 on the ground that the

County had violated his Sixth Amendment right to counsel,

alleging that the County followed a policy of not appointing

counsel for indigent defendants released on bond until after

indictment or information. Rothgery argued that Brewer

and Jackson established that his Sixth Amendment right to

counsel was triggered when he was arrested, brought before

the magistrate and informed of the accusation against him,

and committed to jail pending posting of bond or disposition

of the accusation. Had counsel been appointed after his first

appearance before the magistrate, Rothgery contended, the

mistake underlying his arrest would have been discovered

and he would not have been subject to bond for a lengthy

period and wrongfully jailed in January 2003.

The district court granted Gillespie County’s motion for

summary judgment, holding that Rothgery’s Sixth Amend-

ment right to counsel did not attach at his initial appearance

before the magistrate. App. 29a-3la. The Fifth Circuit af-

firmed. App. 2a, 12a. In reaching that determination, the

Fifth Circuit recognized that this Court has held that adver-

sary judicial proceedings can be initiated prior to indictment.

App. 7a. Nevertheless—relying on Kirby’s statement that

the right to counse] attaches when “the government has

committed itself to prosecute,” and the “defendant finds

himself faced with the prosecutorial forces of organized soci-

ety,” 406 U.S. at 689—the court held that Rothgery’s initial

appearance did not trigger his right to counsel because he

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had not demonstrated “prosecutorial knowledge of or in-

volvement in [his] arrest and magistrate appearance.” App.

12a.”

The Fifth Circuit acknowledged that, in Brewer and

Jackson, this Court had held that an initia] appearance be-

fore a magistrate, who informed the defendant of the :

charges against him and committed him to confinement,

triggered the right to counsel, “without mentioning whether 3

prosecutors were involved.” App. 7a. However, it distin-

guished those cases on the ground that “the state supreme ;

court opinion preceding Jackson establishes that the prose- ;

cutor’s office approved and issued the complaints and war-

rants that led to the arraignment”—although this Court’s

opinion in Jackson never mentions that fact—and that

“while the extent of prosecutorial involvement in Brewer

was unaddressed, it does not appear that the state . . . raised

the issue.” App. 7a-8a. Finding no evidence that a prosecu-

tor knew of or was involved in the sequence of events that

led to Rothgery’s court-imposed loss of liberty, the Fifth

Circuit held that Rothgery had no right to counsel prior to

his indictment. App. 12a.°

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* Gillespie County had argued that adversary judicial proceedings

did not commence at Rothgery’s initial appearance because the affidavit

presented to the magistrate was not a “complaint” that formally charged a

felony under Texas law. The Fifth Circuit chose not to resolve that issue

of state law, noting that “we do not rely formalistically on the label given

te a particular pretrial event when determining the point at which adver-

sary judicial proceedings have been initiated,” App. 5a, and that although

“[w]e look to state law to determine when adversarial proceedings against |

the accused have commenced,” “the ultimate Sixth Amendment conse- i

quence[] of certain state procedures is a matter of federal law,” App. 5a-6a :

n.6 (emphasis added) (citation omitted). Instead, the Fifth Circuit con-

cluded that, regardless of the answer to “the formalistic question of

whether the affidavit here would be considered a ‘complaint’ or its func-

tional equivalent under Texas . . . law,” App. lla, as a matter of federal

law, an initial appearance before a magistrate and commitment to jail

could not initiate adversary judicial proceedings unless a prosecutor was

aware of or involved in the proceedings. App. la-2a, 5a-8a, 12a.

*In so holding, the Fifth Circuit relied in part on its own pre-

Jackson decision in McGee v. Estelle, 625 F.2d 1206, 1208 (5th Cir. 1980)

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REASONS FOR GRANTING THE WRIT

The Fifth Circuit’s decision conflicts with the decisions

of other federal courts of appeals to consider the issue; splits

with the decisions of state courts of last resort that have ex-

pressly rejected any such “prosecutorial involvement” test

under the Sixth Amendment; and, ultimately, cannot be rec-

onciled with this Court’s precedent. Its decision permits de-

fendants in that circuit who cannot demonstrate a prosecu-

tor’s involvement in their arrest or first court appearance to

be jailed for substantial periods with no access to counsel.

Moreover, the Fifth Circuit’s reasoning makes clear that the

disagreement over this important issue will persist absent

this Court’s intervention. This Court should grant certio-

rari.

I. THE FIFTH CIRCUIT'S DECISION CONFLICTS WITH THOSE

OF OTHER FEDERAL COURTS OF APPEALS AND STATE

COURTS OF LAST RESORT

A. The Fifth Circuit’s Decision Conflicts With The

Decisions Of Other Federal Courts Of Appeals

The Fifth Circuit’s decision squarely conflicts with the

holdings of three other federal courts of appeals, all of which

have applied Brewer and Jackson to hold that the Sixth

Amendment right to counsel is triggered by the same se-

quence of events that occurred in Rothgery’s case: a defen-

dant’s arrest, his appearance before a magistrate who in-

forms him of the charges against him, and his commitment to

confinement. None of these courts has held that a prosecu-

tor must be aware of or involved in these events in order for

the Sixth Amendment right to attach.

In Mitzel v. Tate, 267 F.3d 524 (6th Cir. 2001), the Sixth

Circuit considered facts indistinguishable from those in

Rothgery’s case and held that the defendant’s right to coun-

(holding that “an adversary criminal proceeding has not begun in a case

where the prosecut[ors] are unaware of either the charges or the arrest”),

App. la, 6a, concluding that nothing in Brewer or Jackson was “enough for

us to ignore our binding authority,” App. 8a.

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sel had attached. There, Mitzel voluntarily came to the po-

lice station and made statements describing his role in the

death of a friend. See id. at 527. The police arrested him

without a warrant and brought him before a magistrate for

his initial appearance, at which he was represented by coun-

sel retained by his father. See id. at 528, 532 (citing Ohio R.

Crim. P. 4(E)(2) (arrest without warrant)). After the initial

appearance, the police elicited a further incriminating state-

ment from the defendant without his counsel present. See

id. at 528. Mitzel moved to suppress that statement, arguing

that his Sixth Amendment right had attached at the initial

appearance, barring the police from initiating interrogation

in the absence of his lawyer. See id. at 531-532.

The Sixth Circuit observed that, by the time the state-

ment in question was made, Mitzel “had been placed under

arrest, the police had issued a complaint against him detail-

ing the essential facts of the offense with which he was

charged, and he had appeared before a state judge.” 267

F.3d at 532. Furthermore, following this “initial appearance

in front of the state judge, the court ordered that his con-

finement in jail continue.” Jd. Accordingly, the Sixth Cir-

cuit held that, as in Brewer, ““[t]here can be no doubt . . . that

judicial proceedings had been initiated.” Jd. (quoting

Brewer, 430 U.S. at 399) (bracket and ellipsis in Mitzel).

Like the Fifth Circuit, the Sixth Circuit acknowledged

that the purpose of the Sixth Amendment “is to assure that

in any criminal prosccution the accused shall not be left to

his own devices in facing the prosecutorial forces of organ-

ized society.” 267 F.3d at 532 (quoting Moran v. Burbine,

475 U.S. 412, 430 (1986) (quoting Kirby, 406 U.S. at 689)). In

light of Brewer, however, the Sixth Circuit concluded that

Mitzel was faced with “the prosecutorial forces of organized

society,” and that his right to counsel had thus attached,

when he was arrested, was brought before a magistrate and

informed of the charges against him, and was committed to

confinement—the same events that occurred here. /d. at

532-533. That was so even though the police—not a prosecu-

tor—had made the accusation against Mitzel that led to his

‘

initial appearance, see id. at 532, and the court pointed to no

evidence that prosecutors had been involved in the arrest or

appearance before the magistrate.

Similarly, in Matteo v. Superintendent, SCI Albion, 171

F.3d 877 (3rd Cir. 1999), the en bane Third Circuit held that

the defendant’s right to counsel attached when he was ar-

rested, brought before a judge for “preliminary arraign-

ment,” and committed to jail. See id. at 893. Like the Fifth

and Sixth Circuits, the Third Circuit acknowledged that ad-

versary proceedings begin when a defendant “finds himself

faced with the prosecutorial forces of organized society.”

Id. at 892 (quoting Kirby, 406 U.S. at 689). But, unlike the

Fifth Circuit, the Third Circuit interpreted this language in

a manner consistent with Brewer and Jackson, concluding

that Matteo was “faced with the prosecutorial forces of or-

ganized society,” and his Sixth Amendment right to counsel

was triggered, upon his initial appearance before the magis-

trate and commitment to jail—well before the filing of an

information by the district attorney and his arraignment on

the information. Jd. at 892-893. The Third Circuit made no

mention of any prosecutorial involvement in Matteo’s arrest

or initial appearance, and made no suggestion that such in-

volvement was relevant.

The Eleventh Circuit has likewise held that the Sixth

Amendment right to counsel attaches after the same events

that occurred in this case: arrest, an initial appearance be-

fore a magistrate, and commitment to custody. In Fleming

v. Kemp, 837 F.2d 940 (11th Cir. 1988), the defendant, Flem-

ing, was arrested and appeared before a justice of the peace

who advised him of the charges against him and of his rights,

and committed him to jail, setting no bond. See id. at 947. A

few days later, the police initiated an interrogation of Flem-

ing without counsel present and obtained statements that

were admitted at trial. See id. In federal habeas proceed-

ings, the warden argued that Fleming’s Sixth Amendment

rights had not attached when the statements were elicited,

because his appearance before the justice of the peace was

not a “formal arraignment, and thus falls outside of Jack-

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son’s holding.” Id. at 947-948. The Eleventh Circuit

squarely rejected that argument, holding that, under Jack-

son, a “formal arraignment” is not required in order for ad-

versary judicial proceedings to commence. See id. at 948.

Rather, the court held that an initial appearance before a

judicial officer at which a defendant is informed of the

charges against him and committed to custody transforms

the defendant from a “suspect” to an “accused” within the

meaning of Jackson and triggers the defendant’s right to

counsel. See id. Again, the Eleventh Circuit did not discuss

whether a prosecutor was involved in Fleming’s initial ap-

pearance before the justice of the peace and nowhere inti-

mated that a prosecutor’s involvement is relevant to the

analysis.

The Eleventh Circuit subsequently reaffirmed the rule

adopted in Fleming in Stokes v. Singletary, 952 F.2d 1567,

1579 (11th Cir. 1992) (relying on Brewer and Jackson te hold

that defendant’s Sixth Amendment right to counsel hau at-

tached after arrest and an initial appearance before a magis-

trate).

B. The Fifth Circuit’s Decision Conflicts With The

Decisions Of State Courts Of Last Resort

In addition, the Fifth Circuit’s analysis conflicts with

that of several state courts of last resort that have applied

Brewer and Jackson to hold, as a matter of federal constitu-

tional law, that the Sixth Amendment right to counsel had

attached on facts functionally identical to those here. In-

deed, two state supreme courts have expressly rejected a

“prosecutorial involvement” test for the commencement of

adversary judicial proceedings.

For instance, before this Court’s decision in Jackson,

the Georgia Supreme Court had adopted a rule that an initial

appearance before a magistrate, at which no prosecutor was

present, did not initiate adversary judicial proceedings. See

Ross v. State, 326 S.E.2d 194, 200 (Ga. 1985), overruled by

O’Kelley v. State, 604 S.E.2d 509 (Ga. 2004). When later con-

fronted with the same fact scenario, the Georgia court rec-

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ognized that its rule could no longer stand in light of Jack-

son. In O’Kelley v. State, 604 S.E.2d 509 (Ga. 2004), the

Georgia court held that under Jackson, a “formal legal pro-

ceeding” triggers the Sixth Amendment right to counsel,

regardless of whether a prosecutor is involved in that pro-

ceeding. See id. at 511. The court expressly noted that no

prosecutor was present at the appearance in O’Kelley, and

its opinion nowhere indicated that a prosecutor had been in-

volved in the arrest. See id. Nevertheless, the court held,

the “Sixth Amendment right to counsel attaches at an initial

appearance hearing.” Jd. at 512. In doing so, the court ex-

pressly overruled Ross and rejected prosecutorial involve-

ment as the yardstick for determining whether judicial pro-

ceedings had been initiated. See id. at 511-512.

Similarly, in State v. Jackson, 380 N.W.2d 420 (Iowa

1986), the Supreme Court of Iowa held that a defendant’s

Sixth Amendment right to counsel attached after he was ar-

rested, made an initial appearance before a court, and was

committed to jail. See id. at 424. The lowa court expressly

rejected the state’s contention that the defendant’s right to

counsel did not attach after the initial appearance because

there was no “participation by a prosecuting attorney in the

proceedings.” Jd. at 423. The court observed that the case

was “indistinguishable in principle from Brewer,” where this

- Court held that adversary judicial proceedings had been ini-

tiated even though “no participation by a prosecuting attor-

ney was shown.” Id. at 424.’

Moreover, numerous state courts have applied Brewer

and Jackson to hold that adversary judicial proceedings

’ The lowa Supreme Court did note that the participation of a prose-

cutor in the investigative stages of a criminal proceeding is “some evi-

dence” of a commitment to prosecute, but, unlike the Fifth Circuit, held

that such participation was “not determinative.” Jd. at 423. And the lowa

court clearly held that even where there was no evidence of prosecutorial

awareness or participation, arrest, magistration, and commitment to cus-

tody—the same events that occurred here—constituted the commence-

ment of adversary judicial proceedings and triggered the Sixth Amend-

ment right to counsel. See id. at 424.

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commence when a defendant is accused of a felony offense,

appears before a judge, and is bound over to jail or released

on conditions of bail. For example, in State v. Tucker, 645

A.2d 111 (N.J. 1994), the Supreme Court of New Jersey rec-

ognized that, under Jackson, the Sixth Amendment right to

counsel attached at a “first court appearance,” id. at 119,

even though the opinion nowhere suggested that a prosecu-

tor had been involved in any stage before the initial appear-

ance and “the State was almost always unrepresented at ini-

tial appearances in municipal court,” id. at 123; see also, e.g.,

Bradford v. State, 927 S.W.2d 329, 333-334 (Ark. 1996) (hold-

ing that Jackson compels the conclusion that adversary judi-

cial proceedings have been initiated after a defendant is ar-

rested, brought before a magistrate who determines prob-

able cause for the detention, and bound over to custody);

Owen v. State, 596 So. 2d 985, 988-989 (Fla. 1992) (relying on

this Court’s precedent to hold that adversary judicial pro-

ceedings “clearly have begun when an accused is placed in

custody, haled before a magistrate on a warrant or formal

complaint, and then tentatively charged with a particular

crime at this initial appearance or ‘arraignment”’); State v.

Barrow, 359 S.E.2d 844, 848 (W. Va. 1987) (relying on Jack-

son to hold that the Sixth Amendment right to counsel at-

tached when the defendant was arrested and made an initial

appearance before a magistrate who committed him to cus-

tody).

Ry contrast, a minerity of state supreme courts have

held, on facts similar to those of this case, that the Sixth

Amendment right to counsel was not triggered. For in-

stance, in Ex parte Stewart, 853 So. 2d 901 (Ala. 2002), the

defendant was arrested and made an initial appearance be-

fore a court which informed him of the charges against him,

informed him of his right to counsel and other rights, and set

bail. See id. at 902, 904. In a 5-3 decision, the Supreme

Court of Alabama held that because this proceeding was

merely “an informational proceeding designed to protect the

rights of the accused,” and not an “adversarial proceeding,”

the Sixth Amendment right to counsel had not attached. /d.

at 904-905. The three justices in dissent recognized that the

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majority’s conclusion diverged from authority in other juris-

dictions. Relying on the Eleventh Circuit’s decision in

Stokes, 952 F.2d 1567, and on the Florida Supreme Court’s

decision in Owen, 596 So. 2d 985, they concluded that be-

cause the judicial officer could set bail and commit the de-

fendant to custody at the initial appearance, the defendant

was certainly “confronted by the ‘procedural system,” and

his Sixth Amendment right had attached. Stewart, 853 So.

2d at 909 (Lyons, J., dissenting) (citation omitted).*

**e# &* *

In sum, under the analysis employed by the Third,

Sixth, and Eleventh Circuits—as well as numerous state

courts of last resort—Rothgery’s Sixth Amendment rights

would have been deemed to attach following his initial ap-

pearance before the magistrate, at which he was informed of

the charges against him and committed to confinement.

None of the other courts of appeals has employed the Fifth

Circuit’s “prosecutorial involvement” test or, indeed, hinted

that a prosecutor’s involvement is relevant. And two state

supreme courts have expressly rejected the notion that a

prosecutor’s involvement could be dispositive. Moreover,

the Fifth Circuit’s express adherence to its own prior prece-

dent employing the prosecutorial involvement analysis, even

in light of this Court’s subsequent decision in Jackson, see

supra n.6, makes clear that this division of authority will not

be resolved absent this Court’s intervention.

* Similarly, in People v. Anderson, 842 P.2d 621 (C slo. 1992), the Su-

preme Court of Colorado held that an initial appearance before a county

judge under a Colorado rule that required the judge to advise the defen-

dant of the charges against him, his right to counsel, and the amount of

bail did not initiate adversary judicial proceedings and did not trigger the

defendant’s Sixth Amendment right to counsel, because “at that time the

People had not elected to prosecute the defendant.” /d. at 623.

Il. THE FIFTH CIRCUIT’S ANALYSIS CANNOT BE RECONCILED

WITH THIS COURT’S SIXTH AMENDMENT PRECEDENT

The Fifth Circuit’s analysis cannot be reconciled with

this Court’s decisions in Brewer and Jackson. In both of

those cases, the Court held that a defendant’s arrest, initial

appearance before a judge who informed him of the charges

against him, and commitment to confinement—the very

events that occurred in Rothgery’s case—marked the com-

mencement of adversary judicial proceedings and triggered

the defendant’s Sixth Amendment right to counsel. See

Brewer, 430 U.S. at 399; Jackson, 475 U.S. at 629.° In nei-

ther case did the Court consider it relevant whether a prose-

cutor was involved in, or aware of, the proceedings.

Rather, Brewer squarely held, without reference to

prosecutorial involvement, that “[tJhere can be no doubt .. .

that judicial proceedings had been initiated” after the defen-

dant had been arrested, “had been arraigned on [the arrest]

warrant before a judge,” and “had been committed by the

court to confinement in jail.” 430 U.S. at 399. The Fifth Cir-

cuit attempted to distinguish Brewer by stating that “it does

not appear that the state contested that adversary judicial

proceedings had begun.” App. 8a. But this Court did not

rest its decision on a concession by the state; rather, it ex-

plicitly held that adversary judicial proceedings had in fact

commenced and the Sixth Amendment right to counsel had

in fact attached—even though there was no indication in

Brewer that any prosecutor was involved in Uhe proceedings.

Id.; see also Jackson, 380 N.W.2d at 424 (lowa Supreme

Court recognized that Brewer held that adversary judicial

proceedings had been initiated even though “no participation

by a prosecuting attorney was shown”).

* See also Owen, 596 So. 2d at 988-989 (“{T]he federal [Supreme]

Court and commentators are in agreement that [adversary judicial] pro-

ceedings clearly have begun when an accused is placed in custody, haled

before a magistrate on a warrant or formal complaint, and then tenta-

tively charged with a particular crime at this initial appearance or ‘ar-

raignment.””).

In Jackson, this Court again held that it was clear that

adversary judicial proceedings had been initiated after the

two defendants in that case were arrested and had made ini-

tial appearances before a judge. See 475 U.S. at 629 & n.3.

Like Brewer, Jackson nowhere suggested that a prosecutor

was aware of or involved with tle arrests or initial appear-

ances, or that such awareness carried any weight in the

Court’s determination that adversary judicial proceedings

had commenced. While the Fifth Circuit opined that the

“{Michigan] supreme court opinion preceding Jackson estab-

lishes that the prosecutor’s office approved and issued the

complaints and warrants that led to the arraignment,” App.

7a-8a (citing People v. Bladel, 365 N.W.2d 56, 71-72 (Mich.

1984)), this Court never even mentioned—let alone relied

on—this fact in reaching its holding that the defendants’

Sixth Amendment rights attached at their initial appear-

ances.'°

To support its “prosecutorial involvement” test, the

Fifth Circuit seized upon this Court’s statement in Kirby

that adversary judicial proceedings commence when “the

government has committed itself to prosecute” and “a de-

fendant finds himself faced with the prosecutorial forces of

organized society.”” App. 5a (quoting Kirby, 406 U.S. at

689). But, in light of this Court’s subsequent holdings in

Brewer and Jackson, it is clear that the Fifth Circuit mis-

construed the import of that language.

This Court has never held that Sixth Amendment rights

attach only upon the involvement of a prosecutor. Nor has it

held that the “prosecutorial forces of organized society” are

limited to prosecuting attorneys. See United States v. Gou-

veia, 467 U.S. 180, 189 (1984) (the Sixth Amendment right to

'° Indeed, the Michigan Supreme Court also did not rely in any way

on any prosecutorial involvement in the issuance of the complaints or ar-

rest warrants in Jackson, instead simply concluding that because the de-

fendants in that case had been “arraigned” (i.e., had made initial appear-

ances before a magistrate, see supra n.1), their Sixth Amendment rights

had attached. See Bladel, 365 N.W.2d at 62.

counsel applies when “the accused [is] confronted . . . by the

procedural system, or by his expert adversary, or by both”)

(internal quotation marks and citation omitted) (emphasis

added). And the Fifth Circuit offered no reason why the de-

fendant’s need “to rely on counsel as a ‘medium’ between

him and the State,” Maine v. Moulton, 474 U.S. 159, 176

(1985), should arise only when a prosecutor has filed charges

against him. That need is equally present where—as here—

a police officer has proffered a sworn accusation against a

defendant “in the name and by the authority of the State,”

App. 33a, a judge has found probable cause to believe the

defendant committed that offense, and the judge has bound

him over to jail. By holding that adversary judicial proceed-

ings had commenced in Brewer and Jackson, this Court has

made clear that, when those events occur, a defendant is in

fact “faced with the prosecutorial forces of organized soci-

ety,” and his Sixth Amendment right to counsel therefore

has attached. Jackson, 475 U.S. at 631 (quoting Gouveia,

467 U.S. at 189 (quoting Kirby, 406 U.S. at 689))."'

The Fifth Circuit also sought to distinguish Brewer and

Jackson by observing that the defendants in those cases

were “arraigned on an arrest warrant,” whereas Rothgery

was arrested without a warrant. App. 7a. The court rea-

soned that Rothgery’s initial appearance before the magis-

trate thus served only to determine probable cause for his

arrest, rather than to mark the commencement of adversary

judicial proceedings. App. 1la-12a. This Court’s decisions,

however, support no such distinction between arrests with

'' Indeed, Jackson made clear that “the confrontation between the

State and the individual” that is the concern underlying the Sixth

Amendment is not a confrontation with prosecutors alone, and that the

police and the courts are also state actors for Sixth Amendment purposes.

See 475 U.S. at 634 (“Sixth Amendment principles require that we impute

the State’s knowledge from one state actor to another. For the Sixth

Amendment concerns the confrontation between the State and the indi-

vidual. One set of state actors (the police) may not claim ignorance of de-

fendants’ unequivocal request for counsel to another state actor (the

court).”).

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and without warrants. Indeed, one of the two defendants in

Jackson—like Rothgery—was arrested without a warrant.

See Bladel, 365 N.W.2d at 69 (“defendant [Jackson] was ar-

rested for a felony without a warrant”). While the police ob-

tained the prosecutor’s approval for an arrest warrant just

before Jackson’s initial court appearance, that appearance

served to validate his arrest, as well as to inform him of the

charges against him and commit him to custody, see id. at 70-

73—precisely what occurred at Rothgery’s initial appear-

ance.

In any event, the Fifth Circuit’s proffered distinction

makes little sense. In both Brewer and Jackson, the rele-

vant facts were that the defendant had been arrested, a

court had found probable cause to believe the defendant had

committed an offense, and the court had bound the defen-

dant over to jail. Those same events occurred here. It can

make no constitutional difference whether the judicial de-

termination of probable cause occurred before or after the

defendant’s arrest. In either case, once a court has made

such a determination and the defendant has “been commit-

ted by the court to confinement,” Brewer, 430 U.S. at 399, he

has been transformed from a mere “suspect” to an “ac-

cused,” Jackson, 475 U.S. at 632, and his Sixth Amendment

rights have attached."

Because the facts of this case are materially identical to

those in Brewer and Jackson, the Fifth Circuit’s holding that

Rothgery had no right to counsel cannot be reconciled with

this Court’s precedent, and warrants this Court’s review.

'2 See also, e.g., Mitzel, 267 F.3d at 532 (Sixth Amendment right at-

tached following a warrantless arrest, an initial appearance before a mag-

istrate, and confinement to jail); Bradford, 927 S.W.2d at 333-334 (Sixth

Amendment right was triggered by an initial appearance before a magis-

trate who simultaneously found probable cause for the defendant’s deten-

tion by the police and committed her to custody).

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Ill. THE FIFTH CIRCUIT’S “PROSECUTORIAL INVOLVEMENT”

TEST WILL BE UNWORKABLE IN PRACTICE AND WILL

PERMIT INDIGENT DEFENDANTS TO BE JAILED FOR LONG

PERIODS WITHOUT COUNSEL

Finally, the Fifth Circuit’s decision merits review be-

cause of its undesirable, and potentially far-reaching, practi-

cal consequences.

As an initial matter, the Fifth Circuit’s “prosecutorial

involvement” test requires courts to engage in an unneces-

sarily fact-intensive, and ultimately unworkable, inquiry.

While Kirby, Brewer, and Jackson establish a straightfor-

ward, easily applicable test for determining when the Sixth

Amendment right to counsel attaches based on the nature of

the proceedings that took place, the Fifth Circuit’s approach

requires courts to look beyond the objectively ascertainable

procedural posture of a case to delve into precisely what

prosecutors knew about the police’s actions, when they knew

it, and the extent of their involvement in pre-trial proceed-

ings. Such an inquiry is likely to be both unnecessarily com-

plicated and unduly intrusive.

For example, a defendant may file a motion to suppress

statements made after what the defendant asserts is the

commencement of adversary judicial proceedings. If com-

munication between law enforcement officers and prosecu-

tors is not memorialized in formal documents filed with the

court, the court must receive testimony to determine who

knew what when. A prosecutor’s notes and testimony could

become regular features of suppression hearings, and dis-

covery battles could ensue. The courts will need to examine

details such as whether a prosecutor helped a police officer

with a complaint, or whether an officer left a message in-

forming a prosecutor that an arrest warrant had been ob-

tained or that an initial appearance had been scheduled.

There is no justification for engrafting such a needlessly

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complex inquiry onto what should be the straightforward

determination of when a defendant is entitled to counsel.'°

Moreover, and more fundamentally, under the Fifth

Circuit’s test, indigent defendants can be incarcerated for

lengthy periods without counsel. A prosecutor may take six

months (as in this case) or more before indicting a felony de-

fendant. Under the Fifth Circuit’s rule, an indigent defen-

dant arrested without a prosecutor’s involvement could be

jailed throughout that period without access to any legal as-

sistance.

The facts of this case make plain the threat that the

Fifth Circuit’s rule poses to the values underlying the Sixth

Amendment. Here, had an attorney been appointed after

Rothgery’s initial appearance, when he requested counsel,

the mistake underlying his arrest would have quickly been

uncovered and the charges dismissed—as they eventually

were more than six months later. Had Rothgery had the

assistance of counsel during that time, his bail would not

have been increased, he would not have been rearrested, and

he would not have been wrongfully jailed.

As this Court has declared: The “noble ideal [where

every individual stands equal before the law] cannot be real-

ized if the poor man charged with crime has to face his ac-

cusers without a lawyer to assist him.” Gideon, 372 US. at

344. Because the Fifth Circuit’s approach leaves indigent

defendants in that circuit without the assistance of counsel

to contest substantial court-imposed deprivations of their

liberty, the Court should review this case.

'? Moreover, it is unclear what degree of knowledge or involvement

by prosecutors is required under the Fifth Circuit's test. The decision will

lead to litigation over questions such as whether it is sufficient that a po-

lice officer informed a prosecutor that an individual had been arrested or

whether a prosecutor must be involved in the pre-trial proceedings in

some manner, and if so, the requisite extent and formality of such in-

volvement.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ANDREA MARSH SETH P. WAXMAN

HARRY WILLIAMS IV CRAIG GOLDBLATT

TEXAS FAIR DEFENSE Counsel of Record

PROJECT DANIELLE SPINELLI

510 South Congress Ave., D. HIEN TRAN

Suite 208 WILMER CUTLER PICKERING

Austin, TX 78704 HALE AND DORR LLP

(512) 637-5220 1875 Pennsylvania Ave., N.W.

Washington, D.C. 20006

WILLIAM CHRISTIAN (202) 663-6000

GRAVES, DOUGHERTY,

HEARON & MOODY, P.C.

401 Congress Ave., Suite 2200

Austin, TX 78701

(512) 480-5600

SEPTEMBER 2007

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.