Amicus Curiae Brief — Rothgery v. Gillespie County

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IN THE an

Supreme Court of the United States

WALTER ALLEN ROTHGERY,

£57 Petitioner,

GILLESPIE County, TEXAS,

Respondent.

On Writ or CERTIORARI TO THE

UNITED States Court oF APPEALS FOR THE FIFTH CIRCUIT

BRIEF AMICI CURIAE OF THE BRENNAN CENTER FOR

JUSTICE, THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, AND THE NATIONAL LEGAL AID

AND DEFENDER ASSOCIATION IN

SUPPORT OF PETITIONER

—————eeeESEeaeae=SEaeaeaeEeEeeEeEeaeaeeaeaeeeaeaEeEeeEeEeeeEeEellllllllQESSS =" —

Cralc A. STEWART ANTHONY J. FRANZE

ARNOLD & PorTER LLP Counsel of Record

399 Park Avenue Son B. NcuyeNn

New York, NY 10022 MICHAEL S. TYE

(212) 715-1000 YonGSanc Km

ARNOLD & Porter LLP

555 12th Street, NW

Washington, DC 20004

(202) 942-5000

Counsel for Amici Curiae

[Additional Counsel Listed on Inside Cover]

aw a ee -~—— =

—

213634 9

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

Davip S. UDELL

Laura K. ABEL Director Counsel

BRENNAN CENTER FOR JUSTICE JACQUELINE A. BERRIEN

AT NYU Scuooi or Law DeBo P ADEGBILE

161 Avenue of the Americas CHRISTINA SWARNS

12th Floor NAACP Leca DEFENSE

New York, NY 10013 & EDUCATIONAL F unpD, INc.

(212) 998-6730 99 Hudson Street

Suite 1600

New York, NY 10013

(212) 965-2200

JO-ANN WALLACE

NATIONAL LEGAL AID

& DEFENDER ASSOCIATION

Tep M. SHaw

1140 Connecticut Ave., NW

Suite 900

Washington, DC 20036

(202) 452-0620

TABLE OF CONTENTS

Page

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

STATEMENT OF INTEREST ............... 1

SUMMARY OF ARGUMENT ................ 2

PEE Sod butks Peakanboccsceusbeacsats 6

I. AS IT HAS IN THE FOURTH AND

FIFTH AMENDMENT CONTEXTS,

THIS COURT SHOULD REJECT A

SUBJECTIVE TEST FOR DETERMIN-

ING WHEN SIXTH AMENDMENT

NSU MEE cacaccwadacevesssees 6

A. The Lower Court’s Subjective Test,

Like Those Rejected for Determining

When Fourth and Fifth Amendment

Rights Attach, Should Not Govern the

Sixth Amendment ................. 6

B. The Reasons for Applying Objective

Rather Than Subjective Tests in the

Fourth and Fifth Amendment Contexts

Have Equal Force in the Sixth

Amendment Context .............. 9

Contents

II. “ADVERSARY JUDICIAL PROCEED-

INGS” HAVE BEGUN WHEN A

PERSON IS BROUGHT BEFORE A

MAGISTRATE, INFORMED OF THE

ACCUSATION AGAINST HIM, AND

HAS RESTRAINTS IMPOSED ON HIS

EEE ES wSvib aii cecgaseesevevdetacns

A. Pre-Indictment Proceedings in

Texas: Arrest to Magistration .....

B. The Initial Appearance: A Citizen is

Brought Before a Court, Advised of

the Accusations, and His or Her

Liberty Is Restrained .............

C. Atthe Magistration, the Court Grants

or Denies the Accused Bail .........

EME ay ber Goer ore

Page

iii

TABLE OF CITED AUTHORITIES

CASES

Alabama v. Shelton,

535 U.S. 654 (2002) ...............

Albright v. Oliver,

510 U.S. 266 (1994) ...............

Berkemer v. McCarty,

468 U.S. 420 (1984) ...............

Brendlin v. California,

127 S. Ct. 2400 (2007) .............

Brewer v. Williams,

430 U.S. 387 (1977) ...........005.

County of Riverside v. McLaughlin,

Bee UE. GECIFOR) 2... cc cescccccess

Dunaway v. New York,

442 U.S. 200 (1979) ...............

Gerstein v. Pugh,

420 U.S. 108 (1975) .............-.

Gideon v. Wainwright,

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

Kirby v. Illinois,

406 U.S. 682 (1972) ...............

Page

LOT AS Ta eee Oe ee ey ee Pee ae Are

| iv

| Cited Authorities

Lomax v. Alabama, :

; 629 F.2d 413 (5th Cir. 1980) .............. 3-4, 9-10 :

McGee v. Estelle, .

625 F.2d 1206 (5th Cir. 1980) ................ 4,9

Michigan v. Jackson,

GPA PEMD ovcccccccccccucsccecus passim

Minnesota v. Murphy,

IEE ovo vcccaunvesnvesvesawen 7

Missouri v. Seibert,

Ge Sa IEE) cc cccccivccvcccuseseuces 14

Niz v. Williams,

PCIE vvcuscudvcdeunacaucetues 14

Powell v. Alabama,

Se EE vcvecgendcéevecsounedantn 26

Stansbury v. Californie,

of 8 8 eerrererie rrr passim

Tague v. Louisiana,

ED cacvacnccesccanccevadaus 14

United States v. Matlock,

EE Sdarc cvccasseuvcaveueuonss 14

Yarborough v. Alvarado,

Bae Sh OED 8 civnvvcccccisveedocseden 6

i. a, Con a Mer aa ee ere

eee eae ee fr RS eee or See. hl er

oF ee ae re ere

;

Cited Authorities

Page

STATUTES

18 U.S.C. § 3146 (1975) .. 0... ccc cece eee 24

Tex. Code Crim. Proc.

el. i duc padesecbseedsey ee 21

i i eee aeeiees 10

ee eee in dec eiadbevbtonsos cede 16

ck ivnedachedeonesebesnes cess 16

EE EEE SIO Ea Np cer rete ap 16

Se Asbo y ne Gs od kevde veces uwesews 17,18

re ee lt kas beeen ends 17, 18, 19

civ Gepicucoderenesseadede 16

a a aligvinnendee 16

cao wknd eabedbewe sedeveies 16

i ieee eos dcuswebuseceaeeeen ee 18

i che bs Koh eke ced detebeecsecees 18

ec pace ena beddonteess ces 18

Reece hebendeedeeebwesseeceer 18

eee den bes knevenbednesees 19

eerie s bce vakeescubens 19

i ed cede ceteceeeahebswepes 24

ses Ge te eabesetoonerdees 24

dds ka din end oacechocceuens’ 24

ee eine pneeessuuseeueere 24

Cited Authorities

Page

OTHER MATERIALS

ACLU of Texas,

Prisons and Jail Accountability Project (PJAP),

http://www.aclutx.org/projects/prisons.php .. 22

ACLU of Texas,

Prisons and Jail Project,

http://www.aclutx.org/projects/

prisonspg.php?pid=93 ...........cccccccees 22, 23

Alan J. Beck & Timothy A. Hughes,

Sexual Violence Reported by Correctional

Authorities, 2004, Bureau of Justice

Statistics (2005),

http://www.ojp.usdoj. gov/bjs/pub/pdf/

SE Fideitevskatbnbesrdseinees duos 23

Barry Mahoney & Walt Smith,

Pretrial Release and Detention in Harris

County: Assessment and Recommendations

(2005), http://effectivealt.web.aplus.net/

sitebuildercontent/sitebuilderfiles/reportfinal

harriscountypretrial.doc .............eeeee. 11, 24

Bureau of Justice Statistics,

Indigent Defense Statistics: Racial Disparity

and the Use of Publicly Financed Counsel,

http://www.ojp.usdoj.gov/bjs/id.htm#racial .._ 17

vii

Cited Authorities

Page

Dottie Carmichael et al.,

Evaluating the Impact of Direct Electronic

Filing in Criminal Cases: Closing the Paper

Trap, Public Policy Research Institute, Texas

A&M University (2006), http:/Awww.courts. state.

tx.us/tfid/pdf/FinalReport7-12-06wackn.pdf ... 11,21

Dottie Carmichael et al.,

Study to Assess the Impacts of the Fair

Defense Act on Texas Counties, Public Policy

Research Institute, Texas A&M University

(2005), http://www.courts.state.tx.us/tfid/

PEs bi ccsiuccasunecuaspecs 11-12, 20, 25

Michael Puisis,

Findings on the Medical and Mental Health

Programs of the Dallas County Jails (2005),

http://www.dallasnews.com/sharedcontent/

dws/img/03-05/jailhealth3.pdf .............. 22

Michael K. Moore & Allan K. Butcher,

Examining the Impact of Criminal Defense

Reform in Texas: Has the Fair Defense Act

Been Effective ? (2005), http://www.courts. state.

tx.us/tfid/pdf/ButcherMooreSPWSAO5.pdf ..20, 25

Polly Ross Hughes,

Revised Numbers Show Jail Overcrowding is

Worse, Houston Chronicle, Aug. 5, 2005,

available at http://www.solutionsfortexas.net/

SED Giddveysepdevendesadtecbawsvees 22

viii

Cited Authorities

Page

Press Release, Bexar County, Texas District

Attorney’s Office, Burglary Ring Busted (Dec.

20, 2007), http://www.bexar.org/da2/Press

Release/2007/12202007.htm .............05. 11

Press Release, Denton County, Texas, Sheriff’s

Office, $1/2 Million Worth of Heroin Seized,

3 Arrested, http://sheriff.dentoncounty.com/

View Press Release.asp?id=175. ........... 10-11

Texas Appleseed Fair Defense Project,

The Fair Defense Report, Analysis of Indigent

Defense Practices in Texas (2000), http://

www.texasappleseed.net/pdf/projects fair

defense fairref.pdf ....................20-- 19-20

Texas Commission on Jail Standards,

Jail Population Report (2008), http://www.tcjs.

state.tx.us/docs/abrerpt.pdf ................ 19, 22

Texas Task Force on Indigent Defense,

2006 Annual Report and Expenditure Report:

Evidence-based Practices Are Good for Public

Defense (2007), http://www.courts.state.tx.

us/tfid/pdf/TFIDFYO6ARFINALO12507. pdf .... 16

Wesley Shackelford,

Review of Tarrant County Indigent Defense

System (2006), http://www.courts.state.tx.us/

tfid/pdf/Tarrant%20County%20Report.pdf) ... 16-17

STATEMENT OF INTEREST'

The Brennan Center for Justice at New York

University School of Law is a non-partisan public policy

and law institute that focuses on fundamental issues of

democracy and justice. An important part of the Brennan

Center’s work is its effort to close the “justice gap” by

strengthening public defender services and working to

secure the promise of Gideon v. Wainwright, 372 U.S.

335 (1963). Because the subjective test adopted by the

court below jeopardizes indigent defendants’ Sixth and

Fourteenth Amendment rights, the Brennan Center has

a strong interest in this case.

The NAACP Legal Defense and Educational Fund,

Inc. (LDF) is the nation’s oldest civil rights law firm,

founded as an arm of the NAACP in 1939 by Charles

Hamilton Houston and Thurgood Marshall. LDF was

chartered by the Appellate Division of the Supreme

Court of New York in 1940 as a non-profit legal aid

society “to render legal aid gratuitously to such Negroes

as may appear to be worthy thereof, who are suffering

legal injustices by reason of race or color and unable to

employ and engage legal aid and assistance on account

of poverty.” Since 1957, LDF has operated independently

from the NAACP This Court has recognized that LDF

“has a corporate reputation for expertness in presenting

! No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici or their counsel made a monetary

contribution to its preparation or submission. Both Petitioner

and Respondent have consented to the filing of this brief, and

pursuant to Rule 37.3(a), the letters of consent have been filed

with the Clerk of the Court.

‘

and arguing the difficult questions of law that frequently

arise in civil rights litigation.” NAACP v. Button, 371

U.S. 415, 422 (1963). LDF is interested in this civil rights

case because the lower court’s narrow approach to

determining when Sixth Amendment rights attach

jeopardizes the rights of indigent defendants, including

African Americans and other minorities who studies

show are, on average, more likely to require the

appointment of counsel.

The National Legal Aid and Defender Association

(NLADA) is a nonprofit corporation that works to

support indigent defender services and civil legal

assistance to those who cannot afford lawyers. NLADA

has approximately 700 program members, representing

12,000 lawyers, including nonprofit organizations,

government agencies, legal aid organizations, and law

firms. NLADA American Council of Chief Defenders is

a leadership council that is dedicated to promoting fair

justice systems and ensuring that citizens who are

accused of crimes have adequate legal representation.

The question of precisely when the right to counsel

attaches is one of significant importance to NLADA and

its members.

Pe Pee aye oe Nee ey ee ee oe ul

SUMMARY OF ARGUMENT

The Sixth Amendment right to counsel is so

familiar—so ingrained in our society—that the

constitutional importance of the right is “obvious.”

Gideon v. Wainwright, 372 U.S. 335, 344 (1963). The

parties here do not dispute that the right to counsel can

attach long before trial. Pet’r Br. at 2; Respon. Cert. Opp.

at 7. Nor is there any dispute that Sixth Amendment

- rights attach upon “[tJhe initiation of adversary judicial

criminal proceedings.” Kirby v. Illinois, 406 U.S. 682,

689 (1972). The central questions here are when such

judicial criminal proceedings are initiated and how that

is determined.

As Petitioner demonstrates, these questions were

squarely answered in Brewer v. Williams, 430 U.S. 387

(1977), arid Michigan v. Jackson, 475 U.S. 625 (1986),

which—applying Kirby’s straightforward, objective

approach—held that adversary judicial proceedings had

begun when a defendant was brought before a judicial

officer, was apprised of the accusation against him, and

had restrictions imposed on his liberty to ensure he

answered that accusation.

Contrary to Brewer and Jackson, the Fifth Circuit

did not apply any objective standard in the proceedings

below. Instead, drawing on pre-Jackson Fifth Circuit

precedent, the court employed a subjective test to

determine when Sixth Amendment rights attach—a test

that, as the Fifth Circuit itself put it, requires an inquiry

into “the sometimes elusive degree to which the

prosecutorial forces of the state have focused on an

individual.” Pet. App. 6a (quoting Lomax v. Alabama,

629 F.2d 413, 415 (5th Cir. 1980)). Reasoning that the

inquiry depends on when prosecuting attorneys have

“focused on” a citizen, the Fifth Circuit held that

“adversary judicial proceedings cannot initiate without

some prosecutorial awareness or involvement.” Jd. at n.7

(paraphrasing McGee v. Estelle, 625 F.2d 1206, 1208 (5th

Cir. 1980)).

The Fifth Circuit’s approach departs not only from

Brewer and Jackson, but also from this Court’s repeated

holdings rejecting nearly identical subjective tests to

determine when other fundamental rights attach.

For example, when considering the appropriate test

for determining when a citizen has been placed in

“custody,” thereby triggering the Fifth Amendment

right to Miranda warnings, this Court expressly

rejected lower court holdings that Miranda rights

attached only when the questioning officers’ suspicions

had “focused on” the defendant. Stansbury v. California,

511 U.S. 318, 321, 323 (1994) (per curiam). Instead, the

Court applied an objective test that addressed “how a

reasonable person in the position of the individual being

questioned would gauge the breadth of his or her

‘freedom of action.” Jd. at 325. (quotation omitted).

Similarly, when considering the appropriate test for

determining when there has been a “seizure” triggering

Fourth Amendment rights, this Court rejected lower

court tests that anchored attachment in part to whether

government officials “intended to investigate” the citizen

detained. Brendlin v. California, 127 S. Ct. 2400, 2408

(2007) (“[W]e have repeatedly rejected attempts to

introduce this kind of subjectivity into Fourth

Amendment analysis”). Rather, the Court opted for an

objective standard that addressed whether “a reasonable

person would have believed that he was not free to leave.”

Id. at 2405 (quotation omitted).

This Court likewise should reject the subjective test

employed by the Fifth Circuit to determine whether a

defendant has become an “accused”—.e., “faced with

the prosecutorial forces of organized society, and

immersed in the intricacies of substantive and procedural

criminal law.” Jackson, 475 U.S. at 631 (quoting United

States v. Gouveia, 467 U.S. 180, 189 (1984)).

The Fifth Circuit’s subjective test cannot be

reconciled with Brewer and Jackson, is out of line with

this Court’s Fourth and Fifth Amendment jurisprudence,

and conflicts with the “noble ideal[s],” Gideon, 372 U.S.

at 344, of the Sixth Amendment. This Court should

reverse the decision below.

ARGUMENT

I. AS IT HAS IN THE FOURTH AND FIFTH

AMENDMENT CONTEXTS, THIS COURT

SHOULD REJECT A SUBJECTIVE TEST FOR

DETERMINING WHEN SIXTH AMENDMENT

RIGHTS ATTACH

A. The Lower Court’s Subjective Test, Like

Those Rejected for Determining When Fourth

and Fifth Amendment Rights Attach, Should

Not Govern the Sixth Amendment

This Court repeatedly has rejected application of

subjective tests, like the one applied below, in

determining when certain Fourth and Fifth Amendment

rights attach.

For example, in determining whether a suspect is in

“custody” triggering Miranda rights, the Court has

consistently applied an objective standard, rejecting

lower court tests that are nearly indistinguishable from

the one applied by the Fifth Circuit here. See Stansbury,

511 U.S. at 324-26; see also Yarborough v. Alvarado, 541

U.S. 652, 662-63 (2004).

In Stansbury, law enforcement officers took the

defendant to the station and questioned him concerning

an encounter with a murder victim. 511 U.S. at 320-21.

The officers did not provide Miranda warnings when

they began the questioning because they considered

someone else the lead suspect. Jd. at 320. It was only

after the defendant’s statements aroused suspicions that

the officers gave the defendant his Miranda warnings.

Id. After the state charged him with first-degree murder,

the defendant moved to suppress statements made

before he was Mirandized, and the evidence discovered

as a result of those statements. Jd. at 321. The California

courts held that the statements and evidence were

admissible because the defendant was not “in custody”—

the event triggering the right to Miranda warnings—

until the questioning police officers’ suspicions had

“focused on” him. Jd. at 321-22.

This Court rejected the California courts’ subjective

test. It held that attachment of Miranda rights “depends

on the objective circumstances of the interrogation, not

on the subjective views harbored by either the

interrogating officers or the person being questioned.”

Id. at 323. Citing prior precedents, the Court reiterated

the virtues of an objective inquiry over trying to parse

the state of mind and “focus” of government officials.

Id. at 323-24 (citing Beckwith v. United States, 425 U.S.

341, 345-46 (1976) (“[It] was the compulsive aspect of

custodial interrogation, and not the strength or content

of the government’s suspicions at the time the

questioning was conducted, which led the Court to

impose the Miranda requirements with regard to

custodial questioning.”); Berkemer v. McCarty, 468 U.S.

420, 442 (1984) (“[T]he only relevant inquiry is how a

reasonable man in the suspect’s position would have

understood his situation.”); Minnesota v. Murphy, 465

U.S. 420, 431 (1984) (“The mere fact that an investigation

has focused on a suspect does not trigger the need for

Miranda warnings in noncustodial settings, and the

probation officer’s knowledge and intent have no bearing

on the outcome of this case.”)).

An objective inquiry, the Court reasoned, is required

because a defendant cannot be expected “to probe [an]

officer’s innermost thoughts” to determine whether the

officer has “focused on” the defendant. Jd. at 324.

Further, this Court recognized that the “threat to a

citizen’s Fifth Amendment rights that Miranda was

designed to neutralize has little to do with” the subjective

views of officers and should not be anchored to the

potentially “evolving” intent or understandings of

government officials. See id. at 324-25 (quotation

omitted).

To this end, this Court adopted an objective test to

determine whether a person is in “custody”: “[H]ow a

reasonable person in the position of the individual being

questioned would gauge the breadth of his or her

‘freedom of action’ .... [I]t is the objective surroundings,

and not any undisclosed views, that control the Miranda

custody inquiry.” /d. at 325 (quotation omitted).

This Court has applied a similar objective test in

considering whether a citizen has been “seized” within

the meaning of the Fourth Amendment’s protection

against unreasonable searches and seizures, again

rejecting subjective tests used by lower courts. Brendlin,

127 S. Ct. at 2405-06 (describing longstanding objective

test used for determining whether “seizure” occurred

as “whether ‘a reasonable person would feel free to

decline the officers’ requests or otherwise terminate the

encounter”). In Brendlin, this Court recently applied

this test to consider whether the passenger of an

automobile pulled over during a traffic stop is “seized”

under the Fourth Amendment. /d. at 2403. In finding a

seizure in those circumstances, the Court rejected a

subjective test applied by a state high court that would

have hinged Fourth Amendment rights in large part on

whether the officer “intended to investigate” the

passenger when the car was pulled over. /d. at 2408. This

Court concluded that “we have repeatedly rejected

attempts to introduce this kind of subjectivity into

Fourth Amendment analysis.” Jd.

In sum, in assessing the proper standards for

determining when certain Fourth and Fifth Amendment

rights attach, this Court has adopted objective tests and

expressly rejected subjective inquiries virtually

indistinguishable from the one applied by the Fifth

Circuit. There is no principled basis for a departure from

this approach in the Sixth Amendment context.

B. The Reasons for Applying Objective Rather

Than Subjective Tests in the Fourth and Fifth

Amendment Contexts Have Equal Force in the

Sixth Amendment Context

The rationale articulated by this Court for using

objective tests to determine when Fourth and Fifth

Amendment rights attach is equally applicable to the

Sixth Amendment analysis.

As a threshold matter, the trigger for Fourth, Fifth,

or Sixth Amendment rights should not vary or be

dependent on the elusive and evolving “focus” or

awareness of government officials. See Brendlin, 1275S.

Ct. at 2408; Stansbury, 511 U.S. at 324-25. The Fifth

Circuit’s test does just that, by concluding that “an

adversary criminal proceeding has not begun in a case”—

and hence the right to counsel has not attached—“where

the prosecution officers are unaware of either the

charges or the arrest.” Pet. App. 6a (quoting McGee, 625

F.2d at 1208). As the Fifth Circuit acknowledged below,

this test essentially requires an inquiry into the

“sometimes elusive degree to which the prosecutorial

“

‘

—_

‘

forces of the state have focused on an individual.” Jd.

(quoting Lomax, 629 F.2d at 415 (emphasis added)). This

is precisely the type of “elusive” inquiry this Court

rejected as improperly subjective and unworkable in the

Fourth and Fifth Amendment contexts. Stansbury, 511

U.S. at 321, 324 (rejecting lower court test that attached

rights to Miranda warning on whether the officers’

suspicions had “focused on” the defendant); Brendlin,

127 S. Ct. at 2408-09 (rejecting lower court test that

attached Fourth Amendment rights based on whether

officer “intended to investigate” passenger of

automobile).

Beyond the difficulty in delving into a government

official’s mindset—which requires a speculative inquiry

to determine what a prosecutor “knows,” what he or she

is “focused on,” and when he or she becomes “involved” —

a subjective test makes the attachment of Sixth

Amendment rights contingent on arbitrary and/or

fortuitous circumstances. For instance, “awareness” of

a Texas prosecutor could fluctuate depending on the day

of arrest, since jails may be required to report their

arrestees to county prosecutor offices on particular days.

See Tex. Code Crim. Proc. art. 2.19 (“On the first day of

each month, the sheriff shall give notice, in writing, to

the district or county attorney, where there be one, as

to all prisoners in his custody, naming them, and of the

authority under which he detains them.”). Awareness or

“involvement” could also depend on any number of other

random circumstances, such as whether a sheriff’s or

prosecutor’s office issues a press release shortly after a

high-profile arrest. See, e.g., Press Release, Denton

County, Texas, Sheriff’s Office, $1/2 Million Worth of

Heroin Seized, 3 Arrested, http://sheriff. denton

7a es

county.com/View_Press_ Release. asp?id=175; see also

Press Release, Bexar County, Texas District Attorney’s

Office, Burglary Ring Busted (Dec. 20, 2007), http://

www.bexar.org/da2/PressRelease/2007/12202007. htm.

Indeed, the right could vary depending on the

sophistication, or lack thereof, of a jurisdiction’s

computer intake system. Some Texas counties, for

example, have computer systems that provide arrest and

detention information simultaneously to prosecutors, law

enforcement officers, jail personnel, and clerks.

Prosecutors in these jurisdictions use these systems to

pre-screen cases early in the process before an initial

appearance. Dottie Carmichael et al., Evaluating the

Impact of Direct Electronic Filing in Criminal Cases:

Closing the Paper Trap, Public Policy Research

Institute, Texas A&M University 2-3 (2006) [hereinafter

Carmichael 2006], http://www.courts.state.tx.us/tfid/pdf/

FinalReport7-12-06wackn.pdf.? Thus, government

“awareness,” and Sixth Amendment rights, could depend

on how electronic information is processed, which is

not only arbitrary, but varies from county to county.

See Dottie Carmichael et al., Study to Assess the Impacts

of the Fair Defense Act on Texas Counties, Public Policy

Research Institute, Texas A&M University 27-28 (2005)

(hereinafter Carmichael 2005], http://www.courts.state.

tx.us/tfid/Resources.asp (noting that in Dallas County,

prosecutors generally pre-screen cases within 72 hours

of arrest, but that few other counties can meet that pace).

Similarly, under the Fifth Circuit’s test, the right could

® See also Barry Mahoney & Walt Smith, Pretrial Release and

Detention in Harris County: Assessment and Recommendations

2-3 (2005), http://effectivealt.web.aplus.net/sitebuildercontent/

sitebuilderfiles/reportfinalharriscounty pretrial.doc.

“i Le MS meee

vary depending on the resources and staffing of the

various prosecutor offices in Texas’s 254 counties, leaving

the Sixth Amendment right not to objective standards,

but instead to the wide-ranging daily work-loads of

individual prosecutors.

Finally, leaving the timing for “awareness,” “focus”

or “involvement” in the first instance to the voluntary

acts of government officials creates the opportunity for

manipulation to gain prosecutorial advantages.*

By contrast, the objective approach applied in Brewer

and Jackson provides a clear and consistent framework

for protecting Sixth Amendment rights. It fixes the

attachment of the right to counsel on the occurrence of

objectively verifiable proceedings and avoids, in keeping

with Fourth and Fifth Amendment precedents, uncertain,

evolving subjective inquiries of government officials. As

Brewer and Jackson hold, under that objective approach,

“adversary judicial proceedings” have begun, at the very

least, when an arrestee is brought for his first appearance

before a judge, who informs him of the accusation against

him and restricts his liberty (including release on bail). That

event provides an objective marker that the person

formerly a “suspect” has become an “accused” within the

meaning of the Sixth Amendment. Reaffirming that the

right to counsel attaches in these circumstances would allow

3 Cf Gerstein v. Pugh, 420 U.S. 108, 118 (1975) (“A democratic

society .. . naturally guards against the misuse of the law

enforcement process. Zeal in tracking down crime is not in itself an

assurance of soberness of judgment. Disinterestedness in law

enforcement does not alone prevent disregard of cherished liberties.

Experience has therefore counseled that safeguards must be

provided against the dangers of the overzealous as well as the

despotic.” (quotation omitted)).

<<, oe es:

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the government—including courts, prosecutors, police

officers, and those implementing criminal justice

procedures and policies—to know with a high degree of

certainty when the right to counsel is triggered.

Cf Dunaway v. New York, 442 U.S. 200, 213-14 (1979)

(“A single, familiar standard is essential to guide police

officers, who have only limited time and expertise to reflect

on and balance the social and individual interests involved

in the specific circumstances they confront.”). Because

uncertainty and delay surrounding the appointment of

counsel imposes a real harm on defendants, using an

objective marker to determine the right to counsel is

far preferable to relying on elusive understandings,

happenstance, or a fact-intensive, backward-looking, and

often time-consuming inquiry.

Moreover, an objective test also avoids unwarranted

departure from other constitutional principles.

A subjective test, like the one used below, that seeks to

determine a prosecutor’s “focus” or knowledge departs

from the principle, recognized by this Court in Jackson,

that knowledge is imputed from one state actor to

another for Sixth Amendment purposes:

Sixth Amendment principles require that we

impute the State’s knowledge from one state

actor to another. For the Sixth Amendment

concerns the confrontation between the State

and the individual. One set of state actors (the

police) may not claim ignorance of defendants’

unequivocal request for counsel to another

state actor (the court).

475 U.S. at 634 (footnote omitted).

Further, a subjective test, which requires a

defendant to establish government knowledge or “focus,”

places an undue burden on the accused. For example,

though the decision below is not entirely clear, the Fifth

Circuit appears to have presumed that the burden of

showing prosecutorial knowledge, focus, or involvement

rests on a criminal defendant. Pet. App. 7a (“Rothgery

provides no reason why the officer’s acts should somehow

be imputed to the prosecutor’s office or should otherwise

be interpreted to signal that Rothgery was opposed by

the prosecutorial forces of the state.”). Such an approach

is inconsistent with this Court’s precedents imposing

such burdens on the government, not the accused.

See, e.g., Missouri v. Seibert, 542 U.S. 600, 608 n.1 (2004)

(government bears burden to show an individual’s waiver

of Miranda rights and voluntariness of confession);

Niz v. Williams, 467 U.S. 431, 444-45, n.5 (1984)

(government bears burden to show inevitable discovery

of evidence obtained by unlawful means); United States

v. Matlock, 415 U.S. 164, 177 (1974) (government bears

burden to show voluntariness of consent to search).

Placing the burden on the government is particularly

appropriate where, as here, the relevant information is

in the hands of the government. See Tague v. Louisiana,

444 U.S. 469, 470-71 (1980) (per curiam) (“Since the State

is responsible for establishing the isolated circumstances

under which the interrogation takes place and has the

only means of making available corroborated evidence

of warnings given during incommunicado interrogation,

the burden is rightly on its shoulders.” (quoting Miranda

v. Arizona, 384 U.S. 436, 475 (1966)).

Ultimately, an objective test focuses, as it should, on

the nature and consequences of the proceeding itself.

‘

By shifting the focus away from the proceeding, the Fifth

Circuit’s test injects improper subjectivity and

arbitrariness into the Sixth Amendment analysis. That

subjective approach has been rejected for the Fourth

and Fifth Amendments. It should be rejected here.

Il. “ADVERSARY JUDICIAL PROCEEDINGS”

HAVE BEGUN WHEN A PERSON IS BROUGHT

BEFORE A MAGISTRATE, INFORMED OF THE

ACCUSATION AGAINST HIM, AND HAS

RESTRAINTS IMPOSED ON HIS LIBERTY

The objective test employed by Brewer and Jackson

properly recognizes that a suspect becomes an “accused”

within the meaning of the Sixth Amendment, adversary

judicial proceedings commence, and his right to counsel

therefore attaches, once he is informed of the accusations

against him by a judicial officer and committed to jail or

bail. There can be no question that an accused at

this stage in the system has been “faced with the

prosecutorial forces of organized society, and immersed

in the intricacies of substantive and procedural criminal

law.” Jackson, 475 U.S. at 631 (quotation omitted).

A detailed examination of the Texas pre-indictment

system bears this out.

A. Pre-Indictment Proceedings in Texas: Arrest

to Magistration

Under Texas law, the police may arrest citizens in a

variety of circumstances with or without a warrant.

Where, as here, the situation involves a warrantless

arrest, Texas law generally permits such arrests when

individuals are “found in suspicious places and under

circumstances which reasonably show that such persons

have been guilty of some felony .. . breach of the peace

Oe Se ee eee

‘

;

... or threaten, or are about to commit some offense

against the laws.” Tex. Code Crim. Proc. art. 14.03(a)(1).

Warrantless arrests can be made for conduct within an

officer’s view, or, for various offenses, outside an officer’s

presence. Jd. art. 14.03(b); see also id. art. 14.04

(warrantless arrest permissible when officer receives

“representation of a credible person, that a felony has

been committed, and that the offender is about to

escape”). Mr. Rothgery, for instance, was arrested

without a warrant for unlawful possession of a firearm

by a felon.

Though the circumstances allowing for warrantless

arrest are wide-ranging, they are still limited by statute,

and few citizens would know or understand when an

officer’s arrest is improperly made.

As defined by Texas law, an arrest, with or without a

warrant, occurs when the accused is “actually placed

under restraint or taken into custody by an officer... .”

Id. art. 15.22. In making an arrest an officer may use

force. Jd. art. 15.24. And, with certain exceptions,

id. art. 14.05, he “may break down the door of any house

for the purpose of making an arrest, if he be refused

admittance after giving notice of his authority and

purpose.” Jd. art. 15.25. In Texas, approximately six out

of ten of those arrested are indigent.‘

‘ “In 2006, 62 percent of felony defendants in Texas courts

received appointed counsel.” Texas Task Force on Indigent

Defense, 2006 Annual Report and Expenditure Report:

Evidence-based Practices Are Good for Public Defense 3 (2007),

http://www.courts.state.tx.us/tfid/pdf/TFIDFY06AR FINAL

012507.pdf. The rates can vary significantly by county. In some

(Cont'd)

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~~ *

After an arrest (with or without a warrant),

individuals may sit in jail for up to 48 hours before being

taken to a magistrate. See Tex. Code Crim. Proc. arts.

14,06(a), 15.17(a).

B. The Initial Appearance: A Citizen is Brought

Before a Court, Advised of the Accusations,

and His or Her Liberty Is Restrained

After spending up to two days in jail following a

warranted or warrantless arrest, an arrestee in the

Texas system is next brought before a magistrate for an

initial appearance in what typically is called the

“magistration.” There, he is advised “of the accusation

against him and of any affidavit filed therewith.”

Id. art. 15.17(a) (emphasis added). He also is advised of

“his right to retain counsel, of his right to remain silent,

of his right to have an attorney present during any

interview with peace officers or attorneys representing

(Cont'd)

counties the felony appointment rate is over 80%; in others less

than 30%. Wesley Shackelford, Review of Tarrant County

Indigent Defense System 3 (2006), http://www.courts. state.tx.us/

tfid/pdf/Tarrant%20County%20Report.pdf. (containing statistics

on 10 Texas counties). Statistics show that nationwide African

Americans and other minorities are, on average, more likely to

require the appointment of counsel: According to the Bureau of

Justice Statistics, as of 2001, “69% of white State prison inmates

reported they had lawyers appointed by the court,” whereas

“77% of blacks and 73% of Hispanics had publicly financed

attorneys. In Federal prison black inmates were more likely than

whites and Hispanics to have public counsel: 65% for blacks, 57%

for whites and 56% for Hispanics.” Bureau of Justice Statistics,

Indigent Defense Statistics: Racial Disparity and the Use of

Publicly Financed Counsel, http://www.ojp.usdoj.gov/bjs/

id.htm#racial.

the state, of his right to terminate the interview at any

time, and of his right to have an examining trial.” °

Id. In cases where the defendant is arrested without

a warrant, for convenience, the probable cause

determination required by Gerstein v. Pugh, 420 U.S.

103 (1975), often is combined with the initial appearance.

See Tex. Code Crim. Proc. 14.06(a).

In Mr. Rothgery’s magistration, for example, he was

confronted with an Affidavit of Probable Cause sworn

by the arresting officer that stated the “charge” against

him, the magistrate found that “probable cause existed

for the arrest of the individual accused therein,” and

informed Rothgery that he was “accused of the criminal

offense of: unlawful possession of a firearm by a felon.”

Pet App. 33a-35a (emphasis added).

During this initial appearance, the magistrate is

statutorily required to “inform the person arrested of

the person’s right to request the appointment of counsel

if the person cannot afford counsel .... [and] of the

procedures for requesting appointment of counsel . .. .”

Tex. Code Crim. Proc. art. 15.17(a). The magistrate at

Mr. Rothgery’s magistration provided this information.

Pet. App. 35a-37a.

5 Under Texas law, “(t]he accused in any felony case shall

have the right to an examining trial before indictment ...

whether he be in custody or on bail . . . .” Tex. Code Crim. Proc.

art. 16.01. This pre-indictment right gives an accused the

opportunity to “examine into the truth of the accusation made.”

Id. The accused and government may call and question witnesses.

Id. arts. 16.06-.07. After the examining trial, the judge can make

an order committing the defendant to jail, grant bail, or discharge

him for lack of probable cause. Jd. art. 16.17.

C. At the Magistration, the Court Grants or

Denies the Accused Bail

During this initial appearance, the magistrate

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

or jails those who lack the means to post bail. See, ¢.g.,

Tex. Code Crim. Proc. arts. 15.17(a), 17.27. “Bail’ is the

security given by the accused that he will appear and

answer before the proper court the accusation brought

against him ....” Jd. art. 17.01 (emphasis added). Unlike

many defendants,’ Mr. Rothgery managed to post bail.

Historically in Texas, those denied bail often waited

weeks—or even months—before they were indicted and

provided counsel. As one report found:

Delay in appointment of counsel is a major

concern in many counties. For instance, in

some counties, indictment triggers the

appointment of counsel. Indictment can occur

months after arrest, leaving the defendant in

jail with no access to counsel during that

period. Even in counties where it is not

indictment that triggers appointment, but

some other earlier appearance before the

court, that might not occur for weeks after

arrest. In either case, even for those

defendants out on bond, the practice whereby

counsel is appointed some or a considerable

6 According to the Texas Commission on Jail Standards Jail

Population Report, as of January 1, 2008, more than 50% of the

state’s county and city jail detainee population are pretrial and

have not been convicted of a crime. See generally Texas

Commission on Jail Standards, Jail Population Report (2008),

http://www.tcjs.state.tx.us/docs/abrerpt.pdf.

~ ae

time after arrest works to the defendant’s

detriment in that counsel is impeded in pursuing

witnesses and factual leads in a timely,

expeditious fashion.

Texas Appleseed Fair Defense Project, The Fair Defense

Report, Analysis of Indigent Defense Practices in Texas

29 (2000), http://www.texasappleseed.net/pdf/projects _

fairdefense_fairref.pdf; accord Michael K. Moore & Allan

K. Butcher, Examining the Impact of Criminal Defense

Reform in Texas: Has the Fair Defense Act Been Effective?

14 (2005), http://www.courts.state.tx.us/tfid/pdf/Butcher

MooreSPWSA05. pdf.’

The Fifth Circuit’s rule—under which counsel need not

be appointed until indictment absent some pre-indictment

prosecutorial involvement—would permit such lengthy

stays in jail with no access to counsel. Moreover, that would

be so even for defendants who, like Rothgery, could readily

prove their innocence and obtain dismissal of the charges

against them with a lawyer’s help. Under the Fifth Circuit’s

rule, that is, “a law-abiding citizen wrongfully arrested

may be compelled to await the grace of a Dickensian

bureaucratic machine, as it churns its cycle” for an

indefinite period—without the assistance of counsel to

demonstrate “that there is absolutely no reason to hold him,

that a mistake has been made.” County of Riverside v.

McLaughlin, 500 U.S. 44, 71 (1991) (Scalia, J., dissenting).

7 Accord Carmichael 2005, supra, at 27 (“At every study site

except Dallas, stakeholders recall that before [the Fair Defense Act),

indigent defendants charged with both misdemeanors and felonies

were commonly detained for months with no advocate to protect

their legal rights and interests. Since the FDA, defendants may

still be held in custody while prosecutors review their case. However,

it is no longer without access to an attorney.”).

Because of these and other problems, Texas law was

amended to provide that a person denied or financially

unable to post bail at magistration is provided counsel

within three business days in counties, like Gillespie

County, with populations of less than 250,000, and within

one business day in counties with a population of over

250,000. See Tex. Code Crim. Proc. art. 1.051(c). These

reforms, however, do not apply to persons, like

Mr. Rothgery, released on bond. See id. art. 1.051(j).

Moreover, even in Texas, some studies suggest that large

percentages of defendants are not appointed counsel

within the statutory time frames. See Carmichael 2006,

supra, at 98, Figure 9-3 (reflecting percent of individuals

without counsel 4, 7, 14 days of confinement). In one

county, for example, only 20% of defendants had counsel

in four days and only 73% of defendants had received

counsel after 14 days of confinement. Jd. In another

county, only 38% of defendants were appointed counsel

within four days and only 65% of defendants received

counsel within two weeks. Jd. Even the county with the

highest appointment rates had only slightly more than

half of the defendants (56%) receiving court appointed

counsel within four days, and only 88% within two

weeks. /d.*

Most significantly, as discussed above, the Fifth

Circuit’s rule would permit reversal of these reforms and

permit states to incarcerate defendants without access

to counsel, potentially for as long as several months,

while they await indictment. Such jail time—which, in

8 The study could not draw conclusions as to why this was

the case, though some of these individuals may not have

requested counsel (and thus not triggered the deadlines for

appointment which begin upon the defendant’s request).

OI Se SEER PS Te EE ey Nn oe Pee

Mee ALD ke -

the case of innocent defendants like Mr. Rothgery, serves

no valid purpose—presents serious risks. Texas jails are

overcrowded. See ACLU of Texas, Prisons and Jail

Accountability Project (PJAP), http://www.aclutx.org/

projects/prisons.php. For example, in Harris County, at

least 1,700 jail inmates reportedly were sleeping on

mattresses on the floor in June 2005. See Polly Ross

Hughes, Revised Numbers Show Jail Overcrowding is

Worse, Houston Chronicle, Aug. 5, 2005, available at

http://www.solutionsfortexas.net/id408.html; see also

Texas Commission on Jail Standards, Jail Population

Report (2008), http://www.tcjs.state.tx.us/docs/abrerpt.

pdf. (reflecting county-by-county jaii populations and

capacities as of January 2008).

The facilities and conditions often fail to meet the

standards set by the Texas Commission on Jail

Standards. See ACLU of Texas, Prisons and Jail Project,

http://www.aclutx.org/projects/prisonspg.php?pid=93.

Further, aside from the overcrowded poor conditions,

those jailed face serious health risks. In Bexar County,

for instance, more than 900 inmates tested positive for

tuberculosis in 2005 and 301 tested positive for

methicillin resistant staphylococcus aureus. See id.;

see also Michael Puisis, Findings on the Medical and

Mental Health Programs of the Dallas County Jails 30-

32 (2005), http://www.dallasnews.com/sharedcontent/

dws/img/03-05/jailhealth3.pdf (discussing significant

tuberculosis problems in Dallas County jails). In

addition, Texas jails have a significant problem with

hepatitis C. See ACLU of Texas, Prisons and Jail

Project, http://www.aclutx.org/projects/prisonspg.php

?pid=93 (“In a public hearing before the Subcommittee

of Healthcare and Special Populations of the House

Correction Committee, staff from the Correctional

Managed Health Committee stated that 30% of prisoners

received from the county jails test positive for Hepatitis

C upon entry to the Texas Department of Criminal

Justice.”).

Those jailed also face a serious risk of violence,

including sexual violence. In 2004, the Bureau of Justice

Statistics reported hundreds of cases of sexual assault

in local jails nationwide. See Alan J. Beck & Timothy A.

Hughes, Sexual Violence Reported by Correctional

Authorities, 2004, Bureau of Justice Statistics (2005),

http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca04.pdf. Id. at

App. Table 1a. (providing statistics on sexual violence in

Texas prisons).

Moreover, even a defendant who is able to post bond

and obtain release on bail following his initial appearance

suffers significant harms:

He is required to appear in court at the state’s

command. He is often subject . . . to the

condition that he seek formal permission from

the court (at significant expense) before

exercising what would otherwise be his

unquestioned right to travel outside the

jurisdiction. Pending prosecution, his

employment prospects may be diminished

severely, he may suffer reputational harm, and

he will experience the financial and emotional

strain of preparing a defense.

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

J., concurring). The mere possibility that the defendant

could be returned to jail for violating bail conditions is

by itself a significant intrusion on his liberty. Cf Alabama

v. Shelton, 535 U.S. 654, 658 (2002) (“[A] suspended

sentence that may ‘end up in the actual deprivation of a

person’s liberty’ may not be imposed unless the defendant

was accorded ‘the guiding hand of counsel’ in the

prosecution for the crime charged.” (quotation omitted)).

Further, as this Court has recognized, “pretrial release may

be accompanied by burdensome conditions that effect a

significant restraint of liberty.” Gerstein, 420 U.S. at 114

(citing 18 U.S.C. §§ 3146(a)(2), (5)).

Perhaps most significant of all, as this case

demonstrates, the consequences of delaying appointment

of counsel can be devastating: such delay prevents

counsel from promptly investigating the facts before

witnesses disappear or evidence is destroyed; assessing

the defendant’s mental and emotional state; ensuring

that the accused understands and can invoke his

rights and that the state properly follows its statutory

® In Gerstein, this Court cited as examples of “burdensome

conditions” provisions of the federal law in effect at the time allowing

bail conditions, such as “restrictions on the travel, association, or

place of abode of the person,” 18 U.S.C. § 3146(a)(2) (1975), and

“any other condition deemed reasonably necessary to assure

appearance as required,” id. § 3146(a)(5). Texas law specifies many

other conditions, allowing the government to order defendants: to

home confinement, Tex. Code Crim. Proc. art. 17.44(a)(1); to

electronic monitoring and curfew, id. art. 17.43(a); to submit to DNA

samples, id. art. 17.47; to undergo controlled substance testing,

id. art. 17.44(a)(2); and to submit to the installation of a device that

may prevent ignition of a motor vehicle, id. art. 17.441. A review of

one county’s approach to bond found that the extent of conditions

depended on the specific judge; indeed, one judge imposed a total

of 1,240 conditions on 301 different defendants. Mahoney & Smith,

supra, at 16-17.

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procedures (such as the right to an examining trial,

see supra note 5); and redressing unjust errors like the

one made in Mr. Rothgery’s case. As one Texas report put

it, “[wJaiting until indictment to provide an attorney, which

was not an uncommon occurrence in many pre FDA

jurisdictions, was not unlike awaiting until the autopsy to

provide a physician.” Moore & Butcher, supra, at 14;

see also id. (“For the right to an attorney to be meaningful

.... [t]he counsel should be assigned within a reasonable

number or hours or days and not a matter of weeks or

months after the arrest.”). When the “stakes are this high,”

cf. Gerstein, 420 U.S. at 114, the appointment of counsel is

essential if the Sixth Amendment is to provide meaningful

protection to the accused.

The recent Texas experience suggests that appointing

counsel early on has minimal cost and substantial benefits.”

But without a constitutional requirement, there could be

resistance to adopting similar procedures in other

jurisdictions. Indeed, affirmation of the Fifth Circuit’s

approach could encourage jurisdictions currently providing

counsel upon the initial appearance to succumb to common

misperceptions concerning the cost of providing counsel

in such circumstances and change course. That would

dramatically undermine the Sixth Amendment’s

protections.

In sum, “[w]hatever else it may mean, the right to

counsel granted by the Sixth and Fourteenth Amendments

means at least that a person is entitled to the help of a

lawyer at or after the time that judicial proceedings have

been initiated against him ‘whether by way of formal

charge, preliminary hearing, indictment, information, or

arraignment.” Brewer, 430 U.S. at 398 (quotation omitted).

Given the constitutional issues at stake, using an objective

standard to determine when the right to counsel attaches

is far preferable to relying on the subjective, arbitrary, and

elusive “focus,” “awareness,” or “involvement” of

government officials.

The objective test applied by this Court in Brewer and

Jackson is straightforward, well-reasoned, and workable.

The Fifth Circuit’s subjective test, on the other hand,

cannot be reconciled with Brewer and Jackson, is

inconsistent with this Court’s Fourth and Fifth Amendment

jurisprudence, and denies a poor defendant an essential

right: “the guiding hand of counsel at every step in the

proceedings against him.” Powell v. Alabama, 287 U.S. 45,

69 (1932). This Court should reject the Fifth Circuit’s

subjective test and reverse.

IS 0 er Se eee >

CONCLUSION

For the foregoing reasons, the judgment of the Fifth

Circuit should be reversed.

Respectfully submitted,

Craic A. STEWART ANTHONY J. FRANZE

ARNOLD & PorteR LLP Counsel of Record

399 Park Avenue Son B. NGuyEN

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ARNOLD & Porter LLP

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