Petitioners Brief — Rothgery v. Gillespie County

IN THE

Supreme Court of the

WALTER ALLEN ROTHGERY,

Petitioner,

Vv.

GILLESPIE COUNTY, TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

ANDREA MARSH SETH P. WAXMAN

HARRY WILLIAMS IV Counsel of Record

TEXAS FAIR DEFENSE CRAIG GOLDBLATT

PROJECT DANIELLE SPINELLI

510 South Congress Ave., CATHERINE M.A. CARROLL

Suite 208 ROBERTO J. GONZALEZ

Austin, TX 78704 MARGARET WILLIAMS SMITH

(512) 637-5220 WILMER CUTLER PICKERING

HALE AND DORR LLP

WILLIAM CHRISTIAN 1875 Pennsylvania Ave., N.W.

GRAVES, DOUGHERTY, Washington, D.C. 20006

HEARON & Moopy, P.c. (202) 663-6000

401 Congress Ave.,

Suite 2200

Austin, TX 78701

(512) 480-5600

ea mec cnaec a emM e t e m o c

WILSON-EPES PrinTING Co., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

QUESTION PRESENTED

The Sixth Amendment right to counsel attaches

when “adversary judicial proceedings have been initi-

ated.” Kirby v. Illinois, 406 U.S. 682, 688 (1972). This

Court has held that when a defendant is arrested, “ar-

raigned on [an arrest] warrant before a judge,” and

“committed by the court to confinement,” “[t]here can

be no doubt . . . that judicial proceedings ha[ve] been

initiated.” Brewer v. Williams, 4380 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 committed 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 ap-

peals and state courts of last resort—that adversary

judicial proceedings nevertheless had not commenced,

and petitioner’s Sixth Amendment rights had not at-

tached, because no prosecutor was involved in peti-

tioner’s arrest or appearance before the magistrate.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ....cseccccccosssessscoccosssccescsccssssssees i

TABLE OF AUTHORITIES ..ccc.csccssssscsscscscosssssseseccssssess v

a scsabadipitcseesndlibeoeth 1

IEA RTI ES cp a OE ROPE 1

CONSTITUTIONAL PROVISIONS

SESE ES a aa 2

PRELIMINARY STATEMENT ....ccsscsscccsssesssscscsssesscseen 2

STATEMENT OF THE CASE .unicccccssssesssccsccsssssessescessses 4

SUMMARY OF ARGUMENT .0..esccccccssssescccossssssccconsesees 10

pT PIES ES GC ORES A TOES OEE 14

I. THIS COURT'S PRECEDENT ESTABLISHES

THAT ROTHGERY’S RIGHT TO COUNSEL

ATTACHED FOLLOWING HIs INITIAL AP-

PEARANCE BEFORE THE MAGISTRATE ..........00-ee00ee 14

A. The Sixth Amendment Right To Ap-

pointed Counsel Attaches Upon The

Commencement Of Adversary Judicial

B. This Court Has Held That Adversary

Judicial Proceedings Commence When

A Defendant Appears Before A Judge

Who Informs Him Of The Accusation

Against Him And Commits Him To

(iii)

» = 1S -

: 2 : - 2 yes Haas ee

OR ee A FO Oe Oe Pea ee we ee ee a ee a hs

iv

TABLE OF CONTENTS—Continued

C. Rothgery’s Initial Appearance Before

The Magistrate Was Functionally ;

Identical To The Proceedings In

Brewer? ANG IGCKIOW cececcecscecscsscecseccecsercsesescceesees 27 ’

II. THE COURT OF APPEALS’ PROSECUTORIAL |

INVOLVEMENT TEST CANNOT BE RECON-

CILED WITH THIS COURT’S PRECEDENT..........00000+. 31 |

A. The Fifth Circuit’s Analysis Cannot Be :

Squared With Brewer And Jackson............0-++ 32 |

B. Kirby v. Illinois Does Not Support

The Fifth Circuit’s AnalySis ..............ccscssssseseees 35

III. THE FIFTH CIRCUIT’S TEST IS UNWORK- |

ABLE AND THREATENS TO IMPOSE SERI-

OUS HARDSHIP ON INDIGENT DEFENDANTS........... 38

A. The Fifth Circuit’s Test Requires An

Unworkable And Unduly Intrusive In-

quiry Into Prosecutors’ Deliberations

And Communications ..............sccccssesseseeseeeeeeeees 38

B. The Fifth Circuit’s Rule Threatens To

Cause Serious Harm To Indigent De-

RE RES SRE ROS ei Dai or aC eR 42

PEP IOY acictisesicnesensnesntensecinensieiennieceninanitingnainitit 45

Vv

TABLE OF AUTHORITIES

CASES

Page(s)

Albright v. Oliver, 510 U.S. 266 (1994) .........scssssseeeeeeee 44

Bradford v. State, 927 S.W.2d 329 (Ark. 1996). hesonininsienas 26

Brewer v. Williams, 430 U.S. 387 (1977)........c0000 passim

Berkemer v. McCarty, 468 U.S. 420 (1984).........scscssesees 40

County of Riverside v. McLaughlin,

ge MF: 2 SPARES. Sale enone 30, 41, 43

Evitts v. Lucey, 469 U.S. 387 (1985)..........sccccsecsessereesees 37

Fleming v. Kemp, 837 F.2d 940 (11th Cir. 1988) ....25, 26

Gerstein v. Pugh, 420 U.S. 103 (1975).........cccccsseseees 30, 43

Gideon v. Wainwright, 372 U.S. 335 (1968)......... 2, 15, 44

In re U.S. Department of Homeland Security,

459 F.3d 565 (Sth Cir. 2006) ...........ccrcccercscceccerserseses 41

Johnson v. Zerbst, 304 U.S. 458 (1988).........ccccseeessseees 14

Kirby v. Illinois, 406 U.S. 682 (1972).........ccscesseeee passim

Lomax v. Alabama, 629 F.2d 413

ee Me beinseiiatadchdchitibindaicticiscripciearnntesuscesinnboesorbanieia 9

Maine v. Moulton, 474 U.S. 159

IIs ccicecisssstinnssteniecnniad etiiiesinincnmmecinionien 15, 16, 18, 34, 38

Massiah v. United States, $77 U.S. 201 (1964).............. 34

Matteo v. Superintendent, SCI Albion,

BFE FG SEE a Cat. BEI sccicaristersternctniemmenmnninncin 26

McGee v. Estelle, 625 F.2d 1206 (5th Cir. 1980).............. 9

McNeil v. Wisconsin, 501 U.S. 171 (1991)......... 16, 18, 24

Michigan v. Jackson, 475 U.S. 625 (1986)............. passim

q

4

;

;

:

3

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Minnick v. Mississippi, 498 U.S. 146 (1990) ..............0 41

Mitzel v. Tate, 267 F.3d 524 (6th Cir. 2001)..............0000 25

Moore v. Illinois, 434 U.S. 220 (1977).........ccccescereeseseeees 18

Moran v. Burbine, 475 U.S. 412 (1986) .............. 17, 19, 36

_ O’Kelley v. State, 604 S.E.2d 509 (Ga. 2004)............ 35, 39

Owen v. State, 596 So. 2d 985 (Fla. 1992) ............000+ 23, 25

People v. Bladel, 365 N.W.2d 56 (Mich. 1984)......... 30, 33

Powell v. Alabama, 287 U.S. 45

SE ccichetieindidadiiphdceescttiptatiboesitnnanecasin 14, 15, 16, 19, 36, 42

Puerto Rico v. United States, 490 F.3d 50

EU tichintiidecniahlehcitishasidbiqnessiniencctcsenseseniaieses 40

Ross v. State, 326 S.E.2d 194 (Ga. 1985).............csccsseeeee 34

State v. Barrow, 359 S.E.2d 844 (W. Va. 1987).............. 26

State v. Jackson, 380 N.W.2d 420 (Iowa 1986)............... 34

State v. Williams, 182 N.W.2d 396 (Iowa 1970)............ 21

Stokes v. Singletary, 952 F.2d 1567

CE ESE Eo Te a 26

' United States v. Cronic, 466 U.S. 648 (1984).....15, 19, 29

United States v. Edelin, 128 F. Supp. 2d 23

5 RSE ESRI AP ee 41

United States v. Gouveia, 467 U.S. 180 (1984)........ 17, 38

United States v. Wade, 388 U.S. 218 (1967)............0000+ 19

7

=

'

oad

4

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4

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vii

TABLE OF AUTHORITIES—Continued

Page(s)

CONSTITUTIONAL PROVISIONS

AND STATUTES

I I i ececsdirhidseieniiidcdasinanenrennocntncnnntenesbeies 2

Nar ITI. so ressaiin intl geltesiihinenbdtibenatinbeepiamnbiis 1

SESE RCRA a Re ee a 8

Texas Fair Defense Act, 77th Leg., R.S., ch.

906, 2001 Tex. Gen. Laws 906 ..............ccccccsssssseessenees 42

Tex. Code Crim. Proc.

GE AE Se CC SO CnC STE 42

SETI Sissi ch athe sinliinnediipiebidnemienieteniintinneaintiiadiaidabieaniil 30

8 RED RD ERE eee 5, 6, 9, 27, 28, 30

id ictal deemllties cceaniliea lial 27, 28

Airis. scticcdiistustuiiiissshabdiintneanesicisdiinsenaitaaiinntanineel 28

EE A ce EC PRR EO, 28

BTsites a ccrieeiabhiiisniaieleipcatininaathienaiediscaadadiiblall 28

I Nedsteiivin heardoctntieieslapeaiidabioneppanatiiiiaetiinuiiedcmleaditihe 28

n° REET SI SC Se ee eC 6, 28

a ee icin tice ncicreia cinictannttonemuianatinmnainne 4

OTHER AUTHORITIES

Broun, Kenneth S., et al., McCormick on Evi-

haces chacttsnnicstistsscmmeneeninne 25

Butcher, Allan K. & Moore, Michael K., Mut-

ing Gideon’s Trumpet: The Crisis in In-

digent Criminal Defense In Texas (Sept.

eR A APS ROI OLR OPO 42, 43

Dressler, Joshua, Understanding Criminal

Procedure (3d ed. 2002) .........c..ccccsssreseseseesees 20, 21, 30

TABLE OF AUTHORITIES—Continued

Dripps, Donald A., Constitutional Theory for

Criminal Procedure: Dickerson,

Miranda, and the Continuing Quest for

Broad-But-Shallow, 48 Wm. & Mary L.

8 | SERIE SES oye

Gillespie, Glenn C., Michigan Criminal Law

ANd Procedure (2007).............cccccccocsssccsccsssseees

LaFave, Wayne R., et al., Criminal Proce-

REY eRe PEN Bt NE AE

McDonald, William F., et al., Police-

Prosecutor Relations in the United

States (U.S. Department of Justice, Na-

tional Institute of Justice 1981).....................

Tomkovicz, James J., An Adversary System

Defense of the Right to Counsel Against

Informants: Truth, Fair Play, and the

Massiah Doctrine, 22 U.C. Davis L. Rev.

U.S. Department of Justice, Office of Justice

Programs, Bureau of Justice Statistics,

Defense Counsel in Criminal Cases

ee iaciihipcicissikcainiiodaisicenisbdainaicasiiiel sabasiatiiamies

Page(s)

IN THE

Supreme Court of the United States

No. 07-440 —

WALTER ALLEN ROTHGERY,

Petitioner,

vz.

GILLESPIE COUNTY, TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

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) (Pet. App. 1a-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)

(Pet. App. 13a-31a).

JURISDICTION

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

§ 1254(1). The Court of Appeals entered its judgment

on June 29, 2007. The petition for a writ of certiorari

2

was filed on September 27, 2007, and granted on De-

cember 3, 2007.

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’s Assis-

tance of Counsel] Clause is applicable to the States

through the Fourteenth Amendment. See Gideon v.

Wainwright, 372 U.S. 335, 342-345 (1963).

PRELIMINARY STATEMENT

As this Court has repeatedly held:

Whatever else it may mean, the right to coun-

sel 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 proceedings have been initi-

ated against him—“whether by way of formal

charge, preliminary hearing, indictment, infor-

mation, or arraignment.”

Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting

Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality

opinion)).

In Brewer, this Court held that “[t]here can be no

doubt . . . that judicial proceedings had been initiated,”

and the Sixth Amendment right to counsel had at-

tached, when a defendant was arrested, made an initial

appearance before a judge, and was committed to con-

finement in jail pending trial. 430 U.S. at 399. Subse-

quently, in Michigan v. Jackson, 475 U.S. 625 (1986),

3

the Court reaffirmed that such an initial court appear-

ance “signals ‘the initiation of adversary judicial pro-

ceedings’ and thus the attachment of the Sixth

Amendment” right to counsel. Jd. at 629 (citation omit-

ted); see also id. at 629 n.3. As Jackson explained, it is

at that time—when a court has confronted a defendant

with the accusation against him and imposed restric-

tions on his liberty to ensure that he answers that accu-

sation—that he is transformed from a mere “suspect”

to an “accused” within the meaning of the Sixth

Amendment, “‘faced with the prosecutorial forces of

organized society.’” Id. at 631-632 (citation omitted).

In this case, petitioner Walter Allen Rothgery was

arrested on suspicion of being a felon in possession of a

firearm—a charge of which he was innocent, because 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 custody pending

posting of bail or the disposition of the accusation. In

short, Rothgery underwent precisely the type of initial

court appearance that this Court held in Brewer and

Jackson initiated adversary judicial proceedings and

triggered the right to counsel. Rothgery repeatedly

requested counsel, but was not appointed an attorney

until some six months later, after he had been indicted,

rearrested, and jailed. Once appointed, Rothgery’s

counsel procured the documents that proved his inno-

cence of the charge against him, which was dismissed—

but not before he had spent some three weeks in jail on

the erroneous charge.

In the decision below, the Fifth Circuit recognized

that, in Brewer and Jackson, this Court had held—

without any mention of prosecutorial involvement—

that the right to counsel attached at an initial post-

arrest appearance before a magistrate. The Fifth Cir-

4

cuit nevertheless held that Rothgery’s right to counsel

did not attach at his initial appearance before the mag-

istrate because there was no evidence that any prose-

cuting attorney was involved in Rothgery’s arrest or

initial appearance. That “prosecutorial involvement”

test cannot be reconciled with this Court’s precedent,

will prove unworkable in practice, and disserves core

Sixth Amendment values. This Court should reverse

the decision below.

STATEMENT OF THE CASE

On July 15, 2002, petitioner Walter Allen Rothgery

was arrested without a warrant for unlawful possession

of a firearm by a felon, a felony under Texas law. See

Tex. Penal Code § 46.04(a), (e). The police made the ar-

rest on the mistaken belief that Rothgery had been

convicted of a felony in California. In fact, the Califor-

nia charges against Rothgery had been dismissed after

he completed a diversionary program. SJ Opp. Ex. 2.

Rothgery had no felony convictions, and he was thus

innocent of the offense for which he was arrested.

The police booked Rothgery into the Gillespie

County jail, where he immediately made a written re-

quest for the appointment of counsel. SJ Opp. Ex. 3, at

70. Rothgery spent the night in jail. The following

morning, he made an initial appearance before a magis-

trate judge, pursuant to the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. art. 15.17. At

that appearance (commonly referred to in Texas as

“magistration” or an “Article 15.17 hearing”), the mag-

' The record materials submitted to the district court in sup-

port of Rothgery’s opposition to Gillespie County’s motion for

summary judgment (Docket No. 33) are cited as “SJ Opp. Ex. __.”

5

istrate is required to “inform...the person ar-

rested ... of the accusation against him and of any affi-

davit filed therewith,” along with his rights, including

his right to counsel. Jd.

At Rothgery’s magistration, the magistrate was

presented with an “Affidavit of Probable Cause” sworn

to by the police officer who had arrested Rothgery, “in

the name and by the authority of the state of Texas.”

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

for the accusation against Rothgery and concluded as

follows: “I charge that ...on or about the 15[th] day of

July, 2002, . . . Defendant, Walter A. Rothgery did...

commit the offense of unlawful possession of a firearm

by a felon—3rd degree felony [Penal Code §] 46.04

against the peace and dignity of the state.” Jd. The

magistrate signed the affidavit, stating, “I hereby ac-

knowledge that I have examined the foregoing affidavit

and have determined that probable cause existed for

the arrest of the individual accused therein.” /d.

As required by Article 15.17, the magistrate in-

formed Rothgery of the accusation against him, telling

him: “You are accused of the criminal offense of:

unlawful possession of a firearm by a felon which will

be filed in... District Court.” Pet. App. 35a. The mag-

istrate also informed Rothgery of his rights, including

his right to have an attorney appointed if he could not

afford to hire one. Jd. at 35a-37a. The magistrate certi-

fied that he had communicated that information to “the

accused,” and Rothgery acknowledged receiving it, by

signing a form entitled “Warning by Magistrate.” /d.

Rothgery had recently lost his job, and although he

received veteran’s disability and unemployment bene-

fits, he could not afford an attorney. SJ Opp. Ex. 3, at

93-94. He therefore again requested that an attorney

6

be appointed for him. The magistrate told Rothgery,

however, 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 hear-

ing. Otherwise, Rothgery would have to wait in jail un-

til an attorney was appointed. Jd. at 66-67. Rothgery

agreed to waive his right to counsel for the limited pur-

pose of allowing the hearing to continue and permitting

the magistrate to set bail. Jd. The magistrate recorded

Rothgery’s temporary waiver, underlining the words

“at this time” on the relevant form to document that

Rothgery was waiving only his right to have counsel

present at the hearing. /d.; Pet. App. 36a.

The magistrate set bail at $5,000, Pet. App. 35a,

thus requiring Rothgery to remain in jail pending the

posting of bail or the disposition of the accusation

against him. See Tex. Code Crim. Proc. art. 15.17 (di-

recting magistrate to admit the arrestee to “bail if al-

lowed by law”); id. art. 17.27 (providing that if bail is

not paid, “the magistrate shall make an order commit-

ting the accused to jail to be kept safely until legally

discharged”).

Following his magistration, Rothgery remained in

jail until later that day, when his wife was able to post a

surety bond to obtain his release. The surety bond

stated that Rothgery “stands charged by complaint

duly filed in the Justice of Peace Court” with the felony

of unlawful. possession of a firearm by a felon, and was

conditioned on Rothgery’s personal appearance in

court. Pet. App. 39a. The bond was “examined” and

“approved” by the Sheriff of Gillespie County and was

signed by a deputy sheriff. Jd. at 40a.

After Rothgery was released on bond, he re-

peatedly inquired about the status of his request for

ail

6. ele = ae ee ae sae:

7

appointed counsel. SJ Opp. Ex. 3, at 69-70, 81-82. Gil-

lespie County employees informed Rothgery that they

could not locate his request. Jd. at 70-72. On July 24,

2002, Rothgery submitted a new written, notarized re-

quest to Gillespie County jail officials for appointment

of counsel. Jd. at 72-74, 76-78. He also made telephone

calls—including to employees at the jail, courthouse,

and police department—every day for two weeks in-

quiring about his request. Thereafter, he continued

placing calls, but with less frequency. Jd. at 81-82, 86-

87. Despite these efforts, no counsel was appointed.

Unbeknownst to Rothgery, Gillespie County followed a

policy of not appointing counsel for indigent defendants

released on bond until after their first court appearance

following information or indictment. SJ Opp. Ex. 7, at

15-17.

On January 17, 2003, a grand jury indicted Roth-

gery on the charge of being a felon in possession of a

firearm. SJ Opp. Ex. 9. Rothgery’s bail was increased

to $15,000, he was rearrested due to the bail increase,

and he was brought before the magistrate, where he

renewed his request for counsel. SJ Opp. Ex. 3, at 92-

93. Again, no counsel was appointed. Unable to post

bail, Rothgery was once more committed to the Gilles-

pie County Jail. Three days later, still with no lawyer,

he was transferred to the Comanche County Jail, where

he completed another written request for counsel. /d.

at 95-96.

On January 23, 2003, a lawyer finally was appointed

to represent Rothgery. The attorney secured an order

reducing Rothgery’s bail, which eventually allowed his

release after he had served approximately three weeks

in jail due to his second arrest. SJ Opp. Ex. 3, at 97-98.

The attorney also contacted California authorities and

obtained the relevant California records establishing

8

that Rothgery did not, in fact, have a felony conviction.

SJ Opp. Exs. 2, 13. Accordingly, the district attorney

moved to dismiss the indictment, and the court dis-

missed the charge. SJ Opp. Ex. 14.

Rothgery sued respondent Gillespie County under

42 U.S.C. § 1983 on the ground that the County’s policy

of not appointing counsel for defendants released on

bond until after indictment violated his Sixth Amend-

ment right to counsel. Rothgery argued that, under

this Court’s precedent, his right to counsel attached fol-

lowing his initial appearance before the magistrate, at

which he was informed of the accusation against him

and required to post bail or be committed to jail. While

Rothgery did not contend that he was entitled to coun-

sel at the initial appearance itself, he argued that if

counsel had been appointed promptly after that ap-

pearance, the mistake underlying his arrest would have

been discovered at that time, and he would not have

been subject to bond for a lengthy period and wrong-

fully rearrested and jailed jor nearly three weeks.

The district court granted Gillespie County’s mo-

tion for summary judgment, holding that Rothgery’s

initial appearance before the magistrate did not consti-

tute the initiation of adversary judicial proceedings and

therefore did not trigger his right to counsel. Pet. App.

29a-31a.

The Fifth Circuit affirmed. It observed that this

Court has held that the Sixth Amendment right to

counsel attaches once “‘adversary judicial proceedings

have been initiated . . . whether by way of formal

charge, preliminary hearing, indictment, information,

or arraignment.’” Pet. App. 5a (quoting Kirby v. Jili-

nois, 406 U.S. 682, 688-689 (1972) (plurality opinion)).

Noting that “the ultimate Sixth Amendment conse-

9

quence[] of certain state procedures is a matter of fed-

eral law,” id. at 6a n.6, it stated that “we do not rely

formalistically on the label given to a particular pretrial

event when determining the point at which adversary

judicial proceedings have been initiated,” id. at 5a.

Drawing on language from this Court’s decision in

Kirby, the Fifth Circuit opined that the inquiry focuses

on the time at which “‘the government has committed

itself to prosecute’” and “‘a defendant finds himself

faced with the prosecutorial forces of organized soci-

ety.’” Id. at 5a-6a (quoting Kirby, 406 U.S. at 689).

The Fifth Circuit noted that it had previously

held—in a decision predating this Court’s ruling in

Michigan v. Jackson, 475 U.S. 625 (1986)—that the in-

quiry as to when adversary judicial proceedings com-

mence turns on “‘the sometimes elusive degree to

which the prosecutorial forces of the state have focused

on an individual.’” Pet. App. 6a (quoting Lomaz v.

Alabama, 629 F.2d 413, 415 (5th Cir. 1980)). Adhering

to that line of reasoning, in another pre-Jackson deci-

sion, it had held that “a warrantless arrestee’s . . . ap-

pearance before a magistrate for Article 15.17 warnings

did not initiate adversary judicial proceedings, as

prosecutors were unaware of and uninvolved in” the

arrest and magistration. /d. (citing McGee v. Estelle,

625 F.2d 1206 (5th Cir. 1980)). Following the reasoning

of its prior decisions, the Fifth Circuit found no evi-

dence that “prosecutors were . . . aware of or involved

in Rothgery’s arrest or appearance before the magis-

trate” and therefore held that Rothgery’s appearance

before the magistrate did not commence adversary ju-

dicial proceedings. Id. at 7a.

The Fifth Circuit acknowledged that, in Brewer and

Jackson, this Court had “found adversary judicial pro-

ceedings to have been initiated” by an initial post-

10

arrest appearance before a magistrate “without men-

tioning whether prosecutors were involved,” Pet. App.

7a, but purported to distinguish those cases. As to

Brewer, it opined that “while the extent of prosecuto-

rial involvement in Brewer was unaddressed, it does

not appear that the state ... raised the issue.” Id. at

8a. And, as to Jackson, it reasoned that “the state su-

preme court opinion preceding Jackson establishes that

the prosecutor’s office approved and issued the com-

plaints and warrants that led to” the defendants’ initial

appearances—although this Court’s opinion in Jackson

never mentions that fact. Jd. Accordingly, it concluded

that nothing in this Court’s decisions in Brewer and

Jackson provided reason “enough for us to ignore our

binding authority.” Id.’

SUMMARY OF ARGUMENT

This Court has repeatedly held that a defendant’s

initial appearance before a magistrate, who informs him

of the accusation against him and commits him to cus-

tody to ensure that he answers that accusation, marks

the commencement of adversary judicial proceedings

? ‘The Fifth Circuit went on to reject the argument that its

prior holding in McGee was distinguishable because the police offi-

cer’s affidavit presented at Rothgery’s initial appearance before

the magistrate constituted a “complaint” or other “formal charge”

that itself initiated adversary judicial proceedings. Pet. App. 8a-

12a. The Fifth Circuit declined to resolve the issue whether the

affidavit was a “complaint” as a matter of state law, instead con-

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

of whether the affidavit here would be considered a ‘complaint’ or

its functional equivalent under Texas... law,” id. at lla, it could

not initiate adversary judicial proceedings, because no prosecutor

was aware of or involved in the preparation of the affidavit or the

ensuing appearance, id. at 12a.

11

and thus the attachment of the Sixth Amendment right

to counsel. That settled principle controls this case.

Rather than applying that principle, however, the Fifth

Circuit held that the right to counsel attaches following

such an initial appearance only if the defendant can

show that a prosecutor was aware of or involved in the

appearance or the underlying arrest. That holding can-

not be reconciled with this Court’s precedent.

In Kirby v. Illinois, 406 U.S. 682 (1972), this Court

set out a clear test to determine when a “criminal

prosecution[]” within the meaning of the Sixth Amend-

ment begins, and the right to counsel attaches: upon

“the initiation of adversary judicial criminal proceed-

ings—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.” Id.

at 689 (plurality opinion). Applying the test articulated

in Kirby, this Court held in Brewer v. Williams, 430

U.S. 387 (1977), that there could “be no doubt . . . that

judicial proceedings had been initiated” where the de-

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

warrant before a judge,” and “committed by the court

to confinement.” Jd. at 399. This Court reaffirmed

Brewer in Michigan v. Jackson, 475 U.S. 625 (1986),

unequivocally holding that an initial post-arrest “ar-

raignment” at which the defendant is informed of the

accusation against him and committed to custody “sig-

nals ‘the initiation of adversary judicial proceedings.’”

Id. at 629.

Rothgery’s initial appearance before a magistrate

was identical in every meaningful way to the initial “ar-

raignments” in Brewer and Jackson. Rothgery was

brought before a magistrate, who informed Rothgery

that he was “accused” of the “criminal offense” of

unlawful possession of a firearm by a felon, informed

him of his statutory and constitutional rights, and re-

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quired that he post bail or remain in jail to ensure that

he appeared to answer that accusation. Pet. App. 33a,

35a. There can be no doubt that, as in Brewer and

Jackson, following that initial appearance, Rothgery

was transformed from a mere “suspect” into an “ac-

cused” whose Sixth Amendment right to counsel had

attached. Jackson, 475 U.S. at 632.

The Fifth Circuit purported to distinguish Brewer

and Jackson on the ground that no prosecutor was

aware of or involved in Rothgery’s arrest or initial ap-

pearance before the magistrate. While acknowledging

that neither Brewer nor Jackson made any mention of

prosecutorial involvement, the Fifth Circuit neverthe-

less construed this Court’s holdings to depend on that

factor. But neither case even hinted that a prosecutor’s

involvement was relevant to the analysis; rather, both

focused squarely on the nature and consequences of the

judicial proceedings at issue—neither of which is af-

fected in any way by the involvement of a prosecuting

attorney. Under this Court’s reasoning in Brewer and

Jackson, the involvement of a prosecutor can make no

practical, or constitutional, difference to the attachment

of a defendant’s right to counsel.

Nor is the Fifth Circuit’s prosecutorial involvement

test consistent with the reasoning of Kirby. While the

Fifth Circuit invoked Kirby’s statement that the initia-

tion of judicial criminal proceedings is significant be-

cause it is at that time that the accused faces “the

prosecutorial forces of organized society,” Pet. App. 5a-

6a (quoting Kirby, 406 U.S. at 689), neither Kirby nor

any subsequent decision of this Court has indicated

that the initiation of judicial criminal proceedings re-

quire the involvement of a prosecutor. Like Brewer

and Jackson, Kirby focused on whether such proceed-

ings had been initiated, not by whom. The Fifth Cir-

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cuit’s fact-dependent prosecutorial involvement test

thus cannot be reconciled with Kirby’s clear and objec-

tive rule. Once a defendant has been brought before a

judge who has informed him of the accusation against

him and committed him to jail or bail pending resolu-

tion of that accusation, the defendant is confronted with

“the prosecutorial forces of organized society” in every

meaningful sense of the phrase, and judicial criminal

proceedings have plainly commenced.

The Fifth Circuit’s prosecutorial involvement test

is not only inconsistent with this Court’s precedent, but

unworkable in practice. The straightforward, objective

test set out in Kirby, Brewer, and Jackson looks to the

nature of the proceedings that have taken place—an

easily ascertainable matter of public record. By con-

trast, the Fifth Circuit’s approach requires a fact-

intensive inquiry into what prosecutors knew, when

they knew it, and the extent of their involvement in

pretrial proceedings. Having the attachment of the

right to counsel turn on such an inquiry would unneces-

sarily tax judicial resources, put an unfair burden on an

uncounseled defendant to prove his entitlement to

counsel through an evidentiary showing, and require

intrusive investigation into prosecutorial communica-

tions and deliberations that may be subject to statutory

and common-law privileges.

Finally, the Fifth Circuit’s rule would work sub-

stantial injustice to indigent defendants—particularly

those who, like Rothgery, are innocent of the charges

against them. Under that rule, such defendants could

spend months in jail, awaiting indictment, solely be-

cause they lack the skill to demonstrate their innocence

and the funds to hire counsel to assist them. That out-

come offends the core guarantee of the Sixth Amend-

ment.

14

ARGUMENT

I. THis CouRT’s PRECEDENT ESTABLISHES THAT ROTH-

GERY’S RIGHT TO COUNSEL ATTACHED FOLLOWING His

INITIAL APPEARANCE BEFORE THE MAGISTRATE

A. The Sixth Amendment Right To Appointed Coun-

sel Attaches Upon The Commencement Of Ad-

versary Judicial Proceedings

This Court has long recognized that the right to

appointed counsel is a cornerstone of our criminal jus-

tice system. As long ago as Powell v. Alabama, 287

U.S. 45 (1932), this Court held that it would violate due

process to try an indigent defendant, at least in a capi-

tal case, without providing counsel to assist in his de-

fense. As the Court there observed:

Even the intelligent and educated layman has

small and sometimes no skill in the science of

law... . Left without the aid of counsel he may

be put on trial without a proper charge, and

convicted upon incompetent evidence .... He

lacks both the skill and knowledge adequately

to prepare his defense, even though he have a

perfect one. He requires the guiding hand of

counsel at every step in the proceedings

against him. Without it, though he be not

guilty, he faces the danger of conviction be-

cause he does not know how to establish his in-

nocence.

Id. at 69. Focusing on these same concerns, in Johnson

v. Zerbst, 304 U.S. 458 (1938), this Court held that the

Sixth Amendment “withholds from federal courts, in all

criminal proceedings, the power and authority to de-

prive an accused of his life or liberty unless he has or

waives the assistance of counsel.” Jd. at 463.

15

In Gideon v. Wainwright, 372 U.S. 335 (1963), the

Court held that the Sixth Amendment right to counsel

is binding on the States through the Fourteenth

Amendment’s due process clause, observing: “[{I]n our

adversary svstem 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.

This seems to us to be an obvious truth.” Jd. at 344. As

the Court explained, the fundamental guarantee of our

criminal justice system that “every defendant stands

equal before the law” “cannot be realized if the poor

man charged with a crime has to face his accusers with-

out a lawyer to assist him.” Jd. Indeed, as the Court

subsequently observed, “[olf all the rights that an ac-

cused person has, the right to be represented by coun-

sel is by far the most pervasive for it affects his ability

to assert any other rights he may have.” United States

v. Cronic, 466 U.S. 648, 654 (1984) (citation and internal

quotation marks omitted).

It has also long been settled that the right to ap-

pointed counsel necessarily arises prior to the trial it-

self. See, e.g., Maine v. Moulton, 474 U.S. 159, 170

(1985). In Powell, for example, counsel was appointed

to represent the defendants on “the very morning of

the trial.” 287 U.S. at 56. The Court held that such de-

lay violated the fundamental requisites of due process:

{DJuring perhaps the most critical period of the

proceedings . . . from the time of their arraign-

ment until the beginning of their trial, when

consultation, thorough-going investigation and

preparation were vitally important, the defen-

dants did not have the aid of counsel .. . al-

though they were as much entitled to such aid

during that period as at the trial itself.

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16

_ Id. at 57. Indeed, “to deprive a person of counsel dur-

ing the period prior to trial may be more damaging

than denial of counsel during the trial itself.” Moulton,

474 US. at 170.

In Kirby v. Illinois, 406 U.S. 682 (1972), this Court

articulated a clear, objective test to determine when

the right to counsel attaches: following “the initiation

of adversary judicial criminal proceedings.” Id. at 689

(plurality opinion).’ Because state criminal procedures

vary, such proceedings can commence in a variety of

ways—“by way of formal charge, preliminary hearing,

indictment, information, or arraignment.” Jd. But,

whatever terminology a State employs, and however

judicial criminal proceedings begin in a particular case,

the right to counsel attaches as soon as they do. See id.

Under Kirby, the attachment of the right to coun-

sel thus turns not on a State’s characterization of the

proceedings the defendant is required to undergo, but

on the very fact that judicial proceedings have com-

menced, placing the defendant in an adversarial rela-

tionship with the State:

The initiation of judicial criminal proceedings is

far from a mere formalism. It is the starting

: Kirby used interchangeably the phrases “adversary judicial

proceedings,” 406 U.S. at 688, “adversary judicial criminal pro-

ceedings,” id. at 689, and “judicial criminal proceedings,” id. Sub-

sequent cases citing Kirby have also used those phrases, and simi-

lar phrases, interchangeably. See, e.g., Brewer v. Williams, 430

U.S. 387, 398, 399 (1977) (“judicial proceedings”); Michigan v.

Jackson, 475 U.S. 625, 629 n.3 (1986) (“formal legal proceedings”).

The import of all these phrases, however, is the same: as the

Court subsequently put it, the “right to counsel attaches at the

first formal proceeding against an accused.” McNeil v. Wisconsin,

501 U.S. 171, 180-181 (1991).

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point of our whole system of adversary criminal

justice. For it is only then that the government

has committed itself to prosecute, and only

then that the adverse positions of government

and defendant have solidified. It is then that a

defendant finds himself faced with the prosecu-

torial forces of organized society, and immersed

in the intricacies of substantive and procedural

criminal law.

406 U.S. at 689. It is at that point, Kirby held, that a

“criminal prosecution{]’ within the meaning of the

Sixth Amendment begins, and the protections of the

Sixth Amendment therefore apply from that point for-

ward. See id. at 689-690.*

Despite Kirby’s clear language indicating that the

right to counsel attaches prior to indictment if the de-

fendant undergoes pre-indictment judicial proceedings

such as a preliminary hearing, some courts interpreted

Kirby to hold that the right attached only upon indict-

. By contrast, when the police are merely investigating a

crime and “judicial criminal proceedings” have not yet commenced,

the right to counsel has not attached. Thus, because the suspect in

Kirby had merely been arrested and taken to the police station for

a show-up identification, and had not yet undergone any judicial

proceedings, his right to counsel had not yet arisen. See 406 U.S.

at 684-685, 690. Similarly, in United States v. Gouveia, 467 US.

180 (1984), the Court held that the right to counsel did not attach

prior to the initiation of adversary judicial proceedings simply be-

cause prison inmates were held in administrative detention while

prison authorities investigated allegations that they had commit-

ted offenses while in prison. See id. at 182-184, 187; see also Moran

v. Burbine, 475 U.S. 412, 415-418, 432 (1986) (post-arrest interro-

gation that concededly took place before initiation of judicial

criminal proceedings did not violate Sixth Amendment right to

counsel).

18

ment. In Moore v. Illinois, 484 U.S. 220 (1977), this

Court rejected that reading of Kirby and reaffirmed

that the right to counsel attaches as soon as judicial

criminal proceedings begin, even if that is prior to in-

dictment. See id. at 228 (holding that the defendant’s

right to counsel had attached by the time of his first

court appearance, a preliminary hearing to determine

probable cause to bind defendant over to a grand jury

and set bail).

Indeed, as discussed further below, this Court has

never subsequently questioned Kirby’s holding that

“the initiation of judicial criminal proceedings” is a

bright line after which the right to counsel attaches.

Rather, the Court has consistently affirmed that the

“Sixth Amendment right to counsel attaches at the first

formal proceeding against an accused.” McNeil v. Wis-

consin, 501 U.S. 171, 180-181 (1991). In every case it

has considered in which a court has informed the de-

fendant of the accusation against him and imposed re-

strictions on his liberty to ensure that he answers that

accusation—whether the defendant’s court appearance

was an arraignment upon an indictment or information,

a preliminary hearing, or an initial appearance or “ar-

raignment” following arrest—the Court has found that

the right to counsel attached at least as early as that

judicial proceeding.”

> See Brewer, 430 U.S. at 399 (initial arraignment following

arrest); Moore, 434 U.S. at 222, 228 (preliminary hearing that was

first court appearance following arrest); Moulton, 474 U.S. at 162,

170 (arraignment on indictment); Jackson, 475 U.S. at 629 & n.3

(initial arraignment following arrest); see also McNeil, 501 U.S. at

173, 175 (accepting as undisputed that right attached at initial ap-

pearance before county court commissioner following arrest).

19

As this Court has explained, that rule comports

with both the language and purpose of the Sixth

Amendment. It recognizes that a “criminal prosecu-

tion{]” commences, and a person becomes an “accused,”

within the meaning of the Sixth Amendment as soon as

“the government’s role shifts from investigation to ac-

cusation.” Moran v. Burbine, 475 U.S. 412, 430 (1986).

That shift unquestionably has taken place by the time

that a court has confronted the defendant with the ac-

cusation against him and imposed restrictions on his

liberty to ensure that he answers that accusation. Once

that has occurred, a defendant requires the assistance

of counsel in order to negotiate the criminal process and

understand and invoke his rights. See Cronic, 466 U.S.

at 654. And, at that point, a defendant requires counsel

to ensure, not only that he is not wrongly convicted, but

also that he is not detained and “put on trial without a

proper charge.” Powell, 287 U.S. at 69.°

° This Court has held both that the right to counsel attaches

upon the commencement of adversary judicial proceedings, see,

e.g., Brewer, 430 U.S. at 398 (“Whatever else it may mean, the —

right to counsel... . means at least that a person is entitled to the

help of a lawyer at or after the time that judicial proceedings have

been initiated against him.”), and that once the right has attached,

the defendant is entitled to have counsel present at all “critical

stages” of the proceedings, see, e.g., United States v. Wade, 388

U.S. 218, 226-227, 236-237 (1967) (post-indictment, pretrial lineup

is a “critical stage” at which “[tJhe presence of counsel” is required

“to assure that the accused’s interests will be protected”). This

Court has made clear that these two inquiries are separate: “The

question whether arraignment signals the initiation of adversary

judicial proceedings” and thus the point in time after which the

right to counsel attaches “is distinct from the question whether the

arraignment itself is a critical stage requiring the presence of

counsel.” Jackson, 475 U.S. at 629 n.3. The question presented by

this case and decided by the Fifth Circuit is the former: whether

20

B. This Court Has Held That Adversary Judicial

Proceedings Commence When A Defendant Ap-

pears Before A Judge Who Informs Him Of The

Accusation Against Him And Commits Him To

Custody

In applying the test set out in Kirby, this Court has

repeatedly made clear that adversary judicial proceed-

ings commence, and the Sixth Amendment right to

counsel attaches, when—as occurred here—an arrested

person makes an initial appearance before a judge who

informs him of the accusation against him and requires

him to remain in jail or post bail to ensure that he an-

swers that accusation.

“All jurisdictions require that an arrestee held in

custody be brought before the magistrate court” for an

initial appearance “in a fairly prompt fashion,” gener-

ally within 24 to 48 hours. Wayne R. LaFave et al., 1

Criminal Procedure § 1.3(k), at 114 (2d ed. 1999) (“La-

Fave”). The term for this first court appearance varies:

jurisdictions variously call it a “first appearance,” “ini-

tial appearance,” “preliminary appearance,” “initial

presentment,” “initial arraignment,” “preliminary ar-

raignment,” “arraignment on the warrant,” or “ar-

raignment on the complaint.” Jd. at 113; Joshua

Dressler, Understanding Criminal Procedure § 1.03, at

Rothgery’s initial appearance before the magistrate marked the

commencement of adversary judicial proceedings, after which his

right to counsel attached. Rothgery does not contend here that he

was entitled to the presence of counsel at the initial appearance

itself. See also Pet. App. 5a n.5 (noting that Gillespie County had

not raised any critical-stage argument and declining to consider

any such argument).

21

8 (3d ed. 2002) (“Dressler”).’ As noted above, in Texas

such an initial appearance is commonly referred to as

“magistration” or an “Article 15.17 hearing.”

At this initial appearance or “arraignment,” the

magistrate will provide the defendant with notice of the

accusation against him and advise him of his rights.

LaFave, § 1.3(k), at 114. In felony and serious misde-

meanor cases, the magistrate will typically inform the

defendant of the right to court-appointed counsel if he

is indigent, and if the defendant requests counsel, the

magistrate will generally initiate the process of ap-

pointing counsel. Jd. at 114-115. At the initial appear-

ance, the magistrate will also determine whether to set

bail, and, if so, what conditions to impose to ensure that

the defendant will make court appearances through the

completion of the proceedings. Jd. at 116-117; Dressler,

§ 1.03, at 8; id. § 30.01, at 635.

In Brewer v. Williams, 430 U.S. 387 (1977), this

Court held that such an initial appearance marked the

commencement of adversary judicial proceedings under

Kirby. There, the defendant, Williams, turned himself

in to the police after a warrant was issued for his ar-

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

on the arrest warrant, advised of his Miranda rights,

and committed to jail. Jd. at 391. After that initial

’This type of initial “arraignment” must be distinguished

from a later proceeding, also termed an “arraignment,” that occurs

after an indictment or information is filed, and at which the defen-

dant is required to enter a plea. LaFave, § 1.3(k), at 113 & n.176,

124.

Sin Brewer, Williams had not yet been indicted and was not

asked to enter a plea when he made his initial appearance before

the court. See 430 U.S. at 391-393; see also State v. Williams, 182

N.W.2d 396, 398-399 (lowa 1970) (noting that Williams was not

22

proceeding, the police elicited incriminating statements

from Williams 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 391-392.

Those statements were introduced at trial, and the jury

found Williams guilty of murder. See id. at 394.

This Court held that those incriminating state-

ments were admitted in violation of Williams’ Sixth

Amendment right to counsel. See Brewer, 430 U.S. at

397-398, 406. It explained that the defendant has a “vi-

tal need at the pretrial stage,” no less than at trial, for

the assistance of counsel. /d. at 398. Reiterating the

rule of Kirby, the Court declared that it was “well es-

tablished” that “[wJhatever else it may mean, the right

to counsel ... means at least that a person is entitled to

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

proceedings have been initiated against him.” /d.

Applying that rule to Williams’ case, the Court held

that his initial court appearance marked the com-

mencement of judicial proceedings against him and

triggered his right to counsel:

There can be no doubt in the present case that

judicial proceedings had been initiated against

Williams before the start of the automobile

ride.... A warrant had been issued for his ar-

rest, he had been arraigned on that warrant be-

fore a judge ..., and he had been committed by

the court to confinement in jail.

indicted until February 1969, well after his initial “arraignment”

took place in December 1968). This Court noted in Brewer that

Williams was arraigned on a “warrant,” 430 U.S. at 391, 399, indi-

cating that the term “arraignment” referred to the same type of

initial court appearance that occurred in this case.

23

Brewer, 430 U.S. at 399.

This Court reached the same conclusion in Michi-

gan v. Jackson, 475 U.S. 625 (1986), which consolidated

two cases (Jackson and Bladel) from the Michigan Su-

preme Court. In both cases, the defendants were ar-

rested, arraigned before a judge, and committed to jail

pending further proceedings. See id. at 627-628. As in

Brewer, the arraignments at issue were initial appear-

ances before a magistrate. At such an appearance, a

defendant is informed of the accusation against him and

his constitutional rights, including the right to counsel,

and is committed to jail or released on bond.’

The nature of the arraignments in Jackson was dis-

cussed in the State’s brief in Bladel. The State noted

that “arraignment” was an ambiguous term, and it took

pains to clarify that defendant Bladel’s arraignment

was an “initial arraignment,” which was required to

take place promptly after arrest, and was distinct from

a “second arraignment” in Michigan procedure, “at

which time defendant has his first opportunity to enter

a plea.” Brief for Petitioner, Michigan v. Bladel, No.

84-1539, 1985 WL 669876, at 24-26 (July 10, 1985). The

” See 1A Glenn C. Gillespie, Michigan Criminal Law and

Procedure § 16:1 (2007) (explaining that “arraignment on the war-

rant {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 accused 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, 989 & n.7 (Fla. 1992) (noting

that when this Court stated in Jackson that the right to counsel

attaches at “arraignment,” it was using the term in the “initial ap-

pearance” sense).

24

State argued that the right to counsel should not attach

at such an “initial arraignment.”

This Court flatly rejected that argument, terming

it “untenable.” Jackson, 475 U.S. at 629 n.3. Rather, it

held unequivocally that such an initial “arraignment,”

at which a defendant is informed of the accusation

against him and committed to jail or bail, “signals ‘the

initiation of adversary judicial proceedings’ and thus

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

As the Jackson Court explained, it is at that time that

“a person who had previously been just a ‘suspect’ has

become an ‘accused’ within the meaning of the Sixth

Amendment,” id. at 632, and therefore “‘finds himself

faced with the prosecutorial forces of organized soci-

ety,’” id. at 631 (quoting Kirby, 406 U.S. at 689).

Since its decision in Jackson, this Court has never

questioned the proposition that, once a defendant has

appeared before a magistrate, has been informed of the

accusation against him, and has been committed to jail

or bail, adversary judicial proceedings have com-

menced. In McNeil, for example, the Court reiterated

that the “right to counsel attaches at the first formal

proceeding against an accused,” 501 U.S. at 180-181,

and noted that it was undisputed that petitioner’s ini-

tial appearance before a county court commissioner,

who set bail and scheduled a preliminary hearing, trig-

gered his right to counsel, see id. at 173, 175.

Lower courts and commentators have likewise read

Brewer and Jackson to establish that such an initial ap-

pearance—regardless of the name the State gives it—

marks the commencement of adversary judicial pro-

ceedings. As the Florida Supreme Court explained:

“(Tjhe [U.S. Supreme] Court and commentators are in

agreement that [adversary judicial] proceedings clearly

25

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.’” Owen v.

State, 596 So. 2d 985, 988-989 (Fla. 1992) (footnotes

omitted); see also 1 Kenneth S. Broun et al., McCor-

mick on Evidence § 154, at 622-623 (6th ed. 2006) (“In

Michigan v. Jackson, the Court held that an ‘arraign-

ment,’ by which it apparently meant an arrested per-

son’s post-arrest appearance before a judicial officer,

does trigger the Sixth Amendment right. In most

situations, this post-arrest appearance will be the de-

finitive point.”).

The Sixth Circuit reached the same conclusion in

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

that, as in Brewer, there could be “no doubt” that ad-

versary judicial proceedings had commenced when the

defendant “had been placed under arrest, the police had

issued a complaint against him detailing the essential

facts of the offense with which he was charged, and he

had appeared before a state judge” who “ordered that

his confinement in jail continue.” Jd. at 532. Similarly,

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

Eleventh Circuit expressly rejected the argument that

an initial post-arrest appearance before a justice of the

peace, who informed the defendant of the accusation

against him and committed him to custody, did not trig-

ger the right to counsel because it was not a “formal

arraignment.” Rather, Fleming held, under Jackson,

the initial appearance commenced adversary judicial

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proceedings and triggered the right to counsel. /d. at

948.

The holding of Brewer and Jackson makes eminent

sense. As the Court in Jackson observed, the defen-

dant’s initial court appearance marks the point at which

he is no longer merely a suspect under investigation by

the police, but an accused against whom the full author-

ity of the State has been brought to bear. Such a de-

fendant is subject to all the deleterious consequences of

pending criminal charges, including state-imposed dep-

rivation of liberty, potentially for extended periods,

while the accusation against him is resolved. At that

point—once a court has informed the defendant that he

is accused of a crime and has restricted his liberty to

ensure that he answers the accusation against him—his

right to counsel has attached.

'° See also, e.g., Matteo v. Superintendent, SCI Albion, 171

F.3d 877, 893 (3d Cir. 1999) (holding that defendant’s right to coun-

sel attached when he was arrested, brought before a judge for

“preliminary arraignment,” and committed to jail); Stokes v.

Singletary, 952 F.2d 1567, 1579 (11th Cir. 1992) (relying on Brewer

and Jackson to hold that defendant’s right to counsel had attached

after arrest and an initial appearance before a magistrate); Brad-

ford v. State, 927 S.W.2d 329, 333-335 (Ark. 1996) (finding that,

under Jackson, the right to counsel attached after a defendant was

arrested, was brought before a municipal court judge, and had

bond set); State v. Barrow, 359 S.E.2d 844, 846, 848 (W. Va. 1987)

(relying on Jackson to hold that the right to counsel attached when

the defendant was arrested and made an initial appearance before

a magistrate who committed him to custody).

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27

C. Rothgery’s Initial Appearance Before The Magis-

trate Was Functionally Identical To The Proceed-

ings In Brewer And Jackson

Under this Court’s precedent, there can be no

doubt that adversary judicial proceedings commenced,

and Rothgery’s Sixth Amendment right to counsel at-

tached, following his initial appearance before the mag-

istrate on July 16, 2002. At that hearing, the magis-

trate apprised Rothgery of the accusation against him

and committed him to custody pending the posting of

bond or resolution of the accusation. It was thus pre-

cisely the type of initial court appearance that Brewer

and Jackson held marks the initiation of adversary ju-

dicial proceedings.

1. The initial appearance before the magistrate

prescribed by Texas law, and which Rothgery under-

went on July 16, 2002, is substantially the same kind of

initial appearance that takes place across the country.

As discussed above, see supra pp. 4-6, the Texas Code

of Criminal Procedure sets out the requisites of that

initial appearance. The magistrate must “inform...

the person arrested... of the accusation against him

and of any affidavit filed therewith.” Tex. Code Crim.

Proc. art. 15.17(a). The magistrate must also inform the

arrestee of his rights, including his “right to request

the appointment of counsel if [he] cannot afford coun-

sel,” and his right to request an “examining trial.” Jd."

T An “examining trial” is the name Texas gives to what other

jurisdictions typically call a “preliminary hearing.” Tex. Code

Crim. Proc. art. 16.01. In almost all jurisdictions, a felony defen-

dant is entitled to such a hearing before the magistrate, held after

the initial appearance but prior to indictment. LaFave, § 1.3(/), at

118-119. Under Texas procedure, if a defendant invokes the right

to an examining trial—an evidentiary hearing at which the defen-

28

In addition, Article 15.17 directs the magistrate to

“admit the person arrested to bail if allowed by law,”

id.; if the defendant cannot pay the bail set, he is com-

mitted to jail, see id. art. 17.27.

At Rothgery’s initial appearance, the magistrate

was presented with a sworn “Affidavit of Probable

Cause,” executed by the police officer who arrested

Rothgery “in the name and by the authority of the

state of Texas,” “charg{ing] that ... Rothgery . . . com-

mit[ted] the offense of unlawful possession of a firearm

by a felon.” Pet. App. 33a. Based on the affidavit, the

magistrate informed Rothgery that he was “accused of

the criminal offense of unlawful possession of a firearm

by a felon.” Jd. at 35a. He also informed Rothgery of

his right to appointed counsel and his right to an exam-

ining trial. Jd. Finally, he set bail of $5,000 to ensure

that Rothgery answered the accusation against him.

Id.; see Tex. Code Crim. Proc. art. 17.01 (“‘Bail’ is the

security given by the accused that he will appear and

answer before the proper court the accusation brought

against him[.]”).

The consequence of Rothgery’s initial appearance

before the magistrate, accordingly, was that he stood

accused of a felony offense (an offense he had not com-

mitted). A court had formally apprised him of that ac-

cusation and had imposed restrictions on his liberty to

ensure his appearance at subsequent proceedings to

answer that accusation. Rothgery’s status as an “ac-

dant may call and cross-examine witnesses, Tex. Code Crim. Proc.

arts. 16.06, 16.07—the magistrate will “examine . . . the truth of the

accusation made,” id. art. 16.01. If the magistrate finds no prob-

able cause for the accusation, the defendant is discharged. /d. art.

16.17.

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29

cused” was made plain not only by the magistrate’s in-

forming him in clear terms that he was accused of a -

crime, but also by the rights that, under Texas law, ac-

crued to him following magistration—for example, the

right to an examining trial to contest the validity of the

charge against him. From this point forward, he re-

quired the assistance of counsel to navigate the crimi-

nal proceedings (for instance, to make an informed de-

cision whether to assert his right to an examining trial,

something he could hardly be expected to do without

the assistance of counsel, see Cronic, 466 U.S. at 654)

and to prove his innocence of the erroneous accusation

against him.

Rothgery’s initial appearance before the magis-

trate was thus substantively identical to the arraign-

ments that took place in Brewer and Jackson. At each

of those hearings, the defendant was brought before a

judicial officer who informed him of the accusation

against him and committed him to custody to ensure

that he would answer that accusation. See Brewer, 430

US. at 399; Jackson, 475 U.S. at 629 & n.3; see also su-

pra note 9 (explaining procedure for Michigan initial

arraignments at issue in Jackson). Accordingly, as in

Brewer and Jackson, the initial appearance before a

judge transformed Rothgery from a “suspect” to an

“accused,” marked the initiation of adversary judicial

proceedings, and triggered his right to counsel.

2. The Fifth Circuit purported to distinguish

Brewer and Jackson in part on the ground that the de-

fendants in those cases were “arraigned on an arrest

warrant,” while Rothgery was arrested without a war-

rant. Pet. App. 7a. But Rothgery’s warrantless arrest

does not make his initial appearance before the magis-

trate any different from the arraignments at issue in

Brewer and Jackson.

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As an initial matter, one of the two defendants in

Jackson—like Rothgery—was arrested without a war-

rant. See People v. Bladel, 365 N.W.2d 56, 70 (Mich.

1984) (“{D]efendant [Jackson] was arrested for a felony

without a warrant[.]”). While the police obtained the

prosecutor’s approval for a warrant after Jackson’s ar-

rest and just before his initial court appearance, see id.

at 72, that appearance was nonetheless substantively

identical to Rothgery’s: it served to validate Jackson’s

arrest, as well as to inform him of the charges against

him and commit him to custody.

In any event, the constitutional significance of a de-

fendant’s initial appearance cannot turn on the happen-

stance of whether he was arrested with or without a.

warrant. The only difference between the two situa-

tions is that, in the case of a warrantless arrest, in

many jurisdictions the magistrate will also determine

at the initial appearance whether probable cause ex-

isted for the arrest. As this Court has held, the Fourth

Amendment requires, as a “prerequisite to extended

restraint of liberty” pursuant to a warrantless arrest, a

prompt determination by a magistrate that probable

cause supported the arrest. Gerstein v. Pugh, 420 US.

103, 114 (1975). Absent exceptional circumstances, that

determination must take place within 48 hours of ar-

rest. See County of Riverside v. McLaughlin, 500 US.

44, 56 (1991). Many jurisdictions—including Texas—

combine the Gerstein probable-cause determination

with the initial appearance for the sake of convenience.

See Tex. Code Crim. Proc. arts. 14.06(a), 15.17 (requir-

ing that a person arrested without a warrant be

brought before a magistrate within 48 hours for the

same magistration that occurs when a person is ar-

rested with a warrant); see also LaFave, § 1.3(k), at 114

& n.179; Dressler, § 1.03, at 7-8; Riverside, 500 U.S. at

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31

54 (noting that the 48-hour limit allows States to com-

bine Gerstein determinations with other pretrial pro-

ceedings, such as an “arraignment” or a “bail hearing”).

But the incorporation of a Gerstein determination

into an initial appearance in no way alters the function

or effect of the initial appearance itself: to inform the

arrestee of the accusation against him and impose

whatever restrictions on his liberty are necessary to

ensure that he answers that accusation. Because that

occurred here, there can be no question that—just as in

Brewer and Jackson—Rothgery’s initial appearance

before the magistrate transformed him from a mere

“suspect” to an “accused” within the meaning of the

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

right to counsel had attached.

Il. THe Court OF APPEALS’ PROSECUTORIAL INVOLVEMENT

TEST CANNOT BE RECONCILED WITH THIS COURT’S

PRECEDENT

The Fifth Circuit did not dispute that, in both

Brewer and Jackson, this Court held that adversary

judicial proceedings commenced when a defendant was

arrested, made an initial appearance before a judge

who informed him of the charges against him, and was

committed to confinement. And the Fifth Circuit ac-

knowledged that neither Brewer nor Jackson men-

tioned “prosecutorial involvement,” let alone suggested

that such involvement was necessary to this Court’s

holdings in those cases. Pet. App. 7a. It nevertheless

coficluded that, as a matter of federal constitutional

law, pre-indictment judicial proceedings cannot trigger

the right to counsel absent a prosecutor’s awareness or

involvement. Jd. at 6a-8a. That rule cannot be recon-

ciled either with this Court’s precedent on the specific

32

question here or with the more general Sixth Amend-

ment principles this Court has articulated.

A. The Fifth Circuit’s Analysis Cannot Be Squared

With Brewer And Jackson

The Fifth Circuit’s efforts to distinguish Brewer

and Jackson do not bear scrutiny. Brewer expressly

held, without any mention of prosecutorial involve-

ment, that “(t]here can be no doubt . . . that judicial

proceedings had been initiated,” pursuant to the rule in

Kirby, when the defendant had been arrested, “ar-

raigned on [the arrest] warrant before a judge,” and

“committed by the court to confinement in jail.” 430

U.S. at 399. The Fifth Circuit commented that “it does

not appear that the state contested [in Brewer] that ad-

versary judicial proceedings had begun.” Pet. App. 8a.

But this Court did not rest its decision on a concession

by the State; rather, it explicitly held that adversary

judicial proceedings had in fact commenced and the

Sixth Amendment right to counsel had in fact at-

tached—while making no mention of any prosecutorial

involvement in the arrest or arraignment. 430 U.S. at

399. The dispositive fact in Brewer was not that a

prosecutor was involved in the arrest or arraignment—

again, the decision nowhere states whether that was

the case—but that the defendant had made an initial

appearance before a court, which committed him to con-

finement to ensure he answered the accusation against

him.

'? As one treatise on criminal procedure has observed, “{I]t is

noteworthy that at no point [in Brewer] does the Court deem it

necessary to discuss the circumstances behind the issuance of the

complaint and warrant[.]” LaFave, § 6.4(e), at 487. Rather,

Brewer apparently reasoned that, “whatever the reasons underly-

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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 ar-

rested and made initial appearances before a judge that

were functionally identical to Rothgery’s initial appear-

ance before the magistrate. See 475 U.S. at 629 & n.3

(citing, among other cases, Kirby and Brewer). Like

Brewer, Jackson nowhere suggested that a prosecutor

was aware of or involved in the arrests or initial ap-

pearances, or that such involvement carried any weight

in the Court’s determination that adversary judicial

proceedings had commenced. While the Fifth Circuit

stated that the “[Michigan] supreme court opinion pre-

ceding Jackson establishes that the prosecutor’s office

approved and issued the complaints and warrants that

led to the arraignment,” Pet. App. 7a-8a (citing Bladel,

365 N.W.2d at 71-72), this Court never mentioned—let

alone relied on—this fact in reaching its holding that

the defendants’ “arraignment ‘signal[ed] the initiation

of adversary judicial proceedings.’” 475 U.S. at 629 (ci-

tation omitted). The only reasonable conclusion is that

Jackson’s holding that adversary judicial proceedings

had commenced depended not on a prosecutor’s in-

volvement, but instead on the factor the Court did

identify—the defendants’ initia! arraignments before a

magistrate, at which they were informed of the accusa-

tions against them and committed to custody.”

ing the complaint-warrant process, at least from the time [the]

defendant is brought into court and arraigned on the warrant .. .

the Sixth Amendment right to counsel applies.” Jd.

3 In Moulton, this Court rejected the mode of analysis em-

ployed by the Fifth Circuit here, making clear that this Court’s

opinions—not those of the courts below—set out the facts upon

which its holdings turn. There, the government had argued that

34

Indeed, other courts that have addressed the ques-

tion have understood Brewer and Jackson to foreclose

any “prosecutorial involvement” test of the kind

adopted by the Fifth Circuit here. For instance, in

State v. Jackson, 380 N.W.2d 420 (Iowa 1986), the lowa

Supreme Court expressly rejected the State’s argu-

ment that a defendant’s right to counsel did not attach

at his initial appearance because there was “no partici-

pation by a prosecuting attorney in the proceedings,”

id. at 423, concluding that the initial appearance itself

sufficiently evidenced “the State’s commitment to

prosecute,” id. at 424. The court observed that the case

was “indistinguishable in principle from Brewer,”

where “no participation by a prosecuting attorney was

shown.” Id.

Similarly, before this Court’s decision in Jackson,

the Georgia Supreme Court had held that the right to

counsel did not attach at an initial appearance before a

magistrate at which no prosecutor was present. See

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

the court recognized that the holding of Ross could no

longer stand, and overruled it, holding that, under

Jackson, the “Sixth Amendment right to counsel at-

taches at an initial appearance hearing” regardless of

the holding of Massiah v. United States, 377 U.S. 201 (1964), ap-

plied only when the police, rather than an informant, set up the

meeting at which incriminating statements were elicited from the

defendant. Rejecting that argument, the Court observed, “While

in Massiah it may have been the Government agent who was re-

sponsible for setting up the meeting with the defendant, one dis-

covers this only by looking at the opinions of the Court of Appeals.

It is not mentioned in this Court’s opinion since the issue of who

set up the meeting with whom was not pertinent to our disposi-

tion.” Moulton, 474 U.S. at 174.

35

whether a prosecutor is involved in the proceeding.

O’Kelley v. State, 604 S.E.2d 509, 511-512 (Ga. 2004).

B. Kirby v. Illinois Does Not Support The Fifth Cir-

cuit’s Analysis

The Fifth Circuit apparently derived its “prosecu-

torial involvement” test in part from its reading of

Kirby’s statement that “(t]he initiation of judicial

criminal proceedings” is significant because it is at that

time that “the government has committed itself to

prosecute,” “the adverse positions of government and

defendant have solidified,” and “a defendant finds him-

self faced with the prosecutorial forces of organized so-

ciety.” 406 U.S. at 689; see Pet. App. 5a. But—

particularly in light of this Court’s subsequent holdings

in Brewer and Jackson—it is clear that the Fifth Cir-

cuit misconstrued the import of this language, which in

fact provides no support for the Fifth Circuit’s ap-

proach.

Kirby’s holding—as this Court has repeatedly rec-

ognized since—was that the right to counsel attaches

upon “[tJhe initiation of judicial criminal proceedings.”

406 U.S. at 689. And Kirby expressly recognized that

judicial criminal proceedings may commence by “ar-

raignment,” which Brewer and Jackson later made

clear includes initial post-arrest “arraignment[s]” be-

fore a magistrate. See id.; Jackson, 475 U.S. at 629 n.3.

In many jurisdictions, “police often file charges on their

own initiative,” and defendants are arraigned on those

charges, including in some felony cases, without any

involvement by a prosecutor. LaFave, § 1.3(h), at 98-

36

99.'* Neither Kirby nor any subsequent decision of this

Court suggests that a constitutional distinction should

be drawn between court arraignments based on the

happenstance of whether police or prosecutors initiated

the process leading to the arraignment. Cf. Moran v.

Burbine, 475 U.S. 412, 430 (1986) (“As a practical mat-

ter, it makes little sense to say that the Sixth Amend-

ment right to counsel attaches at different times de-

pending on... fortuity[.]”).

Indeed, the function of an initial arraignment like

the one in Brewer, in Jackson, and in this case is the

same—and its consequences for the defendant are iden- |

tical—whether or not a prosecutor is involved. In ei-

ther case, an arraignment is the inception of the State’s

criminal process, transforming the person arraigned

from a suspect under investigation to a defendant

against whom the State has made an accusation of

criminal conduct. In either case, if the crime charged is

a felony, the arraignment almost invariably results in

significant restrictions on the defendant’s liberty, ei-

ther through confinement in jail, or release subject to

bail or other conditions, with the prospect of jail if those

conditions are not satisfied. And in either case, an ar-

raignment marks the point at which the defendant be-

comes “immersed in the intricacies of substantive and

procedural law,” Kirby, 406 U.S. at 689, and conse-

quently requires “the guiding hand of counsel,” Powell,

287 U.S. at 69. As this Court has observed, that guid-

4 See also William F. McDonald et al., Police-Prosecutor Re-

lations in the United States 205-206 (U.S. Dep’t of Justice, Nat’l

Inst. of Justice 1981) (finding that police filed initial charges di-

rectly with the courts in all or some cases in 64% of jurisdictions

surveyed).

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ing hand is necessary not only to enable the accused to

“meet the adversary presentation of the prosecutor,”

but also to play the “different . . . role” of assisting him

in navigating the “legal system governed by complex

rules and procedures,” Evitts v. Lucey, 469 U.S. 387,

394 n.6 (1985), that he faces upon arraignment. In

short, whether or not a prosecutor is involved, an initial

appearance at which a court informs an arrestee of the

accusation against him, and restricts his liberty to en-

sure that he answers that accusation, marks the point

at which he becomes an “accused,” with all the atten-

dant burdens of that status—and a consequent need for

the assistance of counsel.

Rather than focusing on the function and effect of a

defendant’s initial appearance, the Fifth Circuit read

Kirby to mean that a defendant’s confrontation by a ju-

dicial officer with the accusation against him and com-

mitment to confinement could not initiate adversary

judicial proceedings unless there was some other indi-

cation that a particular official had “committed [the

State] to prosecute.” Kirby, 406 U.S. at 689. This turns

the reasoning of Kirby on its head. As Kirby made

clear, it is “(t]he initiation of judicial criminal proceed-

ings” itself—however such proceedings are com-

menced—that signals the government’s commitment to

prosecute. Jd. No further evidence of the govern-

ment’s adverse position is needed.

Nor has this Court ever suggested that the “prose-

cutorial forces of organized society,” Kirby, 406 U.S. at

689, are limited to prosecuting attorneys. Rather, as

this Court has recognized, “the Sixth Amendment con-

cerns the confrontation between the State and the indi-

vidual,” and requires that “(t]he Court impute the

State’s knowledge from one state actor to another.”

Jackson, 475 U.S. at 634 (emphasis added). And the

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function of counsel is to serve as “a ‘medium’ between

[the defendant] and the State.” Moulton, 474 U.S. at

176 (emphasis added). The Sixth Amendment right to

counsel thus applies when “the accused [is] con-

fronted .. . by the procedural system, or by his expert

adversary, or by both.” United States v. Gouveia, 467

U.S. 180, 189 (1984) (internal quotation marks and cita-

tion omitted) (emphases added).

When, as here, a defendant is confronted by the

sovereign authority of the State in the person of a

judge, informed of a criminal accusation that has been

leveled against him “in the name and by the authority

of the State,” Pet. App. 33a, and committed to confine-

ment based on that accusation, he is confronted with

“the prosecutorial forces of organized society.” After

such a proceeding, there can be no doubt that—in

Kirby’s phrase—“the adverse positions of government

and defendant have solidified,” 406 U.S. at 689, judicial

criminal proceedings have commenced, and the defen-

dant’s Sixth Amendment right to counsel has attached.

Il. THE FirtH Circurt’s Test Is UNWORKABLE AND

THREATENS TO IMPOSE SERIOUS HARDSHIP ON INDIGENT

DEFENDANTS

A. The Fifth Circuit’s Test Requires An Unworkable

And Unduly Intrusive Inquiry Into Prosecutors’

Deliberations And Communications

This Court’s decisions in Kirby, Brewer, and Jack-

son establish a straightforward, objective test for de-

termining when the Sixth Amendment right to counsel

attaches: the act of haling a criminal defendant before a

judicial officer, who apprises the accused of the gov-

ernment’s allegations and commits him to bail or jail,

marks the commencement of adversary judicial pro-

ceedings and triggers the right to counsel. That consti-

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tutional rule has the obvious virtues of simplicity and

ease of application, turning as it does on the occurrence

of clear and objectively verifiable events that are mat-

ters of public record. See O’Kelley, 604 S.E.2d at 511

(noting that this Court’s precedent on the attachment

of the right to counsel eschews “case-by-case analysis”

in favor of a “simplified analysis based on categories of

proceedings”).

By contrast, under the Fifth Circuit’s rule, an indi-

gent defendant’s request for the appointment of counsel

following an initial appearance requires the resolution

of a case-specific factual inquiry: was the defendant ar-

rested and brought before a judge for an initial appear-

ance (as is often the case) based solely on the allega-

tions of a police officer without the awareness or in-

volvement of a prosecuting attorney, or did a prosecu-

tor play some role prior to the initial appearance? Hav-

ing the attachment of the right to counsel turn on the

answer to what the Fifth Circuit itself described as a

“sometimes elusive” inquiry, Pet. App. 6a, would have a

number of undesirable consequences.

First, such a rule would prolong and complicate

routine criminal proceedings. Requiring an evidentiary

inquiry into the communications between the police and

the prosecutor’s office to determine whether a prosecu-

tor was aware of, or involved in, the process leading to

a defendant’s arrest and initial appearance would add

unnecessary expense and delay and further tax limited

judicial resources. Moreover, it is unclear what degree

of awareness or involvement by prosecutors is required

under the Fifth Circuit’s rule. That rule may thus lead

to litigation over questions such as whether it is suffi-

cient that a police officer informed a prosecutor that an

individual had been arrested or whether a prosecutor

must be involved in the pretrial proceedings in some

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manner, and if so, the requisite extent and formality of

such involvement. Cf. Berkemer v. McCarty, 468 U.S.

420, 432 (1984) (rejecting doctrinal proposal where

“(t]he litigation necessary to resolve such matters

would be time-consuming and disruptive of law en-

forcement”).

Second, under the Fifth Circuit’s rule, the defen-

dant’s right to counsel may turn in many cases on the

resolution of a contested evidentiary proceeding—in

circumstances in which the key evidence is necessarily

in the State’s hands. Requiring the defendant to con-

duct that proceeding, without counsel, in order to de-

termine whether he is entitled to counsel would put him

in a self-evidently unfair position.

Third, a rule under which the right to counsel is

triggered by a prosecutor’s involvement would create a

perverse incentive for prosecutors to delay their in-

volvement in criminal proceedings. Early prosecutorial

involvement, however, is important to rectifying merit-

less arrest and pretrial detention decisions. See, ¢.g.,

LaFave, § 1.3(h), at 99-103 (noting that prosecutorial

screening of cases prior to the filing of charges and ini-

tial appearance frequently results in a decision not to

proceed further).

Fourth, the Fifth Circuit’s rule would require an

inquiry into the kind of inner workings of the law en-

forcement establishment—including communications

between police officers and prosecutors, and among at-

torneys within the prosecutor’s office—that may be the

subject of statutory and common-law privileges, includ-

ing the attorney-client and attorney work product

privileges, the law enforcement privilege, and the de-

liberative process privilege. See generally Puerto Rico

v. United States, 490 F.3d 50, 62-64 (1st Cir. 2007) (dis-

41

cussing law enforcement privilege); In re U.S. Dep’t of

Homeland Sec., 459 F.3d 565, 568-569 (5th Cir. 2006)

(same); United States v. Edelin, 128 F. Supp. 2d 23, 39-

40 (D.D.C. 2001) (discussing deliberative process, at-

torney-client, and work product privileges).

Finally, requiring such a fact-specific inquiry runs

contrary to the common-sense interest in providing

clear and simple rules in matters of criminal procedure.

As one leading Sixth Amendment scholar has noted, a

rule requiring a court to “ascertain the precise point

when the state makes an actual, substantive decision to

pursue conviction” in order to determine when the

right to counsel attaches “would be impractical” be-

cause it would require an inquiry into “subjective men-

tal processes” in which, often, the “only evidence would

be the potentially self-serving reports of state agents.”

James J. Tomkovicz, An Adversary System Defense of

the Right to Counsel Against Informants: Truth, Fair

Play, and the Massiah Doctrine, 22 U.C. Davis L. Rev.

1, 68 n.272 (1988). And, as this Court has observed,

clear rules are particularly important in criminal proce-

dure “so that States and counties may establish proce-

dures with confidence that they fall within constitu-

tional bounds.” Riverside, 500 U.S. at 56; see, e.g.,

Minnick v. Mississippi, 498 U.S. 146, 151 (1990) (noting

the “merit” of rules of criminal procedure with “clarity

of ... command” and “certainty of . . . application”)."°

'S See also Donald -A. Dripps, Constitutional Theory for

Criminal Procedure: Dickerson, Miranda, and the Continuing

Quest for Broad-But-Shallow, 43 Wm. & Mary L. Rev. 1, 40 (2001)

(noting that “the case for general rules governing criminal proce-

dure is overwhelming” in light of the “volume of cases presenting

constitutional issues . . . and the need to supply . . . lower courts

with reliable guidance”).

ta ea? ie FL

42

B. The Fifth Circuit’s Rule Threatens To Cause Seri-

ous Harm To Indigent Defendants

In addition to being unworkable in practice, the

rule adopted by the Fifth Circuit—under which the

right to counsel would not attach until indictment, ab-

sent a showing of prosecutorial involvement in pre-

indictment proceedings—does violence to core Sixth

Amendment values. Under that rule, an indigent de-

fendant who is innocent of the charges against him

could nevertheless sit in jail for months awaiting in-

dictment “because he does not know how to éstablish

his innocence.” Powell, 287 U.S. at 69.

That concern is far from theoretical. According to a

report to the Texas State Bar, prior to 2001, in some

Texas counties it was “quite common that the appoint-

ment of counsel [did] not occur until after an indictment

from the grand jury. In these instances, defendants

languish[ed] in jail for considerable periods of time

without the benefit of legal representation.”'® The re-

port described one such case:

The Committee has been told the story of a

woman who sat in jail for 27 days before an at-

torney was assigned to her matter. Within 45

minutes after receiving the case, her court ap-

'© Allan K. Butcher & Michael K. Moore, Muting Gideon’s

Trumpet: The Crisis in Indigent Criminal Defense In Texas

(Sept. 22, 2000), available at www.uta.edu/pols/moore/indigent/

last.pdf. This report was prepared by the Committee on Legal

Services to the Poor in Criminal Matters of the State Bar of Texas,

which was charged by the Texas State Bar with “study[ing] the

system of defense of indigent persons in criminal law matters in

Texas, collect[ing] data and other information . . . and develop[ing]

recommendations for action by the State Bar of Texas [and] the

Texas Legislature.” /d.

43

pointed attorney determined the case lacked

merit [and] he approached the prosecutor who

agreed, and the judge ordered her release. The

effect of this is quite clear—the timely ap-

pointment of counsel would have resulted in

this woman’s near immediate release instead of

costing her nearly one month in jail.'’

In cases in which an indigent defendant cannot prove

that a prosecutor was aware of or involved in his arrest

or initial appearance, the Fifth Circuit’s rule would

permit precisely this result.

As such cases demonstrate, the denial of counsel

exacts a particularly high toll on indigent defendants

who, like Rothgery, would be able promptly to secure

the dismissal of charges with the assistance of counsel.

Absent such assistance, “a law-abiding citizen wrong-

fully arrested” may be left in jail, “compelled to await

the grace of a Dickensian bureaucratic machine,” Riv-

erside, 500 U.S. at 70-71 (Scalia, J., dissenting), until

prosecutors determine whether to indict him. Such

“(p]retrial confinement may imperil [a defendant’s] job,

interrupt his source of income, and impair his family

relationships.” Gerstein, 420 U.S. at 114. Moreover,

even an accused who is able to post bail and be released

from jail faces serious harms:

"7 Id. In 2001, Texas enacted the Fair Defense Act, which re-

quired counties to adopt procedures allowing for prompt access to

counsel by incarcerated persons. See Texas Fair Defense Act,

77th Leg., R.S., ch. 906, 2001 Tex. Gen. Laws 906; Tex. Code Crim.

Proc. art. 1.051. For persons released on bail, the Fair Defense

Act makes entitlement to the appointment of counsel turn on

whether adversary judicial proceedings have commenced. See

Tex. Code Crim. Proc. art. 1.051(j).

i

oh ;

4

:

f

Bed Be ee) nn

44

A person facing serious criminal charges is

hardly freed from the state’s control upon his

release from a police officer’s physical grip. He

is required to appear in court at the state’s

command. . . . Pending prosecution, his em-

ployment prospects may be diminished se-

verely, he may suffer reputational harm, and he

will experience the financial and emotional

strain of preparing a defense.

Albright v. Oliver, 510 U.S. 266, 278 (1994) (Ginsburg,

J., concurring).

Under the Fifth Circuit’s approach, then, an indi-

gent defendant could suffer extended restrictions on his

liberty, and all the harms attendant on an unresolved

criminal accusation, solely because he is unable to af-

ford counsel to prove his innocence. Because the vast

majority of felony defendants are in need of court-

appointed counsel,’* the Fifth Circuit’s rule would thus

severely and inequitably constrict access to justice.

This Court, of course, recognized this fundamental

point nearly 45 years ago, observing that the “noble

ideal” in which “every individual stands equal before

the law” “cannot be realized if the poor man charged

with crime” lacks “a lawyer to assist him.” Gideon, 372

U.S. at 344. The decision below cannot be squared with

this basic principle.

‘8 In 1996, 82 percent of felony defendants prosecuted in state

courts in the 75 largest counties had state-appointed counsel. U.S.

Dep’t of Justice, Office of Justice Programs, Bureau of Justice Sta-

tistics, Defense Counsel in Criminal Cases 1 (Nov. 2000), avail-

able at http//www.ojp.usde).gov/bjs/pub/pdf/dece.pdf.

45

CONCLUSION

For the foregoing reasons, the judgment of the

Fifth Circuit should be reversed.

Respectfully submitted.

ANDREA MARSH SETH P. WAXMAN

HARRY WILLIAMS [IV Counsel of Record

TEXAS FAIR DEFENSE CRAIG GOLDBLATT

PROJECT DANIELLE SPINELLI

510 South Congress Ave., CATHERINE M.A. CARROLL

Suite 208 ROBERTO J. GONZALEZ

Austin, TX 78704 MARGARET WILLIAMS SMITH

(512) 637-5220 WILMER CUTLER PICKERING

HALE AND DORR LLP

WILLIAM CHRISTIAN 1875 Pennsylvania Ave., N.W.

GRAVES, DOUGHERTY, Washington, D.C. 20006

HEARON & Moopy, P.c. (202) 663-6000

401 Congress Ave.,

Suite 2200

Austin, TX 78701

(512) 480-5600

JANUARY 2008