# Reply Brief — Rothgery v. Gillespie County

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0020%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2008
- **Citation:** 554 U.S. 191

## Text

| IN THE ;
Supreme Court of the United States

WALTER ALLEN ROTHGERY,

Petitioner,
v.

GILLESPIE County, TEXAS,

Respondent.

_ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
REPLY BRIEF FOR PETITIONER
ANDREA MARSH SETH P. WAXMAN
HARRY WILLIAMS [V Counsel of Record
TEXAS FAIR DEFENSE CRAIG GOLDBLATT
PROJECT DANIELLE SPINELLI
510 South Congress Ave. CATHERINE M.A. CARROLL
Suite 208 ROBERTO J.GONZALEZ |
Austin, TX 78704 MARGARET WILLIAMS SMITH
(512) 637-5220 WILMER CUTLER PICKERING
HALE AND DORR LLP
WILLIAM CHRISTIAN 1875 Pennsylvania Ave., N.W.
GRAVES, DOUGHERTY, Washington, D.C. 20006
HEARON & MOODY, P.c. (202) 663-6000
401 Congress Ave.
Suite 2200
Austin, TX 78701
(512) 480-5600

246

Yep

TABLE OF CONTENTS
Bec Page
py TR Pe Pity yb iy y | - Seem mnnOT ER ii
FEE IRA ee ONSET RN en ea Tee eee RT CD 4
I. RESPONDENTS ARGUMENT DISTORTS THE
QUESTION PRESENTED AND THIS COURT'S
gg NRESETEL SAMOS DEL LES LR SOE 4
II. ROTHGERY’S MAGISTRATION MARKED THE
COMMENCEMENT OF ADVERSARY JUDI-
IE ciaiaihscietinctensctaciniksceitiesisintctenicittestnianittndceives 9
A. Brewer And Jackson Control This
SERRE RSET Rae Sirti o maT SLA a: 2 DN 9
B. Rothgery Was Charged At His Magis-
tration, Which Commenced A Criminal
Prosecution Under The Sixth Amend-
I aiiethiiticsaidhiiaiinininhsaddinitetiiahaticibiiiainiesiniiad inattbngtie 12
C. Respondent’s Parade Of Horribles Is
TIED oorecncccocecseusesecersossnecsvssoutmeracetansoegeoawvseneece 19
III. THE CRITICAL-STAGE DOCTRINE PRO-
VIDES NO BASIS FOR AFFIRMANCE........cc0.:0ecceeseees 22
A. Respondent’s Critical-Stage Argument
Is Not Properly Before The Court................... 22
B. Respondent’s Critical-Stage Argument
BIOS FES Ce TG TRGB IAG ceccececcistescnccscenconscectiecees 24
FRIES IAT SOME he RCRD MR WEEE FET Toe
(i)

ey MD PLE ea eee oe Bie

ii
TABLE OF AUTHORITIES
CASES ek
. Page(s)

Alabama v. Shelton, 535 U.S. 654 (2002) .......-sssecsseessees 24
Arabzadegan v. State, 240 8.W.3d 44

Cs a Br iciitebindlnciceitiliespipccancticersececevecsncesnicieast 17
Armstrong v. Squadrito, 152 F.3d 564

aida cehariiiadieensicpsenseerevetivensinscasenasiiain 15
Barnhill v. State, 657 S.W.2d 131

CI te SN Ssh prsccnccccvcsnencssssccesesscctocniniians 17
Brewer v. Williams, 430 U.S. 387 (1977)... passim
Clark v. State, 627 S.W.2d 693

CE A MIG: ROI Prccevcnccecocecscesersccnesonsovensvocion 17,19
Coleman v. Alabama, |

rs OUT icalsiisiinnssisnsatniniiinihciincecsnenictonndis passim
Escobedo v. Illinois, 378 U.S. 478 (1964) ........:.cces000 20-21
Estelle v. Smith, 451 U.S. 454 (1981) .........cccceseseeees 24, 26
Evitts v. Lucey, 469 U.S. 387 (1995)........ccccccssecsereseseeres 24
Ex parte Clear, 573 S.W.2d 224 :

a a a cccsesatentonmnnenimneesiont 16
Felder v. McCotter, 765 F.2d 1245

EA eee svscenesssscsssnesance 19
Fuller v. State, 829 S.W.2d 191

Ea ers I I hitihitlacscnctcinicninsitniesennesiinnsiiial 17
Gerstein v. Pugh, 420 U.S. 103 (1975)..........cccceseeceees 19, 28
Glover v. United States, 531 U.S. 198.(2001) ............0000 22
Green v. State, 872 S.W.2d 717

gc Rs S| EE Re ee Tre OD 17

eT. a eee Som. i a te , he a? nd ed a awl ~ y>
ent. See ae ee ee eee ois ros a pt, ae (een x ae! >
a - P - “ ? ns i+ ow a

’ ’ = why’ Cie r+ oe

iii

TABLE OF AUTHORITIES—Continued

Page(s)
Kirby v. Illinois, 406 U.S. 682 (1972)... passim
Lemmons v. State, 75 S.W.3d 513
i a sia adicclctaciptscinitconeniseisnanconesessnnensieviiises 17
Maine v. Moulton, 474 U.S. 159 (1985) .......eeeeeeeeeteeees 24
McNeil v. Wisconsin, 501 U.S. 171 (1991)........... 6-7, 8,17
Michigan v. Harvey, 494 U.S. 344 (1990)... eeeceseeees 24
Michigan v. Jackson, 475 U.S. 625 (1986)............. passim
Moore v. Illinois, 434 U.S. 220 (1977)........sss00+ 5, 6, 13, 17
Moran v. Burbine, 475 U.S. 412 (1986) ................ 5, 13, 23
Nehman v. State, 721 S.W.2d 319
Rs Ns I adic si asvaecsectovesosonvennticsein 17
Neumuller v. State, 953 S.W.2d 502
BE SEC EE eR 17
Nichols v. United States, 511 U.S. 738 (1994)............... 21
Penson v. Ohio, 488 U.S. 75 (1988).......ccccccsscseseeseseeeeseees 26
Powell v. Alabama, 287 U.S. 45 (1982) .......... 4, 25, 28, 29
Ring v. Arizona, 536 U.S. 584 (2002).........cceseseseseeeeses 14
Scott v. Illinois, 440 U.S. 367 (1979) ........cccccscesseesseesseees 21
Senior v. Braden, 295 U.S. 422 (1935) ..vcssssssssesssssesseees 16
Smith v. Massachusetts, 543 U.S. 462 (2005)................ 14
State v. Boseman, 830 S.W.2d 588
CONN, Gs A MI deterieientasnninevscccssnnensssenstnscsnees 17
State v. Jacobs, 100 N.W.2d 601 (Iowa 1960)................. 11

State v. Tharp, 138 N.W.2d 78 (Iowa 1965) .............. 10-11

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iv

TABLE OF AUTHORITIES—Continued

Page(s)
State v. Williams, 182 N.W.2d 396 (Iowa 1970)......10, 11
Terrell v. State, 891 S.W.2d 307

SNE MII ich ceisiatesneiennensiehentrsovecensobonesseseansosiios 17
Travelers Cas. & Sur. Co. v. PG&E,

Be res BED wititkcnticassitvisnscssncnsconsiniesonsen 22, 24
United States ex rel. Burton v. Cuyler, |

439 F. Supp. 1173 (E.D. Pa. 1977) ........ccscscsesssessereee 13
United States v. Ash, 413 U.S. 300 (1978)............cc0cce0ee 4-5
United States v. Cronic, 466 U.S. 648 (1984)........c000000 26
United States v. Gonzalez-Lopez,

126 S. Ct. 2557 I lita ttn nintatcisainbaainiditiaimantbtiids 26-27
United States v. Gouveia, 467 U.S. 180 (1984)........ 20, 28
United States v. Wade, 388 U.S. 218 (1967).............. 5, 26
Upton v. State, 853 S.W.2d 548

CE RR MRI BIA ctichsicsccntscscaiesccrostncnrnsniate 11,17
Yee v. City of Escondido, 503 U.S. 519 (1992)......... 23, 24

BRIEFS AND APPENDICES
Brief for Petitioner, Michigan v. Bladel,

US. No. 84-1539, 1985 WL 669876 .............:.00000 11-12
Appendix, Brewer v. Williams,

Tas es 11
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
ie Ee | , SO RSCRO SUL eo nee passim

Fei as Ba sischtennncitoaiith nssti.andctnlacantortiidicmiahpaniinin 17

Vv

TABLE OF AUTHORITIES—Continued

Page(s)
Ill. Comp. Stat. 38/111-2 (1967)...........cccssserscsssssesssseeseees 17
Iowa Code
$769.1 (1966) (repealed 1976).............cccecsseseseseresesees 17
$769.2 (1966) (repealed 1976) ..............:0+0 sidsioienesdsiai 11
$769.13 (1966) (repealed 1976) .............ccsecesescesessesees 11
$775.1 (1966) (repealed 1976) ............scccccsseesessseeseees 11
-§7'75.8 (1966) (repealed 1976) ..........csscessssesecsseseeeseees 11
Tex. Code Crim. Proc.
Saath iseiciachisliasclsissaninlecaniibisisniniiahienienidaaadadidandies 18
i diiliisinasacinsscvarigsuntadusinnninisiempiaiansitindabiiamuiiniin’ 18
IEE cbiesaiinctigtickcenniiesicinennintebivinspbibicaiiiasneupiidan tastes 15
SET kita tisssecniemnssitiniesinistiighninieiiiaiinsiicaiign aie 12
SEIT hiciths sc isestisiconnusiceesndoomicilieensaladnsdiisheatiaiie 15, 19, 25
Ws SIN Giphiiinsticisicatisenttconsnsichicsactncinbaianinnibaaniniaan 15, 25
NT seiictiniinserdinstichassinstitictniemutionsienmienunaaan 14
Ne snibnaiiniaientiantiediinsestilidsieketinbimnatedbcadiaaaa aan 14-15
ET ah eeciisinioasiisinichesicstanscennvnisinseclenteasimaaeitsaiianain 15
ee, ee CERIN cicrinscsiessesiniececsnnocenicannntianiieitiiiaad 18
EEE CREME ENE ene Te 17
Supreme Ct. R.
Ua sii cisiditiiintdsnharincnstinistedeasiniiaeeintiattantiasiepiaiiiabmmiaabainidmaiaaiial 23
Ii castiadicctinaieianchndiibccitabipeineideieilinadaiataaista nds ileal soon 24
Se, CRs Rs GBI occ cecstinissmbbinensinitiaintineasiiiabiniaiianes uiusinspaaiati 17

OTHER AUTHORITIES

Amar, Akhil Reed, Sixth Amendment First
Principles, 84 Geo. L. J. 641 (1996)...........cccccecseseees 28

vi /
TABLE OF AUTHORITIES—Continued

Page(s)
Dix, George E. & Dawson, Robert O., Texas
(2d ed. 2001) 18
Grano, Joseph D., Rhode Island v. Innis: A
Need to Reconsider the Constitutional
Premises Underlying the Law of Confes-
sions, 17 Am. Crim. L. Rev. 1 (1979)...........11, 15, 19
LaFave, Wayne R. et al., Criminal Procedure
(2d ed. 1999) 10, 20

Tex. Atty. Gen. Op. LO-98-066, 1998 WL
537341 (Aug. 19, 1998) 18

IN THE |
Supreme Court of the Bnited States

No. 07-440

WALTER ALLEN ROTHGERY,
Petitioner,
v.

GILLESPIE COUNTY, TEXAS,
Respondent.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR PETITIONER

The Sixth Amendment provides that “{iJn all crimi-
nal prosecutions, the accused shall enjoy the right ... to
have the Assistance of Counsel for his defence.” Peti-
tioner Walter Rothgery was arrested for unlawful pos-
session of a firearm by a felon—an offense of which he
was innocent. Rothgery was brought before a magis-
trate, who informed him that he was accused of that of-
fense and required him to post bond or remain in jail to
ensure he answered the accusation. Rothgery knew he
was innocent, but did not know how to prove it. He
therefore requested counsel. His requests were ig-
nored. Instead, he was indicted and jailed for three
weeks before his belatedly appointed lawyer obtained
his release and the dismissal of the false charge. The

2

Fifth Circuit nevertheless held that because no prose-
cutor was involved in Rothgery’s arrest or magistra-
tion, a “criminal prosecution{]” had not commenced, and

Rothgery was not an “accused” whose right to counsel
attached, until indictment.

This case presents a single, narrow question:
whether Guat belting & cevvess. 2 in nat. tine (ourt

even if that occurs before indictment. And the Court
has specifically held that an initial appearance before a
magistrate like that here, at which the defendant is in-
formed of the accusation against him and committed to
jail or bail, begins a criminal prosecution. Respondent's

Even had this Court not already answered the
question presented, the text and purpose of the Coun-
sel Clause dictate the same outcome. Once a defendant
appears before a judge who informs him of the charge
against him and restricts his liberty to guarantee he
answers that charge, he is “accused,” and his right to
counsel to defend against that accusation attaches.
That is a question of federal constitutional law, whose
answer is the same no matter how state law defines a
“prosecution”—although application of Texas law
would yield the same conclusion.

Perhaps recognizing the weakness of its arguments
on the question presented, respondent focuses on a
question not raised or considered below, contending
that even if adversary judicial proceedings commenced
at his magistration, Rothgery was not entitled to coun-
sel because no “critical stage” of the prosecution oc-
curred before his indictment. As this Court has made

—_— es

3
clear, ewes that questions distinc from, and lg

should not consider it. This Court addresses arguments
not raised below and outside the question presented
only in extraordinary circumstances. Respondent
points to none here.

Respondent’s new argument fails in any event.
Respondent contends that the right to counsel ensures
defendants only a “fair trial,” and that because the
charge against Rothgery was dismissed before trial
(but after he had spent several months burdened with a
pending false charge, including three weeks in jail), he
suffered no harm against which the Sixth Amendment
protects. But the right to counsel also assists defen-
dants in combating “an erroneous or improper prosecu-
tion” prior to trial. Coleman v. Alabama, 399 U.S. 1, 9
(1970). Here, Rothgery had a right to an examining )
trial, which respondent concedes is a “critical stage” |
because it enables a defendant to contest improper — )
charges before he is indicted and tried. As this Court
has recognized, a defendant is entitled to counsel’s as-
sistance not only in preparing for and conducting such
proceedings, but also in deciding whether to undergo
them. Even if respondent were correct that appoint-
ment of counsel is required only for “critical stages,”
therefore, Rothgery was entitled to counsel’s help in
making an informed decision whether and how to in-
voke his right to an examining trial.

Ultimately, respondent’s contention that a person
who has been brought before a judge and informed of
the accusation against him, has been required to post

1
’
F
:
|

.
:

4

bail, and has acquired the right to contest that accusa-
tion in court nevertheless is not “accused,” and has no
right to or need for counsel, cannot be reconciled with
this Court’s precedent. ree mater oo cin beng ge
include providing a defendant with counsel's help to
“establish his innocence” and ensure that he is not “put
on trial without a proper charge.” Powell v. Alabama,
287 U.S. 45, 69 (1932).

l. RESPONDENT'S ARGUMENT DISTORTS THE QUESTION
PRESENTED AND THIS COURT’S PRECEDENT
Respondent misapprehends both the question pre-

sented and the settled doctrine governing its resolu-

tion.

The sole question decided by the Fifth Circuit, and
presented here, is whether a “criminal prosecution{]”
commenced, and Rothgery became an “accused,” upon
a criminal prosecution commences upon the initiation of
“adversary judicial proceedings” (or the synonymous
“judicial criminal proceedings”). Kirby v. Illinois, 406
U.S. 682, 688-689 (1972) (plurality). At that point, “a
person who had previously been just a ‘suspect’ has be-
come an ‘accused,” Michigan v. Jackson, 475 U.S. 625,
632 (1986), and “the explicit guarantees of the Sixth
Amendment are applicable,” Kirby, 406 U.S. at 690.

Separately, this Court has held that once a prose-
cution commences, an accused is entitled to be repre-
sented by counsel at all “critical stages” of the prosecu-
tion, including pretrial proceedings at which he “re-
quire[{s] aid in coping with legal problems or assistance
in meeting his adversary.” United States v. Ash, 413

,

pa i ee ee

7 7a.

|
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i.
:

5

U.S. 300, 313-314 (1973). The purpose of the critical-
stage inquiry is not to determine the point at which a
criminal prosecution begins and the protectins of the
Sixth Amendment first take effect, but to identify spe-
cific proceedings thereafter for which the accused is en-
titled to the assistance of counsel and which cannot,
without a valid waiver, be conducted in counsel’s ab-
sence. Moore v. Illinois, 434 U.S. 220, 224-225 (1977),
United States v. Wade, 388 U.S. 218, 226-227 (1967).
The critical-stage test thus asks whether a proceeding
threatens “potential substantial prejudice” to the de-
fendant’s rights that counsel’s assistance could help
avoid. Wade, 388 U.S. at 227; Coleman, 399 US. at 7.
The question whether judicial criminal proceedings
have begun, and a prosecution has commenced, is thus
distinct from the question whether a particular pro-
ceeding is a “critical stage.” The former question is
logically antecedent to the latter: if no prosecution has
begun, a proceeding cannot be a “critical stage” of a
prosecution—even if counsel’s assistance could prevent
prejudice to the defendant. Kirby, 406 U.S. at 689-690;
Moran v. Burbine, 475 U.S. 412, 428-429 (1986). More-
over, a judicial proceeding need not itself be a “critical
stage” to mark the commencement of a prosecution.
“The question whether [a proceeding] signals the initia-
tion of adversary judicial proceedings ... is distinct
from the question whether [the proceeding] itself is a
critical stage requiring the presence of counsel[.]”
Jackson, 475 U.S. at 629 n.3.

Respondent conflates these two distinct inquiries
throughout its brief. This case presents only the ques-
tion whether judicial criminal proceedings-began upon
Rothgery’s magistration. Rothgery has never con-
tended that the magistration itself was a “critical

eee ee eae :

6

stage” at which he was entitled to counsel’s presence.
Yet much of respondent’s brief (e.g., Br. 1, 26-27, 40-41)
addresses this irrelevant issue. Similarly, in disputing .
that a prosecution commenced at Rothgery’s magistra-
tion, respondent makes arguments relevant only to the
critical-stage analysis, contending (Br. 1-3, 10-11, 16-17,
26-30, 40-42) that the magistration was not “adversar-
ial” and could not prejudice Rothgery’s right to a fair
trial.

Much of respondent’s confusion stems from its mis-
apprehension of Kirby and its progeny. Respondent
interprets Kirby to establish a “general rule” that a fel-
ony prosecution commences only upon “formal charges”
(Br. 10, 14)—which respondent equates with indictment
or information—with exceptions for a “very limited set
of specific preindictment situations” (Br. 23) when a
critical stage occurs or a prosecutor’s involvement sig-
nals the government’s commitment to prosecute. Noth-
ing in this Court’s precedent, however, supports this

tortured reading of Kirby—which asks simply whether
“judicial criminal proceedings” have begun. 406 U.S. at
689.

First, there is no support in Kirby or elsewhere for
respondent’s “general rule” that judicial criminal] pro-
. ceedings commence only upon indictment. Indeed,
i Moore expressly rejected that rule, recognizing that it

“cannot be squared with Kirby,” which itself stated

that a felony prosecution can begin before indictment.
: 434 U.S. at 228; see Kirby, 406 U.S. at 689. Brewer and
Jackson likewise held that adversary judicia) proceed-
| ings commenced upon pre-indictment initial arraign-
ments before magistrates. Brewer v. Williams, 430
U.S. 387, 398-399 (1977); Jackson, 475 U.S. at 629. And
in McNeil v. Wisconsin, it was undisputed that adver-

= |

?
.

7

sary judicial proceedings commenced upon the defen-
dant’s initial appearance before a county court commis-
sioner who scheduled a preliminary examination and
set bail. 501 U.S. 171, 178, 175 (1991). As McNeil ex-
plained, the right to counsel “attaches at the first for-
mal proceeding against an accused.” Jd. at 180-181.

Second, just as there is no “general rule” that
prosecutions commence only upon indictment, there is
no exception to that rule for pre-indictment “critical
stages.” Respondent is forced to posit such an excep-
tion to account for Coleman, which held that the right
to counsel attached at a pre-indictment preliminary
hearing. 399 U.S. at 8-10. But Kirby does not treat
Coleman as an exception to any “general rule,” instead
citing Coleman as one of a line of cases that “estab-
lished that [the] right to counsel attaches only at or af-
ter the time that adversary judicial proceedings have
been initiated.” 406 U.S. at 688-689. Nor was it rele-
vant to Kirby’s analysis that Coleman involved a “criti-
cal stage.” Far from holding that prosecutions can com-
mence only by indictment or, in exceptional circum-
stances, through a pre-indictment “critical stage,”
Kirby establishes that a prosecution commences. as
soon as “judicial criminal proceedings” begin, however
they begin.

Third, contrary to respondent, Kirby did not estab-
lish a “functional analysis” (Br. 22) under which pre-
indictment judicial proceedings initiate a prosecution.
only when the facts of a particular case show that “the
government has committed itself to prosecute,” 406
U.S. at 689—which respondent apparently takes to
mean that a prosecutor must be involved. Respon-
dent’s lengthy discursion (Br. 21-33) on whether that
“functional analysis” is satisfied here thus asks and an-

8

swers the wrong question. Kirby did not hold that
courts should examine the government’s “commitment
to prosecute” in a particular case to determine whether
adversary judicial proceedings had begun. Rather, it
held that the right to counsel attaches upon the “initia-
tion of judicial criminal proceedings” because such pro-
ceedings evidence a commitment to prosecute and
demonstrate that the government and defendant are
now adversaries. 406 U.S. at 689; see Pet. Br. 35-38.
This Court has consistently adhered to that rule.
McNeil, 501 U.S. at 180-181 (right to counsel attaches
at “first formal proceeding against an accused”); Jack-
son, 475 U.S. at 629 n.3 (“initiation of formal legal pro-
ceedings”); Brewer, 480 U.S. at 398 (“judicial proceed-
ings”). ;

7 Far from being a “mere formalism,” Kirby, 406 U.S.
at 689, this rule makes sense: when a person is brought
before a judicial officer who formally apprises him of
the government’s accusation and restricts his liberty to
ensure he answers that accusation, that person is an
“accused,” with the State as his adversary. It makes no
difference to the defendant .whether a prosecutor is in-
volved; once judicial proceedings have commenced, the
accused faces “the prosecutorial forces of organized so-
ciety” and must negotiate the “intricacies of substan-
tive and procedural criminal law” to contest the charge
against him. Jd. At that point, a “criminal prosecu-
tion{]” has begun, and the Sixth Amendment right to
counsel] attaches.

9

II. ROTHGERY’S MAGISTRATION MARKED THE COM-
MENCEMENT OF ADVERSARY JUDICIAL PROCEEDINGS

A. Brewer And Jackson Control This Case

In Brewer and Jackson, this Court applied Kirby’s
test to circumstances substantively identical to those
here, holding that a defendant’s initial appearance be-
fore a magistrate, who informed him of the accusation
against him and committed him to custody, marked the
commencement of adversary judicial proceedings.
Brewer, 430 U.S.. at 399; Jackson, 475 U.S. at 629.
Those holdings control here. Respondent’s only answer
is to disparage Brewer and Jackson as lacking “careful
consideration” (Br. 32 n.13), and to distinguish them
based on purported facts that appear neither in the de-
cisions nor in the record, but are simply respondent’s
invention. Ultimately, respondent’s argument reduces
to a thinly-veiled plea to overrule those decisions. —

Respondent first contends (Br. 33) that Brewer’s
discussion of the attachment issue is dicta. That is in-
correct. Although the issue was undisputed, the Court
expressly addressed it, concluding that “([tJhere can be
no doubt ... that judicial proceedings [were] initiated”
when Williams was arrested, “arraigned on [the arrest]
warrant” before a magistrate, and “committed by the
court to confinement.” 430 U.S. at 399. That conclusion
was necessary to the Court’s holding that Williams’
right to counsel was violated by his post-arraignment
interrogation: had adversary judicial proceedings not
commenced, there would have been no violation. Jd. at
398-399.

Nor is it true that Brewer and Jackson “neither
provide[d] nor appl{ied] an analytical framework for
determining attachment,” in “stark{] contrast{]’ to
“Kirby’s careful consideration” (Resp. Br. 32 n.13). In

10

his opinion for the Court in Brewer, Justice Stewart—
who also authored Kirby—expressly applied Kirby’s
analytical framework, holding that “[{tJhere [could] be
no doubt” that it was satisfied on Brewer’s facts. 430
US. at 398-399. In Jackson, this Court similarly ap-
plied the Kirby test and found it easily met. 475 U.S. at
629 & n.3.

Respondent next contends that because Brewer
stated that Williams was “arraigned,” the proceeding
must have differed from Rothgery’s magistration.
While acknowledging that nothing in the decision or
record suggests that an indictment or information was
filed before the arraignment Brewer describes, and that
Williams was actually indicted several weeks after that
arraignment, State v. Williams, 182 N.W.2d 396, 398-
399 (lowa 1970), respondent speculates (Br. 34-35) that
“{bjecause Williams was ‘arraigned,’ the Court would
likely have ... assumed” that the proceeding entailed
entry of a plea to an information.

That argument is mere sleight-of-hand with no-
menclature. As we previously explained (Pet. Br. 20-21
& n.7), the term “arraignment” has two meanings. It
can mean a defendant’s appearance to enter a plea to an
indictment or information. Or it can mean a defen-
dant’s initial appearance before a magistrate, at which
he is informed of the charges against him—in which
case it may be called an “arraignment on the warrant,”
an “arraignment on the complaint,” or a “preliminary
arraignment” (or, in Texas, “magistration” or an “Arti-
cle 15.17 hearing”). LaFave, 1 Criminal Procedure
§1.3(k) (2d ed. 1999).' Brewer noted that Williams was

' In both Iowa and Texas—as in other jurisdictions—

“arraignment” can carry either meaning. State v. Tharp, 138

11

“arraigned on [a] warrant,” 430 U.S. at 399, indicating
that the proceeding was a preliminary arraignment be-
fore a magistrate. Brewer has consistently been so un-
derstood. See, e.g., Grano, Rhode Island v. Innis, 17
Am. Crim. L. Rev. 1, 30 (1979) (“{IJn [Brewer], Justice
Stewart had no difficulty finding that adversary judicial
proceedings had commenced with the preliminary ar-
raignment.”); Pet. Br. 24-26 & n.10.

Respondent’s speculation that Williams entered a
plea to an information at his “arraign{ment] on [the]
warrant” is thus baseless. The record makes clear that
Williams’ “arraignment” took place in municipal court,
see Appendix, Brewer v. Williams, No. 74-1263, at 106,
and only later, following indictment, did he plead not
guilty and stand trial in the district court, Williams,
182 N.W.2d at 398. A felony information could have
been filed only in district court—not municipal court—
and Iowa procedure did not provide for a plea until that
stage. State v. Jacobs, 100 N.W.2d 601, 602-603 (Iowa
1960); Iowa Code §§769.2, 769.13, 775.1, 775.8 (1966)
(repealed 1976). In short, all the evidence is that Wil-
liams’ “arraign{ment] on [the] warrant” was substan-
tively identical to Rothgery’s magistration.

Respondent’s efforts to distinguish Jackson like-
wise fail. Citing Michigan’s brief in Bladel (the case
consolidated with Jackson), respondent argues (Br. 37)
that “the court entered a plea of not guilty on behalf of
the defendant,” while no plea was entered at Roth-

-gery’s appearance. But that contention is misleading:

as Michigan’s brief emphasized, the arraigning court—

N.W.2d 78, 79-80 (lowa 1965); Upton v. State, 853 S.W.2d 548, 554-
555 (Tex. Crim. App. 1993).

12

like the magistrate here—‘“ha{d] no jurisdiction to ac-
cept a plea of guilty to a felony charge” or “render a fi-
nal decision in a felony case.” Pet. Br., No. 84-1539,
1985 WL 669876, at *25.? The proceeding there, as
here, was an initial arraignment before a magistrate
who informs the defendant of the charge and his rights
and sets bond—not an arraignment on an indictment or
information, which could occur only in the general trial
court with jurisdiction to enter final judgment in a fel-
ony case. Jd. The State therefore argued that the ini-

tial arraignment could not initiate adversary judicial

proceedings—precisely the same argument respondent
makes here. This Court considered and rejected that
argument as “untenable,” holding that the initia) ar-
raignment “signal[ed] ... the attachment of the Sixth
Amendment.” Jackson, 475 U.S. at 629 & n.3. That
holding governs here.

B. Rothgery Was Charged At His Magistration,
Which Commenced A Criminal Prosecution
Under The Sixth Amendment

Just as in Brewer and Jackson, Rothgery was in-
formed at his magistration that he was accused of a fel-
ony and committed to custody (pending posting of
bond) to ensure he answered thai accusation. Respon-
dent nevertheless argues iiat Rothgery’s Sixth
Amendment rights had not attached because, under

’ Respondent also notes (Br. 36) that the Jackson defendants
could have made a statement, but Rothgery could also have done
so. Tex. Code Crim. Proc. art. 15.17 (magistrate must inform ac-
cused that “he is not required to make a statement and that any
statement made by him may be used against him”). The magis-
trate in Bladel similarly advised the defendant to “stand mute.”
Pet. Br., No. 84-1539, at *4.

7
a
e.

2
a
3
»
7
:
:

Da Ee es RO
e te Vie

BN ae

13

Texas law, there can be no felony “charge” or “prosecu-
tion” until a prosecutor files an indictment or informa-
tion. That contention is meritless. First, whether a
“criminal prosecution{]” exists under the Sixth
Amendment is a question of federal law, answered by
examining the substance of the proceedings against the
defendant, not the label state law attaches to them.
Second, even if Texas law did control, it would not sup-
port respondent’s conclusion.

1. The question whether a “criminal prosecu-
tion{]” has begun, and a suspect has become an “ac-
cused,” under the Sixth Amendment is one of federal
law. See Moran, 475 U.S. at 429 n.3 (“[TJhe type of cir-
cumstances that would give rise to the right [to coun-
sel] would certainly have a federal definition.”). Al-
though, in answering that question, courts must exam-
ine state procedures and their consequences for the de-
fendant, the labels state law gives those procedures
cannot control. “[W]hat is most important is what the
state does and the operative effects of its action and not
what the state says about when a prosecution begins.”
United States ex rel. Burton v. Cuyler, 489 F. Supp.
1173, 1180 n.10 (E.D. Pa. 1977) (Becker, J.).’

The Court has employed this approach in a variety
of analogous circumstances. For example, in determin-

> Moore is not to the contrary. There, although the Court
noted that a prosecution “commenced under Illinois law when the
victim’s complaint was filed in court,” that did not end the analysis;
the Court went on to examine the objective nature and conse-
quences of the subsequent judicial proceedings against the defen-
dant before concluding that adversary judicial proceedings had
begun. 434 U.S. at 228. It did not rely on Illinois law for that ulti-
mate Sixth Amendment conclusion.

14

ing when the Sixth Amendment’s jury-trial guarantee
applies, the “dispositive question ... ‘is one not of form,
but of effect.’ If a State makes an increase in a defen-
dant’s authorized punishment contingent on the finding
of a fact, that fact—no matter how the State labels it—
must be found by a jury beyond a reasonable doubt.”
Ring v. Arizona, 586 U.S. 584, 602 (2002). The jury-
trial right thus does not turn on whether state law calls
the relevant facts “elements of the offense, sentencing
factors, or Mary Jane.” Jd. at 610 (Scalia, J., concur-
ring). Similarly, in the double-jeopardy context, a
State’s characterization of a judge’s not-guilty finding
“as a legal rather than factual determination is ... ‘not
binding.” Smith v. Massachusetts, 543 U.S. 462, 468-
469 (2005). Rather, what matters is what the judge ac-
tually did—i.e., whether the judge “evaluated the ...
evidence and determined that it was legally insufficient
to sustain a conviction.” Jd. at 469.

Applying that approach here, Rothgery’s appear-
ance before the magistrate rendered him an “accused,”
and commenced a “criminal prosecution{}.” At that ap-
pearance, the magistrate was presented with a sworn
affidavit by the arresting officer “charg{ing]” Rothgery,
“in the name and by the authority of the State of
Texas,” with a felony. Pet. App. 33a. As required by
statute, the magistrate informed Rothgery that he was
“accused of the criminal offense of unlawful possession
of a firearm.” Jd. 35a. And the magistrate required
Rothgery to post bail to ensure he answered that accu-
sation. /d.; Tex. Code Crim. Proc. (“TCCP”) art. 17.01
(“Bail’ is the security given by the accused that he will
appear and answer before the proper court the accusa-
tion brought against him[{.J”). Rothgery’s bail bond—
which was required by statute to indicate whether he
was “charged” with a felony or misdemeanor, id. art.

15

17.08(3)—stateu that he “stands charged by complaint
duly filed in the Justice of Peace Court” with a felony.
Pet. App. 39a. Moreover, upon his magistration, Roth-
gery—as the “accused in [a} felony case”—acquired the
right to an examining trial, in which the magistrate
must “examine into the truth of the accusation made”
and discharge the defendant absent probable cause for
the accusation. TCCP arts. 16.01, 16.17.*

case” and “no charge” against Rothgery following his
magistration blinks reality. Had there been no case
and no charge, there would have been no reason to in-
form him that he was accused of a felony, to require
him to post bail to ensure he would “answer ... the ac-
cusation,” or to grant him the right to contest the accu-
sation through an examining trial. Just as in Brewer
and Jackson, and for the same reasons, Rothgery’s
magistration marked the commencement of adversary
judicial proceedings and of a criminal prosecution. In-
deed, “it would defy common sense to say that a crimi-
nal prosecution has not commenced against a defendant
who, perhaps incarcerated and unable to afford judi-
cially imposed bail, awaits preliminary examination on
the authority of a charging document filed by the
prosecutor, less typically by the police, and approved
by a court of law.” Grano, supra, at 31; see Armstrong
v. Squadrito, 152 F.3d 564, 572 (7th Cir. 1998) (across
jurisdictions, “the first appearance” before a magis-

“ The Code further demonstrates that a prosecution exists
once a defendant is magistrated and committed to jail or bail by
providing that an information or indictment must be filed within a
set period or “the prosecution” shall be “dismissed” absent good
cause. TCCP art. 32.01; see id. art. 15.14.

,

". ra —

a | al

16

trate, who informs “the defendant [of] the charges”
against him, “marks the formal beginning of [a) criminal
prosecution”). Respondent’s view that nothing of sig-
nificance was happening to Rothgery at this point and
“there was no defense to prepare” (Br. 3) would come
as quite a surprise to any ordinary citizen in Rothgery’s
shoes, and simply evidences respondent’s refusal to en-
gage with “realities, not nomenclature.” Senior v.
Braden, 295 U.S. 422, 429 (1935).°

2. Against this common-sense conclusion, respon-
dent’s primary argument (Br. 19-21) is that Texas law
requires felony prosecutions to proceed by indictment
or information. Even if Texas law controlled the analy-
sis of the federal constitutional qa, however, i

would not aid respondent.

Felony prosecutions in Texas, as is common
throughout the country, typically have two phases. A
preliminary charging document (generally called a
“complaint”) is filed with a magistrate, who has juris-
diction over the charges, and any examining trial held
to contest them, until an indictment or information is
filed, when jurisdiction transfers to the district court.
Ex parte Clear, 573 S.W.2d 224, 229 (Tex. Crim. App.
19mm As respondent’s own authority indicates, “the

* Similarly, respondent repeatedly emphasizes (Br. 5, 26) that
the magistration took place at a “little glass window.” The magis-
tration, however, was a statutorily prescribed proceeding that for-
mally apprised Rothgery of the accusation against him. Its consti-
tutional significance cannot turn on the trappings of the room
where it was held.

* This explains why Rothgery’s warning form stated: “You
are accused of the criminal offense of: unlawful possession of a
firearm ... which will be filed in ... District Court.” Pet. App. 35a.

)

cle 15.17 appearance before a magistrate. Terrell v.

17

process of prosecution” thus can begin prior to indict-
ment, with proceedings before a magistrate. State v.
Boseman, 830 S.W.2d 588, 591 (Tex. Crim. App. 1992).’

The Texas Court of Criminal Appeals has recog-
nized that felony prosecutions can commence for Sixth
Amendment purposes upon pre-indictment proceedings
before a magistrate, including an Article 15.17 appear-
ance or the filing of a complaint. Clark v. State, 627
S.W.2d 693, 697 (1981); Barnhill v. State, 657 S.W.2d
131, 132 (1983); Nekman v. State, 721 S.W.2d 319, 321-
323 (1986); Fuller v. State, 829 S.W.2d 191, 205 (1992);
Upton v. State, 853 S.W.2d 548, 555 (1993). In Green v.
State, 872 S.W.2d 717 (1994), the Court of Criminal Ap-
peals declined to decide whether the Article 15.17 ap-
pearance in that case initiated adversary judicial pro-
ceedings, but noted that Barnhill and Nekman were
“consistent with, if not dictated by, precedent from the
United States Supreme Court.” Jd at 720. Since
Green, Texas intermediate appellate courts have con- |
tinued to find that adversary judicial proceedings can
commence before indictment, with a complaint or Arti-

At magistration, the charge against Rothgery was pending before
the magistrate; upon indictment, jurisdiction transferred to the
‘istri

” Like Texas, many States require indictment or information
for a felony conviction. This Court has nevertheless found adver-
sary judicial proceedings to commence before indictment or infor-
mation in cases from such States.. Compare Ala. Const. art. I, §8,
with Coleman, 399 U.S. at 8-9; Iowa Code $769.1 (1966) (repealed
1976) with Brewer, 430 U.S. at 399; Ill. Comp. Stat. 38/111-2(a)
(1967) with Moore, 434 U.S. at 228; Mich. Ct. R. 6.112(B) with Jack- )

son, 475 U.S. at 629; Wis. Stat. $967.05 with McNeil, 501 U.S. at
173, 175.

18

State, 891 S.W.2d 307, 312 (Tex. App. 1994); Newmuller
v. State, 953 S.W.2d 502, 512-514 (Tex. App. 1997); Lem-
mons v. State, 75 S.W.3d 513, 520 (Tex. App. 2002);
Arabzadegan v. State, 240 S.W.3d 44, 48 (Tex App.
2007).* The leading treatise on Texas criminal proce-

“a de-

trate for article 15.17 purposes.” Dix & Dawson, 41
Texas Practice §14.22 (2d ed. 2001).

represent the State in all criminal cases and retain ul-
timate discretion over whether to prosecute. That

* Here, the officer's sworn affidavit “chargfing]” Rothgery
with a felony (Pet. App. 33a) served the function of a complair

TCCP art. 15.04 (“The affidavit made before the magistrate ... is

called a ‘complaint’ if it charges the commission of an offense.”); id.
art. 15.05 (complaint “shall be sufficient, without regard to form” if
. ee ee See me ee,
though, as the Fifth Circuit observed (Pet. App. lla n.14), these
articles appear in a chapter entitled “Arrest Under Warrant,”
nothing limits their applicability to affidavits filed to obtain war-
rants. Cf Tex. Gov't Code §311.024 (chapter headings do “not
limit or expand the meaning of a statute”). The Texas Attorney
General has recognized that an officer’s affidavit following a war-
rantliess arrest can be viewed as the functional equivalent of other
“complaints” in felony cases, “all [of which) share a basic character-
istic: they set forth the basis of the criminal charges against the
accused.” Tex. Atty. Gen. Op. LO-98-066, 1998 WL 537341, at *2-3
(Aug. 19, 1988).

.

19

proposition, however, is not inconsistent with the com-
mon-sense principle that a prosecution has been com-
menced when a defendant “awaits preliminary exami-
nation on the authority of a charging document filed by
the prosecutor [or] by the police, and approved by a
court of law.” Grano, supra, at 31. Police in Texas can
and do initiate criminal proceedings by filing such pre-
liminary charging documents. Clark, 627 S.W.2d at
694, 697; Felder v. McCotter, 765 F.2d 1245, 1246-1248
(5th Cir. 1985); supra note 8. And, as a matter of Texas
law, following magistration in a felony case, the defen-
dant has become an “accused” with a statutory right to
contest that accusation through an examining trial,
whether or not a prosecutor was involved. TCCP art.
16.01.

Whether a defendant’s initial court appearance is
instigated by a prosecutor or by the police alone, its
consequences for the defendant are the same: he has
been formally accused of a crime, his liberty may be re-
strained, and he must negotiate the “intricacies of sub-
stamtive and procedural criminal law,” Kirby, 406 U.S.
at 689, to defend against the charges. In either event,
such a proceeding initiates a “criminal prosecution[]”
under the Sixth Amendment.

C. Respondent's Parade Of Horribles Is Baseless

Respondent contends that holding that adversary
judicial proceedings commenced upon Rothgery’s mag-
istration would implicitly overrule several of this
Court’s precedents and hamper law enforcement na-
tionwide. That hyperbole has no basis in law or fact.
Rothgery’s position does not call into question, still
less “directly contradict{}” (Resp. Br. 46), any aspect of
Gerstein v. Pugh, 420 U.S. 103 (1975). Nor, contrary to
respondent (Br. 52), would accepting Rothgery’s argu-

DS A ee pee i tt pl le ie ee ee

te i Re ae Oe Bre

20

ment logically require the presence of counsel at bail
hearings. Rothgery does not contend here that he was
entitled to counsel's presence for the Gerstein determi-
nation that was combined with his magistration or for
any aspect of the magistration itself, including the set-
ting of bail. Nor does Rothgery argue that the depriva-
tion of liberty, without more, necessarily constitutes
the initiation of adversary judicial proceedings.
Rather, he argues that his magistration initiated ad-
versary judicial proceedings because, following it, he
stood accused by the State of a crime—as evidenced in
part by the requirement that he post bail to ensure he
answered that accusation.

Similarly, Rothgery does not contend that the right
to counsel attaches upon arrest (Resp. Br. 52), even if
preceded by a judicial probable-cause determination,
but upon the “initiation of judicial criminal proceed-
ings,” Kirby, 406 U.S. at 689. This Court has consis-
tently recognized that the first judicial proceeding
marks the attachment of the right to counsel. What-
ever significance a mere arrest on a warrant may
have—a question not presented here—this Court’s
cases make clear that “at least from the time defendant

rought into court and arraigned on the warrant (at
which point it or the complaint underlying it becomes a
tentative charging document) the Sixth Amendment
right to counsel applies.” 2 LaFave, supra, §6.4(e).

Respondent also wrongly claims (Br. 11-12, 46-47,
ee ee See ee ee ee
and would grant cunpecta a right to precharge qian
investigators—thus contravening Kirby and United
States v. Gouveia, 467 U.S. 180 (1984), and reinvigorat-
in, “the Sixth Amendment reading” of Escobedo v. Il-

21

linois, 378 U.S. 478 (1964). Respondent here merely
assumes its own conclusion that adversary judiciai pro-
ceedings do not commence until indictment. Rothgery
argues that his magistration marked the initiation of
adversary judicial proceedings, not that his right to
counsel attached, or would apply at a lineup or interro-
gation, before the initiation of such proceedings. And,
rather than a private investigator, Rothgery sought an
attorney who could demonstrate that the charges
against him were invalid.

Nor does Rothgery’s position conflict with Scott v.
Illinois, 440 U.S. 367 (1979) (Resp. Br. 46). Scott holds
that a defendant charged with a misdemeanor is enti-
tled to counsel only if he is sentenced *o imprisonment.
Rothgery, however, was charged witi a felony at his
magistration, and Scott therefore has no application.
Nichols v. United States, 511 U.S. 738, 743 n.9 (1994).
Moreover, the purported problem respondent identi-
fies—that a prosecutor may reduce felony charges to
misdemeanor charges, thus implicating Scott—exists
both before and after indictment, and cannot support a
rule that the right to counsel attaches only on indict-
ment.

Finally, reaffirming that an initial appearance
commences a prosecution would not work a sea-change
in criminal procedure, create “significant” problems for
law enforcement, or impose “substantial” costs on local
government (Resp. Br. 53-56). At least 45 jurisdictions,
including the federal government, currently appoint
counsel at or promptly after the initial appearance and
experience no apparent difficulty (NACDL Br. 12-16,
la-7a)—a fact uncontested by respondent or its State
amici.

a
*.

22

Rather, it is the Fifth Circuit’s rule that, by requir-
ing a burdensome, intrusive, and often “elusive” (Pet.
App. 6a) inquiry into the extent of prosecutorial in-
volvement in a particular case, would present insur-
mountable practical problems. Respondent fails to dis-
pute the many disadvantages of that approach cata-
logued in the opening brief. This Court should reject it
and reaffirm that a “criminal prosecution{]” begins at
the first judicial proceeding against an accused.

Ill. THE CRITICAL-STAGE DOCTRINE PROVIDES NO BASIS
FOR AFFIRMANCE

A. Respondent’s Critical-Stage Argument Is Not
Properly Before The Court

Unable to prevail on the question presented, re-
spondent resorts to an alternative argument—that
even had adversary judicial proceedings commenced,
Rothgery was not entitled to counsel because no “criti-
cal stage” occurred between his magistration and in-
dictment. This argument was not raised or considered
below, is outside the question presented, and is not
properly before this Court.

The Fifth Circuit expressly noted that respondent
made no critical-stage argument, and the court there-
fore refused to address the issue. Pet. App. 5a n.5
(“Gillespie County does not argue that the time be-
tween Rothgery’s release on bond and his indictment
... did not constitute a critical stage of the prosecution,
and we do not decide that issue here.”). Absent excep-
tional circumstances, this Court does not decide ques-
tions not raised or resolved below. Travelers Cas. &
Sur. Co. v. PG&E, 127 S. Ct. 1199, 1207 (2007); Glover
v. United States, 531 U.S. 198, 205 (2001). Respondent

7
x
a
“
o :
*

23

articulates no justification for departing from that con-
sistent practice here.

Moreover, respondent’s critical-stage argument is
outside the question presented: whether adversary ju-
dicial proceedings—and thus a “criminal prosecu-
tion[}”—commenced upon Rothgery’s magistration. As
discussed above, see supra Part I, that question is dis-
tinct from, and logically antecedent to, the question
whether any “critical stages” of the prosecution oc-
curred thereafter. Jackson, 475 U.S. at 629 n.3.

Respondent contends (Br. 37 n.15) that its critical-
stage argument is fairly included within the question
presented because this Court has “uniformly” ad-
dressed right-to-counsel questions “by deciding
whether it was necessary to appoint counsel in the con-
text of specific proceedings and events, not by deciding
abstract questions about attachment.” That contention
is refuted by this Court’s decisions rejecting right-to-
counsel claims where the threshold requirement of at-
tachment—.e., initiation of adversary judicial proceed-
ings—was not met, even though the “specific proceed-
ings and events” at issue would have required counsel’s
presence had the right attached. See Moran, 475 U.S.
at 431-432; Kirby, 406 U.S. at 689-690.

Because there is no need to address respondent’s
critical-stage argument to resolve the question pre-
sented, it is not fairly included in that question. See Yee
v. City of Escondido, 503 U.S. 519, 535-538 (1992) (al-
ternative argument “related to” question presented

was not fairly included therein because question pre- .

sented could be resolved without reaching that argu-
ment). Accordingly, this Court should not consider it.
S. Ct. R. 14.1(a) (“Only the questions set out in the peti-
tion, or fairly included therein, will be considered by

24

the Court.”); Travelers, 127 S. Ct. at 1207; Yee, 503 U.S.
at 585.”

B. Respondent’s Critical-Stage Argument Also
Fails On The Merits

Were respondent’s critical-stage argument prop-
erly before the Court, it would still provide no basis for
affirmance.

As an initial matter, this Court has never held that
once a prosecution commences and the “explicit guar- |
antees of the Sixth Amendment” take effect, Kirby, 406
U.S. at 690, the right to counsel lies “dormant”—even
while a defendant may spend months in jail or on bail
due to pending criminal charges—auntil “activated” by
an imminent “critical stage.” Resp. Br. 11, 38-44. In-
deed, the Court has repeatedly observed that “a person
is entitled to the help of a lawyer at or after the time
that judicial proceedings have been initiated against
him” to assist in navigating the proceedings and pre-
paring a defense. Brewer, 430 U.S. at 398; Estelle v.
Smith, 451 U.S. 454, 469 (1981); Maine v. Moulton, 474
U.S. 159, 170 (1985); see also E'vitts v. Lucey, 469 U.S.
387, 394 n.6 (1995) (noting that a defendant needs coun-
sel not only “to meet the adversary presentation of the
prosecutor,” but to negotiate “a legal system governed

” Nor did respondent argue in opposing certiorari that this
Court should not reach the question presented because the judg-
ment. could be affirmed on this alternative ground. Respondent
commented in passing in its statement of the case that while “Peti-
tioner was out on bond, he did not experience any critical pretrial
proceedings” (Opp. 4), but never cited that point as a reason for
denying certiorari. For this reason, too, the Court should not con-
sider this argument. S. Ct. R. 15.2; Alabama v. Shelton, 535 U.S.
654, 660 n.3 (2002).

,

25 \

by complex rules and procedures”); Michigan v. Har-

vey, 494 U.S. 344, 348 (1990) (“the essence” of the right
to counsel “is the opportunity ... to consult with an at-
torney and have him investigate the case and prepare a
defense for trial”); Powell, 287 U.S. at 57.

Even if indigent defendants are entitled to coun-
sel’s aid only to negotiate critical stages, however,
Rothgery was entitled to counsel well before indict-
ment. Following his magistration, Rothgery stood ac-
cused of a crime he had not committed. He repeatedly
requested a lawyer because he knew he was innocent,
but did not know how to prove it. Texas law provides a
mechanism by which defendants in that situation can
contest erroneous charges before indictment: as “the
accused in [a] felony case,” Rothgery was entitled to an
examining trial to challenge the probable cause for the
accusation. TCCP art. 16.01. If, after an evidentiary
hearing, the magistrate finds no probable cause, the de-
fendant is discharged. /d. art. 16.17. As this Court’s
precedent dictates, see Coleman, 399 U.S. at 9-10, and
respondent concedes (Br. 27 n.9, 29 n.10), the examining
trial is a critical stage at which Rothgery would have
been entitled to counsel’s assistance.

Rothgery’s right to an examining trial, however,
existed only before indictment, and only if Rothgery
requested it. TCCP art. 16.01. Rothgery accordingly
needed a lawyer prior to indictment to help him under-
stand his right to an examining trial, assess its possible
benefits and costs, and navigate the procedure for in-
voking it. As this Court has made clear, a defendant is
entitled to consult with counsel prior to critical-stage
proceedings, not only to prepare for such proceedings,
but also to decide whether to undergo them. In Estelle,
for example, the Court found a Sixth Amendment viola-

26

tion where a capital defendant underwent a pretrial
psychiatric examination—a critical stage of the pro-
ceedings—without first having the opportunity to con-
sult with counsel regarding “the significant decision of
whether to submit to the examination.” 451 U.S. at
471. “{A] defendant should not be forced to resolve
such an important issue without ‘the guiding hand of
counsel.” Id.

Here, the magistrate informed Rothgery that “(ijn
felony cases, you have a right to an examining trial.”
Pet. App. 35a. But, without counsel, Rothgery could
not have been expected to understand that right or
make an informed decision whether to invoke it. As
this Court has repeatedly recognized, the right to coun-
sel is so vital because it “affects [a defendant’s] ability
to assert any other rights he may have.” United States
v. Cronic, 466 U.S. 648, 653 (1984). “[I]t is through
counsel that all other rights of the accused are pro-
tected.” Penson v. Ohio, 488 U.S. 75, 84 (1988). “Be-
cause a layman may not be aware of the precise scope,
the nuances, and the boundarics” of his rights, the as-
sertion of those rights “often depends upon legal advice
from someone who is trained and skilled in the subject
matter.” Estelle, 451 U.S. at 471. Even under respon-
dent’s critical-stage theory, then, Rothgery was enti-
tled to counsel well before indictment.

Respondent’s contrary claim is rooted in the erro-
neous view that a defendant’s right to counsel exists
solely to protect his right to a “fair trial,” defined nar-
rowly as the “right meaningfully to cross-examine the
witnesses against him [or] to have effective assistance
of counsel at the trial itself.”” Br. 41-42 (quoting Wade,
388 U.S. at 227). But while “the purpose of the [right to
counse]] is to ensure a fair trial[,] ... it does not follow

27

that the right[{] can be disregarded so long as the -trial
is, on the whole, fair.” United States v. Gonzalez-
Lopez, 126 S. Ct. 2557, 2562 (2006). As in Gonzalez-
Lopez, by arguing that because Rothgery was not de-

' prived of a fair trial, his right to counsel could not have

been violated, respondent “abstracts from the right to
its purposes, and then eliminates the right.” Jd.

Respondent is wrong to suggest that the right to
counsel has no role in helping an accused prove his in-
nocence, prior to trial, of false charges against him. To
the contrary, the Court has recognized that counsel is
“essential to protect the indigent accused against an
erroneous or improper prosecution.” Coleman, 399
USS. at 9. Thus, even though the preliminary hearing in
Coleman did not require the defendant to advance any
defenses, and, if the defendant lacked counsel, nothing
occurring at the hearing could be used against him at
trial, the Court held that the preliminary hearing was a
“critical stage,” threatening “potential substantial
prejudice” to the defendant’s rights, in part because the
assistance of counsel at that hearing could “expose fatal
weaknesses in the State’s case that [might] lead the
magistrate to refuse to bind the accused over.” Id.
Here, just as in Coleman, counsel’s assistance could
have “expose[d) fatal weaknesses” in the case against
Rothgery that would have terminated the prosecution
prior to indictment and trial. Requiring appointment of
counsel in these circumstances is thus fully consistent
with, and indeed central to, the purposes of the Sixth
Amendment.

Nor, contrary to respondent’s contentions (Br. 47-
51), does recognizing that right confuse the protections
afforded by the Counsel Clause with those granted by
the Fourth Amendment and Speedy Trial Clause. To

28

be sure, permitting defendants access to counsel to con-
test charges against them prior to trial may result in
freeing innocent persons from pretrial detention. But it
does not follow that, because the Fourth Amendment
one URES Mn renen anges SORE perenne
the right to counsel plays no role in protecting a defen-
dant’s liberty by assisting him in contesting false
charges. Nothing in Gerstein or Gouveia is to the con-
situation here, in which counsel’s assistance “could
mean that [a defendant] would not be tried at all,” from

a Gerstein hearing in which “only ... pretrial custody” is
at issue. 420 U.S. at 123. Similarly, while Gouveia
stated that the right to counsel) is not triggered by ar-
rest alone, 467 U.S. at 190, it does not follow that the
right is irrelevant to “protecting the liberty interests of
the accused” (Resp. Br. 49). On the contrary, that is
the fundamental purpose of the right to counsel, ac-
complished by providing the accused in a criminal
prosecution with counsel’s assistance in contesting the
accusation against him.

U)timately, respondent’s constricted vision of the
right to counsel cannot be reconciled either with the
Sixth Amendment’s text—under which the right “is
triggered when end because a persca is ‘accused’ of
Reape spaiticny + ar we Stag hey giana eermnar ganas
make the truth of his innocence visible.” Amar, Sizth
Amendment Fir’ Principles, 84 Geo. L.J. 641, 643, 705
(1996). The right to counsel serves not only to protect a
defendant at trial itself, but to assist him in determin-
ing whether the charges against him are “good or bad,”
and to protect him from being “put on trial without a
proper charge.” Powell, 287 U.S. at 69. As this case

rong A ee and “his defense
[is] a perfect one,” he “requires”—and is entitled to—
“the guiding hand of counsel” “to establish his inno-
cence.” Id.

CONCLUSION
The judgment of the Fifth Circuit should be re-
versed.
Respectfully submitted.
ANDREA MARSH SETH P. WAXMAN

HARRY WILLIAMS [V Counsel of Record
TEXAS FAIR DEFENSE CRAIG GOLDBLATT

PROJECT DANIELLE SPINELLI
510 South Congress Ave. CATHERINE M.A. CARROLL
Suite 208 ROBERTO J. GONZALEZ
Austin, TX 78704 MARGARET WILLIAMS SMITH
(512) 637-5220 WILMER CUTLER PICKERING
HALE AND DORR LLP

WILLIAM CHRISTIAN 1875 Pennsylvania Ave., N.W.

GRAVES, DOUGHERTY, Washington, D.C. 20006
HEARON & MOopy, P.c. (202) 663-6000

401 Congress Ave.

Suite 2200

Austin, TX 78701

(512) 480-5600

MARCH 2008

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0020%3A10. Public record. Not legal advice.