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Argument Preview: Rothgery v. Gillespie County

Below is Stanford student Patrick Nemeroff’s preview of Monday’s argument in Rothgery v. Gillespie County. 

In Rothgery v. Gillespie County, No. 07-0440, the Court will consider when exactly adversarial proceedings have been initiated against an individual for purposes of triggering his Sixth Amendment right to appointed counsel. The petitioner, Walter Rothgery, maintains that his Sixth Amendment rights were violated when he was arrested and brought before a magistrate who informed him of the accusation against him, found probable cause, and sent him to jail pending the posting of bail or the disposition of charges, but when respondent Gillespie County failed to appoint counsel for him until after he was indicted.


On July 15, 2002, petitioner Walter Rothgery was arrested in Gillespie County, Texas, on suspicion of being a felon in possession of a firearm after a background check indicated that he had previously been convicted of a felony in California. Rothgery spent the night in jail and then was brought before a magistrate judge who, based on the arresting officer’s affidavit, found that probable cause existed for Rothgery’s arrest and set bail. Rothgery asked the magistrate to appoint counsel but then temporarily waived that right when he was informed that his request would delay setting bail and thus require him to return to jail. Rothgery posted bail and was released that day.

After six months, during which Rothgery alleges that he made repeated additional requests for appointed counsel, a grand jury indicted Rothgery on a charge of unlawful possession of a firearm by a felon. Because he was unable to post the increased bail that resulted from his indictment, Rothgery was returned to the Gillespie County Jail. Rothgery again requested appointed counsel, which he received six days after his indictment. After Rothgery had spent three weeks in jail, his counsel obtained an order that reduced his bail, thereby facilitating his release. His attorney also obtained records verifying that Rothgery had not in fact been convicted of a felony in California; on the basis of these records, the charges against Rothgery were dismissed on April 30, 2003.

Rothgery sued Gillespie County under 42 U.S.C. § 1983, alleging that the County’s policy of denying appointed counsel for indigent defendants until after indictment violated his Sixth Amendment right to counsel. Rothgery argued that he should have received appointed counsel after his first appearance before the magistrate, and that the mistake leading to his arrest would have been discovered sooner (and he would not have had to erroneously spend time in jail) had counsel been appointed then. The County moved for summary judgment, contending that Rothgery’s right to counsel did not attach until his indictment on January 17, 2003. The federal district court agreed.

On appeal, the Fifth Circuit affirmed. It reasoned that adversarial judicial proceedings do not commence without sufficient prosecutorial awareness and involvement and that in this case there is no evidence of prosecutorial awareness at the time of the initial hearing before the magistrate. The initiation of adversarial judicial proceedings, according to the Fifth Circuit, does not depend on “labels given to pretrial events,” but rather “the relevant time is when the government has committed itself to prosecute and a defendant finds himself faced with the prosecutorial forces of organized society.” Such commitment to prosecute did not exist in this case because prosecutors were neither aware of nor involved in Rothgery’s arrest and appearance before the magistrate. Also, the police officer’s involvement cannot be imputed to the prosecutor and did not commit the government to prosecute, and so was insufficient to initiate adversarial judicial proceedings. Because adversarial judicial proceedings were not initiated, Rothgery’s right to counsel did not attach.

Petition for Certiorari

Rothgery filed a petition for certiorari, which was granted on December 3, 2007.

Rothgery’s petition advanced three arguments. First, Rothgery argued that the Fifth Circuit’s “prosecutorial involvement” test conflicts with the decisions of three other federal courts of appeals holding that “the Sixth Amendment right to counsel is triggered by the same sequence of events that occurred in Rothgery’s case.” He also argued that two state supreme courts have expressly rejected a “prosecutorial involvement” test and that numerous other state courts have held that adversary judicial proceedings begin under facts similar to those in this case.

Second, Rothgery contended that the Fifth Circuit’s decision cannot be reconciled with Supreme Court precedent, in particular the Court’s holdings in Brewer v. Williams (1977) and Michigan v. Jackson (1986). In both cases, according to Rothgery, the Court held that judicial proceedings had been initiated, and the right to counsel attached, following the arrest, initial appearance before a judge, and detention of the defendants. And in neither case, Rothgery emphasized, did the Court even suggest that the involvement of a prosecutor was a relevant factor in determining whether adversarial judicial proceedings had been initiated. Rothgery dismissed the Fifth Circuit’s attempt to distinguish this case from Brewer and Jackson. The Court in Brewer explicitly held that adversarial judicial proceedings had been initiated without reference to prosecutorial involvement, and did not rest its decision on a concession by the state. In Jackson, the Court again held that adversarial judicial proceedings had been initiated without reference to prosecutorial involvement. Contrary to the Fifth Circuit’s assertion, the Court made this determination without relying on, or even mentioning, the Michigan Supreme Court opinion establishing prosecutorial involvement in the case.

Finally, Rothgery argued that the “prosecutorial involvement” test would be unworkable in practice and would lead to injustice, as indigent defendants could be jailed for long periods without counsel. The test requires courts to engage in an “unnecessarily fact-intensive, and ultimately unworkable, inquiry” to determine the extent of prosecutorial involvement. Furthermore, without access to counsel, indigent defendants who were arrested and jailed without a prosecutor being involved could be forced to wait in jail for long periods.

Respondent Gillespie County urged the Court to deny certiorari, arguing that the Fifth Circuit’s decision was consistent with Supreme Court precedent and does not conflict with the other decisions cited by Rothgery. Regarding Supreme Court precedent, the County first cited Kirby, emphasizing that adversarial judicial proceedings begin only when the government has committed itself to prosecute. It further noted that the Court has recognized that the right to counsel serves the purpose of protecting the right to a fair trial, a right not implicated in this case. Accordingly, in United States v. Gouveia (1984), a case concerning two federal inmates held in administrative detention for nineteen months during an investigation for murder, the Court held that their detention alone did not initiate adversarial judicial proceedings absent a commitment to prosecute because no prejudice at trial resulted from such detention. Also, the County distinguished Brewer and Jackson, arguing that the proceedings at question in those cases were functionally different than the initial hearing in this case. The County distinguished the federal circuit court and state court decisions on the basis of state law, arguing that the proceedings in each case were sufficiently different from the initial hearing in this case to be legally distinct.

Merits Briefing

In his brief on the merits, Rothgery largely repeats the arguments he made in the petition. He begins by relying on Supreme Court precedent, which in his view establishes that his right to counsel attached following his initial appearance before the magistrate. In Kirby v. Ilinois (1972), the Court held that the right to counsel attaches at the commencement of adversarial judicial proceedings. And in Brewer and later in Jackson, the Court confronted the same factual situation as presented in this case and determined that judicial proceedings had been initiated (and the Sixth Amendment right to counsel therefore triggered).

Second, Rothgery argues that the Fifth Circuit’s “prosecutorial involvement” test cannot be reconciled with Supreme Court precedent such as Brewer or Jackson, in which the Court did not even address prosecutorial involvement. Moreover, Kirby focuses on the proceedings that have been initiated rather than on which parties initiated them. Once a judge has informed a defendant of the accusations against him and committed him to jail or bail, the “prosecutorial forces of organized society” are sufficiently aligned against the defendant to trigger the right to counsel, regardless of prosecutorial involvement.

Finally, Rothgery argues that the prosecutorial involvement test would be unworkable in practice and would potentially subject indigent defendants to substantial injustice. The test, according to Rothgery, would require a fact-intensive inquiry into prosecutors’ activities, which would be unnecessarily time consuming, intrusive on prosecutors, and place an unfair burden on defendants. Additionally, he claims, the test could work substantial injustice as indigent defendants could “spend months in jail, awaiting indictment, solely because they lack the skill to demonstrate their innocence and the funds to hire counsel to assist them.”

The County responds by first noting that the right to counsel serves to protect the defendant’s right to a fair trial, not to protect against unreasonable detention or guarantee a speedy trial, rights which are protected elsewhere in the Constitution. Accordingly, the Court’s Sixth Amendment jurisprudence focuses on assistance of counsel during the trial itself, and during critical stages of the post-indictment, pretrial proceedings. Additionally, in limited instances, the Court has recognized a right to counsel during adversarial pre-indictment hearings at which the presence of counsel might seriously affect the fairness of a later trial. The County argues that at no point before Rothgery’s indictment, including the initial appearance before the magistrate, was counsel necessary to ensure a fair trial, and thus the County did not violate his Sixth Amendment right.

Next, the County argues that Rothgery’s initial hearing before the magistrate did not entitle him to counsel, and no other event prior to his indictment could have triggered Rothgery’s Sixth Amendment right. Kirby, according to the County, established that the defendant’s right to counsel attaches at the point that formal charges are filed. Because, under Texas law, no charges were filed at the initial hearing, the Sixth Amendment right was not triggered. The County recognizes that the right to counsel might extend to a time prior to formal charges if the state has committed itself to prosecution or if a specific pre-indictment event implicates an individual’s right to a fair trial. But the County argues that in this case, the state did not commit itself to prosecution prior to Rothgery’s indictment, and the initial hearing was not adversarial and did not implicate his right.

Brewer and Jackson, according to the County, do not support petitioner’s arguments. The County argues that the arraignments in both those cases actually did differ from Rothgery’s. But more importantly, the County argues, the Court did not address whether the right to counsel had attached as a result of those proceedings and indeed did not discuss the proceedings in any detail in either case. And even if Rothgery did have a right to counsel at the initial hearing, the County contends, he waived that right, and there was no other event prior to his indictment that could have triggered Rothgery’s Sixth Amendment right.

Finally, the County argues that a holding for Rothgery in this case would dangerously extend the Sixth Amendment right both in practice and doctrinally. Practically, the County argues, Rothgery’s approach would impose a large burden on the government to provide counsel for individuals even in the absence of criminal proceedings. Also, outside of this cost, it would lead to a flood of litigation in the form of interlocutory appeals, habeas corpus claims, and § 1983 suits even in cases in which no quantifiable injury occurred. Doctrinally, the County argues that it would disrupt the Court’s constitutional framework by extending the right to counsel into areas properly addressed with other constitutional provisions such as the Fourth Amendment right against unreasonable searches and seizures and the Sixth Amendment right to a speedy trial.

In his reply brief, Rothgery argues that the County distorts the question presented as well as the Court’s precedent. This case addresses a narrow question: whether a “criminal prosecution” commenced upon the initiation of adversarial judicial proceedings, making Rothgery an “accused” and entitling him to counsel. The County, in its response, focuses on the separate and logically subsequent question of “critical stages” of the prosecution. The “critical stages” inquiry does not determine at what point the right to counsel attaches, but rather which proceedings, absent counsel, threaten substantial prejudice to the defendant’s right to a fair trial. This “critical stages” inquiry only becomes relevant after the right to counsel attaches, and a “critical stage” is not necessary to initiate criminal prosecution itself.

The County’s distortion of the question presented, according to Rothgery, results from an incorrect reading of the Court’s precedent. The County places undue emphasis on the “critical stages” analysis because it misreads Kirby to hold that the right to counsel attaches only upon indictment or for exceptional stages prior to such indictment. Actually, Rothgery argues, the right attaches at the commencement of criminal proceedings, which occurred at Rothgery’s magistration when he was formally accused of a crime. The Court in Brewer and Jackson directly addressed this question, contrary to the County’s assertions, and held that criminal proceedings commenced under the same facts presented in this case. This result depends on federal law alone, rather than on the specifics of Texas law, but even application of Texas law would yield the same conclusion. Also, a ruling for Rothgery would not lead to the dramatic practical consequences warned of by the County, as his claim addresses only the narrow issue of whether the right to counsel attaches after the first judicial proceedings marking the defendant accused of a felony. A result in Rothgery’s favor would merely reaffirm the Court’s precedent and would not work a sea-change in criminal procedure; at least 45 jurisdictions, including the federal government, already appoint counsel under the facts in this case.

The “critical stages” inquiry, Rothgery continues, is not properly before the Court because the Fifth Circuit explicitly declined to address the issue. Therefore, the Court should not consider it absent extraordinary circumstances, which are not present in this case. However, even if the question were properly before the Court, it would not change the results of this case. The right to counsel not only ensures defendants a fair trial, but also assists them in combating “an erroneous or improper prosecution” prior to trial. Here, Rothgery had a right to an examining trial, which is a “critical stage” because it would have allowed him to contest the charges against him before his indictment. Rothgery was entitled to counsel’s assistance not only in the examining trial itself, but also in deciding whether to undergo the examining trial. Therefore, even under the “critical stages” inquiry, Rothgery’s right to counsel was violated.