At oral argument, the Court seemed to genuinely struggle with the scope of the right to counsel. While the Justices were disturbed by the possibility that a state could incarcerate an individual without charging him and without appointing counsel, they also raised practical concerns with requiring states to appoint counsel too early, seemed conflicted over the role "critical stages" must play in the analysis, and were unclear on whether the right to counsel is the relevant constitutional protection of individuals' liberty interests at all. In the end, Chief Justice Roberts and Justice Alito were the only Justices who readily defended the state's positions, and some consensus appeared to form around a rule that would require appointed counsel after an individual is incarcerated or released on bail, but the outcome remains unclear.

Arguing for petitioner Walter Rothgery, Danielle Spinelli started her argument by citing the Court's decisions in Brewer and Jackson for the proposition that an initial appearance before a magistrate commences criminal proceedings, thus attaching the right to counsel. Chief Justice Roberts challenged the contention that Brewer and Jackson applied to the facts of this case, distinguishing them based upon prosecutorial involvement and questioning how, absent such involvement, the hearing in this case could be considered "adversarial." Ms. Spinelli responded that the initial proceeding need not be adversarial to commence prosecution and noted that neither Jackson nor Brewer emphasized the role of prosecutors.

The Justices quickly moved away from the Fifth Circuit's "prosecutorial involvement" test relied upon by the Fifth Circuit and would only revisit it briefly. Instead, Justice Kennedy first raised a topic that would take up much of the argument: how to identify "a specific rule to give to the States so the State knows when counsel has to be appointed." In Justice Kennedy's first pass at this issue, he questioned whether counsel would be required if the magistrate had issued a ticket. Ms. Spinelli responded that in that situation the individual would not be bound to reappear (and the need for appointed counsel would thereby be reduced) but seemed to allow that some weighing of the facts would still be necessary.

Justice Ginsburg next pressed upon a difficult part of Rothgery's argument: his claim that the initial hearing served to commence criminal proceedings while not being an adversarial proceeding requiring counsel itself. Ms. Spinelli took the opportunity to differentiate the attachment issue from the critical stages question and argued that only the former was before the Court. However, when pressed further by Justice Alito, she acknowledged that the right only attached at the moment the magistrate found there to be probable cause and that counsel only needed to be appointed within some reasonable time after that point. Although Chief Justice Roberts took issue with Ms. Spinelli's attempt to push aside the critical stages analysis, noting that if an individual is entitled to counsel absent a critical stage at an early point in the proceedings, then that counsel will essentially play an investigative function, Ms. Spinelli successfully parried for the moment with the help of Justice Kennedy who tried to get back to his ticket analogy.

Justice Scalia now spoke for the first time, indicating his concern with the incarceration in this case, and suggesting that it is the pivotal fact in the case. Ms. Spinelli agreed that the incarceration weighed heavily on the side of Rothgery becoming an accused entitled to counsel. Justice Scalia went even further, suggesting it was the incarceration of Rothgery that was unconstitutional, not the failure to appoint counsel. Ms. Spinelli would not go that far. Instead, she responded that the incarceration gave rise to special rights that were violated.

Justice Kennedy once again tried to nail down a rule: "What do we tell jurisdictions that have to deal with traffic tickets? Does it make a difference that you're held in custody or not held in custody? I don't understand the rule you want us to adopt." Ms. Spinelli returned to Brewer and Jackson as establishing the rule Rothgery advocates "“ viz., that the right to counsel attaches upon the initial appearance before the magistrate. Justice Alito again pressed Ms. Spinelli on when exactly that right attaches, but Justice Souter came to her rescue, clarifying that counsel need only be appointed within a reasonable time after the initial appearance.

Justice Breyer seemed most concerned with the practical consequences for the states if the Court accepted Rothgery's position. He questioned how states deal with the situation in which 500 protesters are brought to jail, required to put up bail, but then the state does not pursue charges on the condition that they forfeit bond as a fine. Ms. Spinelli began to answer that prosecution would not have begun, but Chief Justice Roberts asked why not if the individuals had been charged. Ms. Spinelli hedged and Justice Kennedy took the opportunity to raise his ticket hypothetical again.

Justice Scalia now raised the critical stages issue again, asking why requiring a critical stage before appointing counsel did not solve Justice Breyer's practical problem. Ms. Spinelli again noted that the critical stages question was not before the Court, but Justice Scalia argued that the two questions are intertwined and that it would be easier for the Court to find that the right to counsel had attached at the initial hearing if counsel need not be actually appointed until a critical stage. Ms. Spinelli did not seem to fight that rule, instead arguing that even under that approach Rothgery was entitled to counsel because he had the right to demand an examining trial which would qualify as a critical stage. The Justices raised some concerns about when that critical stage would commence and whether Rothgery could have waived his right at the initial appearance, and Ms. Spinelli answered that he was not asked to waive that right and it would commence within some reasonable period after the initial appearance.

Justice Scalia then asked whether the Court could find a critical stage when no proceeding occurred, but instead Rothgery merely had the option of requesting such a proceeding. Ms. Spinelli cited Estelle v. Smith for the proposition that the right to counsel encompassed assistance in deciding what proceedings to undergo, not only in the proceedings themselves. This broader purpose of the right to counsel suggests that Rothgery indeed was entitled to that assistance. After some further peppering from Justice Kennedy on the ticket hypo and from Chief Justice Roberts on factual distinction from Brewer and Jackson, Ms. Spinelli reserved her time for rebuttal.

Gregory Coleman, arguing on behalf of the County, began his argument by stating that no charges had been filed in this case and Rothgery had no need of counsel prior to the indictment, but quickly ran into difficult questions from all sides regarding Rothgery's incarceration. If no charges had been filed, Justice Kennedy asked, "then how could they hold [Rothgery] in jail?" Mr. Coleman responded that it is not uncommon for the police to arrest a person "to cease the crime that is taking place and perhaps to prevent other crimes from taking place" and to hold them without charging them. Justice Kennedy pressed him further, posing the ugly scenario on everyone's mind: "suppose he had been held for three months and you couldn't make bail, we don't need counsel?" Before Mr. Coleman could answer, Justice Scalia asked what authority the state had to hold someone who had not been charged. Mr. Coleman pointed to rights in the Constitution other than the right to counsel, such as the Fourth Amendment right against unreasonable seizures and the Sixth Amendment right to a speedy trial.

Justice Souter was unconvinced, incredulously examining the County's claim that Rothgery could be held without charges for three weeks without right to counsel. Chief Justice Roberts volunteered that other rights would protect the indigent but the other Justices were not satisfied. Justice Scalia indicated that the scenario would pose a problem even if counsel were attached and Justice Souter drew laughter by asking if it would be constitutional for the state to keep an individual in jail without charging him and in response to his lawyer's inquiries simply say "well, you know, that's for us to know and you to find out?" Chief Justice Roberts again came to the state's defense, answering for Mr. Coleman again that other constitutional rights would be at issue besides the right to appointed counsel.

Justice Breyer next pressed Mr. Coleman on the significance of the magistrate in this case, eventually winning an admission from Mr. Coleman that "magistrates have a great amount of discretion." Justice Breyer than characterized the initial proceeding: "In this case we have before us bringing this person before a State official who himself has the power to decide if there is probably cause to hold him, and he is saying, yes, there is probable cause to hold him." Justice Stevens further questioned whether the absence of the prosecutor in this case was significant. Mr. Coleman answered no, unless the prosecutor filed charges. Under additional questioning, Mr. Coleman moved away from the prosecutorial involvement test outlined by the Fifth Circuit and instead embraced a test that looks only at whether formal charges have been brought.

The Justices, led by Justice Scalia, further questioned Mr. Coleman on how an individual can be incarcerated without some charges, or at least a complaint being filed by the police. Mr. Coleman responded that no charges or complaint were filed in response to questioning by Justices Scalia, Souter, and Ginsburg. Justice Ginsburg switched tacks, inquiring into the rights read to Rothgery by the magistrate which included a right to counsel. Mr. Coleman said that this right arose under Texas law but not the Sixth Amendment.

Justice Alito raised Rothgery's argument that the possibility of an examining trial should qualify as a critical stage asking why the Court should differentiate between the situation when such a trial is optional rather than mandatory. "Because there is no prejudice to your fair trial rights from not choosing to have an examining trial," Mr. Coleman answered. While proceedings at an examining trial without assistance of counsel could prejudice an individual's right to fair trial, the mere choice whether to pursue those proceedings do not.

Justice Kennedy then brought the discussion back to identifying a workable rule, asking whether requiring appointed counsel whenever a defendant is ordered held in custody would contradict the Court's precedent. Mr. Coleman argued that it would contradict multiple cases and that being held in custody does not make a constitutional difference. Justice Breyer attempted his own rule in which the state would have to appoint counsel when it imposes significant restraints on an individual's liberty for the purpose of bringing that individual to trial, but not if the purpose, like the one in Gouveia, is to keep the prison or society safe. Mr. Coleman did not respond to Justice Breyer's assertion that that rule would not raise significant practical problems, but instead returned to the argument that appointed counsel are meant to protect the right to a fair trial and that other constitutional rights protect individuals' liberty interests. Justice Ginsburg pressed him on that assertion, raising the examining trial as a proceeding entitling an individual to counsel even though it does not affect the right to fair trial itself. But Mr. Coleman disagreed with Justice Ginsburg, arguing that the very reason counsel is required at the examining trial is precisely because an uninformed defendant might unwittingly waive defenses without such assistance. which would affect the trial itself.

Mr. Coleman pivoted to Justice Breyer's earlier hypothetical concerning 500 individuals arrested at a demonstration. Under Rothgery's proposed rule, Mr. Coleman asserted, the County would be required to appoint counsel to all of those individuals. "Only if they ask for the lawyer," Justice Stevens qualified. Also, "no counsel is required if there's no incarceration," Justice Souter reminded. When Mr. Coleman responded that Rothgery had been released on bond, Justice Breyer answered that bail "in effect is incarceration" and clarified that the reason he posed the hypothetical was because he understood that in a lot of other states counsel do attach under the circumstances of this case. Justice Breyer hoped to understand how they dealt with the situation to understand any practical difficulties with the rule. When Mr. Coleman responded that those other states do not treat the situation significantly differently than Texas, Justice Breyer remarked that Texas would have appointed counsel at the magistration if Rothgery had requested it, so it cannot be such a significant problem after all.

Justice Stevens next launched into an extended dialogue with Mr. Coleman establishing the role of a lawyer under Texas procedure in helping a client who is out on bail but has not been charged. Mr. Coleman had to admit that the state would allow a lawyer to help his client confront such a scenario but denied that the County is therefore constitutionally obliged to appoint a counsel for that purpose.

Justice Alito brought Mr. Coleman back to the issue of critical stages, asking what the difference is between having the right to counsel attach and having the right to have counsel appointed. Mr. Coleman answered that the entire inquiry must turn on the critical stage question of whether a state must appoint counsel for a particular proceeding to ensure an individual's right to a fair trial. Justice Ginsburg, though, pointed out that the right is not "episodic" and does not go away in between critical stages. Rather, "you only need this one critical stage, and then you get appointed counsel at that stage, and that counsel will continue thereafter."

Justice Kennedy returned to the practical concerns raised by this case, asking Mr. Coleman how many people currently are incarcerated in Texas after a probable cause determination without appointed counsel. Mr. Coleman responded that the Fair Defense Act prevents such problems from occurring, to which Justice Kennedy answered, "Then I am not sure why we are having this discussion." Mr. Coleman responded that because Mr. Rothgery was released on bail, the county was not authorized to appoint counsel.

Mr. Coleman ended his oral arguments by responding to Justice Souter's questions about the nature of the examining trial and whether a magistrate can find probable cause if no charges have been filed. Mr. Coleman maintained that in Texas probable cause is determined prior to charges being filed.

Before Ms. Spinelli could even start her rebuttal, Justice Kennedy observed that "if we are going to give you relief, we have to go beyond what Gerstein says." Ms. Spinelli responding by distinguishing the probable-cause determination in Gerstein from the initial proceeding in this case, in which Rothgery acquired specific rights, including the right to appointed counsel. But then "Texas would be better off if they didn't have a magistration proceeding at all," Chief Justice Roberts observed. Ms. Spinelli responded that the fact that 45 jurisdictions do appoint counsel following an initial appearance indicates that states do not view this process as a burden and that the initial appearance serves an important substantive purpose. Allowed an additional minute by Chief Justice Roberts, Ms. Spinelli finished her argument by explaining that there are two phases to a felony prosecution in Texas and that the County's rule would limit the right to the second phase, a limitation the Court has repeatedly rejected.

Posted in Rothgery v. Gillespie County, Everything Else