Rothgery v. Gillespie County, TX

Sixth Amendment Right to Assistance of Counsel

At issue in this case is the stage in the Texas criminal process that triggers an accused person's constitutional right to court-appointed counsel. The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant "the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. This guarantee stems from the principle that an attorney's assistance is vital in providing every defendant a fair trial, regardless of a defendant's ability to pay for legal representation. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). In Kirby v. Illinois, 406 U.S. 682 (1972),the U.S. Supreme Court held that the right to counsel attaches when "adversary judicial proceedings" commence. Kirby,406 U.S. at 688-89. Under Court precedent, the right to counsel indisputably vests once a criminal defendant has been arrested, arraigned before a judge, and committed to confinement in jail. See Brewer v. Williams, 430 U.S. 387, 399 (1977). However, an arrest alone does not trigger the right to counsel. See U.S. v. Gouveia, 467 U.S. 180, 190 (1984).

In determining whether "adversary judicial proceedings" have commenced, federal courts look to the relevant state law. See Moore v. Illinois, 434 U.S. 220, 228 (1977). Presently, the first stage in the Texas criminal process at which adversary judicial proceedings may commence remains unsettled, thus requiring a case-by-case evaluation of the pertinent circumstances. SeeRothgery v. Gillespie County, Tex., 491 F.3d 293, 300 (5th Cir. 2007).Under Texas law, a person arrested without a warrant must make a "preliminary initial appearance" before a magistrate within 48 hours after the arrest. Tex. Code Crim. Proc. art. 14.06(a). At this appearance, the magistrate is required to inform the arrestee of the accusation against the arrestee and the arrestee's statutory rights, including the right to request the appointment of counsel. See id. art. 15.17(a).The magistrate shall set bail if so permitted by law. See id. If the arrestee is unable to pay the specified bail, the magistrate commits the arrestee to jail. See id. art. 17.27.

Event Triggering Rothgery's Sixth Amendment Right

Rothgery asserts that adversary judicial proceedings commenced and triggered his Sixth Amendment right to counsel once he made his initial appearance before the magistrate judge. See Brief for Petitioner at 27. According to Rothgery, this appearance was functionally equivalent to the types of appearances the Supreme Court has previously held to signify the initiation of adversary judicial proceedings. See Michigan v. Jackson, 475 U.S. 625, 629 (1986); Brewer v. Williams, 430 U.S. 387, 399 (1977); Brief for Petitioner at 27. In Jackson and Brewer, the defendants appeared before judicial officers who informed them of the accusation against them and committed them to confinement. See Jackson, 475 U.S. at 629; Brewer, 430 U.S. at 399. Like the arraignments in Jackson and Brewer, the argument goes, Rothgery's initial magistrate appearance triggered his right to counsel because it transformed his status from that of "suspect" to "accused." Brief for Petitioner at 29. Rothgery contends that, regardless of the integration of the probable-cause determination into the initial appearance, his appearance before the magistrate served to designate him as an accused. See id. at 31. As such, Rothgery subsequently needed the assistance of counsel in evaluating his statutory rights and in proving his innocence. See id. at 29.

By comparison, Gillespie County argues that the right to counsel attached no earlier than Rothgery's indictment. See Brief for Respondent at 1. According to the County, Rothgery's initial appearance before the magistrate did not mark the commencement of adversary judicial proceedings because formal criminal charges had not yet been filed. See id. at 19. Furthermore, the appearance was insufficient to trigger Rothgery's right to counsel because, under the Kirby analysis, the state had not committed itself to prosecute Rothgery, nor was it in an adverse position to him. SeeKirby, 406 U.S. at 689; id. at 22-23.Finally,the County notes that, even if Rothgery's Sixth Amendment right attached at the initial appearance, he proceeded to waive this right for purposes of that appearance, and no intervening critical stage in the prosecution entitling Rothgery to appointed counsel occurred until after indictment. See Brief for Respondent at 44.

The County furthermore agrees with the Fifth Circuit's finding that Rothgery's magistrate appearance insufficient to constitute an adversary judicial proceeding in light of Fifth Circuit precedent in McGee v. Estelle, 625 F.2d 1206 (5th Cir. 1980). See Rothgery, 491 F.3d at 294. Under McGee, an accused person's right to counsel does not attach in Texas at the "preliminary initial appearance" if prosecutors are not aware of or involved in the arrest and appearance. See McGee,625 F.2d at 1208-09. According to the Fifth Circuit, absent prosecutorial awareness, the police officer's filing of the probable-cause affidavit was investigatory rather than prosecutorial in nature. See Rothgery, 491 F.3d at 300-01.

Consistency of Fifth Circuit's Decision with Supreme Court Precedent

Rothgery claims that the Fifth Circuit's decision-deeming prosecutorial awareness or involvement as the touchstone in triggering the right to counsel-is irreconcilable with the Supreme Court's Sixth Amendment precedent. See Brief for Petitioner at 31-32. According to Rothgery, prosecutorial involvement is not an essential prerequisite to the initiation of adversary judicial proceedings. See id. at 37. Neither Jackson nor Brewer indicated that prosecutorial involvement was a factor in the Court's findings that adversary judicial proceedings had begun. See id. at 33. Furthermore, Rothgery contends that the Fifth Circuit misconstrued Kirby by reading its statement that adversary judicial proceedings are launched when "the government has committed itself to prosecute" to require the participation of a prosecutor. Kirby, 406 U.S. at 689; see id. at 37. Rothgery posits that, in practice, a judge represents the same sovereign authority of the state confronting the accused. See id. at 38.

Gillespie County asserts that the Fifth Circuit properly followed the Court's precedent by holding that adversary judicial proceedings commence not upon an administrative appearance involving statutory warnings, but rather when the state commits itself to prosecute. See Brief for Respondent at 45. The County likens Rothgery's pre-indictment period to that of the federal inmates in Gouveia, whose period of administrative detention without appointed counsel was held not to have initiated adversary judicial proceedings. See Respondent's Brief In Opposition to Petition for Writ of Certiorari at 7-8. Likewise, the County rejects Rothgery's analogy to Jackson and Brewer on two grounds. See Brief for Respondent at 33. First, Jackson involved an arraignment, a Michigan procedure that differs from Texas's initial appearance requirement in granting the defendant the right to answer the charges. See id. at 36-37. Second, the County claims that Brewer does not support Rothgery's argument because the attachment of that defendant's right to counsel was not at issue and because that defendant, unlike Rothgery, was arraigned. See id. at 33-34.

Propriety of Fifth Circuit's Prosecutorial Involvement Test

Finally, Rothgery attacks the Fifth Circuit's approach as unworkable and unfair in practice. See Brief for Petitioner at 38-39. First, the highly fact-based question of prosecutors' awareness or involvement prior to an initial appearance would introduce additional evidentiary complexity into routine criminal proceedings that a defendant, still lacking the right to counsel, could not fairly be expected to handle on his own. See id. at 39-40. The resulting complexity runs counter to the Court's stated preference for clear rules of criminal procedure. See id. at 41. Next, the prosecutorial involvement test interferes with the workings of a prosecutor's office by threatening to reveal privileged communications between prosecutors and other law enforcement, and by creating perverse incentives for prosecutors to delay their involvement in order to avoid accountability to the public for unjustified detentions. See id. at 40. Finally, Rothgery maintains, the Fifth Circuit's approach could cause special hardship to indigent defendants, who may, absent the ability to prove prosecutorial involvement, find themselves forced to remain in jail and unable to prove their innocence until their indictment due to lack of legal representation. See id. at 42.

Gillespie County responds that the Fifth Circuit's ruling is a proper application of the Sixth Amendment to Texas's criminal procedure system and accords with the fundamental purposes of the right to appointed counsel. See Brief for Respondent at 10. According to the County, an arrested person's liberty interest against unwarranted confinement is already protected by the Fourth Amendment's guarantee against "unreasonable searches and seizures," the Sixth Amendment's promise of a speedy trial, and by state statutes providing the right to counsel to persons in state custody. Id. at 48-50. Finally, the County claims that Rothgery's construction of the right to counsel would extend the scope of the right in ways that would impose heavy burdens on the courts in handling additional claims from unindicted suspects held in custody, chill law enforcement investigative efforts, introduce unnecessary complexity into the criminal process, and force substantial additional costs on local governments who appoint counsel. See id. at 53-55.