Amicus Curiae Brief — Rothgery v. Gillespie County

aS yes &

JN 23 OM

3 7 PP No. 07-440

IN THE

Supreme Court of the Mnited Sites

WALTER ALLEN ROTHGERY,

| Petitioner,

Vv.

GILLESPIE COUNTY, TEXAS,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

PAMELA HARRIS [AN HEATH GERSHENGORN*

Co-chair, Amicus Committee JENNER & BLOCK LLP

NATIONAL ASSOCIATION OF 601 Thirteenth St., N.W.

CRIMINAL DEFENSE LAWYERS Washington, DC 20005

1625 I Street, N.W. (202) 639-6000

Washington DC 20006

(202) 383-5386

MALIA N. BRINK

NATIONAL. ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

1150 18th Street, N.W.

Washington, DC 20036

(202) 872-8600

Jan 23, 2008 *Counsel of Record

8 ee em 5

i

TABLE OF CONTENTS

TABLE OF AUTHORITITEG.................ccccssssssssssseseees il

INTEREST OF AMICUS CURIAE................:cccscssees 1

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

TE ceisiihcotiptinsibncipdiniiinsisrecouemmennicinniginicmeetel 4

I. Mr. Rothgerys Constitutional Right To

Counsel Attached Upon His Initial

Arraignment, A Formal Proceeding In Which

He Was “Accused” Of A Crime. ..............cccccceeeeeeees 4

II. The Fifth Circuit’s “Prosecutorial

Involvement” Test Both Ignores The Sixth

Amendment’s Commitment To Providing A

Guide Through The “Intricate Procedural

System” And Would Be Difficult To Apply. .......... 8

III.The Overwhelming Majority Of The States

Already Provide Counsel Upon Initial

Arraignment, Without Regard To The

Presence Of Prosecutorial Involvement. ............. 12

IV.The Practical Consequences Of Adopting The

Fifth Circuit's “Prosecutorial Involvement”

By BP HII, scccciscnconenscénsestodinincssnintnbaniad 16

EERE Ee ere RRM E EER 25

a la

*

Ress:

CASES

TABLE OF AUTHORITIES q

Brewer v. Williams, 430 U.S. 387 (1977)........... 4

Davis v. United States, 512 U.S. 452 (1994) 3

Evitts v. Lucey, 469 U.S. 387 (1985) «soc j

Fare v. Michael C., 442 U.S. 707 (1979)........0...+. 3

Gideon v. Wainwright, 372 U.S. 335 (1968)......... :

Halbert v. Michigan, 545 U.S. 605 (2005).....11, 22 ‘

Jimpson vy. State, 532 So. 2d 985 (Miss. :

BARE EIA TM NOS BBR TADS 15 q

Johnson v. Zerbst, 304 U.S. 458 (1938).........10,11

Kirby v. Illinois, 406 U.S. 682 (1972) .......... 8, 9, 10

McDermott, Inc. v. AmClyde, 511 U.S. 202

AERIS RGN uer Lee A agancns are ee eet 24 |

McNeil v. Wisconsin, 501 U.S. 171 (1991)....2,5,7

Michigan v. Jackson, 475 U.S. 625 (1986)........ 3.797 |

Powell v. Alabama, 287 U.S. 45 (1932)........... 5, 21

United States v. Ash, 413 U.S. 300

RUN <iinsesscproscstesdnndsitiohcnihidiacicebtealias 3, 6, 10, 11

United States v. Cronic, 466 U.S. 648 (1984)... 5

United States v. Gouveia, 467 U.S. 180

RI iis niin nnicgeaceiniishichiachiictieniiaadabnaa triacs 10, 11

United States v. Mezzanatto, 513 U.S. 196

SIRES IRR SE SE a SP FAS ea EPO 24

Wright v. Van Patten, No. 07-212, __ S. Ct.

__, 2008 WL 59980 (2008) ...........c.ssecscessuesseeenes 6

q CONSTITUTIONAL PROVISIONS

’ AND STATUTES

7 UVB. Comat mpamnernd VI ossccscsuscsccsencsnonnnsscesossessee 4

J Dm, Cores GH. ©. GEE. ZOO. .n.cccccccccccccccsccccccsssisses 15

j N.C. Gen. Stat. Ann. § 7A-451(b) ......cscecsesesseeseene 14

3 OE is isc cc senisesnsocmninia 14

q Ba ie SO ao scesen coe snsvvectcess 23

i SOY, When, Wh ah, TOI ane casesessneee 23

4 Texas Code Crim. P. art. 15.17......sssssssssssseses 7, 22

Texas Code Crim. P. art. 16.01........ss::sssessssseesen 21 |

MISCELLANEOUS :

ABA, Criminal Justice Section Standards: ;

Defense Section, Standard 4-4.1: Duty to :

Investigate, available at ’

http://www.abanet.org/crinijust/standard

arias WR nN Sai cccccerscsvsneseneseces 17

ABA, Criminal Justice Section Standards:

Defense Section, Standard 4:-3.2:

Interviewing the Client, available at

http://www.abanet.org/crimjust/standard

I I ceili tli nctrnictecinsccadniocprennioncs 20

Mary Prosser, Reforming Criminal

Discovery: Why Old Objections Must

Yield To New Realities, 2006 Wis. L. Rev.

1 The Public Defender Service for the

District of Columbia, Criminal Practice

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abe Ga JO oo §

De RS AT Ce ENTRY ADT OD Ee SRC ee Eo

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1

INTEREST OF AMICUS CURIAE?

The National Association of Criminal Defense

Lawyers is the preeminent organization advancing

the mission of the criminal defense bar to ensure

justice and due process for persons accused of crime

or wrongdoing. A professional bar association

founded in 1958, NACDL’s 12,000-plus direct

members in 28 countries — and 90 state, provincial

and local affiliate organizations totaling more than

40,000 attorneys — include private criminal defense

lawyers, public defenders, military defense counsel,

law professors, and judges committed to preserving

fairness and promoting a rational and humane

criminal justice system. The American Bar

Association recognizes NACDL as an _ affiliate

organization and awards it full representation in its

House of Delegates.

The question of precisely when the right to

counsel attaches is one of obvious importance to

NACDL and its members. As our members are

keenly aware, counsel delayed is often effective

counsel denied, and an accused’s immediate access to

counsel can be the difference — as it was for Mr.

Rothgery — between freedom and confinement.

Fortunately, most States have recognized this

1 No counsel for a party authored this brief in whole or in part.

No person or entity other than NACDL and their counsel made

a monetary contribution to the preparation or submission of

this brief, and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

the brief. Both petitioner and respondent have consented to the

filing of this brief, and, pursuant to Rule 37.3(a), NACDL has

filed the letters of consent with the Clerk of the Court.

2

important truth, and they provide counsel at or

immediately after the accused’s first appearance

before a judge, at which time he is informed of the

accusation against him. With members in all 50

States and the District of Columbia, and with

substantial experience in all aspects of the

representation of criminal defendants, NACDL is

uniquely positioned to inform the Court of the

practice in the States and of the consequences of the

radical reworking of that practice that Respondent

proposes here.

SUMMARY OF ARGUMENT

I. The Sixth Amendment, as applied to the States

by the Fourteenth Amendment, guarantees that no

individual shall face a criminal accusation by the

government without the assistance of counsel. This

Court has long recognized that the right to counsel is

the primary protection standing between the

defendant and the vast power of the State.

In determining the time at which the Sixth

Amendment demands the provision of counsel, this

Court has focused on the first formal proceeding as a

trigger point — the stage at which the individual

develops from a “suspect” to an “accused.” See

McNeil v. Wisconsin, 501 U.S. 171, 180-81 (1991)

(“The Sixth Amendment right to counsel attaches at

the first formal proceeding against an accused.”). At

this point, a defendant must be able to rely on

counsel to act as a barrier between him and the State

— to manage the intricacies of the procedural web of

the law, to investigate vigorously essential evidence,

to secure his pre-trial rights, and to begin

3

preparations for his defense at trial. This Court’s

cases thus hold that the right to counsel attaches, at

the latest, after initial arraignment. See Michigan v.

Jackson, 475 U.S. 625 (1986); Brewer v. Williams,

430 U.S. 387 (1977).

II. The Fifth Circuit nevertheless held that the Sixth

Amendment right to counsel does not attach after

initial arraignment whenever the prosecution is not

yet involved in the case. This holding is flatly

contrary to this Court’s case law and ignores the

fundamental purpose of the right to counsel. Though

counsel is surely needed when a prosecutor stands as

a representative of the State in a criminal

proceeding, this Court has made clear that the right

to counsel exists not just to enable the defendant to

meet the arguments of an “experienced and learned”

adversary, but also — and of critical importance — to

guide the accused through an “intricate procedural

system.” United States v. Ash, 413 U.S. 300, 306,

309 (1973); see also Evitts v. Lucey, 469 U.S. 387,

394 n.6 (1985).

III. This Court’s affirmance of its existing case law

and rejection of the Fifth Circuit’s novel

prosecutorial involvement test would conform to

existing practice in the States. A vast majority of the

States, along with the federal system, already

provide counsel either before, at, or just after initial

arraignment. Thus, while the Sixth Amendment

right at the core of this case has enormous

implications for criminal defendants, a decision

striking down the Fifth Circuit rule will not wreak

havoc in States throughout the country. Rather, this

Court’s decision would merely push the few States

4

who fail to provide counsel after the first formal

proceeding in line with the great majority of States

that do.

IV. Should the Fifth Circuit rule stand, the practical

consequences of the “prosecutorial involvement” test

would be severe. Prompt investigation is critical to

effective representation. Delaying an accused’s

access to counsel after initial arraignment for weeks

or even months until indictment will hinder counsel’s

ability to find and talk to witnesses, gather physical

evidence, and document their clients’ mental,

physical, and emotional states near the time of the

alleged crime. Further, defendants will be forced to

face the procedural hurdles embedded in our

criminal justice system without the assistance of

trained counsel. As a result, they may lose

important rights, for example, to testify before the

grand jury and to obtain a speedy indictment. The

consequences for criminal defendants would be

harsh. But so, too, would the consequences for the

Constitution, which recognizes that a robust reading

of the Sixth Amendment right to counsel is the best

defense against injustice.

ARGUMENT

I. Mr. Rothgery’s Constitutional Right To Counsel

Attached Upon His Initial Arraignment, A

Formal Proceeding In Which He Was “Accused”

Of A Crime.

The Sixth Amendment, made applicable to the

States through the Fourteenth Amendment, provides

that “[iJn all criminal prosecutions, the accused shall

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

5

his defense.” This Court’s cases have sensibly

: understood the amendment to require that, at the j

latest, once a defendant has appeared before a court ,

: that has officially informed him of the accusation ’

3 against him, a criminal prosecution has begun and 1

: the Sixth Amendment has attached. At that point, 4

the accused has the right to the “Assistance of

Counsel” to navigate the procedural shoals that lie

before him. See, e.g., McNeil, 501 U.S. at 180-81 F

(“The Sixth Amendment right to counsel attaches at 4

the first formal proceeding against an accused.”). In :

the decision below, the Fifth Circuit engrafted an '

additional requirement, namely, that, in order for

the Sixth Amendment to attach, a prosecutor must

have been involved in that first proceeding or in the

underlying arrest. That requirement is flatly

inconsistent with this Court’s cases. Moreover, it

reflects a cramped view of the protections provided

by the Sixth Amendment and would be an unwise

and unwarranted restriction on the principal

bulwark against unjust confinement.

1. Both the Sixth Amendment and this Court’s

cases reflect the importance of the right to counsel to

the assurance of a fair and just administration of the

criminal law. The Court has long recognized that

“(t]he right [of a defendant] to be heard would be, in

many cases, of little avail if it did not comprehend

the right to be heard by counsel. Even the intelligent

and educated layman has small and sometimes no

skill in the science of law.... He requires the guiding

hand of counsel at every step in the proceedings

against him.” Powell v. Alabama, 287 U.S. 45, 68-69

(1932); see also United States v. Cronic, 466 U.S.

Di et i el eh tn, 2 ee es

6

648, 654 (1984). The Court’s implementation of the

Sixth Amendment right thus reflects “the recognition

and awareness that an unaided layman hals] little

skill in arguing the law or in coping with an intricate

procedural system.” Ash, 413 U.S. at 307: see also

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

(noting that “any person haled into court, who is too

poor to hire a lawyer, cannot be assured a fair trial

unless counsel is provided for him. This seems to us

to be an obvious truth.”). See generally Wright v.

Van Patten, No. 07-212, _S. Ct. __, 2008 WL 59980,

at *5 (2008) (Stevens, J., concurring).

2. In defining the point at which the Sixth

Amendment attaches, this Court’s cases have

sensibly focused on the first formal proceeding in

which the “suspect” becomes the “accused.” Brewer

v. Williams and Michigan v. Jackson establish the

governing law. In Brewer, the defendant was

arraigned before a judge on an outstanding arrest

warrant. The Court embraced the “well established”

position that the Sixth Amendment had attached:

“Whatever else it may mean, the right to counsel

granted by the Sixth and Fourteenth Amendments

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

a lawyer at or after the time that judicial

proceedings have been initiated against him

‘whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.”

430 U.S. at 398 (quoting Kirby v. Illinois, 406 U.S.

682, 689 (1972)). In the Court’s view, “[t]here can be

no douwbt...that judicial proceedings had been

initiated against Williams,” because “[a] warrant had

been issued for his arrest, he had been arraigned on

ee ee ee te ee eee - x

7

that warrant before a judge in a...courtroom, and he

had been committed by the court to confinement in

jail.” Jd. at 399.

In Michigan v. Jackson, this Court reaffirmed

that the right to counsel attaches no later than

initial arraignment. At that point, a person “who

had previously been just a ‘suspect’ has become an

‘accused,” and the Sixth Amendment attaches.

Jackson, 475 U.S. at 632. The Court held that “[t]he

arraignment signals ‘the initiation of adversary

judicial proceedings’ and thus the attachment of the

Sixth Amendment.” Jd. at 629 (quoting United

States v. Gouveia, 467 U.S. 180, 187 (1984)); see also

Jackson, 475 U.S at 630 n.3 (rejecting the State’s

contention that the right to counsel had not attached

as “untenable” “[ijn view of the clear language in our

decisions about the significance of [thel

arraignment”). :

In short, this Court’s cases make resoundingly |

clear that, as Justice Scalia stated for the Court in

MeNeil, 501 U.S. at 180-81, “[tlhe Sixth Amendment |

right to counsel attaches at the first formal

proceeding against an accused.”

3. Against this backdrop, it defies this Court’s

} precedent to claim that, following the Texas

procedure at issue here, Mr. Rothgery did not stand

| “accused” and did not have the right to appointed

: counsel. At this initial appearance, the magistrate

: clearly informed Mr. Rothgery, as required by the

. governing statute, see Tex. Code. Crim. P. art. 15.17,

! that he was “accused of the criminal offense of:

unlawful possession of a firearm by a felon.” Pet.

8

App. 35a. Moreover, the magistrate informed Mr.

Rothgery that charges on that offense “will be filed

in...District Court.” Jd. Accordingly, the State —

through the person of the judge — unequivocally

conveyed that Mr. Rothgery was accused of a crime

and that the State intended to proceed against him.

Thus, following his initial arraignment, Mr.

Rothgery stood “accused” within the meaning of the

Sixth Amendment. Under settled law, his right to

counsel had attached.

Il. The Fifth Circuit’s “Prosecutorial Involvement”

Test Both Ignores The Sixth Amendment's

Commitment To Providing A Guide Through The

“Intricate Procedural System” And Would Be

Difficult To Apply.

Misconstruing this Court’s decision in Kirby v.

Illinois, the Fifth Circuit held that Mr. Rothgery’s

initial appearance was insufficient to trigger his

right to counsel because “the relevant prosecutors

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

appearance before the magistrate.” Pet. App. 7a.

But there is no support for this so-called

“prosecutorial involvement” test in Airby or any

other decision of this Court. Indeed, that approach is

directly at odds with Brewer and Jackson. In Kirby,

this Court addressed the question whether the right

to counsel attached during a “police station showup”

following the suspect’s initial arrest. Kirby v. United

States, 406 U.S 682, 690-91 (1972). The critical issue

before the Court was thus the aplication of the

Sixth Amendment in advance of any judicial criminal

proceedings. Indeed, the Court made that clear,

noting that the question was the application of the

9

Sixth Amendment to a showup that occurred before

the initiation of any formal judicial proceedings. See

id. at 684.

The Fifth Circuit relied, then, not on any inherent

inconsistency between Kirby and this Court’s

holdings in Brewer, Jackson, and McNeil. Rather, it

plucked out of context this Court’s statement in

Kirby that the initiation of judicial criminal

proceedings is significant, in part, because “it is only

then that the government has committed itself to

prosecute,” and only then “that a defendant finds

himself faced with the prosecutorial forces of

organized society.” 406 U.S. at 689. That language

from Kirby cannot bear the weight the Fifth Circuit

would put on it.

At the outset, of course, Kirby pre-dates this

Court’s decisions in Brewer, Jackson, and McNeil, all

of which recognize unambiguously that the Sixth

Amendment attaches “at the first formal proceeding

against the accused.” But more importantly, nothing

in Kirby, Brewer, Jackson, or McNeil supports the

Fifth Circuit’s prosecutorial involvement test.

Indeed, quite to the contrary. This Court has been

clear that a defendant’s right to counsel attaches

upon the first formal proceeding — without any

suggestion that a prosecutor must be involved in

either the underlying arrest or the formal

appearance.

Further, the Fifth Circuit’s approach ignores the

broader purpose of the Sixth Amendment. To be

sure, this Court’s cases dealing with the right to

counsel “have often focused on the defendant’s need

10

for an attorney to meet the adversary presentation of

the prosecutor,” Hvitts, 469 U.S. at 394 n.6, and one

principal aim of the Amendment is to level the

playing field when an accused faces an “experienced

and learned counsel.” See Johnson v. Zerbst, 304

U.S. 458, 462-63 (1938) (noting that the Sixth

Amendment “embodies a realistic recognition of the

obvious truth that the average defendant does not

have the professional legal skill to protect himself

when brought before a tribunal with power to take

his life or liberty, wherein the prosecution is

presented by experienced and learned counsel”); see

also United States v. Gouveia, 467 U.S 180, 189

(1984) (Mmoting one purpose of the amendment is to

“protect[] the unaided layman at critical

confrontations with his adversary”); Kirby, 406 U.S.

at 688-89. Thus, when a prosecutor Aas committed

to prosecute, the rationale for the Sixth Amendment

protections surely applies with significant force.

But this Court has repeatedly recognized that

“meetling] the adversary presentation of the

prosecutor” is mot the sole purpose of the Sixth

Amendment right. See e.g., Evitts, 469 U.S. at 394

n.6. To the contrary, the Sixth Amendment protects

“a different, albeit related, aspect of counsel’s role,

that of expert professional whose assistance is

necessary in a legal system governed by complex

rules and procedures for the defendant to obtain a

decision at all — much less a favorable decision — on

the merits of the case.” Jd. Thus, time and again,

this Court has recognized counsel’s critical role as a

“guide through complex legal technicalities,” AsA,

413 U.S. at 307, providing advice to those “immersed

11

in the intricacies of substantive and procedural

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

Gouveia, 467 U.S. at 189); see, eg. Halbert v.

Michigan, 545 U.S. 605, 621-22 (2005) (moting that

“InJavigating the appellate process without a

lawyer’s assistance is a perilous endeavor for a

layperson, and well beyond the competence of

individuals, like Halbert, who have little education,

learning disabilities, and mental impairments” and

that “Michigan's very procedures for seeking leave to

appeal after sentencing on a plea, moreover, may

intimidate the uncounseled”); Ash, 413 U.S. at 307

(“A concern of more lasting importance was the

recognition and awareness that an unaided layman

had little skill in arguing the law or in coping with

an intricate procedural system.”); see also Gouveia,

467 U.S. at 189 (noting that the Court has extended

the right to counsel to situations in which “the

accused [is] confronted, just as at trial, by the

procedural system, or by his expert adversary, or by

both’) (internal quotation marks omitted; alteration

in original) (emphasis added). The Fifth Circuit’s

approach ignores this critical function of counsel.

Moreover, while underprotecting core Sixth

Amendment values, the Fifth Circuit’s “prosecutorial

involvement” test introduces uncertainty and fact-

specific inquiry into an area that benefits strongly

from clear lines. That is, rather than adopting a

bright-line rule in which the right to counsel

attaches at a point that is no later than after formal

proceedings against the accused, the Fifth Circuit

adopted an approach in which analysis of the right to

counsel requires all parties to look to the “specific

12

circumstances of thle] case and the nature of the

affidavit filed at [the defendant’s] appearance before

the magistrate.” Pet. App. lla. As the brief for

petitioner makes clear, that approach is an invitation

to disaster. See, e.g, Davis v. United States, 512

U.S. 452, 461 (1994) (noting the benefits of “a bright

line that can be applied by officers in the real world

of investigation and interrogation” and the harms of

compelling “difficult judgment calls” about

entitlement to counsel). Cf Fare v. Michael C., 442

U.S. 707, 718 (1979) (noting benefits of clear rules in

the Fifth Amendment context that inform police,

prosecutors, and the Courts “with specificity as to

what they may do”).

In short, the Fifth Circuit’s prosecutorial

involvement test is an unwise and ill-considered

addition to this Courts Sixth Amendment

jurisprudence that little serves the values that the

Sixth Amendment was intended to protect.

Ill. The Overwhelming Majority Of The States

Already Provide Counsel Upon Initial

Arraignment, Without Regard To The

Presence Of Prosecutorial Involvement.

There is nothing novel, revolutionary, or

impractical about the position advanced here that

judicial proceedings commenced — and the Sixth

Amendment right to counsel attached — when Mr.

Rothgery was taken before a magistrate who

informed him of the criminal accusation against him

and found probable cause based on a police officer’s

sworn affidavit, and was then confined to jail

pending trial or the posting of bail. Indeed, that

13

position is not only compelled by Supreme Court

precedent concerning the initiation of formal judicial

proceedings; it is also in line with the current

practice of the vast majority of the States, as well as

the federal government. Thus, reaffirming the law

established in Kirby, Brewer, Jackson, and McNeil

will not dramatically alter the functioning of state

criminal justice systems across the country.

Considering the clear precedent this Court has

established on the matter, it comes as no surprise

that a survey of the federal criminal justice system,

the fifty States, and the District of Columbia

confirms that the vast majority already provide

counsel, at the latest, upon the completion of an

initial appearance such as Mr. Rothgery’s initial

appearance before the magistrate. An appendix to

this brief contains the results of that survey. See

App. la. The survey reveals that 43 States, the

District of Columbia, and the federal government

supply counsel to indigent defendants either before,

at, or directly after an initial appearance. By

contrast, there are only seven jurisdictions where the

State does not provide counsel directly after initial

appearance in all instances, or where there is

ambiguity on the matter. Even in some of these

seven jurisdictions, NACDL members report that

counsel is often provided upon initial appearance,

notwithstanding the statutory scheme. See

generally App. 1a (summarizing practice).

As these statistics illuminate, the States and the

federal government generally already provide

counsel to criminal defendants at the initiation of

14

formal proceedings — at or just after the defendant’s

initial appearance.

Some even go beyond this mark, supplying

counsel as soon after arrest as is logistically possible.

New Mexico, for example, stipulates that “[a] needy

person who is being detained by a law enforcement

officer...is entitled to be represented by an attorney

to the same extent as a person having his own

counsel and to be provided with the necessary

services and facilities of representation, including

investigation and other preparation.” N.M. Stat.

§ 31-16-3(A). Thus, under New Mexico law,

defendants are not only entitled to counsel following

initial appearance; they have the right to appointed

assistance upon initial detainment. See also id. 31-

16-3(B)(1). North Carolina, too, provides counsel to

indigent defendants well before initial appearance.

By statute, “entitlement to the services of counsel

begins as soon as feasible after the indigent is taken

into custody or service is made upon him of the

charge, petition, notice or other initiating process.

Entitlement continues through any critical stage of

the action or proceeding...” N.C. Gen. Stat. Ann.

§ 7A-451(b). Thus many States already provide even

more than the Constitution demands.

Even in the States within the jurisdiction of the

Fifth Circuit, the provision of counsel after initial

arraignment is less the exception than the rule. The

Louisiana Code of Criminal Procedure states: “The

sheriff or law enforcement officer having custody of

an arrested person shall bring him promptly, and in

any case within seventy-two hours from the time of

the arrest, before a judge for the purpose of

ie

15

appointment of counsel....and a judge shall appoint

counsel to represent the defendant within seventy-

two hours from the time of arrest.” La. Code Crim.

P. art. 230.1. Mississippi, too, provides counsel to

indigent defendants upon initial appearance. In

Jimpson vy. State, 532 So. 2d 985 (Miss. 1988), the

Mississippi Supreme Court explained, “[tlhe most

recent formulation of when the right to counsel

attaches under Mississippi law begins with

Cannaday v. State, 455 So. 2d 713 (Miss. 1984),

where the Court held that the right to counsel may

attach as early as the issuance of a warrant.... More

recently we have refined our view to hold that state

law effects attachment of the right to counsel after

arrest and at the point when the initial appearance

‘ought to have been held.” /Jimpson, 532 So. 2d at

988 (internal citations omitted). The Encyclopedia of

Mississippi Law further explains, “lolrdinarily, the

right [to counsel] attaches under state law once the

accused has been taken into custody and at least

functionally arrested... This may well be earlier

than current federal constitutional jurisprudence

recognizes that the Sixth Amendment right to

counsel attaches. The initial appearance has become

the benchmark for measuring the Jatest moment

when the right attaches.” 3 James L. Robertson,

Encyclopedia of Mississippi Law § 19:72 (Jeffrey

Jackson & Mary Miller eds. 2007) (emphasis added;

footnote omitted).

As the case law and statutory provisions cited in

the appendix make clear, these examples are by no

means anomalous. To the contrary, they reflect a

shared understanding throughout the land about the

16

requirements of the Sixth Amendment and a broad

commitment to the values that amendment protects.

In sum, while the Sixth Amendment question at

the heart of this case has enormous implications for

criminal defendants in the few States that do not

provide access to counsel upon initial arraignment,

see infra Part IV, a decision striking down the Fifth

Circuit rule will not necessitate any significant

reworking in criminal justice systems across the

country. To the contrary, such a holding would

merely work to bring the few outlier states in line

with generally accepted procedures throughout the

nation.

IV. The Practical Consequences Of Adopting The

Fifth Circuit's “Prosecutorial Involvement”

Test Would Be Severe.

The Fifth Circuit's novel prosecutorial

involvement test not only is contrary to this Court’s

jurisprudence and the settled practice throughout

the States, it would have drastic consequences for

the defendants denied counsel, and also for the

integrity and efficiency of our criminal justice

system. As NACDL members can attest, the time

period after initial arraignment is often critical to

providing effective representation. A delay of

months or even weeks in the defendant’s access to

counsel can be the difference between freedom and

confinement and, in many cases, such delay will

prevent access to counsel during the only time the

evidence needed to support a meritorious defense can

be gathered. Thus, defendants forced to wait weeks

17

and even months for appointed counsel are at a

severe disadvantage against the power of the State.

1. A rule requiring prosecutorial involvement

before the State must provide counsel to a defendant

would severely limit an attorneys ability to

investigate cases properly. Attorneys are under

strict obligation to investigate their clients’ cases in a

timely and thorough manner. The American Bar

Association Guidelines, for example, dictate that

“[dlefense counsel should conduct a prompt

investigation of the circumstances of the case and

explore all avenues leading to facts relevant to the

merits of the case.” ABA, Criminal Justice Section

Standards: Defense Section, Standard 4-4.1: Duty to

Investigate, available at

http://www.abanet.org/crimjust/standards/dfunc_blk.

html#4.1 (emphasis added); see also 1 The Public

Defender Service for the District of Columbia,

Criminal Practice Institute: Criminal Practice

Manual, 2.1 (2006) (“The importance of thorough

investigation cannot be over emphasized. Even the

most skillful lawyer’s effectiveness is undermined by

inadequate knowledge of the facts.”). The reason for

the emphasis on “prompt” investigation is clear.

There are a myriad of situations where delay of a few

days — much less weeks or months — can render an

investigation futile. As one practitioner has

explained, “Every good investigator knows the

importance of early investigation because witnesses

can disappear, memories fade, and physical evidence

is likely to be lost or destroyed.” Mary Prosser,

Reforming Criminal Discovery: Why Old Objections

Must Yield To New Realities, 2006 Wis. L. Rev. 541,

~~ ee

18

598 (2006); see also 1 Criminal Practice Institute:

Criminal Practice Manual at 2.1 (“It is counsel's

obligation to find out as much as possible about

every case, as soon as possible. Speed is essential.

Physical evidence disappears, memories fade, and

witnesses move away or are forgotten.”).

One critical problem facing defense counsel is

that witnesses are often transient. In many cases, it

is not just the defendants, but the victims and

witnesses that are indigent. Those victims and

witnesses often have less stable and predictable

lives: they move more often, and their work

schedules or place of employment (if they are even

employed) can change quickly. For example, if a

homeless man is arrested for assault in a park, many

of the witnesses are likely to be other homeless

people who sleep in the park. If the accused does not

have access to counsel for weeks or even months,

effective investigation by his lawyer is all but

impossible.2 See 1 Criminal Practice Institute:

Criminal Practice Manual at 2.14 (detailing the need

to interview both government and _ defense

witnesses).

Delayed investigations are also complicated by

the fact that memories fade as time passes. Whereas

the details of a typical drug crime, for instance, may

2 One NACDL member from Arkansas explains that he once

visited a crime scene twenty nights in a row to search for

witnesses vital to his client’s case. He eventually came upon

evidence that the government had failed to discover and that

proved essential to his client’s defense. If he had not gotten

access to his client soon after the initial appearance, this key

information would have been lost.

19

be fresh in a witness’s mind just after the exchange,

as time goes on, that witness becomes less able to

identify the key players and to recall the timing of

the sale. The attorney must quickly unearth these

vital facts to ensure a robust defense. If a defendant

is forced to wait weeks or months to obtain an

attorney, that delay may mean the difference

between a verdict of innocent or guilty if essential

evidence is lost to the workings of time.

Physical evidence, too, is often compromised or

lost if investigation does not occur promptly after the

alleged crime. Crime scenes can change quickly. For

example, if the view from a location is relevant to a

witness’s accurate recollection of a crime scene, the

subsequent pruning of trees and shrubs, or other

changes in the landscape, may make it impossible to

obtain adequate understanding of the conditions at

the time of the incident. Further, if an alleged crime

occurred in a rented apartment, it can be essential

for the attorney to investigate the placement of the

furniture, the blood splatterings on the walls or

floors, or even the contents of a refrigerator. If too

much time passes between incident and

investigation, spoliation of the crime scene inevitably

occurs. See 1 Criminal Practice Institute: Criminal

Practice Manual at 2.3 (“Personal inspection of the

scene of the incident, preferably under conditions

similar to those at the time of the alleged crime, is

imperative. It is important to view the scene as soon

as possible, because lighting, weather and structures

may change quickly.”). A relative may move the

furniture, a landlord may repaint the walls, or a

neighbor might clean the kitchen. In any of these

20

circumstances, the lawyers ability to recover

accurately essential evidence is lost. In short, a

lawyer cannot be expected to perform the duties

required of him — he cannot “explore all avenues

leading to facts relevant to the merits of the case” —

if he is denied access to his client until all of those

avenues have become blocked.

2. The Fifth Circuit standard would not only

make it difficult for a defendant’s attorney to

discover key evidence, it would also make it

impossible for the attorney to ascertain key facts

from the defendant himself following the alleged

crime. See ABA, Criminal Justice Section

Standards: Defense Section, Standard 4-3.2:

Interviewing the Client (“As soon as practicable,

defense counsel should seek to determine all relevant

facts known to the accused.”). Just as witnesses’

memories fade, so do defendants’ recollections of the

events. If an attorney does not have access to his

client until months after the incident, the defendant

will be less likely to be able to recall accurately

essential details of the event, or to provide the basis

of an alibi defense.

For certain kinds of cases, it is imperative that

the attorney have quick access to the defendant so

that an account of the defendant’s mental and

physical state may be recorded. For example, in

cases where the defendant is likely to assert an

insanity defense, an attorney must be able to seek an

evaluation of the defendant’s mental state as close to

the time of the crime as possible — before the

defendant is treated by state personnel, and

particularly where personality-altering medications

21

are administered. Without a defense record of the

defendant’s state near the time of the incident, it is

much more difficult for the defendant to present a

credible claim of insanity.

In other instances, the defense attorney will need

to make a record of the physical state of the

defendant, as in cases involving self-defense. If a

defendant claims that he was provoked before

attacking another individual, it is essential for the

attorney to seek proper medical documentation of

any wounds on his client’s body. If an attorney does

not meet his client until weeks or months after the

incident, this documentation cannot be done. Again,

an attorney can only effectively perform his

investigative role if he is given prompt access to his

client.

8. As this Court has recognized, “lelven the

intelligent and educated layman has small and

sometimes no skill in the science of law....He

requires the guiding hand of counsel at every step in

the proceedings against him.” Powell, 287 U.S. at

69. Delayed access to a lawyer forces the defendant

to navigate the procedural maze of the law without

the assistance of trained counsel. For example, in

Texas, if the State delays seeking an indictment, a

defendant has the right to move for an examining

trial. See Texas Code Crim. P. art. 16.01. An

examining trial can result in discharge of the matter

if the State’s evidence does not meet the burden of

proof. Qn a more strategic level, the examining

3 Under Texas law, a defendant loses the right to an examining

trial after indictment. See Tex. Code Crim. P. art. 16.01

22

trial is a procedural means of forcing the State either

to act on a case or dismiss it. In many counties, a

defense request for an examining trial often pushes

the prosecutors to present their case to the grand

jury and seek indictment. In these instances, the

defendant avoids the perpetual state of uncertainty

that a looming indictment produces. Indigent

defendants cannot be expected to know these

intricacies of the law.4 And, they should not be

punished merely because of their lack of funds. A

“efendant would almost certainly be unaware of this

procedural intricacy without advice from counsel.

Yet, even if the defendant were somehow informed of

its existence, it is unlikely that the typical indigent

defendant would be capable of attempting the

“perilous endeavor,” see Halbert, 545 U.S. at 621-22,

of asserting this right without the assistance of

counsel. As such, without that assistance, many

(detailing that a defendant “shall have the right to an

examining trial before indictment...”) (emphasis added). Thus,

if the defendant does not request an examining trial and is then

indicted, he loses the chance to force the State to demonstrate

that it meets its burden of proof. Defendants, then, may be

indicted under questionable charges and may be unable to

prove their innocence until well after indictment — forcing the

matter closer to trial and causing the defendant, and the State

as well, to endure the unnecessary burdens of a fruitless

criminal accusation. See infra, Part IV.4.

4 Under Texas Code Crim. P. art. 15.17, a defendant charged

with a felony must be informed of his right to an examining

trial at magistration. However, at no time does the State

explain what an examining trial is or how the defendant may

initiate it. Thus, without counsel, the defendant remains

he'pless to navigate these procedural workings on his own.

23

indigent defendants could face unnecessary and

prolonged uncertainty.

Similar procedural hurdles exist throughout the

country. In New York, for example, a person who is

about to be criminally charged by the grand jury has

the right to testify before it. See N.Y. Crim. P. art.

190.50(5)(a). He also has the right to “request the

grand jury, either orally or in writing, to cause a

person designated by him to be called as a witness in

such proceeding.” N.Y. Crim. P. art. 190.50(6). At

the grand jury stage, a prosecutor may not initially

be involved in the matter, as the grand jury in New

York stands as a body separate from the District

Attorney. Thus, under the Fifth Circuit rule, the

accused may not have the right to appointed counsel

at this time. However, to exercise successfully the

rights delineated in article 190.50, the accused must

know how to manage the procedural requirements

dictated by the Rule — he must give written notice of

his desire to make a presentation before the grand

jury or give notice to the grand jury of his request for

a witness to be called. An indigent individual, with

no training in the formalities of the law, will be

severely limited in his ability to exercise these

rights.5 Not infrequently a meaningful presentation

to the grand jury, either by the defendant himself or

by witnesses he designates, may result in lesser

charges, or even no indictment at all. With serious

liberties at stake, counsel is surely necessary to

5 New York law provides counsel to indigent individuals who

are under investigation by the grand jury and who wish to

appear as a witness, without regards to a prosecutor’s

involvement in the investigation. See N.Y. Crim. P. art. 190.52.

24

manage the procedural challenges our systems of

justice create.

4. Finally, denying a defendant access to counsel

until prosecutorial involvement will often result in a

needless waste of the criminal justice system’s

resources. If an indigent defendant is not provided

counsel until after formal indictment — often the

stage at which a prosecutor becomes involved —

cases that should never have proceeded to

indictment will nonetheless clog the justice system.

Mr. Rothgery’s case provides a perfect example. The

charges for which Mr. Rothgery was eventually

indicted had no merit and could never have led to

conviction, a fact his lawyer was able to confirm

shortly after com mencing work on the case. However,

because Mr. Rothgery was’ denied legal

representation for months, the State used precious

resources, not the least of which was the jail space

for the three-week period in which Mr. Rothgery was

incarcerated, for a futile cause. See Pet. App. 16a-

17a. Once counsel became involved, he easily

showed that the charges were meritless, and Mr.

Rothgery’s case was dismissed. Jd. at 17a.

Sound public policy encourages the quick and just

resolution of litigation in many areas of the law,

most notably through settlement in civil litigation

and plea bargaining in criminal matters. See e.g.,

McDermott, Inc. v. AmClyde, 511 U.S. 202, 215

(1994) (“public policy wisely encourages

settlements...”); United States v. Mezzanatto, 513

U.S. 196, 206 (1995) (noting policy in Federal Rules

of “promotion of disposition of criminal cases by

compromise” (quoting Advisory Committee Notes to

25

Fed. R. Evid. 410)). There is no reason why similar

considerations do not apply here. By failing to

provide counsel at a time where it would be most

efficient for the prompt resolution of cases, the Fifth

Circuit rule pushes criminal matters further towards

trial — the most expensive and high-stakes stage in

the criminal process.

CONCLUSION

For the foregoing reasons, the judgment below

should be reversed.

Respectfully submitted,

PAMELA HARRIS IAN HEATH GERSHENGORN*

Co-chair, Amicus JENNER & BLOCK LLP

Committee 601 Thirteenth St., N.W.

NATIONAL ASSOCIATION OF Washington, DC 20005

CRIMINAL DEFENSE (202) 639-6000

LAWYERS

1625 I Street, N.W.

Washington DC 20006

(202) 383-5386

MALIA N. BRINK

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

1150 18th Street, N.W.

Washington, DC 20036

(202) 872-8600

January 23, 2008 * Counsel of Record

la

APPENDIX

Survey of Federal and State Rules

Regarding Whether Counsel Is Provided

to Indigent Defendants

Before, At, Or Just After Initial Appearance

The following 45 jurisdictions — 43 States, the

federal government, and the District of Columbia —

provide counsel before, at, or just after initial

appearance.

Federal Fed. R. Crim. P. 5, 44

Alaska Alaska Stat. § 18.85.100;

Alaska R. Crim. P. 5

Arizona 16A Ariz. Rev. Stat., R.

Crim. P. 4.2, 6.1

Arkansas Ark. R. Crim. P. 8, 8.2;

Bradford v. State, 927

S.W.2d 329 (Ark. 1996)

California Cal. Penal Code §§ 858,

859; In re Johnson, 398

P.2d 420, 422-23 (Cal.

1965)

Connecticut Conn. Gen. Stat. § 54-1b;.

Conn. Super. Ct. R. §§

37-1, 37-3, 37-6 ; State v.

Stenner, 917 A.2d 28

(Conn. 2007)

SS nen, Sern h e ee

2a

Delaware

Del. Code tit. 29, §§ 4604,

5103; Del. R. Crim. P. 5,

44; Markward v. State,

1995 WL 496936 (Del.

1995); Deputy v. State, soo

A.2d 581 (Del. 1985)

District of Columbia

D.C. R. Crim. P. 5, 44

Florida

Fla. R. Crim. P. 3.111

Georgia

Ga. Code Ann. §§ 17-4-26,

17-12-23; O’Kelley v.

State, 604 S.E.2d 509 (Ga.

2004)

Hawaii

Haw. Rev. Stat. §§ 802-1,

803-9

Idaho

Idaho Crim. R. 5, 44;

Idaho Code § 19-852

Illinois

725 Ill. Comp. Stat.

5/109-1

Indiana

Ind. Code § 35-33-7-5,

35-33-7-6

lowa

Iowa Code, Ct. R. §§ 2.2,

2.28

Kentucky

Ky. R. Crim. P. § 3.05

Louisiana

La. Code. Crim. P. art

230.1

Maine

Me. R. Crim. P. 5C

3a

Maryland

Md. Code, Crim. Law,

Art. 27A, § 4; Md. R.

4-214; McCarter v. State,

770 A.2d 195 (Md. 2001)

Massachusetts

Mass. R. Crim. P. 7

Michigan

Mich. Comp. Laws 6.005

Minnesota

Minn. R. Crim. P. 5.01,

5.02

Mississippi

Jimpson v. State, 532 So.

2d 985 (Miss. 1988); 3

James L. Robertson,

Encyclopedia of

Mississippi Law § 19:72

(Jeffrey Jackson & Mary

Miller eds. 2007)

Missouri

Mo. Rev. Stat. § 600.048;

19 Williams A. Knox, Mo.

Prac., Crim. Prac. & P.

§ 8:10 (3d ed. 2007)

Montana

Mont. Code § 46-8-101

Nebraska

Neb. Rev. Stat. § 29-3902

Nevada

Nev. Rev. Stat. 178.397

New Hampshire

N.H. Rev. Stat. 604-A:3

New Jersey

N.J. R. Crim. P. 3:4-2;

State v. Tucker, 645 A.2d

111 (N.J. 1994)

New Mexico

N.M. Stat. § 31-16-3

4a

New York N.Y. Crim. P. Law

§ 180.10

North Carolina N.C. Gen. Stat. § 7A-451

North Dakota N.D. R. Crim. P. 5, 44

Ohio Ohio R. Crim. P. 5, 44

Oregon Or. Rev. Stat. §§ 135.010;

135.040; 135.050

Pennsylvania Pa. R. Crim. P. 122 and

Comments to the Rule;

Pa. R. Crim. P. 519

Rhode Island R.I. Dist. Ct. R. Crim. P.

5, 44

South Dakota S.D. Crim. L. § 23A-40-6

Tennessee Tenn. R. Crim. P. 44

Utah Utah Code Ann.

§ 77-32-302

Vermont Vt. Stat. Ann. tit. 13,

§ 5234; Vt. R. Crim. P. 5,

44

Washington Wash. Super. Ct. Crim. R.

3.1

West Virginia W.Va. Code § 50-4-3;

State v. Barrow, 359

S.E.2d 844 (W. Va. 1987)

Wisconsin Wis. Stat. § 967.06

Wyoming Wyo. Stat. 1977 § 7-6-105;

Wyo. R. Crim. P. 5, 44

5a

In the following three jurisdictions, there is either

disparity between the law as written and the law as

practiced, or the statutory requirements are

ambiguous. Nonetheless, NACDL members in some

of the States reported that counsel is often provided,

despite the ambiguities.

Kansastt Kan. Stat. §§ 22-2901,

22-4503

Oklahoma# 22 Okla. Stat. § 251

Virginia§$ Va. Code §§ 19.2-157,

19.2-158

tt Kan. Stat. § 22-4503 states that once a defendant is charged

with a complaint by the State, he is entitled to appointed

counsel. Kan. Stat. § 22-2901 suggests that a complaint must

be filed at approximately the same time as an initial

appearance before a magistrate following a warrantless arrest.

Combined, these statutes suggest that Kansas provides counsel

to indigent defendants upon initial appearance. However, State

v. Waugh, 712 P.2d 1243, 1250 (Kan. 1986), suggests that in

some instances, a defendant will appear before a magistrate for

initial appearance before a complaint is filed. Erring on the

side of caution, we have deemed Kansas’s law unclear.

# Under 22 Okla. Stat. § 251, a defendant is informed at initial

appearance of his right to counsel. However, it is not clear from

the statute whether counsel is actually appointed directly

following the appearance. Further, according to an NACDL

member, if a defendant is released on bond following initial

appearance, he may wait for a period of time for counsel

because the judge must determine whether he meets the

requirements of indigency. In practice, this determination can

result in delayed provision of counsel. For these reasons, we

have deemed Oklahoma’s law and practice ambiguous.

% An NACDL member in Virginia reports that the State

appoints counsel upon initial appearance. Further, § 19.2-157

6a

In the following four jurisdictions, it appears

that counsel is not currently provided in ail instances

upon initial appearance.

Alabama“ Ala. R. Ct. 6.1; Ala. R.

Crim. P. 4.4; Ex Parte

Stewart, 853 So. 2d 901

(Ala. 2002)

Coloradottt Colo. Rev. Stat.

§§ 16-7-207, 16-7-301;

Colo. R. Crim. P. 5; 14

Robert J. Dieter, Colo.

Prac., Crim. Prac. & P.

§ 1.9 (2d ed. 2007); People

v. Anderson, 842 P.2d 621

(Colo. 1992)

details that whenever an eligible person “appears before any

court without being represented by counsel, the court shall

inform him of his right to counsel” and “if appropriate, the

statement of indigence...may be executed.” While these sources

strongly suggest that Virginia does, in fact, provide counsel

upon initial appearance, the precise timing of appointment is

not perfectly clear on the face of the statute, and we have

therefore deemed the State’s practice to be unclear.

“* An NACDL member in Alabama reports that,

notwithstanding the authorities noted here, the State appoints

counsel immediately following initial appearance. He explains

that counsel then appears at the preliminary hearing, at which

point a probable cause determination is made.

ttt Colorado law makes a distinction for the provision of counsel

between felonies and misdemeanors. See Colo. Rev. Stat.

§ 16-7-207. For felonies, defendants are entitled to make an

application for counsel at initial appearance. The statute does

7a

South Carolina S.C. App. Ct. R. 602

Texas $$$ Tex. Code. Crim. P. art.

1.051

not make entirely clear, however, at what point counsel is

actually assigned. And, according to an NACDL member, if

felony defendants are released from jail, they have the

obligation to go in person to the public defenders’ office to apply

for counsel. For misdemeanors, under Col. Rev. Stat.

§ 16-7-207 and § 16-7-301, the court cannot assign counsel until

after the prosecutor has spoken with the defendant to discuss a

potential plea. Though the defendant is not obligated to reveal

information to the prosecutor, “application for appointment of

counsel and the payment of the application fee shall be deferred

until after the prosecuting attorney has spoken with the

defendant...” Jd. § 16-7-301. This rule, then, is even harsher

than the Fifth Circuit “prosecutorial involvement” test because

it allows direct prosecutorial interaction with the defendant

before any assignment of counsel can be made.

+## South Carolina law is currently in flux. Rule 602 suggests

that counsel is provided following initial appearance. However,

according to an NACDL member in South Carolina, the State is

creating “differentiated case management” in each county. See

Sept. 19, 2007 Order Re: Bond Hearing Procedures in Summary

Courts, Supreme Court of South Carolina, = at

http://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo

=2007-09-19-01. As a result, we cannot characterize with

precision the practice in South Carolina. ,

§§ Since the passage of the 2001 Fair Defense Act, Texas does

provide counsel following arrest and initial appearance for

persons held in custody. For those released on bond, however,

counsel is appointed either at arraignment on the information

or indictment, or when adversarial judicial proceedings

commence — whichever occurs first. Thus, the appointment of

counsel for those charged and released on bail depends on when

the Constitution requires the attachment of the right to

counsel.