Respondents Brief — Rothgery v. Gillespie County

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IN THE

Supreme Court of the Anited States

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 RESPONDENT

CHARLES S. FRIGERIO GREGORY S. COLEMAN

LAW OFFICES OF Counsel of Record

CHARLES S. FRIGERIO EDWARD C. DAWSON

Riverview Towers MARC S. TABOLSKY

111 Soledad RYAN P. BATES

Suite 840 YETTER & WARDEN, LLP

San Antonio, Texas 78205 221 West Sixth Street

(210) 271-7877 Suite 750

Austin, Texas 78701

(512) 533-0150

Counsel for Respondent

Gillespie County, Texas

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............sesecssesesseseessees hei iii

DEATMAENT OP THEE CAGE .....00ccscesscccscseversesssevsesens ae

NE I IID viecccovcascovvsccsecsoccssoscessenpsoneess 4

SUMMARY OF ARGUMENT. .............ccsssessceeeeeseeeesesens 10

AES ALN eS CEN EO eR 13

I. THE SIXTH AMENDMENT’ RIGHT’ TO

ASSISTANCE OF COUNSEL PROTECTS AN

ACCUSED’S RIGHT TO A FAIR TRIAL................-- 13

Il. THE PREINDICTMENT ARTICLE 15.17

MAGISTRATION DID NOT CONSTITUTIONALLY

ENTITLE ROTHGERY TO THE ASSISTANCE OF

CII aincidcriddssndsnsndndccediensedibberitbindienieiestes 19

A. Formal Criminal Proceedings Had Not

SITE insacccneniinscininceintsnntinitendiiemimiapapmaninces 19

B. The Right to Counsel Did Not Attach

Because There Was No Commitment to

Prosecute at the Time of Rothgery’s

Preindictment Magistration..................... 21

C. Neither Brewer v. Williams nor Michigan

v. Jackson Requires That the Right to

Counsel Attach at an Article 15.17

Appearance Following Warrantless

iia dntitecinctieiebicnidaleitinontuninbinncaipntiabediibnaiinn 33

D. Rothgery’s Waiver of Counsel at the

Preindictment Article 15.17 Appearance

Eliminated Any Right to Appointment

Until a Subsequent Critical Stage........... 37

(i)

TABLE OF CONTENTS—CONTINUED

III. ROTHGERY’S PROPOSED EXTENSION OF THE

SIXTH AMENDMENT RIGHT TO COUNSEL IS

UNWARRANTED, UNWORKABLE, AND UNWISE.

A. Rothgerys Proposed Rule Would

Conflict with This Court’s Sixth

Amendment Precedents ................0.ccc000

B. The Liberty Interest Rothgery Seeks to

Vindicate Is Properly and Adequately

Protected by Other Constitutional and

a i i,

C. Rothgery’s Proposed Extension of the

Right to Counsel Would Open the Door

to Future Undesirable Extensions of

< |_| ERREEE SERRE NDS IT AC OO

D. Rothgery’s Proposed Expansion of the

Right to Counsel Would Create

Significant Practical Problems for Law

Enforcement and Local Government.....

Rea RE SEA bee AAS TTI Me, MAD

Page

ill

TABLE OF AUTHORITIES

CASES Page

Adams v. Robertson,

TTL atc iennsnonsomineiionnégeeneen 34

Avery v. Alabama,

IID s.. cecaccocetccnsescconesevetonssss 18, 38

Bell v. Wolfish,

i IIE... .csisccescocccccssosncescusatones 49

Brewer v. Williams, :

GE SN TE CIT SF Pacisnesccccscccesescncveseness 33, 34, 35

Cent. Va. Cmty. Coll. v. Katz,

ee a I ia sccicsssacnnccocccccevecceccescces 35

Clawson v. Wharton County,

941 S.W.2d 267 (Tex. App. 1996)............. 24

Coleman v. Alabama,

Ey BE iaiiccsacnscrscccccssconsenccesesses passim

Doggett v. United States,

ss Seer 49, 51

Edwards v. Arizona,

A CIE Pacscccnerccccevectcsescscosooeesens 36

Escobedo v. Illinois,

RIES ERR eo 15, 47

Estes v. Texas,

SE ID... ccsenassccsencenobsconoensee 51

Fellers v. United States,

BO UB, BED GIG) once ccccseccccccecesscesseees 15, 16, 54

Fenner v. State,

381 Md. 1, 846 A.2d 1020 (2004).............. 30

Gerstein v. Pugh,

I TIT cca snestidnensebenennconnintenl passim

Hamilton v. Alabama,

Be es GE EE Diccrecescccccccsccccconces 14, 17, 35, 40

Johnson v. New Jersey,

te RG Pe Ricinscisorescsnicnkseqnenensotonste 15

TABLE OF AUTHORITIES—CONTINUED

Page

Johnson v. Zerbst,

Le | 18, 22, 23

Kirby v. Illinois,

I IT nsscccececcccscccoccossncosvesson passim

Maine v. Moulton,

| ee 17, 54

Massiah v. United States,

of | | Ee ee 15

Metro. Stevedore Co. v. Rambo,

RAS IID Pa cccncccsccccoccccsccccsceeoeseces 34

Michigan v. Harvey,

ee i, HN EID cc ccsoscsocsonsecsosesseonssos 17, 19, 21

Michigan v. Jackson,

476 U.S. 635 (1966)........................ 16, 36, 38, 43

Mickens v. Taylor,

Be IE IID... ssncccenseccosccoscccncccssosece 13

Middendorf v. Henry,

cil 30

Miranda v. Arizona,

| ___ ee r 15

Missouri v. Jenkins,

a ceislismaaulinones 38

Moore v. Illinois,

ETI TO ..... sccsccnscnesednosenovnetionnes 36

Moran v. Burbine,

GR i I ED csccccscscsvvccccccccsssesees 22, 23, 47

Padgett v. State,

590 P.2d 432 (Alaska 1979).................0000 30

Patterson v. Illinois,

| | TER passim

People v. Mallory,

421 Mich. 229, 365 N.W.2d 673 (1984)... 37

TABLE OF AUTHORITIES—CONTINUED

Page

Powell v. Alabama,

a scnenanenutabenl 13, 14

Schneckloth v. Bustamonte,

SE III, cn asitnscscvcsssceseonsesessonsons 18

Scott v: Illinois,

BE Ais Ce CI FO on ccecccccceccsescecerscnseses 26, 46, 54

State v. Boseman,

830 S.W.2d 588 (Tex. Crim. App. 1992)... 7, 20

State v. Luton,

83 Haw. 443, 927 P.2d 844 (1996)............ 25

State v. Masaniai, :

63 Haw. 354, 628 P.2d 1018 (1981).......... 22

State v. Pierre,

277 Conn. 42, 890 A.2d 474 (2006)........... 22

State v. Tucker,

137 N.J. 259, 645 A.2d 111 (1994) ........... 25

Teal v. State,

230 S.W.3d 172 (Tex. Crim. App. 2007)... 7, 20

Texas v. Cobb,

Be Ge Ge EP ccnncesecsccsrrevevesvenesscenses passim

United States v. Arnold,

106 F.3d 37 (CAS 1997) ......ccccssesesecceescesees 44

United States v. Ash,

SO By te Ce Pree scveveveveeccecccessnsnseconses passim

United States v. Ewell,

I asin cnnsncsumedesnnnivesicnts 50

United States v. Gouveia,

og | | Eee passim

United States v. Hooker,

418 F.Supp. 476 (MD Pa. 1976) ............... 30

United States v. Marion,

rg hs > tg | ER enenen 49, 50, 51, 55

TABLE OF AUTHORITIES—CONTINUED

Page

United States v.Wade, — :

BE Bhs cccccensesessssosesoncosonss passim

White v. Maryland,

I neontion 14

Williams v. Brewer,

375 F.Supp. 170 (SD Iowa 1974)......... 33, 34, 35

Wright v. Denato,

178 N.W.2d 339 (Iowa 1970) .................... 34

CONSTITUTIONAL PROVISIONS

tc cscsenensstiebuies 48

ee I cs cwsnecgeneuncns 10, 13, 21

I I, Te ME i sccestenssnaninions 20, 21

STATUTES

Mich. Comp. Laws $764.26 ..................000000+ 36

Tex. Code Crim. Proc.

Se a ee ee passim

| ES ae cluiaubtieinidiniibilidait 24

ao anapaenes 24

lls 4

a ccpleasies 4

EE, Eee ee weer none 9

a sseininsbdins 5, 24

ERIN cn a 53

acs iealeall 20

A passim

ESET ane ee neem CE 5, 6, 27

RE een are E eT 27

Sy oe ae eae 27

EEE ee ec OR 27

i oii cle atiestaininigiiidlindicapedbantiin 20

it ish tia ct cteesseeilannensinontandendeteneth 20

vii

TABLE OF AUTHORITIES—-CONTINUED

Page

Tex. Code Crim. Proc.

a eile 20

NE i ecieiieialis 20

ine ae IE aE RS Te re eel ea oe 36

Tex. Penal Code

EE EE ee See ave t 46

EERE RRS tat etter ere 26, 46

Te ctaenbeaita 4, 25

. OTHER AUTHORITIES

Colbert, Thirty-Five os After Gideon:

The Illusory Right to Counsel at Bail

Proceedings, 1998 U. Ill. L. Rev. 1........... 30

Grano, Rhode Island v. Innis: A Need to

Reconsider the Constitutional Premises

Underlying the Law of Confessions, 17

Am. Crim. L. Rev. 1 (1979)....3...........000 36

4 W. LaFave et al., Criminal Procedure

BEG BD CI OG, BID cccscssnccseccessseccccccocosens 46

Metzger, Beyond the Bright Line: A Con-

temporary Right-to-Counsel Doctrine, 97

Nw. L. Rev. 1635 (2008)..........ccccccossoccssoeess 32

Brief for Petitioner, No. 74-1263, 1976 WL

BR rs Bilin: Ba TIED sec sccvcccsccesesscteseesces: 33

Brief for Petitioner, No. 84-1539, 1985 WL

Se GP iis Se cvccecscncsccccsacccsovenssese 37

STATEMENT OF THE CASE

No court has ever recognized the theory Rothgery

asserts, that there is a Sixth Amendment right to

continuous representation by counsel, unconnected

with any identifiable event constituting a critical

stage, from just after the time of arrest. Rothgery’s

vision of the Sixth Amendment right to counsel is

contrary to the Court’s long-settled precedent in two

key respects: (1) it seeks to quietly overturn Gerstein

v. Pugh, 420 U.S. 103 (1975), by defining a probable-_

cause determination on a warrantless arrest as the

formal initiation of adversary judicial proceedings;

and (2) contrary to Kirby v. Illinois, 406 U.S. 682

(1972), and its progeny, it seeks to decouple

appointment from the need for assistance of counsel

at a critical stage of proceedings.

The Court has articulated a consistent general rule

that the formal initiation of adversary judicial pro-

ceedings is the point at which the Sixth Amendment

right to the assistance of counsel is triggered. There

were only two possible events that Rothgery could

claim as a critical proceeding that might entitle him

to appointed counsel. Regarding the first, the initial

appearance after his arrest, Gerstein makes clear

that counsel was not required and, in any event, he

expressly declined the assistance of counsel. At the

second, the appearance after his indictment, he

requested and was appointed counsel. There was

no event or proceeding anytime between his first

and second appearance for which the Constitution

required appointment of counsel to Rothgery.

None of the factors that have led the Court to

recognize certain limited exceptions to the formal-

charges rule for specific, critical stages of prosecution

apply because Rothgery’s appearance was nonadver-

sarial, nonevidentiary, nonprosecutorial, and held no

potential to unfairly prejudice Rothgery’s eventual

defense to any charge that might ultimately be

filed against him. Moreover, without some hearing

or event at which the assistance of counsel was

constitutionally required (or needed), it is impossible

to define an event of attachment that would make the

failure to appoint counsel a violation of Rothgery’s

Sixth Amendment rights.

In advancing his claim, Rothgery is attempting to

unmoor the Sixth Amendment from its historical and

doctrinal underpinnings, by asking the Court to

determine the question of attachment while leaving

the underlying question of a constitutional violation

completely unaddressed. Indeed, he expressly asks

the Court to decide the issue of attachment

independent of whether there was a critical

proceeding that would require the actual attendance

or assistance of counsel. In so doing, Rothgery stands

the Court’s traditional right-to-counsel jurisprudence

on its head by seeking to sever the question of

attachment from the inherently connected analysis

of whether the Court can identify some critical

proceeding at which the assistance of counsel is

necessary to protect the defendant’s right to a fair

trial.

Knowing that he waived his right under Texas

law to have counsel present at the article 15.17

appearance, Rothgery never asserted in his complaint

that the county (or, more accurately, the state

district court) was required to ensure that he had the

assistance of counsel when he was magistrated.

Instead, Rothgery asserted that counsel should have

been appointed for him at some unspecified time

after he had been released on bail, without reference

to another critical proceeding at which counsel’s

presence and assistance was required. Beyond the

fact that United States v. Gouveia, 467 U.S. 180, 189

(1984), makes very clear that a person is not entitled

to appointment of counsel to act as a private

investigator to begin to develop a defense when no

formal charges are pending, there was no defense to

prepare. No decision had been made by any

prosecutor to bring any charges against Rothgery,

much less felony charges. It was entirely possible

that the prosecutor could have decided to bring only

misdemeanor charges for openly carrying a handgun

or no charges at all. Under the circumstances, any

attorney appointed in the interim could at most have

served as an investigator and precharge negotiator,

but the Court has rejected those roles as being

covered by the Sixth Amendment right to the

assistance of counsel.

When the Court has previously said that the right

to the assistance of counsel attaches at or after the

initiation of adversary judicial proceedings, it has

meant that the right attaches to some proceeding or

event at which the assistance of counsel is necessary

(like an interrogation or a postindictment lineup),

not merely that an obligation to appoint counsel

arises out of the ether. By trying to push the event

of attachment back to a presentation of warnings

that follows every arrest in Texas and to sever

the natural bonds between attachment and critical

proceedings, Rothgery is attempting to dangerously

steer the Court into nonsensically defining the

Sixth Amendment trigger in an empty, formalistic

way that has no roots in the Court’s consistent

pronouncements on the appointment of counsel.

Such a formalistic rule would not serve the interests

of the Sixth Amendment. It would instead further

burden state and local appointment systems without

any textual basis in the Sixth Amendment for doing

so, without any measurable benefit to the fair-trial

interests that underlie the Sixth Amendment right

to counsel, and without any material identifiable

constitutional problem in the appointment processes

that exist throughout the United States.

STATEMENT OF FACTS

On July 14, 2002, Walter Rothgery was fired as

manager of the Oakwood RV Park, in Freder-

icksburg, Texas, and became upset and verbally

abusive towards the park’s owner. SJ Opp. Ex. 1.

The next day, police received a report that Rothgery

was walking around the RV park with a pistol,

handcuffs, mace, extra bullets, and a knife. Ibid.

When officers arrived, they found Rothgery in

possession of a handgun as well as a long knife. [bid.

An instant background check indicated that he was a

felon who had been convicted of possession of a

controlled substance in California. Jbid. Officers

then arrested Rothgery on suspicion of being a felon

in unlawful possession of a firearm, a third-degree

felony. Tex. Penal Code §46.04.

After his arrest, Rothgery was taken to jail, where

he was booked, photographed, and then presented to

a magistrate.’ SJ Opp. Ex. 3 at 62, 64-65. According

to Rothgery, his initial encounter with the magistrate

' Under Texas law, magistrates include various officials

appointed in particular counties by judges in that county. Tex.

Code Crim. Proc. art. 2.09. Magistrates are charged with

preserving the peace through lawful means, issuing process to

prevent and suppress crime, and causing the arrest of offenders.

Id. art. 2.10, The magistrate Rothgery spoke to was a Gillespie

County justice of the peace. SJ Opp. Exs. 3, 4.

occurred at the same time he was being processed

from his arrest. Id., at 64 (“[W)hen they were taking

my pictures and everything, I turned around to a

little glass window and talked to a magistrate.”). He

appeared before the magistrate again the next

morning. Rothgery described his appearance before

the magistrate as standing “at a little glass window

_ filling out forms.” Jd., at 62. At his appearance,

Rothgery went through the forms, and the magistrate

gave him certain warnings. This appearance before

the magistrate, which is sometimes referred to

in Texas practice as “a magistration” or “being

magistrated,” is required under articles 14.06 and

15.17 of the Texas Code of Criminal Procedure,

to give every arrestee required information and

warnings about his rights. Tex. Code Crim. Proc.

arts. 14.06, 15.17.

Through the “little glass window,” Rothgery was _

given a form called a “Warning By Magistrate

(Setting Bail & Right to Attorney).” SJ Ex. B. The

form informed Rothgery that he had been accused of

unlawful possession of a firearm by a felon, but that

charges had not yet been filed against him. Ibid.

(form stating that charges “will be” filed in district

court). It informed him of his right to have an

attorney present “[i]Jf peace officers or attorneys

representing the state question you,” and that “[ilf

you cannot afford to hire a lawyer, you have the right

to have one appointed.” Jbid. It next informed him of

his right to remain silent, and that any statement he

made could be used against him. Jbid. It informed

him that “[iJn felony cases, you have the right to an

examining trial,” which is a Texas preindictment

procedure in felony cases for assessing the sufficiency

of evidence to prosecute. Ibid.; see Tex. Code Crim.

Bu.

Proc. art. 16.01. The form indicated that Rothgery’s

bond was set at $5,000. SJ Ex. B.

The form also included several certifications by

the magistrate. The magistrate certified that, in

accordance with state statutory and Fourth

Amendment requirements, Rothgery had been

brought before him not later than 48 hours after

arrest, that the magistrate had informed Rothgery of

his rights to an attorney and appointment of an

attorney, and that there was a paper record of the

magistrate’s advising Rothgery of his right to an

appointed attorney. Jbid. Finally, the magistrate

certified, and Rothgery confirmed by initialing, that

Rothgery had decided to waive counsel at that time.

Ibid. Rothgery had, and waived, a Texas statutory

right to consult with counsel before his bail was set.

See Tex. Code Crim. Proc. art 15.17(a). If Rothgery

had requested counsel at that time, Gillespie County

procedures provided that counsel would have been

appointed for him. SJ Ex. B; SJ Ex. H at 1. The

magistrate and the booking officer signed the form

at the bottom. SJ Ex. B. Rothgery also signed

the bottom of the form, under the title “PERSON

WARNED.” Ibid.

At the same time, the magistrate also reviewed and

signed an “Affidavit of Probable Cause” prepared by —

the arresting officer. SJ Ex. A. The affidavit set

forth that witnesses from the trailer park had

reported that Rothgery had been carrying a weapons

belt, the fact that officers found him carrying a

firearm, and that a background check had revealed

that he had been convicted in California of

felony possession of a controlled substance. Ibid.

The magistrate’s signature certified that, based on

the affidavit, probable cause existed for Rothgery’s

, 7

arrest. Ibid. The filing of the probable-cause

affidavit to justify a warrantless arrest was

insufficient to constitute the filing of formal criminal

charges against Rothgery. Felonies may only be

formally charged in Texas courts by indictment or,

upon waiver of indictment by a defendant, by

information. Teal v. State, 230 S.W.3d 172, 174 (Tex.

Crim. App. 2007); State v. Boseman, 830 S.W.2d 588,

590, n.3 (Tex. Crim. App. 1992).

No one from the Gillespie County prosecutor’s

office was aware of, much less present at, Rothgery’s

appearance before the magistrate. Pet. App. at 6.

Prosecutors were not aware of the filing or contents

of the affidavit of probable cause, and the affidavit

did not reflect a decision or commitment by

prosecutors to prosecute Rothgery. Ibid. Rothgery

was not questioned during the appearance, other

than to acknowiedge that he had received the

required warnings. SJ Opp. Ex. 3 at 64. No

witnesses were presented or examined, nor was any

evidence considered. Jbid. After Rothgery was

processed, magistrated, bonded, and released, there

was no case or charge against him.

Approximately six months passed, during which

Rothgery was neither imprisoned nor under

indictment. SJ Opp. Ex. 3 at 86. During that period,

no investigators or prosecutors contacted Rothgery or

communicated with him about his arrest. Rothgery

claims to have requested appointment of counsel

several times in the period after the initial article

15.17 appearance, but before his indictment,

including immediately after the appearance itself.’

* There is no evidence of most of these claimed requests other

than Rothgery’s own testimony, but in the summary-judgment

posture of this case, those claims must be taken as true.

SJ Opp. Ex. 3 at 71-72, 86-87. Texas law, in

any event, provides that an indigent arrestee out

on bail need not be provided with counsel “until

the defendant’s first court appearance or when

adversarial judicial proceedings are _ initiated,

whichever comes first.” Tex. Code Crim. Proc. art.

1.051()).

The Gillespie County prosecutor’s office, after

eventually reviewing Rothgery’s file, decided to indict

and prosecute him. On the afternoon of January 17,

2003, a grand jury indicted Rothgery for being a felon

in possession of a firearm. SJ Opp. Ex. 9. A capias

then issued for Rothgery, which, unlike the prior

affidavit of probable cause, clearly indicated that

Rothgery had been indicted for unlawful possession

by a felon. SJ Ex. C. Rothgery was rearrested on

January 18, 2003. On January 19, he was again

magistrated based on the second arrest. The warning

form from the second magistration, unlike that from

the first, indicated that he had been accused of.a

criminal offense that had been filed in the district

court. SJ Ex. E. The form also, unlike the first

one, indicated that Rothgery had requested the

appointment of counsel. Ibid.°

On January 23, Gillespie County received a request

for counsel from Rothgery and faxed it to the district

judge, who promptly appointed counsel for him. SJ

Ex. F. The three business days that passed before

the judge appointed counsel for Rothgery complied

with Texas law and with Gillespie County’s plan for

appointing counsel. (January 18th and 19th were

* The form itself was identical; the differences were indicated

by strikethroughs and the checking of different boxes on the

form.

weekend days, and January 20th was a holiday.) See

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

After being appointed, Rothgery’s lawyer began

working on the file on January 31, and first consulted

with Rothgery on February 9. SJ Opp. Ex. 13. The

lawyer ultimately secured paperwork indicating that

Rothgery had been allowed to withdraw his guilty

pleas in his California case after completing a

diversionary program. SJ Opp. Ex. 14; Pet. App. at 2.

The indictment against Rothgery was ultimately

dismissed.

Rothgery sued Gillespie County under 42 U.S.C.

§1983, seeking damages for the county’s not

appointing him counsel during the months between

his initial magistration and his indictment. Compl.

at 8-10. He claimed that the County had a policy of

not appointing counsel for arrestees released from

jail on bond and that this policy violated his Sixth

and Fourteenth Amendment rights. Pet. App. at 4.

Gillespie County moved for summary judgment

on numerous grounds. Mot. for SJ at 3-10. The

district court dismissed the case on the ground that

Rothgery’s right to counsel did not attach until he

was indicted by the State and the Fifth Circuit

affirmed. Pet. App. at 4, 12.

The Fifth Circuit, applying this Court’s precedents

along with its own, focused on whether the article

15.17 magistration marked the commencement of

adversarial judicial proceedings against Rothgery

and concluded it had not. Pet. App. at 12. In

particular, the court concluded that the State had not

committed to prosecute Rothgery. /d., at 6 (citing

Tex. Code Crim. Proc. art. 2.13). Rothgery then

petitioned for certiorari, and the Court granted

review.

SUMMARY OF ARGUMENT

The Sixth Amendment guarantees that “[iJn all

criminal prosecutions, the accused shall enjoy the

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

defence.” U.S. Const., Amdt. 6. Because the right is

textually limited to actual criminal prosecutions,

the right to counsel attaches “only at or after the

time that adversary judicial proceedings have been

initiated against” an arrestee. Kirby, 406 US.,

at 688. Rothgery’s magistration did not initiate

adversary judicial proceedings against him.

The Fifth Circuit, consistent with this Court’s

jurisprudence on the Sixth Amendment right to the

assistance of counsel, held that adversarial judicial

proceedings begin when the government commits

to prosecution. Because the core purpose of the

Sixth Amendment guarantee of the accused’s right to

assistance of counsel is to preserve his right to a fair

trial by “protecting the unaided layman at critical

confrontations with his adversary,” Gouveia, 467

U.S., at 189, the determinative fact must be whether

the State has become the adversary of the accused.

The Court has consistently followed the general

rule that adversary judicial proceedings begin

with the filing or presentation of formal charges,

and in deciding whether to recognize exceptions has

consistently applied an analysis that considers

whether the State has actually become the adversary

of the accused. That condition was simply not met

by Rothgery’s initial article 15.17 appearance, which

was a fundamentally nonadversarial proceeding.

Rothgery’s appearance before the magistrate

included the probable-cause determination required

by Gerstein v. Pugh, 420 U.S. 103 (1975), statutory

warnings required by article 15.17, and the setting of

bail. Nothing during that appearance initiated

adversary judicial proceedings, nor was any of it a

critical stage of criminal proceedings. Combining

them into one hearing cannot change that conclusion.

The appearance was nonadversarial, administrative,

occurred before the filing of any formal charges,

provided no opportunity for examination of witnesses

or other interaction between Rothgery and the State,

and had no possible effect on Rothgery’s right to a

fair trial on any charges that might ultimately be

brought against him. When it concluded, Rothgery

was free on bail. There was no case, no charge, and

no decision had been taken to prosecute—indeed the

prosecutor was not even aware of the arrest or its

circumstances.

Moreover, six months of inaction followed. Nothing

in this Court’s cases suggests or holds, as Rothgery

contends, that an accused has a constitutional right

to appointment of counsel as soon as adverse

proceedings begin even when no critical event such as

an interrogation intervenes. Thus, even if Rothgery’s

article 15.17 magistration had initiated adversary

judicial proceedings, counsel was appointed for him

well in advance of any critical stage of the

prosecution, so there was in any event no violation of

his right to counsel.

Rothgery’s proposed standard is contrary to the

Court’s cases, unworkable, and unwise. The Sixth

Amendment does not require the appointment of

counsel to give a defendant a running head start on

the prosecution before prosecution is even begun.

Instead the Court has firmly rejected that

proposition, making clear that “our cases have never

suggested that the purpose of the right to counsel is

to provide a defendant with a preindictment private

investigator.” Gouveia, 467 U.S., at 191. But that is

exactly what Rothgery proposes—that his rights were

violated by not having a lawyer appointed to conduct

an investigation to prevent him from being indicted

(because it is uncontested that, once he was indicted,

he was timely provided with a lawyer, and the

charges were ultimately dismissed).

Accepting Rothgery’s position would call into

question numerous precedents of this Court by

functionally extending the Sixth Amendment right to

counsel virtually to the point of arrest. It would,

further, do so for no good reason, given that the

interests Rothgery is seeking to vindicate are already

protected by other rights such as the’ Fourth

Amendment right against unlawful seizures, the

Fifth Amendment right against self-incrimination,

the Sixth Amendment right to a speedy trial, statutes

of limitations, speedy-trial statutes, and statutes

(like Texas’s) that ensure assistance of counsel.

for persons held in custody. Moreover, accepting

Rothgery’s contention would cause widespread

practical harm to law enforcement and _ local

authorities, and visit substantial new costs on

counties in Texas and elsewhere if forced to appoint

and pay for counsel prior to indictment even when no

critical proceedings are taking place. It would extend

the Sixth Amendment right to counsel to the routine,

administrative events accompanying the processing

of a suspect immediately after arrest, and even

possibly back to the point of arrest itself.

i383.

ARGUMENT

I. THE SIXTH AMENDMENT RIGHT TO ASSISTANCE

OF COUNSEL PROTECTS AN ACCUSED’S RIGHT TO

A FAIR TRIAL.

The Sixth Amendment guarantees that “[i]n all

criminal prosecutions, the accused shall enjoy the

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

defence.” U.S. Const., Amdt. 6. The “core purpose” of

the right to counsel has long been recognized as

“assurling] ‘Assistance’ at trial, when the accused

was confronted with both the intricacies of the law

and the advocacy of the public prosecutor.” United

States v. Ash, 413 U.S. 300, 309 (1973). Thus, the

right to counsel “has been accorded .. . not for its own

sake, but because of the effect it has on the ability of

the accused to receive a fair trial.” Mickens v. Taylor,

535 U.S. 162, 165 (2002) (quotation omitted). The

amendment’s text reflects the Framers’ historical

motivations for rejecting the English common-law

rule denying counsel to accused felons, particularly

a solicitude for unaided laymen confronted by an

intricate procedural system and “a desire to minimize

imbalance in the adversary system that otherwise

resulted with the creation of a _ professional

prosecuting official.” Ash, 413 U.S., at 307-309.

The Court’s modern Sixth Amendment juris-

prudence has consistently focused on preserving the

right to a fair trial by ensuring that an accused has

the assistance of counsel during critical stages of

postindictment, pretrial proceedings. In Powell v.

Alabama, 287 U.S. 45, 53 (1932), the Court laid out

this concern:

“during perhaps the most critical period of the

proceedings against the[] defendants, that is to

say, from the time of their arraignment until the

beginning of their trial, when consultation,

thorough-going investigation and preparation

- were vitally important, the defendants did not

have the aid of counsel in any real sense,

although they were as much entitled to such aid

during that period as at the trial itself.” Jd.,

at 57.

Following Powell, the Court recognized that the

right to counsel encompassed pretrial events and

proceedings at which the absence of counsel might

derogate from a subsequent fair trial. These

proceedings included arraignments at which defenses

must either be raised or waived, Hamilton v.

Alabama, 368 U.S. 52, 53-54 (1961), entry of a plea,

White v. Maryland, 373 U.S. 59, 59 (1963) (per

curiam), and postindictment lineups, United States v.

Wade, 388 U.S. 218, 236-237 (1967). All of these

cases, and others decided by the Court, recognized

the right to counsel for proceedings that took place

after the filing of formal charges—that is, the

initiation of the “criminal prosecution” described by

the Sixth Amendment. And each of them was firmly

rooted in the commitment to protecting the right to a

fair trial. See, e.g., id., at 224. The Court for the first

time in Coleman v. Alabama recognized a right to

counsel for a proceeding that preceded the filing of

‘formal charges: adversarial preliminary hearings at

which defendants were afforded an opportunity to

cross-examine the witnesses against them, 399 U.S.

1, 9-10 (1970) (plurality opinion).

Throughout these cases, the touchstone remained

the right to a fair trial. Thus, the Court clearly

stated the proper test to determine whether the right

to counsel should be extended to cover a particular

pretrial proceeding: A federal court must, first,

“scrutinize any pretrial confrontation of the accused

to determine whether the presence of his counsel is

necessary to preserve the defendant’s basic right to a

fair trial as affected by his right meaningfully to

cross-examine the witnesses against him and to have

effective assistance of counsel] at the trial itself,”

and, second, “analyze whether potential substantial

prejudice to defendant’s rights inheres in the

particular confrontation and the ability of counsel to

help avoid that prejudice.” Wade, 388 U.S., at 227.

When the absence of counsel from a particular

confrontation would prejudice the fair-trial right, the

Sixth Amendment right attaches “to assure that the

accused’s interests will be protected consistently with

our adversary theory of criminal prosecution.” Ibid.

The Court also, in parallel with these cases,

beginning with Massiah v. United States, 377 U.S.

201 (1964), and Escobedo v. Illinois, 378 U.S. 478

(1964), developed a right-to-counsel jurisprudence

focused on protecting the accused’s rights not to

prejudice his defense through communications with

police and prosecutors. The “prime purpose” of right-

to-counsel cases in this context was “not to vindicate

the constitutional right to counsel as such, but, like

Miranda [v. Arizona, 384 U.S. 436 (1966)], to

guarantee full effectuation of the privilege against

self-incrimination.” Kirby, 406 U.S., at 689 (quoting

Johnson v. New Jersey, 384 U.S. 719, 729 (1966)).

Thus, the Court developed a test to evaluate whether

police communications with an accused violate the

accused’s Sixth Amendment rights, which looks to

whether police have deliberately elicited incrimi-

nating statements from an accused. See, e.g., Fellers

v. United States, 540 U.S. 519, 523-524 (2004)

(collecting cases). That test is related to, but

“expressly distinguished” from, “the Fifth Amend-

ment custodial-interrogation standard.” Ibid. (citing

Michigan v. Jackson, 475 U.S. 625, 632, n.5 (1986)).

In subsequent cases, the Court has applied these

fundamental principles to answer new questions

about whether the Sixth Amendment right to counsel

extended to other sorts of proceedings, but always

has hewed to the bedrock principle of protecting the

ultimate right to a fair trial by providing assistance

after the initiation of criminal prosecution for those

proceedings that could affect the ultimate fairness of

the trial. Thus, the Court rejected the extension of

the right to preindictment lineups in Kirby, 406

U.S., at 689-690. In doing so; the Court declared

that “the initiation of adversary judicial criminal

proceedings” marked “the commencement of the

‘criminal prosecutions’ to which alone the explicit

guarantees of the Sixth Amendment are applicable.”

Id., at 689-690. The Court also rejected the extension

of the Sixth Amendment guarantee to a prosecutor’s

interview with an identification witness using a

photographic display that included a picture of the

defendant. Ash, 413 U.S., at 321. The Court rejected

the expansion because there was no possibility the

accused would be misled on the law or otherwise

“overpowered by his professional adversary,” and

providing counsel under such circumstances would

not “produce equality in a trial-like adversary

confrontation.” Id., at 317.

Similarly, the Court rejected the extension of

the guarantee to counsel to the probable-cause

determination following a warrantless arrest.

Gerstein, 420 U.S., at 122-123. And, finally, in

Gouveia, the Court rejected the argument that

preindictment detention alone. triggers’ the

appointment of counsel, reaffirming that it has

“never held that the right to counsel attaches at the

time of arrest” or “suggested that the purpose of the

right to counsel is to provide a defendant with a

preindictment private investigator.” Gouveia, 467

US., at 190, 191.

There have been few significant attempts since

Gouveia to expand the formal pretrial proceedings

to which the right to counsel applies, and few cases

in this Court since then addressing the scope of

the right. This quiescence indicates the broad

acceptance, and demonstrated practical workability,

_ of the settled doctrine that Rothgery seeks to alter:

Sixth Amendment rights attach “at the initiation of

adversary judicial criminal proceedings” and require

appointing counsel at “certain ‘critical’ pretrial

proceedings” that follow or coincide with initiation.

Id., at 189. The right to counsel entitles an accused

to the “guiding hand of counsel,” Hamilton, 368 U'S.,

at 54, at all points during a prosecution when

“counsel’s absence might derogate from the accused’s

right to a fair trial,” Wade, 388 US., at 226.

Importantly, the right to counsel “[i]s not implicated,

as a general matter, in the absence of some effect of

the challenged conduct on the trial process itself.”

Michigan v. Harvey, 494 U.S. 344, 363 (1990)

(Stevens, J., dissenting); see also Ash, 413 U.S., at

311 (“The Court consistently ...has expanded the

constitutional right to counsel only when new

contexts appear presenting the same dangers that

gave birth initially to the right itself.”). And “the

right to the assistance of counsel is shaped by the

need for the assistance of counsel,” Maine v. Moulton,

474 U.S. 159, 170 (1985), and so requires a

“pragmatic assessment of the usefulness of counsel to

the accused at the particular proceeding and the

dangers to the accused of proceeding without

counsel.” Patterson v. Illinois, 487 U.S. 285, 298

(1988).

Certain events to which the guarantee of counsel

applies require preparation, so it may be necessary to

appoint counsel before such critical stages, and the

more preparation required, the further in advance

the appointment must be made. See Avery v.

Alabama, 308 U.S. 444, 446 (1940). But the Sixth

Amendment right does not require establishing an

attorney-client relationship from the first instant of

pretrial confinement in order to fend off future

indictment and prosecution. Gouveia, 467 U.S., at

191. This is because the right to counsel does not in

the first instance directly protect citizens’ liberty

interests; citizens’ liberty is protected by the Fourth

Amendment’s prohibition on unreasonable seizures

and the Sixth Amendment guarantee of a speedy

trial. JIbid.; Gerstein, 420 U.S., at 124-125; see

Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)

(“There is a vast difference between those rights that

protect a fair criminal trial and the rights guaranteed

under the Fourth Amendment.”). Instead, the right

to counsel protects personal liberty only indirectly, by

ensuring that substantial deprivations of liberty—

those that would be unreasonable under the Fourth

Amendment because of their duration—may only be

imposed by the State following a fair trial. See

Johnson v. Zerbst, 304 U.S. 458, 462 (1938).

II. THE PREINDICTMENT ARTICLE 15.17

MAGISTRATION DID NOT CONSTITUTIONALLY

ENTITLE ROTHGERY TO THE ASSISTANCE OF

COUNSEL.

A. Formal Criminal Proceedings Had Not

Begun.

Kirby v. Iilinois “firmly established that a person’s

Sixth and Fourteenth Amendment right to counsel

attaches only at or after the time that adversary

judicial proceedings have been initiated against him.”

406 U.S.. at 688. Kirby thus affirmed the general

rule that the right to counsel attaches at the point

that formal charges are filed. See Harvey, 494 U.S.,

at 358, n.5 (Stevens, J., dissenting) (“(T]he ‘criminal

prosecution’ to which the Sixth Amendment refers

begins when formal charges are filed.”). In

Rothgery’s case, it cannot reasonably be disputed

that there was no criminal prosecution at the time of

his arrest and magistration. There were no charges

filed or pending, and the affidavit of probable

cause filed. by the arresting police officer was

unquestionably insufficient as a formal charging

instrument under controlling Texas law. SJ Ex. A.

The preliminary character of this stage of the

investigation failed to satisfy the Sixth Amendment’s

textuai prerequisite for the right to counsel—

existence of a criminal prosecution. Therefore,

“consistent ...with the literal language of the

Amendment, which requires the existence of both a

‘criminal prosecutio[n]’ and an ‘accused,” Gouveia,

467 U.S., at 188 (alteration in original), Rothgery

derived no right to counsel from his preindictment

article 15.17 appearance.

In Texas, the filing of a probable-cause affidavit to

justify a warrantless arrest does not constitute the

a nae

filing of formal criminal charges against a suspect.

“The Texas Constitution requires that, unless waived

by the defendant, the State must obtain a grand jury

indictment in a felony case.” Teal v. State, 230

S.W.3d, at 174; see Tex. Const., Art. I, §10. Felonies

thus may only be formally charged in Texas courts by

indictment or, upon waiver, by information.‘ An

indictment is “the written statement of a grand jury

accusing a person therein named,” Tex. Code Crim.

Proc. art. 21.01; it must, at a minimum, satisfy nine

formal requirements specified by statute, id. art.

21.02. An information, which must be “filed and

presented in behalf of the State [of Texas] by the

district or county attorney,” id. art. 21.20, must

comport with a similar list of formal requirements,

including “[t]hat it appear to have been presented by

the proper officer,” id. art. 21.21(3).

The probable-cause affidavit filed to document the

justification for Rothgery’s warrantless arrest cannot

constitute a formal felony charging document in

Texas courts. It is plainly neither an indictment nor

an information, and so it could not formally charge

Rothgery with a felony under Texas law. See Tex.

Const., Art. I, §10. Nor could anything else in an

article 15.17 appearance following warrantless arrest

be interpreted as constituting a formal charge.

* Complaints, which are affidavits sworn before a magistrate

in support of an arrest warrant, may play a role in signaling a

commitment to prosecute, when filed by a district or county

attorney, but they are not themselves formal charging

documents. See Tex. Code Crim. Proc. art. 15.04. “[T]he process

of prosecution is usually initiated by the filing of a criminal

‘complaint.’ But the compiaint in [felony] proceedings will serve

only as a basis for the issuance of an information or the

commencement of the indictment process.” Boseman, 830

S.W.2d, at 591; see Tex. Code Crim. Proc. art. 21.22.

Indeed, Rothgery was directly told that he had not

yet been charged. SJ Ex. B.

In light of the absence of any formal charge in this

case, it is clear that Rothgery’s article 15.17

appearance did not constitute one of the “criminal

prosecutions” to which the Sixth Amendment

is limited. U.S. Const., Amdt. 6. “It is the

commencement of a formal prosecution, indicated by

the initiation of adversary judicial proceedings, that

marks the beginniag of the Sixth Amendment right.”

Texas v. Cobb, 532 U.S. 162, 176 (2001) (Kennedy, J.,

concurring). Arrest and detention alone are

insufficient to activate the Sixth Amendment’s

protections, because they are investigatory steps that

precede the beginning of an actual criminal

prosecution. In contrast, the. prosecutions that do

implicate the amendment are inextricably linked to

the formal charging processes that define their

initiation. See Harvey, 494 U.S., at 358, n.5 (Stevens,

J., dissenting). “[T)he literal language of the

Amendment .. . requires the existence of both a

‘criminal prosecutio[n]’ and an ‘accused,” Gouveia,

467 U.S., at 188, but neither exists at the time of

an article 15.17 appearance following a warrantless

arrest. |

B. The Right to Counsel Did Not Attach

Because There Was No Commitment to

Prosecute at the Time of Rothgery’s

Preindictment Magistration.

While in Kirby the Court generally considered the

right to counsel to be “historically and rationally

applicable only after the onset of formal prosecutorial

proceedings,” 406 U.S., at 690, it has also

pragmatically recognized that the need to extend the

right may arise “from changing patterns of criminal

procedure and investigation that...tend[] to

generate pretrial events that might appropriately be

considered to be parts of the trial itself,” Ash, 413

U.S., at 310.

Kirby accordingly provided a functional analysis for

determining whether a specific preindictment event

so implicated a suspect’s right to a fair trial that it

merited the protection of the right to counsel. The

Sixth Amendment right to counsel attaches, and

adversary judicial proceedings are initiated, when

“the government has committed itself to prosecute,”

and “the adverse positions of government and

defendant have solidified.” Kirby, 406 U.S., at 689.°

“It is then that a defendant finds himself faced with

the prosecutorial forces of organized society” and is

“immersed in the intricacies of substantive and

procedural criminal law.” JIbid.; cf. Johnson v.

* See also State v. Pierre, 277 Conn. 42, 95, 890 A.2d 474, 507

(2006) (“[Wle conclude that it is not simply the signing of the

information document that triggers the protections of the sixth

amendment. Rather, it is the state’s decision to move forward

with the prosecution of the crimes charged in the information

document, by arraigning the suspect and filing the information

with the court, that signifies the state’s commitment to

prosecute as well as the initiation of the adversary judicial

proceedings that trigger a defendant’s right to counsel under the

sixth amendment.”); State v. Masaniai, 63 Haw. 354, 360-361,

628 P.2d 1018, 1023 (1981) (finding no attachment of right to

counsel after arrest pursuant to warrant because there had been

no prosecutorial involvement in procuring the warrant).

* Rothgery’s proposed bright-line test, which would find

attachment o. the right to counsel at any initial appearance

before a magistrate, would essentially nullify Kirby’s extended

discussion of why the test for attachment is not “a mere

formalism.” See 406 U.S., at 689-690. Nor is this nullifying

effect limited to Kirby. E.g., Moran v. Burbine, 475 U.S. 412,

Zerbst, 304 U.S., at 463 (“It embodies a realistic

recognition 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, wherein the

prosecution is presented by experienced and learned

counsel.” (emphasis added)). Specific applications

of this functional analysis have resulted in the

recognition of the right to counsel for a very limited

set of specific preindictment situations, including

adversarial preliminary hearings. See, e.g., Coleman,

399 U.S., at 9-10. But applying Kirby’s functional

analysis to Rothgery’s preindictment article 15.17

appearance makes clear, as the Fifth Circuit correctly

determined, that the right to counsel had not

attached.

“(Ujntil such time as the ‘government has

committed itself to prosecute, and .. . the adverse

positions of government and defendant have

solidified’ the Sixth Amendment right to counsel does —

not attach.” Moran v. Burbine, 475 U.S. 412, 432

(1986) (quoting Gouveia, 467 U.S., at 189). Any

possible claim that the State was committed to

prosecuting Rothgery is undermined by the tentative,

administrative, and preliminary nature of the article

15.17 appearance and by the uncontested fact that

prosecutors had not even considered charging, let

alone formally charged, Rothgery at the time of

his appearance. Pet. App. at 6. The article 15.17

appearance, which follows every arrest in Texas, fails

every aspect of the functional analysis Kirby

prescribes for events before the filing of formal

charges.

432 (1986); Gouveia, 467 U.S., at 189; Ash, 413 U.S., at 310; see

also Part III infra.

First, the government had not committed itself to

prosecute. There is no role for a prosecutor either in

the process preceding an article 15.17 appearance or

at the appearance itself. It is thus impossible to

argue that the State commits itself to prosecute at

every such appearance following a warrantless

arrest. Indeed, given that state law requires such an

appearance for every arrestee, see Tex. Code Crim.

Proc. arts. 14.06, 15.17, that argument amounts to

the claim that the State has statutorily committed to

prosecute every suspect arrested by the police. That

claim is implausible and directly contrary to Texas

law and practice. In Texas, as elsewhere, the

decision whether or not to initiate a prosecution

remains “the quintessential function of a prosecutor.”

Clawson v. Wharton County, 941 S.W.2d 267, 272

(Tex. App. 1996) (emphasis added); accord Tex. Code

Crim. Proc. arts. 2.01, 2.02 (providing that district

and county attorneys represent the State in criminal

cases). Prosecutors unquestionably played no role in

Rothgery’s case before or at his article 15.17

appearance. See Pet. App. at 6.

Nor is this conclusion changed by the arresting

officer’s affidavit of probable cause that was

approved by the magistrate. SJ Ex. A. Because the

probable-cause determination does not commit

the State to prosecute, it does not cause the right to

counsel to attach. The officer’s providing evidence to

a neutral magistrate is required to justify any

warrantless detention under Gerstein. 420 U.S., at

114. Gerstein requires specification of an offense:

“The standard for arrest is probable cause, defined in

terms of facts and circumstances sufficient to

warrant a prudent man in believing that the suspect

had committed or was committing an offense.” Id., at

111 (quotation, alteration omitted). But Gerstein also

a a.

makes very clear that “[bjecause of its limited

function and its nonadversary character, the probable

cause determination is not a ‘critical stage’ in the

prosecution that would require appointed counsel.”

Id., at 122. Exercising prosecutorial discretion is a

_ key function of a district or county prosecutor, and

the State cannot be committed to prosecuting by

a police officer’s decision to detain a suspect on

probable cause. And, since the probable-cause

determination does not reflect a commitment to

prosecute, it does not require the immediate

appointment of counsel. Jbid.; Kirby, 406 US.,

at 689.’

Second, the adverse positions of the State and the

suspect have not solidified at the point of an article

15.17 appearance following a. warrantless arrest.

Even if a prosecutor had considered whether to bring

charges prior to such an appearance, the precise

nature of the charges to be filed could well remain

unclear. See State v. Tucker, 137 N.J. 259, 290, 645

A.2d 111, 127 (1994) (noting that even after the filing

of a criminal complaint roughly half of all cases are

dismissed, downgraded, or diverted to pretrial

' intervention programs). Based on what the police

knew, Rothgery could have been charged, as he

eventually was, with the felony of unlawful

possession of a firearm by a felon, Tex. Penal Code

§46.04, but he might also have been charged with the

distinct misdemeanor of unlawful carrying of a

” State v. Luton, 83 Haw. 443, 449-450, 927 P.2d 844, 850-851

(1996) (“The prosecution does not initiate charges against a

defendant at a [Gerstein hearing], a non-adversarial proceeding

which serves only to determine if future incarceration is

warranted.”); id., at 450, n.17, 927 P.2d, at 851, n.17 (citing

cases from other jurisdictions reaching similar holdings).

weapon regardless of his criminal record, id. §46.02.

Because of the offense-specific nature of the Sixth

Amendment right to counsel, such uncertainty has

critical effects on the scope of the right itself,

as well as on the’ responsibilities of police and

prosecutors after the right attaches. See Cobb, 532

U.S., at 167-168. Indeed, had Rothgery been charged

with the alternative misdemeanor count instead, he

would have had no constitutional right to appointed

counsel, unless he was later sentenced to a term of

imprisonment after being convicted of that charge.

See Scott v. Illinois, 440 U.S. 367, 369 (1979). The

fact that no prosecutor had chosen from among the

potential charges in Rothgery’s case makes clear that

the government’s position toward him had not

solidified at the time of his initial article 15.17

appearance. "

Third, the article 15.17 appearance is not one at

which the arrestee “finds himself faced with the

prosecutorial forces of organized society.” Kirby, 406

U.S., at 689. As with every Texas arrestee,

Rothgery’s article 15.17 appearance was a primarily

administrative matter. He stood in front of a “little

glass window,” filled out forms, and listened to the

magistrate give him various warnings required by

Miranda and Texas law.’ SJ Opp. Ex. 3 at 64. No

prosecutorial forces of any sort were arrayed against

him at the little glass window when he stood before

the magistrate. Pet. App. at 6. And more generally,

consistent with Gerstein, the article 15.17 appearance

* The magistrate also reviewed the affidavit submitted by the

arresting officer and concluded that it was sufficient to establish

probable cause, although it is not clear whether he did so

immediately before or while Rothgery appeared before him.

Tex. Code Crim. Proc. art. 15.17; SJ Ex. A.

is nonadversarial, includes no examination or cross-

examination of witnesses, and risks no prejudice to

any rights of the suspect affecting a fair trial. These

same “critical factors” led the Court in Gerstein to

distinguish probable-cause hearings from the

preliminary hearings described in Coleman vv.

Alabama, and conclude that no right to counsel

attached to them. See Gerstein, 420 U.S., at 122-123.

Finally, an article 15.17 magistration does not

immerse the accused in “the intricacies of substantive

and procedural criminal law,” Kirby, 406 U.S., at

689, or subject him to “a trial-like adversary

confrontation” to which the right to counsel ought be

extended, Ash, 413 U.S., at 317. Rothgery, like other

suspects given warnings under article 15.17, merely

received a summary of his procedural rights,

including his Miranda rights to counsel and to

remain silent, his right to request the appointment of

counsel, and his right to challenge the probable cause

to charge him at an examining trial.° See Tex. Code

Crim. Proc. art 15.17(a) (prescribing warnings to be

addressed to the arrestee); SJ Ex. B. Rothgery was

not, and no other suspect at an article 15.17

magistration is, placed into a position in which his

lack of legal knowledge could have any prejudicial

effect on his right to a fair trial, should he eventually

be formally charged.

* The examining trial is the procedure under Texas law by

which an accused may choose to challenge the existence of

probable cause to charge him with a crime. Tex. Code Crim.

Proc. art. 16.01. It is an adversarial preliminary hearing at

which witnesses may be examined and cross-examined, with the

same rules of evidence as apply at trial, in the presence of the

accused. Jd. arts. 16.06-16.08. The accused’s right to counsel at

an examining trial is guaranteed both statutorily, id. art. 16.01,

and constitutionally, see Coleman, 399 U.S., at 9-10.

When this Court has extended the right to counsel,

it has been after “a pragmatic assessment of the

usefulness of counsel to the accused at the particular

proceeding, and the dangers to the accused of

proceeding without counsel.” Patterson, 487 U.S., at

298. The four practical criteria noted by Kirby guide

this assessment, and the fact that they clearly do not

apply dictates that an article 15.17 appearance

following warrantless arrest is not one of those

pretrial proceedings that mark the initiation of

adversary judicial proceedings.

In contrast, adversarial preindictment proceedings,

like the preliminary hearing considered in Coleman,

are an example of the type of proceedings that satisfy

Kirby’s analysis for determining when adversary

judicial proceedings have begun. 399 US., at

9-10. The clear differences between the proceedings

governed by Coleman and the article 15.17

appearance confirm that the article 15.17 appearance

is not an event from which “counsel’s absence might

derogate from the accused’s gt to a fair trial.”

Wade, 388 U.S., at 226.

Coleman provided four reasons why an adversarial

preliminary hearing, at which the State’s evidence

is evaluated for sufficiency to indict or otherwise

formally file charges, is sufficient to initiate

adversary judicial proceeding:

(1) “the lawyer’s skilled examination and cross-

examination of witnesses may expose fatal

weaknesses in the State’s case that may lead the

magistrate to refuse to bind the accused over’;

(2) “the skilled interrogation of witnesses by

an experienced lawyer can fashion a vital

impeachment tool for use in cross-examination of

the State’s witnesses at the trial, or preserve

testimony favorable to the accused of a witness

who does not appear at the trial”;

(3) “trained counsel can more effectively discover .

the case the State has against his client and >

make possible the preparation of a proper

defense to meet that case at the trial”; and

(4) “counsel can also be influential at the

preliminary hearing in making effective argu-

ments for the accused on such matters as the

necessity for an early psychiatric examination or

bail.” 399 U.S., at 9.

The article 15.17 appearance allows nv pre-

sentation of witness testimony and provides no

opportunity to expose weaknesses in_ the

government’s evidence, create a basis for later

impeachment, or even engage in basic discovery.

Because “the prosecution is not required to produce

witnesses for cross-examination” at the Gerstein

probable-cause determination that accompanies

magistration following a warrantless arrest, the

considerations in Coleman that motivated recognition

of the right to counsel at adversarial preliminary

hearings do not apply at the article 15.17 appearance.

Gerstein, 420 U.S., at 123." Moreover, magistration

“is addressed only to pretrial custody,” and so “does

not present the high probability of substantial harm”

to the right to fair trial presented by a Coleman

preliminary hearing, at which a finding of no

probable cause “could mean that [a suspect] would

not be tried at all.” Jbid.

'© In Texas, the proceeding analogous to a preliminary

hearing subject to Coleman is an examining trial, not the article

15.17 magistration.

Of the four bases identified in Coleman as

justifying extension of the right to counsel, only one,

counsel’s ability to influence the decision to grant

bail, is applicable to article 15.17 appearances. And

because that rationale implicates the suspect’s liberty

interest, rather than his right to a fair trial, it is

insufficient to justify the blanket extension of the

right to counsel to the article 15.17 appearance.

Indeed, to extend the right on that basis would

require the extension of the right to counsel to all

bail hearings. That would contradict the Court’s

suggestion that combining a bail hearing with a

probable-cause hearing does not require appointment |

of counsel. Gerstein, 420 U.S., at 123-124; see United

States v. Hooker, 418 F.Supp. 476, 479 (MD Pa.

1976), affd mem., 547 F.2d 1165 (CA3); Fenner v.

State, 381 Md. 1, 20, 846 A.2d 1020, 1031 (2004);

Padgett v. State, 590 P.2d 432, 436 (Alaska 1979);

Colbert, Thirty-Five Years After Gideon: The Illusory

Right to Counsel at Bail Proceedings, 1998 U. Ill. L.

Rev. 1, 3. “(T]he fact that the outcome of a proceeding

may result in loss of liberty does not by itself, even in

civilian life, mean that the Sixth Amendment’s

guarantee of counsel is applicable.”" Middendorf v.

Henry, 425 U.S. 25, 35 (1976).

Rothgery’s practical arguments against the proper

application of Kirby’s pragmatic assessment are no

more convincing than his doctrinal ones. Rothgery

attacks a standard founded on commitment to

" This conclusion is not altered by the fact that Rothgery had,

and waived, a Texas statutory right to consult with counsel

before his bail was set. See Tex. Code Crim. Proc. art 15.17(a).

The existence of that statutory right does not indicate that the

Sixth Amendment right to counsel had attached at the time of

magistration.

prosecution as inherently unworkable, arguing that

any such test would necessarily devolve into an

“intrusive inquiry into prosecutors’ deliberations and

communications.” Pet’r Br. at 38. But the properly

formulated test is not, as in Rothgery’s caricature,

merely whether prosecutors have had any

involvement in the case whatsoever, but instead

whether the State has objectively committed itself to

prosecute. Kirby, 406 U.S., at 689. Prosecutorial

involvement is merely one form of evidence of such

commitment. And Kirby provides other objective and

easily employed benchmarks for gauging the State’s

commitment to prosecute: the filing of formal

charges, whether by information, indictment, or

formal complaint, or the holding of an adversarial

preliminary hearing to determine probable cause to

file such charges. Ibid. “The return of an indictment,

or like instrument, substantially alters the

relationship between the state and the accused. Only

after a formal accusation has ‘the government

...committed itself to prosecute, and only then

[have] the adverse positions of government and

defendant .. . solidified.” Patterson, 487 U.S., at 306

(Stevens, J., dissenting) (quoting Kirby, 406 U:S., at

689; alterations in original). In the mine-run of

criminal cases, these gauges are all that is necessary

to accurately indicate when adversary judicial

proceedings have begun and the right to counsel

attaches.

In any event, Rothgery’s misguided pragmatic

concerns are not implicated in this case. There

clearly was no commitment to prosecute in

Rothgery’s case, as evidenced not only by the absence

of formal charges but also by the prosecutor’s lack of

involvement in the preparation and filing of the

affidavit of probable cause against Rothgery. Pet.

App. at 12 (“Without any evidence to indicate that

the [probable cause] affidavit actually served to

initiate the prosecution at the time of Rothgery’s

magistrate appearance, we conclude that the filing of

the affidavit was part of the investigatory process,

serving solely to validate the arrest without

committing the state to prosecute.”). Regardless of

what some future case might require, the Fifth-

Circuit on these facts properly applied the Kirby test

of governmental commitment to prosecution, and by

that application correctly determined that Rothgery’s

right to counsel did not attach at or immediately

following his article 15.17 magistration.

. Whether considered as establishing a set of formal

criteria, or a series of functional guideposts,” Kirby

provides the fundamental framework for determining

when a particular procedural step initiates adversary

judicial proceedings”; and the analysis makes clear

that the article 15.17 appearance does not qualify.

Unless the arrest is made on an indictment or

information, the article 15.17 appearance occurs

before formal charges have been lodged, when the

government is not yet committed to prosecuting the

suspect and the arrestee is not confronted by the

prosecutorial forces of society. Thus, under Kirby, an

article 15.17 appearance following warrantless arrest

* Commentators have recognized that the Kirby analysis has

both a formal and a functional component. See Metzger, Beyond

the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97

Nw. L. Rev. 1635, 1689 (2003).

“ Kirby’s careful consideration starkly contrasts with Brewer

v. Williams and Michigan v. Jackson, which neither provide nor

apply an analytical framework for determining attachment. See

Part II.C infra.

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does not trigger the attachment of the Sixth

Amendment right to counsel.

C. Neither Brewer v. Williams nor Michigan

v. Jackson Requires That the Right

to Counsel Attach at an Article 15.17

Appearance Following Warrantless

Arrest.

Against the great majority of this Court’s Sixth

Amendment cases, Rothgery suggests that the

initiation of adversarial judicial proceedings is not

defined by the government’s commitment to

prosecute because his magistration “was identical in

every meaningful way to the initial ‘arraignments” in

Brewer v. Williams and Michigan v. Jackson. Pet’r

Br. at 11. But the opinions in those cases do not

establish that the hearings described in Brewer’s

dicta and Jackson’s one footnote addressing the

attachment of the right to counsel are identical to

Rothgery’s magistration. Moreover, neither of those

cases analyzed the nature of the “arraignments” with

respect to the issue of attachment.

In Brewer v. Williams, the issue of whether the

defendant’s right to counsel had attached was neither

raised by the parties before the Court nor disputed in

the courts below. 430 U.S. 387, 399 (1977); see also

Williams v. Brewer, 375 F.Supp. 170, 176 (SD Iowa

1974); Brief for Petitioner, No. 74-1263, 1976 WL

181163, at *3 (Feb. 12, 1976); cf. Cobb, 532 U.S., at

169 (saying, of Brewer, that “[clonstitutional rights

are not defined by inferences from opinions which did

not address the question at issue”). For that reason,

Brewer’s factual statement is vague as to what

occurred at the defendant’s arraignment. And that

means, in turn, that the question was not settled by

the Brewer opinion. Cf. Adams v. Robertson, 520 U.S.

83, 90-91 (1997) (per curiam) (“Requiring parties to

raise issues below noi only avoids unnecessary

adjudication in this Court by allowing state courts to

resolve issues on state-law grounds, but also assists

us in our deliberations by promoting the creation of

an adequate factual and legal record.”); Metro.

Stevedore Co. v. Rambo, 521 U.S. 121, 136 (1997)

(“[T]hat is an issue not addressed by the parties, and

it would be imprudent of us to address it now with

any pretense of settling it for all time.”).

From what we do know, however, it appears that

the arraignment in Brewer differed from Rothgery’s

magistration. In Brewer, the defendant turned

himself in to the police after an arrest warrant had

issued charging him with child abduction. 430 U.S.,

at 390. The defendant was “arraigned” the same day

he turned himself in. Jd., at 391; 375 F.Supp., at 172.

Rothgery assumes that because “Williams had not

yet been indicted and was not asked to enter a plea

when he made his initial appearance before the

court” and because he was “arraigned on a warrant”

that this means the hearing was equivalent to

Rothgery’s magistration. Pet’ Br. at 21, n.8. But

under Iowa law an arraignment can occur only after

an indictment has been issued or a county attorney

has filed an information. Wright v. Denato, 178

N.W.2d 339, 341 (Iowa 1970) (“Arraignmcat is a

procedural right accorded defendants only after

indictment (or the filing of a county attorney’s

information).”). Because Williams was “arraigned,”

the Court would likely have concluded or at least

assumed that the prosecutor must have at least filed

an information charging the defendant with child

abduction. Although it is true that Williams had not

yet been indicted for first-degree murder (for which

he was later convicted), Brewer, 430 U.S., at 393,

neither the parties’ briefs nor the courts’ opinions

reflect that the arrest warrant on which he was

arraigned was not supported by a county attorney’s

information on the child-abduction charge for which

he was originally arrested.

There is no basis in Brewer for Rothgery’s

assumption that Williams was not asked to enter a

plea. The courts’ opinions in Brewer do not state one

way or the other whether he entered a plea, but they

make clear that he was notified of the charge against

him. 430 U.S., at 391; 375 F.Supp., at 172. That

no other factual detail is provided is unsurprising

given that the attachment issue was neither raised

nor disputed by the parties. 430 U.S., at 399; 375

F.Supp., at 176.

The important point is that the uncertainty about

what happened at the Brewer arraignment shows

that its discussion of the attachment question is of

limited, if any, precedential value. See Cent. Va.

Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (stating

that the Court is “not bound to follow our dicta in

a prior case in which the point now at issue was

not fully debated”). Indeed, setting aside the

requirements of Iowa criminal procedure, it is

impossible to tell if the Brewer arraignment is more

comparable to Rothgery’s magistration or to the

arraignment held to trigger the Sixth Amendment

right to counsel in Hamilton v. Alabama, 368 U.S. 52

(1961)."* Brewer’s lack of clarity on this point is

underscored by the fact that less than a year after

‘“ At the arraignment in Hamilton the defendant was

required to raise certain defenses at the hearing or otherwise

waive them. 368 U‘S., at 53.

Brewer was decided, the Court did not even cite

Brewer when analyzing whether adversary judicial

proceedings had been initiated for Sixth Amendment

purposes in Moore v. Illinois; 434 U.S. 220, 228

(1977). If Brewer were as clear as Rothgery assumes,

Moore simply could have cited Brewer and easily

concluded the hearing in Moore caused the right to

counsel to attach. Moore, however, did not even

mention Brewer. Grano, Rhode Island v. Innis: A

Need to Reconsider the Constitutional Premises

Underlying the Law of Confessions, 17 Am. Crim. L.

Rev. 1, 29, n.172 (1979).

Equally misplaced is Rothgery’s reliance on a

single footnote in Michigan v. Jackson. 475 USS.

625, 629, n.3 (1986). First, the primary question

considered was whether the no-waiver rule of

Edwards v. Arizona, 451 U.S. 477 (1981), applies in

the Sixth Amendment context to “a defendant who

has been formally charged with a crime.” Jackson,

475 U.S., at 626 (emphasis added). In Jackson, there

was an arraignment that preceded the events at

issue. There is no Texas arraignment procedure in

the normal chronology leading to an article 15.17

appearance following a warrantless arrest, nor was

there one in Rothgery’s specific case. See Tex. Code

Crim Proc. art. 26.01 (defining arraignment under

Texas law as a postindictment procedure).

The hearing that Jackson said initiated adversarial

judicial proceedings differed in two critical respects

from Rothgery’s magistration. First, it gave the

defendant the right to answer the charges—under

Michigan law, the defendant in Jackson had to “be

given an opportunity publicly to make any statement

and answer any questions regarding the charge that

he may desire to answer.” Mich. Comp. Laws §764.26

(quoted in People v. Mallory, 421 Mich. 229, 238-239,

365 N.W.2d 673, 677 (1984)). Article 15.17, on the

other hand, does not provide any similar opportunity

to speak or answer questions regarding the charge.

Second, at the hearing in Jackson, the court entered

a plea of not guilty on behalf of the defendant. Brief

for Petitioner, No. 84-1539, 1985 WL 669876, at *3-*4

(July 12, 1985). No plea was entered (or even

allowed) at Rothgery’s appearance.

D. Rothgery’s Waiver of Counsel at the

Preindictment Article 15.17 Appearance

Eliminated Any Right to Appointment

Until a Subsequent Critical Stage.

Rothgery’s knowing and intelligent waiver of the

right to counsel obviated the need for appointment

of counsel at the Article 15.17 appearance. And,

because no proceedings or interrogations occurred

between the preindictment and _ postindictment

article 15.17 appearances, no intervening event

required appointment to protect Rothgery’s right to a

fair trial. Thus, the County had no constitutional

obligation to appoint counsel for Rothgery before it

did so.”

* Rothgery attempts to frame the question presented to this

Court solely in terms of attachment, without reference to

appointment. But Rothgery’s constitutional claim is not that

the County prevented his right to counsel from attaching, but

that it violated his Sixth Amendment right by not appointing

him counsel. Compl. at 8-9. And this Court’s prior cases

uniformly have addressed whether the right was violated by

deciding whether it was necessary to appoint counsel in the

context of specific proceedings and events, not by deciding

abstract questions about attachment. Indeed, Rothgery’s own

argument relies substantially on emotional arguments about

the timing of appointment, as do his amici. E.g., Pet’r Br. at 37,

Kirby and its progeny make clear that the right to

counsel requires appointment of counsel only at

critical stages of criminal proceedings: the filing of a

formal charge, the occurrence of an adversarial

preliminary hearing or arraignment, or an

interrogation or lineup that follows the government’s

demonstration of its commitment to prosecute. See

Kirby, 406 U.S., at 689; Gouveia, 467 U.S., at 188-

189; Jackson, 475 U.S., at 629-630. The critical-stage

analysis considers whether “counsel is necessary to

preserve the defendant’s basic right to a fair trial,”

focusing on events that can prejudice the fair-trial

right. Wade, 388 U.S., at 227. Counsel must first be

appointed before she can be present at a critical

stage, to allow time to prepare to meet her

prosecutorial adversary. E.g., Avery, 308 US., at

446. But the Court has never held, as Rothgery

40, 43 (arguing that Rothgery and others like him would be

disadvantaged without the assistance of counsel); see also Brief

of Amicus Curiae Twenty-Four Professors of Law at 4; Brief of

Amicus Curiae NACDL at 24-25; Brief of Amicus Curiae

Brennan Center for Justice, et al. at 25 (all discussing the issue

in terms of right to a lawyer); Pet. App. at 12 (Fifth Circuit

recognizing connection between attachment and appointment).

Thus, the question whether appointment is required imme-

diately upon attachment is not only “fairly included in the

question presented,” the questions are so intertwined that the

issue is “essential to the correct disposition of the other issues

in the case.” Missouri v. Jenkins, 515 U.S. 70, 84-85 (1995)

(quotation omitted).

* The statement in Jackson on which Rothgery so heavily

relies is not to the contrary. See 475 U.S., at 629, n.3. In

context, Jackson’s assertion is simply a recognition that the

Court was not considering and did not rely on the question

whether arraignment under Michigan law constituted a critical

stage at which the accused had a right to the presence of

counsel. bid.

presupposes, that, even with no critical stage

impending, there is a bright-line rule requiring that

counsel be appointed at the moment that the right

has attached.

When an accused waives the right to counsel at a

given event, as Rothgery did at the article 15.17

appearance, that waiver eliminates any obligation to

appoint counsel, because by that waiver the suspect

accepts the risk of whatever prejudice to his fair-trial

right may inhere at that stage. This means, in turn,

that appointment is not constitutionally required

until the next point at which the accused risks

“potential substantial prejudice” to the “basic right to

a fair trial.” Wade, 388 U.S., at 227. The Court has

rightly refused to find that an accused has any right

_ to appointment of counsel in the absence of any of the

concerns that motivate the right to counsel,

particularly in light of the substantial burden doing

so would impose on pending investigations by the

police. See Gouveia, 467 U.S., at 191 (refusing to

adopt a “novel interpretation of the right to counsel”

to “provide a defendant with a preindictment private

investigator”); Cobb, 532 U.S., at 171-172 (noting

that “the Constitution does not negate society’s

interest in the ability of police to talk to witnesses

and suspects”). The period between Rothgery’s first

and second article 15.17 appearances was just such a

time—none of those concerns were present, because

there was no intervening event posing any “potential

substantial prejudice” to Rothgery’s right to a fair

trial until the indictment, which was followed by the

County’s timely appointment of counsel to sageesem

Rothgery.”

Rothgery claims that despite his waiver, his

preindictment article 15.17 appearance entitled him

to precisely that “preindictment private investigator”

that Gouveia said he should not get. 467 U.S., at 191.

He claims, despite his own waiver, that he had the

right to have counsel appointed at a time when

nothing was going on. Yet he offers no coherent

explanation how, if appointment of counsel was

not required at the appearance (either because of

his waiver or the appearance’s nonadversarial

character), it was nonetheless required after the

hearing, when none of the risks and concerns which

motivate the right to counsel were present. See Pet’r

Br. at 19-20, n.6 (“The question presented by this

case... [is] whether Rothgery’s initial appearance

before the magistrate marked the commencement of

adversary judicial proceedings, after which his right

to counsel attached.” (emphasis added)).

The Court has never held that the proceedings at a

particular pretrial event can trigger appointment of

counsel without the hearing itself being a critical

stage. See, e.g., Coleman, 399 U.S., at 9-10 (holding

that potential prejudice to fair-trial right requires

counsel at preliminary hearing); Hamilton, 368

U.S., at 54 (same at arraignment). Yet Rothgery

is in essence asking the Court to hold that the

article 15.17 appearance is a critical stage causing

attachment of the right to counsel despite his

" Rothgery essentially seeks to have this period of inactivity

treated as a critical stage. See Pet’r Br. at 19, n.6. But the

complete absence of any proceedings could not be a critical stage

without robbing that phrase of all meaning.

)

;

strenuous denial (presumably because of the blunt

fact of his waiver) that the question of attachment at

- the article 15.17 appearance itself is before the Court.

In short, the fact of Rothgery’s waiver makes this the

wrong case in which to decide, as Rothgery seeks,

whether an article 15.17 appearance always requires

appointing counsel.

Even taken on its own terms, Rothgery’s argument

necessarily recognizes some gap between the

initiation of adversary judicial proceedings, which he

claims occurred at the preindictment article 15.17

appearance, and the proper time for appointing

counsel. But he offers no justification for his

unstated and critical assumption that the time

between these two events must be vanishingly small.

And that assumption is at odds with the Court’s

“more pragmatic approach” to Sixth Amendment

jurisprudence. Patterson, 487 U.S., at 298. Instead,

when adversary proceedings begin at an event at

which the accused expressly waives counsel, the gap

between attachment and appointment naturally lasts

until the next critical stage, when the risk for

prejudice to the fair-trial right next arises. Put

another way, whether Rothgery had a right to

demand immediate appointment of counsel after the

article 15.17 appearance depends on “whether

potential substantial prejudice to [Rothgery’s] rights

inhere[d]” at that point, and whether the availability

of counsel could help to avoid that prejudice. Wade,

388 U.S., at 227.

No potential prejudice, let alone substantial

prejudice, to Rothgery’s right to a fair trial, inhered

_ in the gap between his preindictment and

postindictment article 15.17 appearances. His lack of

counsel had no impact on “his right meaningfully to

j 7

{

cross-examine the witnesses against him [or] to have

effective assistance of counsel at the trial itself.”

Wade, 388 U.S., at 227. There is therefore no basis to

arbitrarily determine that appointment was required

the instant the article 15.17 appearance concluded.

Instead, the Court’s right-to-counsel analysis dictates

that counsel need not be appointed until the next

critical stage at which Rothgery’s right to a fair trial

might be put at risk. See ibid.

The Texas legislature, moreover, carefully mirrored

the Court’s analysis in crafting Texas’s appointment

statute. See Tex. Code Crim. Proc. art. 1.051. For

indigent defendants not released on bail, the statute

requires appointment even prior to initiation of

adversary judicial proceedings. Jd. art. 1.051(i). For

those indigents released from custody, however, the

statute does not require appointment of counsel until

the first court appearance, or the initiation of

adversary judicial proceedings (whichever comes

first). Id. art. 1.051(j). Rothgery’s claim that counsel

must be appointed at magistration nullifies article

1.051(j), because under Rothgery’s theory every time

an arrestee is magistrated and admitted to bail,

adversary judicial proceedings are initiated.

Rothgery waived any Sixth Amendment right

to counsel he may have had at the preindictment

article 15.17 appearance, and appointment was

appropriate at the second, postindictment article

15.17 appearance. The delay in appointing

counsel therefore did not violate Rothgery’s Sixth

Amendment right to counsel.

This conclusion is not altered by Rothgery’s claim

that Michigan v. Jackson requires appointment to

follow attachment irrespective of whether any critical

stage has or is soon to occur. Rothgery points to an

equivocal footnote in Jackson, in which the Court

wrote, while holding that the right to counsel

attaches at arraignment, that “(t]he question

whether arraignment signals the initiation of

adversary judicial proceedings . . . is distinct from the

question whether the arraignment itself is a critical

stage requiring the presence of counsel, absent a

valid waiver.” Jackson, 475 U.S., at 629, n.3. But

this statement says nothing about whether

attachment requires immediate appointment. And in

fact Jackson rejects any notion that appointment

should be detached from critical stages.

The question in Jackson was whether counsel was

required at an interrogation after an arraignment,

when the accused had asserted the right. ZId., at

636. The defendants did not argue that counsel

should have been appointed for the period between

arraignment and interrogation. Instead, Jackson

adopts the view that post-arraignment interrogation

itself constituted a “critical stage” that activated the

right to counsel that had been dormant since it

attached at the arraignment. ZI/d., at 629-630. The

Court subsequently confirmed this understanding

that a defendant’s Sixth Amendment right can attach

without counsel actually being appointed, so long as

no critical stage occurs: “The fact that petitioner’s

Sixth Amendment right came into existence with his

indictment, i.e., that he had such a right at the time

of his questioning, does not distinguish him from the

preindictment interrogatee whose right to counsel is

in existence and available for his exercise while he is

questioned.” Patterson, 487 U.S., at 290-291.

The latent nature of the right to counsel between

the initiation of adversary judicial proceedings and

the first critical stage of those proceedings finds

support in common practices in the American

criminal justice system that have never been

seriously questioned. On Rothgery’s logic, for

instance, appointment of counsel would automatically

occur upon indictment, when attachment of the right

to counsel is abundantly clear. But there is no doubt

that there is no responsibility to appoint counsel to

an indicted fugitive even though the right to counsel

has clearly attached, and it is no violation of his

constitutional rights to delay appointment until after

his apprehension. Similarly, while the right to

counsel attaches upon return of a sealed indictment,

appointment of counsel is not required until the

indictment is unsealed unless a critical stage, such as _.

interrogation, intervenes. See United States v.

Arnold, 106 F.3d 37, 41 (CA3 1997), overruled on

other grounds by Cobb, 532 U.S., at 168.

The Sixth Amendment right to appointment of

counsel is triggered only by a critical stage of

proceedings (including interrogation) following the

initiation of adverse judicial proceedings. No critical

stage (not even an attempted interrogation)

intervened during the period between Rothgery’s

preindictment magistration and the return of the

indictment against him. Thus, even if the right could

be said, in a hypertechnical sense, to have “attached”

at or after the article 15.17 appearance, nothing

happened at or after that hearing that required the

appointment of counsel until Rothgery was actually

indicted—at which point counsel was timely

appointed.

Ill. ROTHGERY’S PROPOSED EXTENSION OF THE

SIXTH AMENDMENT RIGHT TO COUNSEL Is

UNWARRANTED, UNWORKABLE, AND UNWISE.

The rule proposed by Rothgery, that the Sixth

Amendment right to counsel attaches whenever “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 answers that accusation,” Pet’r Br. at

20, would have far-reaching negative consequences

both for legal doctrine and in real-world practice. It

would unnecessarily disrupt this Court's well-

considered and well-understood framework defining

the right to counsel, in order to safeguard an already-

protected liberty interest not traditionally part of

Sixth Amendment analysis. It would invite vexatious

litigation, including interlocutory appeals, habeas

corpus claims, and §1983 suits under circumstances

in which no quantifiable injury has occurred. And it

would impose significant, unnecessary costs on

governmental entities forced to pay for defense

lawyers even in the absence of criminal proceedings

against a suspect.

A. Rothgery’s Proposed Rule Would

Conflict with This Court’s Sixth

Amendment Precedents.

The Fifth Circuit’s determination that Rothgery’s

right to counsel did not attach at his preindictment

article 15.17 appearance is entirely congruent with

relevant Sixth Amendment precedents. See Part II

supra. Rothgery’s arguments, in contrast, directly

contradict several longstanding precedents inter-

preting the States’ obligations under the Sixth

Amendment.

In particular, because Rothgery’s proposed rule

would extend the right to counsel to any probable-

cause hearing before a magistrate, it directly

contradicts Gerstein’s indication that counsel] need

not be appointed at a nonadversarial probable-cause

hearing. See 420 U.S., at 122-124. Rothgery’s

proposed rule would also essentially overrule Kirby v.

Illinois. Kirby’s core holding was that there is no

right to counsel at investigatory lineups conducted

prior to the initiation of adversary judicial

proceedings. 406 U.S., at 690. But the standard

nationwide practice is to bring arrestees before a

magistrate within 24 to 48 hours of arrest. 4 W.

LaFave et al., Criminal Procedure §14.2(a), n.5

(2d ed. 1999). Thus, if Rothgery’s rule were to

be adopted, counsel would be required for any

investigatory lineups after a magistration—that is,

routinely.

Rothgery’s position also clashes with Scott v.

Illinois. Under Scott, “the Federal Constitution does

not require a state trial court to appoint counsel” in a

“case where a defendant is charged with a statutory

offense for which imprisonment upon conviction is

authorized but not actually imposed.” 440 U.S., at

369. But Rothgery’s proposed blanket rule is that the

right to counsel attaches at the point of an initial

appearance regardless of whether the defendant has

been charged with a felony, and is violated by a

failure to appoint counsel at that point regardless

of whether imprisonment is ultimately imposed.

Indeed, in Rothgery’s case, the State, through the

prosecutor, had the discretion to decide to charge him

with the misdemeanor of unlawful possession of a

firearm and not seek jail time. Tex. Penal Code

$46.02; id. §12.21 (allowing imposition of a fine only).

Rothgery’s rule would cramp that discretion, and

contradict Scott, by forcing the State to appoint a

lawyer before it had even decided either to prosecute

him for a felony or seek jail time.

Similarly, Rothgery’s rule would also breathe new

life into the Sixth Amendment reading of Escobedo,

378 U.S., at 485-486, which extended the right to

counsel to preindictment interrogations, even though

that understanding of Escobedo was subsequently

repudiated by Johnson v. New Jersey, see Moran, 475

U.S., at 429. In doing so, moreover, Rothgery’s rule

would also functionally adopt Miranda’s repudiated

holding that “custodial interrogation [marks] the true

beginning of adversarial proceedings.” Gouveia, 467

US., at 194 (Stevens, J., concurring in the judgment);

Moran, 475 US., at 429-430 (“[S]ubsequent decisions

foreclose any reliance on Escobedo and Miranda for

the proposition that the Sixth Amendment right, in

any of its manifestations, applies prior to the

initiation of adversary judicial proceedings.”).

B. The Liberty Interest Rothgery Seeks to

Vindicate Is Properly and Adequately

Protected by Other Constitutional and

Statutory Rights.

Worse still, these disruptions of well-settled

precedent are unnecessary, because the interests

Rothgery seeks to protect are already adequately

protected by other rights. At its core, Rothgery’s

claim appeals to the notion that he should not have

had to wait the intervening five months while out on

bail to be appointed a lawyer, but instead should

have had a lawyer appointed to begin investigating

the background facts underlying the possible charges

against him.” As explained, that is not an interest

the Sixth Amendment right to counsel protects.

Rothgery also leans heavily on the concern that

“fujnder [the Fifth Circuit’s) rule, an indigent

defendant who is innocent of the charges against him

could nevertheless sit in jail for months awaiting

indictment ‘because he does not know how to

establish his innocence.” Pet’r Br. at 42. That is,

Rothgery urges the Court to look beyond the

circumstances of his own case and extend the right to

counsel to protect a general liberty interest against

preindictment confinement. But other protections

already combine to prevent that harm of which

Rothgery warns.

First, the Fourth Amendment protects against

“unreasonable searches and seizures.” U.S. Const.,

Amdt. 4. This Court specifically approved in Gerstein

the situation in which “a person [is] arrested and

held for trial” upon a showing of probable cause, even

when such detention amounted to an “extended

restraint of liberty following arrest.” 420 U.S., at

111, 114 (emphasis added). _And it is beyond dispute

that “the Government has a substantial interest in

* In particular, Rothgery invites the Court to consider a

secondhand anecdote claiming that a person spent 27 days in

jail before counsel was appointed. Pet’r Br. at 42 (describing a

“story told” to the authoring committee). This purported event

occurred before the enactment of the Texas Fair Defense Act of

2001, which requires the appointment of counsel to indigents

held in jail. Tex. Code Crim. Proc. art. 1.051(i). And the

concern Rothgery raises about people languishing in jail without

lawyers is inapposite to this case, as Rothgery was free on

bail during the period he claims that the County was

constitutionally required to appoint him a lawyer.

* The existence of probable cause to detain Rothgery at the

time of his initial arrest is uncontroverted.

he da at. wx MEAs. ~

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, 2

nsuring that persons accused of crimes are available

ior trials ... or that confinement of such persons

pending trial is a legitimate means of furthering that

interest.” Bell v. Wolfish, 441 U.S. 520, 534 (1979).

Adapting the Sixth Amendment right to counsel

to protect a suspect’s liberty interest in these

circumstances would thus extend the Sixth

Amendment right to counsel even beyond the bounds

of the Fourth Amendment.

Next, the Sixth Amendment separately ensures the

right to a speedy trial. .That guarantee provides

another important defense for a suspect’s liberty,

acting “to prevent undue and oppressive incar-

ceration prior to trial” and “to minimize anxiety

and concern accompanying public accusation.”

United States v. Marion, 404 U.S. 307, 320 (1971).

The degree of overlap between these stated goals

and the harms alleged by Rothgery is noteworthy,

because in essence Rothgery is attempting to assert a

speedy trial claim that would normally be barred.

See Doggett v. United States, 505 U.S. 647, 652,

n.1 (1992) (noting that postaccusation delay is not

generally considered presumptively prejudicial less

than a year after triggering the right to a speedy

trial). But, again, “the speedy trial right and the

right to counsel protect different interests. While

the right to counsel exists to protect the accused

during trial-type confrontations with the prosecutor,

the speedy trial right exists primarily to protect

an individual’s liberty interest,” like the interest

Rothgery asserts here. Gouveia, 467 U.S., at 190.

Rothgery’s argument implicitly reconceptualizes the

purpose of the Sixth Amendment right to counsel, so

that it no longer focuses on protecting the right to a

fair trial, but on protecting the liberty interests of

the accused—which already fall within the ambit of

the right to a speedy trial. That “fundamentally

misconceive[s] the nature of the right to counsel

guarantee.” Id., at 189.

Moreover, state statutes of limitations, in addition

to federal constitutional rights, safeguard against

unreasonable delay in prosecuting criminal cases.

“(T]he applicable statute of limitations... is... the

primary guarantee against bringing overly stale

criminal charges,” and such statutes likewise

guarantee an upper limit on the possible duration of

any preindictment detention. Marion, 404 US., at

322 (quoting United States v. Ewell, 383 U.S. 116,

122 (1966)). More directly applicable are state-law

speedy trial guarantees, such as Article 32.01 of the

Texas Code of Criminal Procedure, which requires

dismissal of charges and discharge from custody or

bail if formal charges are not filed within 180 days or

the end of the first term of court after arrest

(whichever is later).

Finally, state statutes also specifically secure the

right to counsel to persons held in custody. See Brief

of Amicus Curiae NACDL at la-7a. Under Texas

law, the magistrate will inform an arrestee of his

right to counsel and, if counsel is requested, will

appoint counsel before the bail-setting portion of the

magistration is conducted: Tex. Code Crim. Proc.

art. 15.17(a). Further, the Texas Fair Defense Act

provides that an indigent person in a rural county is

entitled to have counsel appointed within three

working days after counsel is requested. Jd. art.

1.051(i).” If an arrestee chooses not to postpone the

setting of bail to await the appointment of counsel,

* In counties with more than 250,000 people, counsel must be

appointed within one working day of the request. Jd. art.

1.05 1(i).

;

the arrestee may (as Rothgery did) waive his

- Statutory right to counsel at the magistration without

prejudicing his later right to request the appointment

of counsel at subsequent judicial proceedings. Id. art.

1.051(h).” .

In short, several protections combine to fend off

Rothgery’s specter of innocent indigents languishing

in Texas county jails for lack of appointed counsel.

“(Pretrial delay is often both inevitable and wholly

justifiable,” Doggett, 505 U.S., at 656, and the

existing procedural protections are sufficient (and

designed) to protect suspects from an unreasonable

detention, a delay in prosecution, or a combination of

the two. And, just as important, “the major evils”

against which these protections guard “exist quite

apart from [the] actual or possible prejudice to an

accused’s defense” which motivates the right to

counsel. Marion, 404 U.S., at 320. Because of the

adequacy of existing constitutional and statutory

protections, there is no need to deform the right to

counsel to serve a liberty interest it was not designed

to safeguard.

C. Rothgery’s Proposed Extension of the

Right to Counsel Would Open the Door

to Future Undesirable Extensions of

That Right.

Rothgery’s proposed alteration to the scope of the

right to counsel would open the door to further

* The purported differences between Texas’s procedures from

other states cannot justify constitutionalizing the majority

practice. See Estes v. Texas, 381 U.S. 532, 587 (1965) (Harlan,

J., concurring) (“Forbidding this innovation, however, would

doubtless impinge upon one of the valued attributes of our

federalism by preventing the States from pursuing a novel

course of procedural experimentation.”).

extensions even to the time of arrest. First, his logic

clearly would make the right applicable to a bail

hearing. It makes no sense to think that the right to

counsel must attach following a judge’s commitment

of a suspect to bail in order to protect that suspect’s

liberty interest, without also concluding — that

protecting that liberty interest likewise requires the

presence of counsel at the bail hearing.

Moreover, reconfiguring the Sixth Amendment

right to counsel as a protector of liberty interests,

rather than of the right to a fair trial, makes

Rothgery’s proposed extension a jumping-off point for

many new procedural rights and prophylactic rules

untethered from the text and purpose of the

Amendment itself. For example, Rothgery’s logic

could easily be extended past the bail hearing to the

point of arrest on a warrant. Rothgery’s theory is

that the right attaches when there is a judicial

determination of probable cause to believe a specific

offense has been committed, with communication of

that offense to the suspect, and the judicially

sanctioned imposition of restrictions on the suspect’s

liberty. Pet’r Br. at 20.” Rothgery here contends

that the probable-cause determination is important

only because it requires a magistrate to inform the

accused of the charge against him, but nothing in

Rothgery’s theory can distinguish that judicial

hearing in the defendant’s presence from an ex parte

judicial determination of probable cause preceding

* See also Brief of Amici Curiae Twenty-Four Professors of

Law at 21, n.5 (“It is the judicial determination of probable

cause which is constitutionally required for significant pretrial

restraints on liberty, that initiates adversary judicial

proceedings, and which therefore causes the right to counsel to

attach.”).

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was we fle ae

issuance of an arrest warrant. Such a warrant, after

all, must inform the arrestee of the offense he is

believed to have committed. See Tex. Code Crim.

Proc. art. 15.02(2). So Rothgery’s relevant conditions

exist at the moment a suspect is arrested on an |

arrest warrant that was issued by a judge. While

this is not the argument Rothgery makes now,

accepting his theory would guarantee that it soon

would be advanced, with no logical reason to reject it.

D. Rothgery’s Proposed Expansion of the

Right to Counsel Would Create

Significant Practical Problems for Law

Enforcement and Local Government.

Rothgery’s proposed expansion of the scope of

the right to counsel would create very significant

practical detriments for law enforcement and local

government. Moreover, those detriments would far

outweigh the benefits Rothgery contends would be

realized by a small number of criminal defendants.

First, extending the right to counsel to any

initial appearance before a magistrate will inspire

significant amounts of vexatious litigation. Denial-

of-counsel claims will proliferate on direct appeal,

raising thorny issues about whether the absence of

appointed counsel during a period of inactivity prior

to the filing of a case should be considered harmless

error. See, e.g., Coleman, 399 U.S., at 11. More

troubling, Rothgery’s proposed extension of the right

to counsel would invite the filing of federal habeas

corpus claims by any unindicted suspect in custody,

demanding a lawyer to prevent the filing of formal

charges. In particular, if misdemeanor charges are a

possibility, those claims conflict with Scott v. Illinois,

because no right to counsel arises vis-a-vis those

charges unless imprisonment is imposed. 440 US.,

at 369. Rothgery’s extension will also create the

prospect of numerous tendentious claims for damages

under §1983 from suspects like Rothgery, who

connect their lack of appointed counsel to unspecified

damages stemming from their detention, even though

they could point to no prejudice sufficient to provide

them with a right to relief under the Fourth

Amendment or the Sixth Amendment’s right to a

speedy trial. Until now, the Court has never

recognized any such §1983 claim for damages based

on an untimely appointment of counsel.

Adopting Rothgery’s theory will also work serious

practical harms on law-enforcement efforts to

investigate and prevent crimes. Any extension of

the right to counsel into new contexts undeniably

hampers police investigations. “In seeking evidence

pertaining to pending charges, . . . the Government’s

investigative powers are limited by the Sixth Amend-

ment rights of the accused.” Maine v. Moulton, 474

U.S. 159, 179-180 (1985). Every expansion of the

right to counsel eliminates additional scenarios under

-which police can question, record, speak with, or

even just overhear a suspect without inadvertently

violating his constitutional rights and jeopardizing a

future prosecution. E.g., Fellers v. United States, 540

U.S. 519, 524-525 (2004); Moulton, 474 U.S., at 176-

177 & 177, n.14.

In addition, providing counsel to every indigent

defendant at his initial appearance will multiply

administrative complexity. Magistration is often an

informal, bureaucratic step in processing arrestees,

as it was in Rothgery’s case. See SJ Opp. Ex. 3 at 62,

64 (“[W]hen they were taking my pictures and

everything, I turned around to a little glass window

and talked to a magistrate”; “I spoke to him through

the window, and that’s when I filled all the

paperwork out.”). The presence of counsel would add

little but inefficiency to such a process, even to the

extent of potentially forcing the prosecutor to be on

hand for all probable-cause determinations to argue

any challenges offered by appointed counsel, even

though such a determination is not constitutionally

required to be adversarial. See Gerstein, 420 U.S., at

| 119-120; see also Ash, 413 U.S., at 317 (rejecting

3 constructions of the right to counsel that “produce

confrontation at an event that was not previously

analogous to an adversary trial”).

Finally, an extension of the right to counsel would

. impose substantial costs on local governments

| responsible for appointing counsel. And the

additional costs of providing each indigent defendant

“with a preindictment private investigator,” Gouveia,

467 U.S., at 191, would be substantial. Incurring

these expenses to protect the handful of indigent

defendants who can conclusively prove their factual

or legal innocence before indictment from a pretrial

detention period fully justified under the Fourth

Amendment would be a short-sighted and inefficient

use of limited governmental resources. Such suspects

can properly invoke other constitutional and

statutory protections of their liberty; there is no basis

“to wrench the Sixth Amendment from its’ proper

context” of protecting defendants’ right to a fair trial.

Marion, 404 U.S., at 322.

Neither the practical nor the doctrinal con-

sequences of Rothgery’s proposed alteration of the

right to counsel can be justified by the concerns for

fairness and balance in the criminal justice system

that have traditionally driven Sixth Amendment

’

analysis. And the impact of this change would be

significant, broadly felt, and, on balance, damaging

both to governmental institutions charged with

enforcing the laws and society's interest in solving

and preventing crimes. Accordingly, this Court

should reject the extension Rothgery proposes,

and retain the line drawn by its well-considered

precedents.

CONCLUSION

For these reasons, the Court should affirm the

judgment of the Fifth Circuit.

3 Respectfully submitted, .

] ;

CHARLES S. FRIGERIO GREGORY S. COLEMAN .

LAW OFFICES OF Counsel of Record

CHARLES S. FRIGERIO EDWARD C. DAWSON i

| Riverview Towers Marc S. TABOLSKY .

111 Soledad RYAN P. BATES |

Suite 840 YETTER & WARDEN, LLP

San Antonio, Texas 78205 221 West Sixth Street

(210) 271-7877 Suite 750

Austin, Texas 78701 |

(512) 533-0150 4

Counsel for Respondent

Gillespie County, Texas

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