Amicus Curiae Brief — Rothgery v. Gillespie County

| SFSTIS P.

Pot the

Supreme Court of the United States

WALTER ALLEN ROTHGERY, ise

Vv.

GILL? 3PIE COUNTY, TX,

Respondent.

; On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE STATES OF TEXAS, ALABAMA, COLORADO,

HAWAII, LOWA, MAINE, MISSISSIPPI, MONTANA, NEVADA,

SOUTH

‘UTAH, VIRGINIA AND OF PUERTO RICO AS AMICI

‘IN SUPPORT OF RESPONDENT

GREG ABBOTT R. TED CRUZ

-. Attorney General of Texas Solicitor General

} Counsel of Record

KENT C. SULLIVAN

First Assistant Attorney THOMAS M. LIPOVSKI

General DANICA L. MILIOS

SUSANNA G. DOKUPIL

ERIC J.R. NICHOLS Assistant Solicitors

Deputy Attorney General General

-for Criminal Justice

P.O. Box 12548 (MC 059)

Austin, Texas 78711

(512) 936-1700

- [Additional counsel listed inside cover!

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TROY KING

Attorney General of Alabama

JOHN W. SUTHERS

Attorney General of Colorado

MARK J. BENNETT

Attorney General of Hawaii

TOM MILLER

Attorney General of Iowa

G. STEVEN ROWE

Attorney General of Maine

JIM HOOD

Attorney General of Mississippi

MIKE MCGRATH

Attorney General of Montana

CATHERINE CORTEZ MASTO

Attorney General of Nevada

KELLY A. AYOTTE

Attorney General of New Hampshire

W.A. DREW EDMONDSON

Attorney General of Oklahoma

HARDY MYERS

Attorney General of Oregon

THOMAS W. CORBETT, JR.

Attorney General

Commonwealth of Pennsylvania

ROBERTO J. SANCHEZ-RAMOS

Secretary of Justice

Commonwealth of Puerto Rico

HENRY D. MCMASTER

Attorney General of South Carolina

LAWRENCE E. LONG

Attorney General

State of South Dakota

ROBERT E. COOPER, JR.

Attorney General & Reporter of Tennessee

MARK L. SHURTLEFF

Attorney General of Utah

ROBERT F. MCDONNELL

Attorney General of Virginia

i

QUESTION PRESENTED

Did the Fifth Circuit correctly hold that the Sixth

Amendment right to counsel did not attach at Petitioner’s

Article 15.17 magistration because the State of Texas had

not yet committed itself to prosecute Petitioner and,

therefore, adversary judicial proceedings had not yet

commenced?

‘i

TABLE OF CONTENTS

IEE POTEET OO ER i

i ke hace duceshescecsae cn iv

smtorest of Amici Curiae ..... 2. ccc ccc ccccccecs 1

cc cccckkveeewokuseeees 1

5 SERRE SCR Rar, Nae Dae ROD ra ECT Ae SEI es 4

I. Rothgery’s Right to Counsel Did Not Attach

Following His Article 15.17 Magistration Before

ee ele 4

A. The Sixth Amendment Right to Counsel

Exists to Protect an Accused from Conviction

Resulting from Ignorance of His Legal and

Constitutional Rights. .................. 4

B. Consistent with Its Underlying Purpose, the

Sixth Amendment Right to Counsel Attaches

Only at or After the Initiation of Adversary

Judicial Proceedings. .................. 9

C. The Fifth Circuit Correctly Held That

Petitioner's Sixth Amendment Right to

Counsel Did Not Attach at the Article 15.17

Magistration Because the State of Texas Was

Not Committed to Prosecuting Petitioner.. 10

ill

1. The Government's Commitment to

Prosecute Is a Necessary Element for the

Initiation of Adversary Judicial

PU <5 K.b0hxceaneisanannees 10

2. Federal Courts Look to State Law When

Determining When Adversary Judicial

Proceedings Began in State Court. .... 12

3. The Fifth Circuit Correctly Held That, at

the Time of the Article 15.17

Magistration, the State of Texas Had Not

Committed Itself to Prosecute Petitioner

and, Therefore, No Adversary Judicial

Proceedings Had Begun ............. 13

Il. Brewer and Jackson Are Not Dispositive of

Whether Rothgery’s Sixth Amendment Right to

Counsel Attached at the Article 15.17

DES, k's wn. ds ds cue cea 17

Ill. Even if Adversary Judicial Proceedings Had

Commenced at the Article 15.17

Magistration, Petitioner Was Not Entitled to

the Assistance of Counsel Until a “Critical

OG SHUI: oo 6 cto cddeebsveacenee 23

RT RE Parag gabe ore ey OR at wien 29

iV

TABLE OF AUTHORITIES

Cases

Anderson v. Alameida,

397 F.3d 1176 (CAS 2005) ................ 12,13

Beck v. Bowersox,

$62 F.3d 1095 (CAS 2004) ................02- 13

Brewer v. Williams,

a ys 3, 18, 20, 23,24

California v. Rooney,

Ne eu whe eeie 24

Caver v. Alabama,

577 F.2d 1188 (CA5 1978) .............cc00ee 11

C'awson v. Wharton County,

941 S.W.2d 267

(Tex. App.—Corpus Christi 1996, writ denied) ... 15

Coleman v. Alabama,

a cece chee ees 25

Estelle v. Smith,

Ne ee. a ethos eeueeus 25

Evitts v. Lucey,

SEED na wisvecvevccrecceceseses 6

ee

Fuller v. State,

829 S.W.2d 191

(Tex. Crim. App. 1992) (en banc).............. 16

Gerstein v. Pugh,

i aa Sale 21

Gideon v. Wainwright,

ED ss ss si'acudcuceecuvecsobs 7

Green v. State,

872 S.W.2d 717

(Tex. Crim. App. 1994) (en banc).............. 17

Hagans v. Lavine,

i 1. ss ee weaw ss cuwh pepe eee 22

Hamilton v. Alabama,

Te i uaaeun aun enes 25

Johnson v. Zerbst,

ED -. so cccceuteeseeshes 2, 4-7

Kirby v. Illinois,

cs ipa ckceee aa hen passim

Lumley v. City of Dade City,

3 £ Be 7 + \ kB 12

Meadows v. Kuhlmann,

ED. . vc cen eceweewseases 13

Michigan v. Jackson,

BP Wie GP ER nn ccc ccc ccc ccces 3, 18-20, 23

Moore v. Illinois,

CES once i cevcecedeeses 13, 23, 25

Moran v. Burbine,

SG rrr rrr. 6

People v. Bell, |

49 Cal. 3d 502 (Cal. 1989) .............. aaa

People v. Frawley,

82 Cal. App. 4th 784 (Cal. Ct. App. 2000)....... 27

Powell v. Alabama,

eas eee be eeadebnad eee 5

Rothgery v. Gillespie County,

491 F.3d 293 (CA5 2007) ......... cee eeee 15, 16

Rumsfield v. Forum for Academic & Institutional Rights,

errr re re 24

Strickland v. Washington,

icc ccewecedcesbeeneue 7

Texas v. Cobb,

se sie es secctnseeeeees 22

United States v. Alvarado,

440 F.3d 191 (CA4 2006) .................... 11

United States v. Ash,

iD: i. ds na 6c bice bsg hewre et 6, 10

United States v. Cope,

ee ae OG ME ED oo cc ccc ces cecescces 12

United States v. Cronic,

466 U.S. 648 (1984) ................... hiaaeteee 7

United States v. Gouveia,

sn ven cetb seceeenens passim

United States v. Hylton,

349 F.3d 781 (CA4 2003) ................,... I

United States v. MacDonald,

ee ew ices wees ens 9

United States v. McCauliffe,

490 F.3d 526 (CA6 2007) .................. 11-12

United States v. Mendenhall,

ee ve eeesereeneeene’ 24

United States v. Muick,

167 F.3d 1162 (CA7 1999) ...... ccc c ccc ceee 12

United States v. Wade,

BP OI PEED 6 cece cc ccccccccccces 6, 23-25

White v. State of Maryland,

a ec kiescchedesbens sean 25

Vill

Statutes, Rules and Constitutional Provisions

CAL. PENAL CODE §1203.4(a) ...............00. 27

CAL. PENAL CODE §12021(a)(1) ...............5-. 27

TEX. CODE CRIM. PROC. art. 2.01-02 .............. 15

TEX. CODE CRIM. PROC. art.2.13 ................ 15

TEX. CODE CRIM. PROC. art. 15.17 ............ passim

TEX. CODE CRIM. PROC. art. 26.02................ 20

TEX. CODE CRIM. PROC. art. 26.03................ 20

TEX. PENAL CODE $46.04 ..........ccccccccccces 27

Other Authorities

BLACK’S LAW DICTIONARY 104 (7th ed. 1999) ....... 21

Superior Court of California, County of Orange,

Case Number 96SF0443, at

http://visionweb.occourts.org/Vision_Public/Display

CaselInfo.do

(last visited Feb. 21, 2008) .................. 27

INTEREST OF AMICI CURIAE

Amici, the State of Texas and 17 other States and

Puerto Rico, have an interest in ensuring that their courts

make appointments of counsel when required to do so by

the Sixth Amendment to the United States Constitution.

The amici States also have an interest in ensuring that

their courts are not compelled to appoint counsel when the

Sixth Amendment does not require appointment, so as to

avoid frustrating the criminal investigatory process and

the unnecessary expenditure of the States’ resources.

Given the significance of the Sixth Amendment right to

counsel, the States have a substantial interest in ensuring

that it is accorded its proper scope.

SUMMARY OF ARGUMENT

The Sixth Amendment right to counsel, by its terms,

protects the “accused” in “[aJll criminal prosecutions.”

Thus, it guards against unfair trials, and against the

possibility that a person unfamiliar with the law could be

forced to defend himself in court against learned

adversaries from the State. And, even earlier, it applies to

critical stages of the prosecution to ensure that the

accused's rights at trial are not unfairly prejudiced by

uncounseled conduct pretrial.

The desideratum of the right to counsel is not

safeguarding the liberty interests of the accused pretrial,

nor is it effectuating speedy trials or providing a vigorous

pretrial investigator. Instead, the object of the Sixth

Amendment right to counsel is, singularly, preventing an

unfair criminal prosecution.

Accordingly, the Sixth Amendment right to counsel

does not arise until the government commits itself to

prosecute the individual. And even then, the right has no

application outside the critical stages in the

2

prosecution—those that might impact the ultimate

outcome at trial.

The Court has long explained that the “purpose of the

constitutional guaranty of a right to counsel is to protect

an accused from conviction resulting from his own

ignorance of his legal and constitutional rights... .”

Johnson v. Zerbst, 304 U.S. 458, 465 (1938). Therefore, a

person’s “right to counsel attaches only at or after the time

that adversary judicial proceedings have been initiated

against him.” Kirby v. Illinois, 406 U.S. 682, 688 (1972)

(emphasis added). The focus is on the initiation of

adveisary proceedings because “it is only then that the

government has committed itself to prosecute, and only

then that the adverse positions of government and

defendant have solidified.” IJd., at 689. “It is this point,

therefore, that marks the commencement of the ‘criminal

prosecutions’ to which alone the explicit guarantees of the

Sixth Amendment are applicable.” Id., at 690.

The initial question facing the Court in this case is

whether adversary judicial proceedings had commenced

against Petitioner, that is, whether the State of Texas had

committed itself to prosecute Petitioner at the time of his

Article 15.17 magistration. See TEX. CODE CRIM. PROC.

art. 15.17. By any measure, the answer to that question

is no.

In Texas only a prosecutor can commit the State to

prosecute a felony offense. Because there is no evidence

that any prosecutor had knowledge of or any involvement

in the matter at the time Petitioner appeared before a

justice of the peace and received his statutory warnings

under Article 15.17 of the Texas Code of Criminal

3

Procedure, Petitioner’s right to counsel did not attach at

that time.

Petitioner asserts that two cases decided by the Court,

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

Jackson, 475 U.S. 625 (1986), establish that adversary

judicial proceedings were initiated though the probable-

cause determination, statutory warnings, and setting of

bail at the Article 15.17 magistration. Petitioner's

reliance on these two cases is misplaced. In each case, the

Court looked to language from Kirby that an

“arraignment” is one of the ways in which judicial

proceedings may be commenced. Because, in both Brewer

and Jackson, the defendants had been “arraigned,” the

Court did not dwell on the question further, and instead

moved on to the question of waiver. Here, there is no

dispute that, under Texas law, Petitioner had not yet been

arraigned, and Petitioner's argument that his Article

15.17 magistration should be treated as the functional

equivalent of a formal arraignment is belied by the

administrative nature of the proceeding, the lack of

adversarial questioning (or even a_ prosecutorial

adversary), and the absence of a plea or any other inquiry

that could prejudice any subsequent trial.

In the alternative, even if the right to counsel had

attached at the Article 15.17 magistration, the Court

should hold that Petitioner’s right to counsel was not

violated because he was never exposed to a critical stage

in his prosecution without the assistance of counsel.

Petitioner concedes that he was not entitled to counsel at

the Article 15.17 magistration itself, and he suggests no

other event at which his constitutional interest in a fair

trial might have been implicated. That omission is fatal

4

to his claim. Therefore, the judgment of the Fifth Circuit

should be affirmed.

ARGUMENT

I. ROTHGERY’S RIGHT TO COUNSEL DID NOT ATTACH

FOLLOWING HIS ARTICLE 15.17 MAGISTRATION

BEFORE A JUSTICE OF THE PEACE.

The Sixth Amendment right to counsel, which exists to

protect an accused from unfair conviction as a result of his

ignorance of the law, does not attach until adversary

judicial proceedings have been initiated, that is, until the

government has made a commitment to prosecute. Under

Texas law, the State could not commit to prosecute

Petitioner for a felony without the involvement of a

prosecutor. Given the absence of prosecutorial knowledge

or involvement in the matter at the time of the Article

15.17 magistration, the Fifth Circuit correctly held that

the State of Texas had not yet committed to prosecute

Petitioner and, therefore, no Sixth Amendment right to

counsel had attached.

A. The Sixth Amendment Right to Counsel Exists

to Protect an Accused from Conviction

Resulting from Ignorance of His Legal and

Constitutional Rights.

“The Sixth Amendment guarantees that ‘[ijn all

criminal prosecutions, the accused shall enjoy the right . . .

to have the Assistance of Counsel for his defence.” United

States v. Gouveia, 467 U.S. 180, 187 (1984). In Johnson v.

Zerbst, the Court explained that this guarantee exists to

protect the interests of the accused—who are not familiar

with the law—in receiving a fair trial:

5

“(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 represented by experienced and

learned counsel .... The ‘ * * right 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. If charged

with a crime, he is incapable, generally, of

determining for himself whether the indictment is

good or bad. He is unfamiliar with the rules of

evidence. Left without the aid of counsel he may be

put on trial without a proper charge, and convicted

upon incompetent evidence, or evidence irrelevant

to the issue or otherwise inadmissible. He lacks

both the skill and knowledge adequately to prepare

his defence, even though he have a perfect one. He

requires the guiding hand of counsel at every step

in the proceedings against him.” 304 U.S. 458,

462-463 (1938) (quoting Powell v. Alabama, 287

U.S. 45, 48-69 (1932)).

Without this “guiding hand of counsel,” although an

individual “be not guilty, he faces the danger of conviction

because he does not know how to establish his innocence.”

Powell, 287 U.S., at 69.

The Court has “recognized that the ‘core purpose’ of the

counsel guarantee is to assure aid at trial, ‘when the

accused [is] confronted with both the intricacies of the law

and the advocacy of the public prosecutor.” Gouveia, 467

6

U.S., at 188-189 (quoting United States v. Ash, 413 U.S.

300, 309 (1973)). The Court has also extended the right to

counsel to “critical’ pretrial proceedings . . . recognizing

that at those proceedings, the accused [is] confronted, just

as at trial, by the procedural system, or by his expert

adversary, or by both, . . . in a situation where the results

of the confrontation ‘might well settle the accused’s fate

and reduce the trial itself to a mere formality.” Gouveia,

467 U.S., at 189 (quoting Ash, 413 U.S., at 310 and United

States v. Wade, 388 U.S. 218, 224 (1967)). Thus, “[t]he

purpose of the constitutional guaranty ofa right to counsel

is to protect an accused from conviction resulting from his

own ignorance of his legal and constitutional rights .. . .”

Johnson, 304 U.S., at 465. The Court has repeatedly

reaffirmed that purpose.’

1. Numerous Court decisions have reaffirmed the principle that the

Sixth Amendment right to counsel exists to protect an individual from

ultimately being wrongfully convicted as a result of his inadequate

knowledge of the law. For example, in Moran v. Burbine the Court

observed as follows:

“(The Sixth Amendment’s purpose] is to assure that in

any criminal prosecutio[n] ... the accused shall not

be left to his own devices in facing the prosecutorial

forces of organized society ... By its very terms, it

becomes applicable only when the government's role

shifts from investigative to accusation. For it is only

then that the assistance of one versed in the

intricacies of the law . . . is needed to assure that the

prosecution’s case encounters the crucible of

meaningful adversarial testing.” 475 U.S. 412, 430

(1986) (internal quotations omitted).

See also Evitts v. Lucey, 469 U.S. 387, 394 n.6 (1985) (‘Our cases

dealing with the right to counsel—whether at trial or on appeal—have

7

Notwithstanding the long-recognized purpose of the

Sixth Amendment in preventing an unfair trial, the amici

law professors argue that the Sixth Amendment is instead

intended to protect against any substantial deprivation of

liberty before trial. In their amicus brief, the professors

note that once counsel was appointed for Petitioner, the

charges against him were dropped, but not before he spent

“weeks in jail.” Amicus Br. of Twenty-Four Professors of

Law, at 2. The professors suggest that this case therefore

“presents the Court with an opportunity to prevent such

injustices in the future by clarifying its rule regarding

when the Sixth Amendment right to counsel attaches” and

urge the Court to adopt a rule that would not necessarily

require appointment of counsel for a Gerstein hearing,

but would require appointment of counsel “once the

hearing is complete if the result is to impose an ongoing,

significant restriction on the accused's liberty.” Id., at 2-4.

often focused on the defendant's need for an attorney to meet the

adversary presentation of the prosecutor . .. . Such cases emphasize

the defendant's need for counsel in order to obtain a favorable

decision.”) (internal citation omitted, italics original); Gouveia, 467

U.S., at 190 (“(T}he right to counsel exists to protect the accused

during trial-type confrontations with the prosecutor ....”); Strickland

v. Washington, 466 U.S. 668, 684 (1984) (“In a long line of cases .. .

this Court has recognized that the Sixth Amendment right to counsel

exists, and is needed, in order to protect the fundamental right to a

fair trial.”) (internal citations omitted); United States v. Cronic, 466

U.S. 648, 653-54 (1984) (“An accused's right to be represented by

counsel is a fundamental component of our criminal justice system

.... Without counsel, the right to a trial itself would be of little avail

.... ) (internal quotation omitted); Gideon v. Wainwright, 372 U.S.

335, 344 (1963) (“{I]n our adversary system of criminal justice, any

person haled into court, who is too poor to hire a lawyer, cannot be

assured a fair trial unless counsel is provided for him.”). Johnson, 304

U.S., at 458.

8

The professors’ contention that the right to counsel exists

to protect against pretrial deprivations of liberty is

contrary to the repeated holdings of this Court discussed

above and, indeed, was squarely rejected by the Court in

Gouveia.

In Gouveia, four inmates were convicted of murdering

another inmate at a federal prison and two other inmates

were convicted of another murder at the same facility. 467

U.S., at 182. The individuals were placed in

administrative detention for extended periods of time

(approximately nineteen months in one case and not less

than seven months in the other) before counsel was

eventually appointed. Jd., at 182-84. On appeal, the

Ninth Circuit, sitting en banc, decided that the inmates

had a Sixth Amendment right to an attorney while they

were held in administrative detention prior to indictment.

Id., at 182. The Court “granted certiorari to review the

Court of Appeal’s novel application of our Sixth

Amendment precedents,” id., and squarely rejected any

argument that the Sixth Amendment right to counsel

exists to protect an accused’s liberty interests before trial:

“The Court of Appeals departed from our consistent

interpretation of the Sixth Amendment in these

cases, and in so doing, fundamentally misconceived

the nature of the right to counsel guarantee. We

agree with the dissent that the majority’s analogy

to Sixth Amendment speedy trial cases is inapt. . . .

The difference is readily explainable, given the fact

that the speedy trial right and the right to counsel

protect different interests. While the right to

counsel exists to protect the accused during trial-type

confrontations with the prosecutor, the speedy trial

9

right exists primarily to protect an individual’s

liberty interest, ‘to minimize the possibility of

lengthy incarceration prior to trial, to reduce the

lesser, but nevertheless substantial, impairment of

liberty imposed on an accused while released on

bail, and to shorten the disruption of life caused by

arrest and the presence of unresolved criminal

charges.” Id., at 189-90 (quoting United States v.

MacDonald, 456 U.S. 1, 6-7, 8 (1982)) (internal

citations omitted) (emphasis added).

Thus, as Gouveia expressly held, the Sixth Amendment

right to counsel exists not to protect against pretrial

deprivations of liberty (other constitutional provisions

such as the speedy trial right and due process address that

concern), but rather serves an altogether different

function: protecting an accused from unfair conviction as

a result of ignorance of his legal and constitutional rights.

B. Consistent With Its Underlying Purpose, the

Sixth Amendment Right to Counsel Attaches

Only at or After the Initiation of Adversary

Judicial Proceedings.

Given that the Sixth Amendment right to counsel

exists to prevent the convtion of an accused as a result of

his ignorance of his legal and constitutional rights, the

question inevitably follows when counsel is necessary to

protect this interest. The Court answered the question in

Kirby, holding that an individual's “right to counsel

attaches only at or after the time that adversary judicial

proceedings have been initiated against him.” 406 U:S., at

688 (emphasis added). This test begets yet another

question: when adversary judicial proceedings commence.

10

As explained below, the answer depends upon when the

government commits itself to prosecuting an individual.

C. The Fifth Circuit Correctly Held That

Petitioner’s Sixth Amendment Right to

Counsel Did Not Attach at the Article 15.17

Magistration Because the State of Texas Was

Not Committed to Prosecuting Petitioner.

1. The Government’s Commitment to

Prosecute Is a Necessary Element for

the Initiation of Adversary Judicial

Proceedings.

In Gouveia, the Court recognized that the “view that

the right to counsel does not attach until the initiation of

adversary judicial proceedings” is “consistent not only with

the literal language of the Amendment, which requires the

existence of both a ‘criminal prosecutio[n]’ and an

‘accused,’ but also with the purposes which we have

recognized that the right to counsel serves” including the

“core purpose” of assuring “aid at trial ‘when the accused

[is] confronted with both the intricacies of the law and the

advocacy of the public prosecutor.” 467 U.S., at 188-89

(quoting Ash, 413 U.S., at 309).

Bearing that purpose in mind, the Court explained that

when considering whether adversary judicial proceedings

have begun and, accordingly, whether the right to counsel

has attached, the determinative factor is the government's

commitment to prosecute:

“Thus, given the plain language of the Amendment

and its purpose of protecting the unaided layman at

critical confrontations with his adversary, our

conclusion that the right to counsel attaches at the

11

initiation of adversary judicial proceedings ‘is far

from a mere formalism’... . It is only at that time

that the government has committed itself to

prosecute, and only then that the adverse positions

of government and defendant have solidified. It is

then that a defendant finds himself faced with the

prosecutorial forces of organized society, and

immersed in the intricacies of substantive and

procedural criminal law.” Gouveia, 467 U.S., at

189 (quoting Kirby, 406 U.S., at 689) (emphasis

added).

“It is this point, therefore, that marks the commencement

of the ‘criminal prosecutions’ to which alone the explicit

guarantees of the Sixth Amendment are applicable.”

Kirby, 406 U.S., at 689-90.

The critical nature of the commitment to prosecute in

determining whether the Sixth Amendment right to

counsel has attached has been acknowledged by a number

of the circuit courts. See United States v. Hylton, 349 F.3d

781, 787 (CA4 2003) (finding that “the statement of

charges . . . did not commence formal prosecutorial

proceedings to which the Sixth Amendment right of

counsel attached”); United States v. Alvarado, 440 F.3d

191, 199-200 (CA4 2006) (noting that the “filing of a

federal criminal complaint does not commence a formal

prosecution” in concluding that the Sixth Amendment

right to counsel did not attach upon the filing of the

complaint); Caver v. Alabama, 577 F.2d 1188, 1195 (CA5

1978) (“[T]he relevant time is when ‘the government has

committed itself to prosecute’ and ‘a defendant finds

himself faced with the prosecutorial forces of organized

society”) (quoting Kirby, 406 U.S., at 689); United States

12

v. McCauliffe, 490 F.3d 526, 539 (CA6 2007) (noting that

the Sixth Amendment right to counsel “does not attach

until a prosecution is commenced .. .”) (quoting United

States v. Cope, 312 F.3d 757, 772 (CA6 2002); United

States v. Muick, 167 F.3d 1162, 1165 (CA7 1999) (“When

Muick’s attorney requested that he be involved in all

contact between Muick and the Customs agents, Muick

had not yet been indicted. As there was no prosecution at

that time, Muick’s Sixth Amendment rights could not yet

be invoked.”); Anderson v. Alameida, 397 F.3d 1175, 1180

(CA9 2005) (holding the state court “reasonably concluded”

petitioner’s trial counsel’s performance was sufficient even

though trial counsel did not assert a Sixth Amendment

claim because, the state court found, such a claim was

“without merit” since a police investigator’s filing of a

complaint for an arrest warrant did not commit the

district attorney to prosecute or, “[i]n other words, filing

the complaint for an arrest warrant was not a

prosecutorial act .. .” and therefore “a police inspector

filing a complaint seeking an arrest warrant is not a

critical stage that commits a prosecutor to trial”); Lumley

v. City of Dade City, 327 F.3d 1186, 1195 (CA11 2003)

(“[T]he Sixth Amendment right to counsel ordinarily does

not arise until there is a formal commitment by the

government to prosecute ... .”).

2. Federal Courts Look to State Law When

Determining When Adversary Judicial

Proceedings Began in State Court.

As noted by Petitioner, state criminal proceedings vary

widely. Pet. Br., at 16. The event that commences

adversary judicial proceedings may occur, for example, “by

way of formal charge, preliminary hearing, indictment,

13

information, or arraignment.” Kirby, 406 U.S., at 688-89.

As such, federal courts look to state law to determine

when adversary judicial proceedings begin. See Moore v.

Illinois, 434 U.S. 220, 228 (1977) (moting that the

“prosecution in this case was commenced under Illinois

law when the victim’s complaint was filed in court” in

arriving at its decision that his rights had attached at the

time of the preliminary hearing); Meadows v. Kuhlmann,

812 F.2d 72, 77 (CA2 1987) (looking to New York law to

determine when the prosecution commenced); Beck v.

Bowersox, 362 F.3d 1095, 1101 (CA8 2004) (same as to

Missouri); Anderson v. Alameida, 397 F.3d, at 1180 (same

as to California), Therefore, Texas criminal procedure

controls whether the government had committed itself to

prosecute Petitioner, thus commencing adversary judicial

proceedings and triggering the Sixth Amendment right to

counsel.

3. The Fifth Circuit Correctly Held That, at

the Time of the Article 15.17 Magistration,

the State of Texas Had Not Committed

Itself to Prosecute Petitioner and,

Therefore, No Adversary Judicial

Proceedings Had Begun.

Petitioner does not contend that adversary judicial

proceedings commenced upon his arrest or his being

booked into the Gillespie County Jail. Nor does Petitioner

contend that he was entitled to a lawyer at the Article

15.17 magistration itself. Pet. Br., at 19-20 n.6. Rather,

Petitioner ambiguously contends that his Sixth

Amendment right to counsel attached some time

“following” his Article 15.17 magistration before the

~ ae

: we

~"

14

justice of the peace. Pet. Br., at 14.2 However, because

there was no commitment to prosecute at that time,

adversary judicial proceedings had not been initiated and

Petitioner's right to counsel had not attached.

Petitioner summarizes the proceedings at his Article

15.17 magistration as follows:

“At Rothgery’s initial appearance, the magistrate

was presented with a sworn ‘Affidavit of Probable

Cause,’ executed by the police officer who arrested

Rothgery ‘in the name and by the authority of the

state of Texas,’ ‘charg[ing] that .. . Rothgery...

commit[ted] the offense of unlawful possession of a

firearm by a felon.’ Pet. App. 33a. Based on the

affidavit, the magistrate informed Rothgery that he

was ‘accused of the criminal offense of unlawful

possession of a firearm by felon.’ Jd. at 35a. He

also informed Rothgery of his right to appointed

counsel and his right to an examining trial. Id.

Finally, he set bail of $5,000 to ensure that

Rothgery answered the accusation against him.”

Pet. Br., at 28. |

Nothing in Petitioner’s Brief establishes that the State

of Texas was committed to prosecuting Petitioner as of the

date of his Article 15.17 magistration. At best, Petitioner

2. See also Fifth Circuit Record, at 343 (hereinafter “R. __”); Pet. Br.,

at 19-20 n.6 (“The question presented by this case . . . is the former:

whether Rothgery’s initial appearance before the magistrate marked

the commencement of adversary judicial proceedings, after which his

right to counsel attached.”) (emphasis added). It is not clear how long

“after” the initial appearance counsel must be appointed under

Petitioner's interpretation of the Sixth Amendment.

15

has established only that he had been accused by a peace

officer of committing a felony. However, as noted by the

court of appeals, a peace officer has no legal authority to

commit the State of Texas to prosecute Petitioner, and

there is no evidence that any person with the authority to

do so, that is, a prosecutor, had become involved in the

matter at that time:

“It is undisputed in this appeal that the relevant

prosecutors were not aware of or involved in

Rothgery’s arrest or appearance before the

magistrate on July 16, 2002. There is also no

indication that the officer who filed the probable

cause affidavit at Rothgery’s appearance had any

power to commit the state to prosecute without the

knowledge or involvement of a _ prosecutor.

Compare TEX. CODE CRIM. PROC. art. 2.13 (limiting

the role of a police officer, in relevant part, to

notifying the magistrate of an offense and arresting

offenders), with id. arts. 2.01-.02 (designating

district and county attorneys as the representatives

of the state in all criminal cases and proceedings);

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

272 (Tex. App.—Corpus Christi 1996, writ denied)

(recognizing that ‘the decision not to prosecute is

the quintessential function of a prosecutor’ (dash

omitted)).” Rothgery v. Gillespie County, 491 F.3d

293, 297 (CA5 2007).°

3. See also id., at 300-01 (“[T]he summary judgment evidence reflects

no prosecutorial knowledge of or involvement in the arrest and

magistrate appearance... .”).

16

The Fifth Circuit correctly held that, given the absence of

evidence of prosecutorial knowledge or involvement, the

State of Texas had not commenced adversary judicial

proceedings against Petitioner at the time of the Article

15.17 magistration and, therefore, Petitioner's Sixth

Amendment right to counsel did not attach.‘

4. In a letter brief to the Fifth Circuit, filed at the invitation of the

court, the Texas Office of the Attorney General submitted that the

Texas “Court of Criminal Appeals has consistently correlated the

initiation of adversary criminal proceedings with the involvement of

a prosecutor. And for good reason, because only a prosecutor, not a

peace officer, can commit the State to prosecute a felony offense.” See

April 20, 2007, Letter Brief at 11. The letter brief did note that in

Fuller v. State the Texas Court of Criminal Appeals found that the

right to counsel had attached at “the article 15.17 hearing.” IJd., at 4

&n.10. However, Fuller is not dispositive on the issue of whether the

Texas Court of Criminal Appeals would find that Petitioner’s Article

15.17 magistration initiated adversary judicial proceedings for three

reasons. First, in Fuller, the accused had already been charged with

an offense. See Fuller v. State, 829 S.W.2d 191, 205 (Tex. Crim. App.

1992) (en banc). In contrast, Petitioner had not been formally charged

by the time of his Article 15.17 magistration. See Rothgery, 491 F.3d

at 300 (noting that a form used to memorialize the warnings given to

Petitioner “indicated that charges ‘will be filed’ in the district court,

not that they were being filed concurrently with the magistrate” and

that “there is no basis to conclude that the use of the word ‘charge’ [in

the probable-cause affidavit] was, or could have been anything but

informal.”); see also R. 343. Second, the Fuller court stopped short of

making a final determination on this issue, finding only that the

defendant “is probably right to insist that an effective waiver of

counsel under the Sixth Amendment was essential to the admissibility

of his ensuing statements,” 829 S.W.2d, at 205 (emphasis added), but

holding that the statements were nevertheless admissible because he

had effectively relinquished or abandoned the right to counsel, id.

Third, and most importantly, in a case decided nearly two years after

the Fuller decision, the Texas Court of Criminal Appeals stated that

it had “made it clear that an arrest alone does not trigger adversarial

17

The Fifth Circuit’s decision is wholly consistent with

the purpose and intent of the Sixth Amendment to protect

the criminal defendant from the danger of erroneous

conviction as a result of his ignorance of the law. Nothing

happened prior to or during the Article 15.17 magistration

that could fairly be considered an event that “could settle

[Petitioner’s] fate and reduce the trial itself to a mere

formality,” Gouveia, 467 U.S., at 189—and indeed

Petitioner does not even attempt to make such an

argument. The Fifth Circuit correctly affirmed the district

court’s order granting summary judgment to Gillespie

County.

II. BREWER AND JACKSON ARE NOT DISPOSITIVE OF

WHETHER ROTHGERY’S SIXTH AMENDMENT RIGHT TO

COUNSEL ATTACHED AT THE ARTICLE 15.17

MAGISTRATION.

Petitioner erroneously contends that the question

presented in this case—whether Petitioner's Sixth

Amendment right to counsel attached following the Article

15.17 magistration, given the absence of a commitment by

the government to prosecute Petitioner—was actually

“settled” years ago by the Court in Brewer and Jackson.

But whether the right to counsel had attached was not at

issue in either of those cases. Hence, Brewer and Jackson

do not control the outcome of this case.

judicial proceedings, with or without a warrant, nor does an Article

15.17 warning... .” Green v. State, 872 S.W.2d 717, 720 (Tex. Crim.

App. 1994) (en banc) (emphasis added) (noting that in a different case

adversarial judicial proceedings were found to have “begun by the time

of Article 15.17 warnings because by then unspecified ‘charges’ had

been filed against defendant”).

18

In both Brewer and Jackson the Court considered

whether the defendants—whose Sixth Amendment right

to counsel had “no doubt” attached, Brewer, 430 U.S., at

399—had waived their rights to be interrogated by the

police. See also Jackson, 475 U.S., at 629 (“The question

is not whether respondents had a right to counsel at their

postarraignment custodial interrogations. The existence

of that right is clear .. . . The question in these cases is

whether respondents validly waived their right to counsel

at the postarraignment custodial interrogation.”).

In Brewer, an arrest warrant had been issued for the

defendant, he had been arraigned, and committed to jail

prior to making incriminating statements. 430 U.S., at

390-93, 399. Similarly, the defendants in Jackson had

been arrested, arraigned, and apparently retained in

police custody prior to the custodial interrogation at issue.

475 U.S., at 627-28. With little analysis, and with the

simple observation that the defendants had each been

“arraigned,” the Court quickly concluded that the right to

counsel had attached for each defendant (indeed, as to all

defendants but one, the State conceded that it had) and

moved on to the question of waiver. Jackson, 475 U.S., at

627-28; Brewer, 430 U.S., at 399.

Nonetheless, Petitioner contends that these cases

establish that a person who is arrested and taken before

a judge to hear the accusations against him and is then

required to remain in jail or post bail is entitled to the

protection of the Sixth Amendment. Pet. Br., at 21-24.

Petitioner asserts that in Jackson the Court held that an

individual's right to counsel attaches the moment that a

person who was previously a “suspect” becomes an

“accused.” Pet. Br., at 3. Attempting to draw similarities

19

between the facts of his case and those in Brewer and

Jackson, Petitioner claims that he falls into the category

of “accused” because he was “accused” of a criminal offense

at the Article 15.17 magistration and remanded to bail.

Pet. Br., at 11-12.

Brewer and Jackson did not hold that a person in

Petitioner’s circumstances, that is, a person accused by a

peace officer of committing an offense for purposes of

establishing probable cause, would be an “accused.”

Rather the Court recognized in Jackson that a person is

transformed from a “suspect” to an “accused” “after a

formal accusation has been made.” Jackson, 475 U.S., at

632 (emphasis added); see also id., at 631 (“In United

States v. Gouveia, we explained the significance of the

formal accusation, and the corresponding attachment of

the Sixth Amendment right to counsel. . . .”) (emphasis

added); id. at 632 (“As a result, the ‘Sixth Amendment

guarantees the accused, at least after the initiation of

formal charges, the right to rely on counsel ... .”)

(emphasis added). As noted, supra note 4, formal charges

had not been filed at the time of Petitioner's Article 15.17

magistration. And as has been explained, only a

prosecutor can commit the State of Texas to prosecute a

felony offense, and at the time of Petitioner’s Article 15.17

magistration, there is no dispute that that had not

happened yet.

Nor did Brewer and Jackson address the significance of

the defendants’ appearances before a judge or the setting

of bail. The Court did not linger on the varying types of

hearings that might conceivably be called “arraignments,”

and the Court made no comment on whether there had

been prosecutorial involvement in any of the cases.

20

Rather, it appears that the Court was satisfied that the

defendants’ “arraignment” indicated the initiation of

adversary judicial proceedings because an “arraignment”

is one of the events expressly identified in Kirby as

triggering the Sixth Amendment right to counsel.

Jackson, 475 U.S., at 629 (“The arraignment signals ‘the

initiation of adversary judicial proceedings’ and thus the

attachment of the Sixth Amendment... .”) (quoting

Gouveia, 467 U.S., at 187) and 630 n.3 (citing Kirby, 406

U.S., at 689 and twice emphasizing “arraignment”);

Brewer, 430 U.S., at 399.

Brewer and Jackson did not—contrary to Petitioner’s

assertions—hold that appearance before a justice of the

peace for statutory warnings and the setting of bail

necessarily invokes the Sixth Amendment right to counsel

in every instance. Instead, both opinions, in but a few

passing sentences, deemed it obvious that a formal

“arraignment” commenced adversary proceedings.

But if an “arraignment” is to be accorded talismanic

force, then it bears emphasis that, under Texas law, it is

indisputable that Petitioner had yet not been arraigned.

By statute, an “arraignment” under Texas law “takes place

for the purpose of fixing [the defendant’s] identity and

hearing his plea.” TEX. CODE CRIM. PROC. art 26.02.

Moreover, the arraignment in Texas typically takes place

after the indictment. Jd. art. 26.03. In contrast, an Article

15.17 magistration takes place before indictment and

requires no entry of a plea. It bears none of the qualities

of an arraignment under Texas law.

21

Black’s Law Dictionary defines “arraignment” as,

“[t}he initial step in a criminal prosecution whereby

the defendant is brought before the court to hear

the charges and to enter a plea.” BLACK’S LAW

DICTIONARY 104 (7th ed. 1999) (emphasis added).

That is surely the primary definition of the word.

Petitioner urges that “arraignment” can also be used in

some States to refer to proceedings that resemble an

Article 15.17 magistration, Pet. Br., at 20-21 & n.7, but it

is noteworthy that the Black’s definition makes no such

mention. Indeed, it expressly contrasts “arraignment”

with “preliminary hearing’ and “initial appearance,” using

a “cf.” signal to reflect the difference between the terms.

BLACK’S LAW DICTIONARY, at 104.

And Texas law does not equate an Article 15.17

magistration with an arraignment. Indeed, several

differences are evident. First, as detailed in Respondent’s

brief, the Texas proceeding is essentially administrative,

providing the arrestee with various forms and statutory

warnings. See Resp. Br., at 4-7.° Second, an Article 15.17

magistration is non-adversarial. Indeed, unlike an

arraignment, the prosecutor is typically not even there

(and, in this case, was both absent and unaware of the

proceeding). And third, Petitioner entered no plea (nor

could he) and was required to preserve no defenses that

could prejudice him at later trial.

5. Although the magistrate’s determination of probable cause is not

itself administrative, this Court has expressly held that a probable-

cause hearing does not require the appointment of counsel under the

Sixth Amendment. Gerstein v. Pugh, 420 U.S. 103, 122 (1975).

22

Petitioner avoids these obvious distinctions by

asserting that his Article 15.17 magistration was

“functionally identical to the proceedings in Brewer and

Jackson.” Pet. Br., at 27. As an initial matter, the precise

contours of the proceedings in Brewer and Jackson are

ambiguous at best. See Resp. Br., at 34-38. Neither

opinion considered the issue at any length; both simply

applied the syllogism “arraignment” equals “initiation of

adversary proceedings.” Under the terms of that

abbreviated logic, the obverse should also obtain: “not

arraignment” should equal “not the initiation of adversary

proceedings.”

But, even assuming Petitioner’s assertion were true,

that the Court had concluded in dicta that the right to

counsel attaches at probable-cause hearings (and the

better reading of those opinions is that it did not), the

Court would not now be bound by those earlier

statements—especially because the question of when the

right attached was largely uncontested in both cases. As

the Court noted regarding Brewer in Texas v. Cobb,

“(cjonstitutional rights are not defined by inferences from

opinions which did not address the question at issue.” 532

U.S. 162, 169 (2001) (citing Hagans v. Lavine, 415 U.S.

528, 535 n.5 (1974)).

On any fair reading, Brewer and Jackson do not resolve

the question presented in this case.

23

III. EVENIFADVERSARY JUDICIAL PROCEEDINGS HAD

COMMENCED AT THE ARTICLE 15.17

MAGISTRATION, PETITIONER WAS NOT ENTITLED

TO THE ASSISTANCE OF COUNSEL UNTIL A

“CRITICAL STAGE” OCCURRED.

If the Court were to disagree with the Fifth Circuit’s

reliance on prosecutorial involvement to determine the

onset of adversary judicial proceedings in Texas, the Court

should nonetheless affirm because Petitioner was not, in

any event, denied his Sixth Amendment right to counsel.

The Court has made clear that the right to counsel

requires both attachment and a “critical stage” in the

prosecution. Without the latter, the supposed attachment

of Petitioner's right to counsel remains purely academic,

and the Fifth Circuit’s ultimate conclusion that Petitioner

was not denied that right is entirely correct.

Petitioner would rather this Court not address the

critical stage issue, see Pet. Br., at 19-20 n6,

understandably so, since he cannot seriously argue that he

was required to participate in a critical stage without

assistance of counsel. However, Petitioner cannot

establish that his Sixth Amendment right to counsel was

violated without such a showing. The Court's decisions

demonstrate that although a defendant may have the

right to counsel, that right is not actionable by itself.

There must be a “critical stage” of the prosecution at

which the Sixth Amendment applies. Jackson, 475 US.,

at 629-30; Gouveia, 467 U.S., at 189; Moore, 434 U.S., at

229; Brewer, 430 U.S., at 400; Wade, 388 U.S., at 226-27.

Indeed, in Brewer, the Court was careful to point out that

even though it had concluded that the defendant’s right to

counsel had “no doubt” attached, 430 U.S., at 399, the

24

protection of the Sixth Amendment would not have come

into play at all in the absence of a critical stage—in that

case, the interrogation, id., at 400. Similarly, in Wade, the

Court noted that a denial of a right to have counsel

present at such stages as a “systemized or scientific

analyzing of the accused’s fingerprints, blood sample,

clothing, hair and the like” would not “violate the Sixth

Amendment; they are not critical stages since there is a

minimal risk that his counsel’s absence at such stages

might derogate from his right to a fair trial.” Wade, 388

U.S., at 228-29. Without a critical stage, therefore, the

Sixth Amendment right to counsel is simply not

implicated.®

6. Petitioner obliquely contends that this Court should not consider

the “critical stage” issue because Respondent did not press the issue

before the court of appeals and because the Fifth Circuit rejected

Petitioner's claim on a separate ground. Pet. Br., at 19-20n.6. But

this Court reviews judgments, not statements in opinions, California

v. Rooney, 483 U.S. 307, 311 (1987), and the judgment of the Fifth

Circuit was that Petitioner’s Sixth Amendment right to counsel had

not been violated. Any contrary judgment would necessitate the

conclusion that his right to counse) had been denied during a critical

stage in the proceedings, and there is no serious argument on these

facts that that occurred. Cf. Rumsfield v. Forum for Academic &

Institutional Rights, 547 U.S. 47, 56 (2006) (internal quotation

omitted) (noting that the Court's review “may, in our discretion,

encompass questions fairly included within the question presented”

and choosing to consider an argument presented by amici in spite of

the government's claim that “this question was not before the Court

because it was neither included in the questions presented or raised

by FAIR”); United States v. Mendenhall, 446 U.S. 544 (1980) (“While

the Court ordinarily does not consider matters neither raised nor

decided by the courts below ... it has done so in exceptional

circumstances. .. . We consider the Government's contention .. .

because the contrary assumption .. . rests on a serious

misapprehension of federal constitutional law. And because the

25

The Court has defined “critical stages” as those events

at which the criminal defendant “is confronted, just as at

trial, by the procedural system, or by his expert adversary,

or by both in a situation where the results of the

confrontation might well settle the accused’s fate and

reduce the trial itself to a mere formality.” Gouveia, 467

U.S., at 189 (internal quotations eliminated). Aside from

police interrogation, the Court has concluded that a

preliminary hearing at which the defendant entered a

plea, an arraignment at which certain pleas could be lost,

a psychiatric examination, and a post-indictment lineup

are critical stages of the prosecution at which the right to

counsel would attach. See, e.g., Estelle v. Smith, 451 U.S.

454, 470 (1981) (finding that a psychiatric examination in

a capital case “proved to be a ‘critical stage’ of the

aggregate proceedings against respondent”); Moore, 434

U.S., at 229) (finding a right to counsel at a preliminary

hearing at which a victim identified the defendant);

Coleman v. Alabama, 399 U.S. 1, 9-10 (1970) (finding right

to counsel had attached at a preliminary hearing in which

the State put on evidence of its case); Wade, 388 U.S., at

218, 227 (holding that a post-indictment lineup was a

“critical stage”); White v. State of Maryland, 373 U.S. 59,

60 (1963) (holding that a preliminary hearing was a

critical stage because the defendant entered a plea);

Hamilton v. Alabama, 368 U.S. 52, 53-54 (1961) (finding

that an arraignment is a critical stage because the rights

to certain pleas, including insanity, may be lost).

Petitioner's Article 15.17 magistration does not resemble

determination is essential to the correct disposition of other issues in

the case, we shall treat it as ‘fairly comprised’ by the questions

presented in the petition for certiorari.”) (internal citations omitted).

26

any of those events. Petitioner was not formally charged

at the appearance, he was not required to enter a plea or

make any other compromising statements, and was never

confronted by his adversary—the prosecutor.

The Court’s limitation of the right to counsel to such

critical stages is consistent with the Sixth Amendment’s

purpose of protecting an accused from conviction as a

result of his ignorance of his rights and makes imminent

practical sense. Indeed, the Court has never suggested

that States must provide attorneys to indigent defendants

around the clock, nor could they reasonably do so.

Moreover, without the critical-stage limitation it would

be impracticable to determine the point at which a

violation of the Sixth Amendment right to counsel had

occurred. For example, in Petitioner's case, he is

studiously vague as to when he believes such a violation

occurred. He concedes that he was not entitled to counsel

at his Article 15.17 magistration. Pet. Br., at 19-20 n.6.

Instead, he argues instead that he was entitled to

appointed counsel some time “after” that proceeding. Id.

When precisely, Petitioner does not say.

Nor for what purpose. Petitioner was released on bond

following his Article 15.17 magistration and was free on

bond until his indictment issued some six months later.

During that time, not only did he face no critical stages, he

faced no stages whatsoever. The only possible purpose to

which Petitioner alludes is that counsel might have

discovered that his California felony charges had

ultimately been dismissed, and Petitioner presumably

27

might have aveided indictment altogether.’ But that

7. Some six months after his Article 15.17 magistration, Petitioner

was indeed indicted for unlawful possession of a firearm by a felon, a

third-degree felony. R. 340; TEX. PENAL CODE §46.04. Once

Petitioner's counsel was appointed, he successfully argued that the

Texas charge should be dismissed because Rothgery’s Calfornia

convictions had been dismissed through completion of a diversionary

program, and, thus, strictly speaking, he was no longer a “felon.” R.

436, 593.

There is no dispute, however, that Petitioner had committed two

prior felonies, and his record shows two California felony convictions

for possession of a controlled substance. See Superior Court of

California, County of Orange, Case Number 96SF0443, at

http://visionweb.occourts.org/Vision_Public/DisplayCaseInfo.do (last

visited Feb. 21, 2008). After completing a diversionary program,

California law allowed him to petition the court to withdraw his guilty

plea and have the case against him dismissed. R. 462, 593. The

California statute authorizing this procedure, California Penal Code

section 1203.4(a), is not technically an expungement statute because

it does not erase the conviction from a defendant’s record. As one

California court explained, “while a number of courts have used forms

of the word ‘expunge’ to describe the relief made available by section

1203.4... the statute does not in fact produce such a dramatic result.

... The statute does not purport to render the conviction a legal

nullity.” People v. Frawley, 82 Cal. App. 4th 784, 791 (Cal. Ct. App.

2000).

And, even though the statute does remove certain disabilities and

penalties, it does not qualify those who have committed felonies to

carry firearms. CAL. PENAL CODE §1203.4(a) (‘Dismissal of an

accusation or information pursuant to this section does not permit a

person to own, possess, or have in his or her custody or control any

firearm or prevent his or her conviction under Section 12021.”); see

also People v. Bell, 49 Cal. 3d 502, 546 (Cal. 1989) (“[T]he Legislature

... specifically declare[d] that dismissal of a charge [under §1203.4]

after completion of probation does not permit the person to own or

possess a... firearm.”). Thus, if Petitioner had engaged in the

identica! conduct in California that he did in Texas, he would have

committed a felony under California law. CAL. PENAL CODE

§12021(a)(1) (prohibiting felons from possessing firearms).

;

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28

putative purpose has been explicitly rejected by this Court:

“(it may well be true that in some cases

preindictment investigation could help a defendant

prepare a better defense. But, as we have noted our

cases have never suggested that the purpose of the

right to counsel is to provide a defendant with a

preindictment private investigator, and we see no

reason to adopt that novel interpretation of the right

to counsel in this case.” Gouveia, 467 U.S., at 191

(emphasis added).

Aside from hoping for a “preindictment private

investigator,” Petitioner suggests no purpose for which

counsel might have served during the months he remained

free and unindicted.

Thus, under Petitioner's theory, the Sixth Amendment

requires that counsel have been appointed at an

indeterminate time “after” his probable-cause hearing, for

an indeterminate purpose, irrespective of any critical

stages or further proceedings in the case.

The Constitution contains no such mandate. And state

and local governments should not be confronted with such

an amorphous and all-encompassing obligation.

Petitioner's right to a fair trial was fully protected—and

that is all that the Sixth Amendment right to counsel

requires.

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CONCLUSION

For the foregoing reasons, the Court should affirm the

judgment of the court of appeals.

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant Attorney

General

ERIC J.R. NICHOLS

Deputy Attorney General

for Criminal Justice

February 2008

R. TED CRUZ

Solicitor General

Counsel of Record

THOMAS M. LIPOVSKI

DANICA L. MILIOS

SUSANNA G. DOKUPIL

Assistant Solicitors

General

P.O. Box 12548 (MC 059)

Austin, Texas 78711

(512) 936-1700

Counsel for Amici Curiae