Rothgery v. Gillespie County – Oral Argument – March 17, 2008

Media for Rothgery v. Gillespie County

Audio Transcription for Opinion Announcement – June 23, 2008 in Rothgery v. Gillespie County

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John G. Roberts, Jr.:

We will now hear argument in Case 07-440, Rothgery v. Gillespie County, Texas.

Ms. Spinelli.

Danielle Spinelli:

Mr. Chief Justice, and may it please the Court: In Brewer and Jackson, this Court held that an initial appearance before a magistrate like the one here marks the commencement of a criminal prosecution under the Sixth Amendment.

This case demonstrates why that holding makes eminent sense.

Rothgery was arrested on the erroneous belief that he was a felon in possession of a firearm.

As required by the Texas Code, he was brought before a magistrate, who informed him of the felony accusation against him and required him to post bail or remain in jail to ensure that he answered that accusation.

At that point, Rothgery acquired specific rights under Texas law as the accused in a felony case, including the right to have the prosecution against him dismissed if an indictment or information were not filed within a set period and the right to contest the accusation against him prior to indictment in an examining trial before the magistrate.

At that point, Rothgery was no longer merely a suspect, but an accused within the meaning of the Sixth Amendment.

John G. Roberts, Jr.:

Counsel, how can this… how can this be part of an adversary proceeding when there’s no other adversary on the field?

The prosecution’s not present.

They don’t even know anything about this.

Danielle Spinelli:

Mr. Chief Justice, this Court held in Jackson that the question whether a particular–

John G. Roberts, Jr.:

Well, in Jackson of course the charges had already been filed by the prosecutor, so there was an adversary on the field.

Danielle Spinelli:

–What I was going to say was that there is a clear distinction which is set forth in this Court’s opinion in Jackson between the question whether a particular proceeding initiates a criminal prosecution and whether that proceeding itself is adversarial in the sense that it requires the presence of defense counsel.

And, as to the first question, whether a particular proceeding initiates a criminal prosecution, this Court’s cases have not held that prosecutorial involvement is a relevant factor, and that–

John G. Roberts, Jr.:

Well, I suppose… I suppose you could you have an adversarial proceeding without the prosecutor present, but it would depend on the nature of the proceeding.

And here the magistrate simply advises the individual of the charges against him, repeats the Miranda warnings, advises him that he can have counsel if bail is denied or if he can’t make bail.

What about that is adversarial?

Danielle Spinelli:

–That’s correct, Mr. Chief Justice, and we don’t contend that it is adversarial.

In Jackson, this Court made clear that a proceeding need not itself be adversarial in the sense that would require defense counsel to be present to counter the adversary presentation of the prosecutor in order for that proceeding to initiate a criminal prosecution.

Rather, it held that the initial appearance itself, regardless of those other factors, marked the commencement of a prosecution.

And it’s worth noting that in Jackson substantially the same arguments that Respondent raises here were made by the State there.

The State there contended this initial appearance is merely an administrative ministerial proceeding.

John G. Roberts, Jr.:

Well, I guess I’ll get back to the point I raised earlier, that in Jackson charges had already been filed by a prosecutor.

The prosecutor was aware of this proceeding.

I think that’s a fairly significant distinction.

Danielle Spinelli:

Well, the Court in Jackson placed no weight on that distinction.

That wasn’t something that was mentioned in Jackson.

And what happened in Jackson was that warrants were obtained, the defendants were arrested, and they were brought before a magistrate for this initial proceeding.

There is no indication that the prosecutor was present at that initial proceeding.

Danielle Spinelli:

The Jackson court… the Jackson court put no weight on that factor.

And none of this Court’s cases have ever stated that there is a requirement that a prosecutor be involved.

And that makes sense, because the consequences of the initial appearance for the defendant are precisely the same whether or not a prosecutor is involved.

Anthony M. Kennedy:

But what we’re looking for here, at least one of the things we might look for in this case, is a specific rule to give to the States so the State knows when counsel has to be appointed.

In this case suppose the magistrate, the man behind the little window, said: We’re going to give you a ticket; keep in touch with us; don’t change your address until you notify us; you’re free on your own recognizance.

Would counsel have been required there?

Danielle Spinelli:

Had there been no way in which the defendant was bound to reappear and answer the charges, then we would not have the situation that we have, and it would seem less likely that that would initiate a criminal proceeding.

The factors that we have here that make it clear that a prosecution was initiated, just as it was in Jackson on identical facts–

Ruth Bader Ginsburg:

Ms. Spinelli, there’s something confusing about your presentation of this, because you say that at this initial appearance that’s called a magistration, you are not contending that there was a right to counsel at that very proceeding.

Danielle Spinelli:

–That’s correct, Justice Ginsburg.

Ruth Bader Ginsburg:

So when, at what point in time, did this right to counsel attach?

If it didn’t attach during that magistration proceeding, when did it attach?

Danielle Spinelli:

Well, first I should say I believe that that question goes to Respondent’s alternative argument for affirmance.

The only question that was addressed by the Fifth Circuit and the only question presented in the petition was the question whether a criminal prosecution commenced at Rothgery’s magistration.

And we are certainly not asking this Court to direct the entry of judgment in our favor, but merely–

Ruth Bader Ginsburg:

But you are taking the position that there was a right to counsel that attached in this case.

And I’m asking you at what point in time that right attached.

Danielle Spinelli:

–We believe that… well, this Court’s cases have made clear that the right to counsel attaches at the time a criminal prosecution commences.

Now, the question whether counsel must then be appointed immediately upon attachment is a separate question.

Samuel A. Alito, Jr.:

What does “attachment” mean?

Danielle Spinelli:

What “attachment” means under this Court’s cases is that since a criminal prosecution has now begun, the explicit guarantees of the Sixth Amendment are applicable, the State no longer… the State cannot interfere after that point with the attorney-client relationship.

At that point the defendant has the right to counsel to serve as an intermediary–

Samuel A. Alito, Jr.:

Well if Mr. Roth… if your client had shown up at the magistration with an attorney, could the State of Texas have said, no, your attorney may not be present during the magistration?

Danielle Spinelli:

–No, I don’t believe so, because–

Samuel A. Alito, Jr.:

Well, does that mean that the right attached prior to the magistration?

Danielle Spinelli:

–We believe that the right attached at the magistration.

Samuel A. Alito, Jr.:

At the beginning, at the end?

Danielle Spinelli:

Upon the magistration.

Samuel A. Alito, Jr.:

What does that mean?

Danielle Spinelli:

So perhaps… so at the end… I suppose I would say at the end, once–

Samuel A. Alito, Jr.:

Then why could Texas have said your attorney… why could Texas have not said, although you came here with an attorney, your attorney may not be present because you don’t have a Sixth Amendment right to counsel at the magistration?

Your right hasn’t attached yet.

It won’t attach until the end.

Danielle Spinelli:

–Well, I believe that it would attach at the time that the magistrate informed the defendant of the accusation against him, at which point he became a defendant in a criminal case and his right to counsel attached.

Now, to get back to Justice Ginsburg’s question, whether… whether counsel is required to be appointed immediately upon attachment is a separate issue, which is the subject of Respondent’s alternative ground for affirmance.

We are merely asking this Court to resolve the threshold question, which is the threshold question in every right to counsel case, did a criminal prosecution commence at Rothgery’s magistration?

John G. Roberts, Jr.:

The two are kind of related.

If in fact there’s not a right to counsel upon the magistration, but, as you said earlier to Justice Alito, it attaches at the end of the magistration, it seems to me like you’re asking for counsel to be an investigator rather than to participate in the trial proceedings.

Danielle Spinelli:

No, I don’t believe so, Your Honor.

This Court has said that a defendant does not have a right for a lawyer to act as a pre-charge private investigator.

But our contention is that Rothgery was charged at his magistration.

At that point he became an accused, which is demonstrated by the structure of the Texas Code itself.

Anthony M. Kennedy:

How is that different from a traffic ticket?

Danielle Spinelli:

It’s very different from a traffic ticket, Justice Kennedy, because in that situation… I think that situation would be analogous to a warrantless arrest, which, as we know, does not commence adversary judicial proceedings.

Here, we have an arrest.

We have a person who has been held for a period of time–

Anthony M. Kennedy:

So it’s the warrant that makes the difference?

Danielle Spinelli:

–No, I don’t believe so.

I believe it’s the magistration.

Antonin Scalia:

Or the incarceration.

Would your case be different if after the magistration the… your client was free to go?

The court said, you know, this is what you’ve been arrested for and charged with by the policeman who brought you in; we’ll… you know, good-bye.

Whereas in this case, he was required to make bail.

Suppose he hadn’t been required to make bail, supposing he was free to go?

Danielle Spinelli:

If he had not been required to make bail or make any other binding promise to appear, which is the function of bail, to ensure that the defendant will answer the accusation–

Antonin Scalia:

Right.

Danielle Spinelli:

–then we would be lacking that piece of evidence that he had been accused.

There still would remain other evidence under Texas law that he was, in fact, an accused at that time.

Antonin Scalia:

So Texas… assuming we agree with that, Texas made one of two possible constitutional violations.

Either it was unconstitutional for Texas to require him to make bail, or it was unconstitutional for Texas not to provide him with an attorney.

Antonin Scalia:

Why should… why should we find that the latter was the problem rather than the former?

Danielle Spinelli:

Well, there is certainly nothing unconstitutional about requiring bail, as we know.

Antonin Scalia:

Well, there certainly is if you’re not charged.

I think it’s a very strong point in your favor that he was required to make bail, because I don’t think you can hold somebody without charging him, just say, you know–

Danielle Spinelli:

Well, we… I mean, we–

Antonin Scalia:

–The fact… the fact that he was held suggests that he was charged with something.

Danielle Spinelli:

–We agree, Justice Scalia.

In fact, the Texas Code expressly recognizes that the function of bail is to ensure that the–

Antonin Scalia:

Sure.

Danielle Spinelli:

–accused will answer the accusation against him.

Antonin Scalia:

So maybe, maybe Texas was wrong about that, that it shouldn’t have required bail.

Maybe that was what was unconstitutional, rather than its failure to provide counsel.

Danielle Spinelli:

Well, what occurred here, however, was that Texas did require Mr. Rothgery to post bail.

And in addition, the magistration gave rise to certain specific rights, which only accrued to defendants in criminal prosecutions.

Anthony M. Kennedy:

–that a magistrate is required whenever bail is set… pardon me, that an attorney is required whenever bail is set?

Danielle Spinelli:

We’re not contending that an attorney was required.

Anthony M. Kennedy:

The rule is… I want to know, what do we tell Texas it has to do in all these cases?

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.

Danielle Spinelli:

I think the rule… we’re actually not asking the Court to adopt any new rule today, but simply to reaffirm the rule it has already announced in Brewer and Jackson, which is that an initial appearance before a magistrate, which is a proceeding that is common across jurisdictions and has a common significance across jurisdictions, a proceeding at which a magistrate informs the defendant officially of the accusation against him and of his rights as a criminal defendant–

Samuel A. Alito, Jr.:

But when do you say counsel has to be appointed?

Is it before the magistration?

Is it at the end, immediately upon the end of it?

Danielle Spinelli:

–No, we believe–

Samuel A. Alito, Jr.:

What if… what if an attorney had been appointed here ten days after the magistration?

Danielle Spinelli:

–Our contention is that an attorney was required to be appointed promptly after Rothgery renewed his request for an attorney following the magistration.

David H. Souter:

Okay, so the–

Danielle Spinelli:

And this Court–

David H. Souter:

–What is the… so the point of the magistration is that is the point at which a reasonable time starts running within which Texas must afford… appoint counsel, isn’t that your basic point?

Danielle Spinelli:

–Correct, Justice Souter.

David H. Souter:

Okay.

Danielle Spinelli:

That’s our contention.

David H. Souter:

So there’s no claim that there was anything invalid about the magistration proceeding–

Danielle Spinelli:

Not at all.

David H. Souter:

–itself because there was no counsel there.

Danielle Spinelli:

No, not at all.

David H. Souter:

There’s no claim… for example, had there been a probable cause hearing, that the attorney would have been required to participate in the probable cause hearing under–

Danielle Spinelli:

No.

David H. Souter:

–There has simply got to be one appointed within a reasonable time after the magistration.

That’s… that’s your argument?

Danielle Spinelli:

That’s correct.

Stephen G. Breyer:

Is there any law on that?

Is there… suppose there’s an indictment and the defendant finds out about it; he’s never arrested; nothing further happens; weeks pass.

Now, is there any law that tells me… it’s an indictment, that’s clear… and is there any law that tells me, when he requests a counsel be appointed, when they have to do it?

Danielle Spinelli:

Justice Breyer, this Court has not been faced with the question–

Stephen G. Breyer:

So the answer is no.

Danielle Spinelli:

–Right.

Stephen G. Breyer:

What happens… what happens if… the part that’s worrying and I don’t know how people handle it… a riot.

A big sit-in.

A big demonstration, 500 people arrested, they are brought down to the station, bail is posted the next day, the U.S. attorney or the D.A. thinks: I’m going to indict the ringleaders, and the rest… you know, the rest we are just going to let go; they will forfeit their bond.

How is that handled?

How is it handled under your rule?

How is that handled generally?

How should it be handled?

Danielle Spinelli:

How is it handled with respect to the persons who were indicted?

Stephen G. Breyer:

No.

That’s easy.

Danielle Spinelli:

Or how is it–

Stephen G. Breyer:

I mean… I’m talking about the people who nobody ever intends to prosecute.

Stephen G. Breyer:

What’s going to happen, as I think happens quite often, they are brought to the station, they are arrested, they are released on bond, and then everybody forgets about it.

Danielle Spinelli:

–If there are–

Stephen G. Breyer:

Or they’re… or the D.A. says, you know, forfeit… like a traffic ticket or something… forfeit your bond.

And I want to know how that’s handled under your rule, how is it handled now, how is it handled in the… discuss it, please.

Danielle Spinelli:

–If a person is arrested, brought to the station house, and then released prior to the initial appearance, which is actually a–

Stephen G. Breyer:

Well, you see what I’m doing.

I’m trying to make it comparable.

What happens there is that these 500 people brought down to the station, they are required to put up bail; they are given a warning because people might question them; they are given a warning; they are then released.

And nothing further is heard.

Maybe three months later, they come in and they agree that they’ll forfeit their bond.

Now, that’s what I’m wondering.

That must happen, because I think there are lots of demonstrations; they occur sometimes.

I suspect it happens.

How is it handled, if you know?

Danielle Spinelli:

–It happens quite frequently, Justice Breyer, that persons are arrested, brought to the station house, and then released by the police without undergoing an initial appearance.

And in that circumstance, we don’t contend that a prosecution would have begun.

John G. Roberts, Jr.:

Why not, if they initiate charges against them?

You’re saying, in Justice Breyer’s hypothetical, you’re charged with, for example, trespassing or conducting a demonstration on the court grounds, and that’s a crime.

You’re charged with that, but we are not going to hold you, so, you know, come back in a month.

Danielle Spinelli:

Well, it… it might depend on the manner in which the charges are conveyed or filed.

If all that happens is that the police tell you, you know, we believe you’ve committed a crime, certainly that doesn’t commence a prosecution.

If there is a formal… you know, as happens in misdemeanor prosecutions, if there is a formal complaint filed which can be the basis for a conviction in a misdemeanor case, then it may be that, by analogy to an indictment in a felony case, a prosecution would commence at that point.

Anthony M. Kennedy:

Well, what about my traffic ticket?

Danielle Spinelli:

I don’t believe–

Anthony M. Kennedy:

I’ve never had one so I don’t know what they say.

[Laughter]

Other members of the Court can advise me about that.

Danielle Spinelli:

–I believe… I believe a ticket or a citation of that nature would not commence adversary judicial proceedings because it’s analogous to a warrantless arrest.

Antonin Scalia:

Why doesn’t it solve your… the problem that you’re obviously wrestling with, if… if we simply said there is a right to counsel, but it doesn’t attach until there’s a significant stage of the prosecution which then follows?

I mean, if you have some proceeding afterwards, yes, then you do need a lawyer, but the mere fact that you’ve been brought to the courthouse and made bail and let go does not require 500 counsel to be provided.

Antonin Scalia:

Only… only when there is some later proceeding, which is an essential part of the prosecution, must you have counsel.

Danielle Spinelli:

Well–

Antonin Scalia:

Why wouldn’t that solve the problem?

Danielle Spinelli:

–First of all, we agree that a prosecution commences upon a first appearance before a judge–

Antonin Scalia:

That’s fine, but–

Danielle Spinelli:

–Not merely–

Antonin Scalia:

–But you only need counsel at significant phases.

Danielle Spinelli:

–Oh, right.

And we are not contending that counsel must be present at that initial appearance itself.

Antonin Scalia:

Right.

Danielle Spinelli:

So just to be clear about that.

But to address your question, which, again, I believe goes to Respondent’s alternative ground for affirmance–

Antonin Scalia:

Yes, but it’s so wrapped up with how we decide this case.

I mean, if I think that counsel has to be appointed right away for… for Justice Breyer’s 500 demonstrators, I’m going to give a different answer to the first question.

But if I know that counsel doesn’t have to be appointed until the prosecution proceeds to some significant phase where an attorney would be… would be really helpful, then… then I can… I can be quite more sympathetic to your… to your argument.

Danielle Spinelli:

–Well, were the Court to reach that alternative argument, which is that… despite the fact that a criminal prosecution had commenced, and Rothgery was an accused, by hypothesis he nevertheless was not entitled to the assistance of counsel for his defense because no critical stage had been reached… we would say, first of all, assuming that Respondent is correct, that the right to counsel lies dormant following its attachment on the commencement of a criminal prosecution until some subsequent critical stage is reached, if we assume that that is correct, there was such a stage here because Mr. Rothgery was faced with the decision whether or not to invoke his right to an examining trial.

Ruth Bader Ginsburg:

But that was at the magistration, and you… you have said that there was no right to counsel at the magistration.

Danielle Spinelli:

That’s correct, Justice Ginsburg, but his decision regarding the examining trial was not one that needed to be made at the magistration.

Rather, this was a right that he possessed to contest the accusation against him under Texas law, which could only be exercised prior to indictment.

And, indeed, it was a–

Ruth Bader Ginsburg:

Any time prior… any time prior to indictment?

Danielle Spinelli:

–Correct.

And, indeed–

Ruth Bader Ginsburg:

So you’re saying that that is the critical stage that he needed to have counsel’s advice about.

Danielle Spinelli:

–To the extent that it’s necessary to have a critical stage, then we believe that is a critical stage.

Antonin Scalia:

And that stage would arise immediately as soon as the magistration was completed, right?

Danielle Spinelli:

His right–

Antonin Scalia:

He’d have to have counsel appointed immediately–

Danielle Spinelli:

–Well–

Antonin Scalia:

–to advise him whether to ask for this hearing or not.

Danielle Spinelli:

–Not necessarily immediately, but within some reasonable time after his request, and after he had demonstrated–

John G. Roberts, Jr.:

Before he said no, I don’t want an examining trial.

As soon as he says that, then he can’t have one, and you’re saying he should have had a lawyer before he said that?

Danielle Spinelli:

–Well, I mean, had he said… had he waived his right to an examining trial, which he didn’t do, then, you know, under… then we would not have–

John G. Roberts, Jr.:

But he could do it; anyone else could do it.

And you would say, once he does that, he’s made it into a critical proceeding, and so you have to have counsel before he gives up that right?

Danielle Spinelli:

–Yes.

We’re contending that in felony cases… this is only an issue in felony cases… because Texas has provided this right, which is precisely for defendants in Rothgery’s situation, who are innocent but–

John G. Roberts, Jr.:

Well, then… but then you are saying that he has a right to counsel at the magistration, because that’s when the magistrate says: Look, you have an examining trial coming up, and you can waive your right to that.

Danielle Spinelli:

–No.

That’s actually not correct, Mr. Chief Justice.

John G. Roberts, Jr.:

What does he say about the examining–

Danielle Spinelli:

At a magistration–

John G. Roberts, Jr.:

–What does he say about an examining–

Danielle Spinelli:

–Precisely what he said and what appears on the warning form is: In a felony case, you have a right to an examining trial.

There is no provision at the magistration for the defendant to either invoke or waive that right.

And there’s no indication that any further explanation of that right is given.

Antonin Scalia:

Do you know any other case in which we’ve held that it’s a critical stage of the proceeding where nothing has happened, but something could have happened if the defendant had asked for it?

Danielle Spinelli:

Well, we’re not contending that.

Antonin Scalia:

I don’t… I find it hard to describe that as a critical stage of the proceeding.

Danielle Spinelli:

We’re not contending that, Justice Scalia.

Our contention is that the examining trial, this Court has already held in Coleman, is a critical stage.

Antonin Scalia:

When the trial occurs, it is a critical stage.

Danielle Spinelli:

Correct.

Antonin Scalia:

I have no doubt.

Danielle Spinelli:

And–

Antonin Scalia:

But you’re claiming that his decision of whether to ask for that or not is a critical stage.

And I just don’t know any precedent for saying that something that hasn’t happened is a critical stage.

Danielle Spinelli:

–I think the strongest precedent for that is Estelle versus Smith, in which this Court held that counsel… counsel’s assistance is needed not only to conduct and prepare for critical stages, but also to assist a defendant in deciding whether to undergo them.

And more broadly, this Court has repeatedly stated that one of the core purposes of the right to counsel is to ensure that the defendant understands and is able to invoke all of his rights.

Danielle Spinelli:

And in this case, this was the right that he possessed that could have enabled him to demonstrate his innocence prior to being indicted, rearrested, and incarcerated.

And he lost that right because he didn’t have counsel’s help.

With the Court’s permission, I’ll reserve the balance of my time.

Anthony M. Kennedy:

I know… when we were talking about traffic tickets, you said, well, that was a warrantless arrest.

This was a warrantless arrest.

Danielle Spinelli:

This was a warrantless arrest, but following that–

Anthony M. Kennedy:

And then–

Danielle Spinelli:

–But there was more, because following that, there was… the magistration occurred, at which time the police officer filed an affidavit setting forth the basis of the charges.

The magistrate found probable cause, and the magistrate officially informed Rothgery of the accusation against him.

And that’s why… that’s why… in Kirby, this Court held this a warrantless arrest does not commence adversary judicial proceedings; in Jackson, on exactly these facts, the Court held that it does.

John G. Roberts, Jr.:

–Well, not exactly these facts, because in Jackson the prosecutor had already filed charges.

Danielle Spinelli:

Charges were filed in Jackson in exactly the same sense that charges were filed here.

A document which contained basically simply a factual statement of what had occurred–

John G. Roberts, Jr.:

But the prosecutor wasn’t involved here.

The prosecutor was involved in Jackson.

Danielle Spinelli:

–That’s correct, but we don’t believe that should make any difference because the effect on the Defendant of this proceeding is precisely the same, whether or not a prosecutor is involved.

And that’s true in general and it’s true under Texas law.

Either way he’s faced with a need to negotiate criminal law in order to contest the charges against him.

He has a right to do so under Texas law, and he has a right to have the prosecution against him dismissed if an indictment isn’t filed within a set period.

All of which we believe demonstrate that he was accused and that a prosecution had commenced.

May I reserve the balance of my time?

John G. Roberts, Jr.:

Yes.

Thank you, counsel.

Mr. Coleman.

Gregory S. Coleman:

Good morning, Mr. Chief Justice, and may it please the Court: The magistration that follows every Texas arrest does not begin a criminal prosecution under the Sixth Amendment.

When Rothgery was magistrated, no formal charges had been filed against him; no one attempted to elicit incriminating information from him; no witnesses were presented–

Anthony M. Kennedy:

Then how could they hold them in jail?

Gregory S. Coleman:

–It is not uncommon… in fact, it’s universal practice that when one is arrested on a… without a warrant, it is normally because a police officer sees an individual in the commission of a crime.

It’s not uncommon to go and to arrest that person, to cease the crime that is taking place and perhaps to prevent other crimes from taking place, and to present them.

Gerstein makes clear that this happens all of the time.

Stephen G. Breyer:

What happens in Texas?

Anthony M. Kennedy:

He was held after he saw the magistrate.

Suppose he had been held for three months and you couldn’t make bail, we don’t need counsel?

Gregory S. Coleman:

Texas statute allows for counsel under that situation.

But this is an issue that is addressed primarily by the Fourth Amendment.

Anthony M. Kennedy:

I am asking what the constitutional rule is.

Gregory S. Coleman:

The Fourth–

Anthony M. Kennedy:

We have here a proceeding before a magistrate; this results in custody.

And my question is, suppose this were weeks, would counsel be required to be appointed?

Gregory S. Coleman:

–No, Your Honor.

The Fourth–

Antonin Scalia:

What authority do you have to hold somebody who’s not been charged?

I mean I don’t understand that.

You say he hasn’t been charged, but we’re going to hold you in jail.

That’s very strange.

Gregory S. Coleman:

–We believe that this is an issue that was addressed by the Court in Gerstein and McLaughlin, that the Fourth Amendment prevents unreasonable seizures and the Sixth Amendment speedy trial rights kick in.

And so there is a limit on what type of a seizure that can you have.

And the Fourth Amendment does prevent that, as do other rights, and as the Court recognized in Gouveia.

But the liberty interest that is at stake there, as the Court said in Gouveia, is not one that implicates the Sixth Amendment right to counsel.

If there are other–

David H. Souter:

What you’re saying, in answer to Justice Kennedy’s question, that an individual can be brought into court, held in jail for three weeks without charge, and no right to counsel applies?

I think that’s your answer, but I want to make sure.

I’ll be candid to say I’m surprised.

But if that’s your position, I want to make sure I understand it.

Gregory S. Coleman:

–Gerstein says that there must be–

David H. Souter:

I want to know what your answer is here.

Get to authority later, but I want to know whether your position is that an individual may be brought by a police officer before a magistrate, charged with no crime, required to post bail, and if he doesn’t post bail, be held for three weeks without charge.

Gregory S. Coleman:

–That could not happen in Texas.

David H. Souter:

I’m not asking whether it could happen; I’m asking whether it would be constitutional without appointing counsel.

Gregory S. Coleman:

It would be… not be a violation of the Sixth Amendment right to counsel.

John G. Roberts, Jr.:

But it would be a violation of some liberty interest beside the Sixth Amendment.

Gregory S. Coleman:

It might well be a violation of the Fourth Amendment or other Sixth Amendment–

Stephen G. Breyer:

No counsel right would attach?

Gregory S. Coleman:

–That’s correct.

Antonin Scalia:

I think it’s a problem even if you appoint counsel.

You say you can keep people without charging them so long as you give them counsel?

Gregory S. Coleman:

It happens all the time, Justice Scalia, where people are appointed counsel but, for whatever reason, do not make bail and–

Stephen G. Breyer:

But they didn’t… they don’t–

David H. Souter:

Without charges filed?

In other words, if the lawyer comes in and says, you know, my client is sitting in jail, you’ve had him there for three days now, and no complaint has been filed against him, we don’t know why he is being held… your answer… the… it’s a constitutional answer to say, well, you know, that’s for us to know and you to find out?

[Laughter]

Gregory S. Coleman:

–I think Gerstein would prevent that, Justice Souter.

John G. Roberts, Jr.:

I mean, the answer… your answer is that the Sixth Amendment is concerned with the fair trial, not the detention of individuals, and he has other constitutional rights that would be implicated, but his right to a fair trial is not one of them.

Gregory S. Coleman:

That’s absolutely true here.

Stephen G. Breyer:

–What is the law here in Texas in respect to this particular magistration proceeding?

I noticed what happened is that the magistrate tells the person arrested, he says precisely:

“I find probable cause to believe. “

that you…

“that there was probable cause to arrest you. “

That’s what they say, right?

It said:

“I have determined that probable cause existed for the arrest of the individual accused therein. “

All right.

Now, what happens… and I think it would be helpful to know the answer to this… in what might be a rare instance, but the truth of the matter is there was probable cause to arrest that individual when he was arrested, but there isn’t now.

So because he came in… you know, he said here’s 14 cousins, I was somewhere else at the time, they all agree.

I mean, everybody agrees on a certain fact that means there isn’t now.

And what I’m driving at is does the magistrate here… is he required, does he have the power to commit someone, even though he honestly believes there is no longer probable cause, in which case he is making the decision, the magistrate, not the policeman?

Gregory S. Coleman:

I don’t know the answer to the constitutional significance of the different–

Stephen G. Breyer:

I could… I can think there would be tremendous constitutional significance and it would make a difference if all that’s really happening is a policeman is arresting someone, in which case we might have liberty interests and others at issue.

But what’s happening in this proceeding is that the magistrate is deciding that there is probable cause to hold him, in which case it’s more like, not completely like, but more like what happens in an indictment or an arraignment, et cetera.

Gregory S. Coleman:

–What is stated on the form… certainly I can’t say what was going through the magistrate’s mind.

Stephen G. Breyer:

No, no.

But I want to know what’s Texas law, if you know it, in respect to that question?

Gregory S. Coleman:

The answer I believe is that you… that you find that there is probable cause to make the arrest.

Stephen G. Breyer:

So we have a magistrate who has to find that there is… no, to make the arrest or to hold him now?

Do you see what I’m doing?

Gregory S. Coleman:

I do see what you’re doing.

Stephen G. Breyer:

Do you see why I’m doing it?

So, what’s the answer, if you know?

Gregory S. Coleman:

I don’t think that there is a difference in this case.

I think–

Stephen G. Breyer:

No, I know there may not be, but what about in general.

Gregory S. Coleman:

–Magistrates have a great amount of discretion, and I think if a magistrate was convinced that probable cause existed at the time of arrest and not now, it’s quite likely the magistrate would find–

Stephen G. Breyer:

Okay.

That’s what I would think.

In which case we have before us bringing this person before a State official who himself has the power to decide if there is probable cause to hold him, and he is saying, yes, there is probable cause to hold him.

That’s… that’s what’s happening; is that right?

Gregory S. Coleman:

–I believe so.

That’s exactly what the Court required in Gerstein, Your Honor.

Stephen G. Breyer:

Thank you.

John Paul Stevens:

Mr. Coleman, may I just ask this kind of simple question.

If the prosecutor had participated in the magistration, then under Texas law would the right to counsel have arisen?

Gregory S. Coleman:

No, Justice Stevens.

John Paul Stevens:

Whether the prosecutor participates is not relevant?

Gregory S. Coleman:

There is no role for a prosecutor at a magistration under Article 1517 of the Texas Code of Criminal Procedure.

John G. Roberts, Jr.:

Well, couldn’t he point out… I mean, if this is a probable cause determination and he knows a particular fact, couldn’t he say, well, Magistrate, you should know this, and the magistrate would say, well, I didn’t know that, so there’s no probable cause?

Gregory S. Coleman:

That’s possible.

And I would like to amend my answer to you, Justice Stevens.

It’s not at all uncommon… once an arrest takes place and an officer can go and present a case to the county or district attorney, it’s not uncommon at all for charges then to be filed in the… depending on what the crime, is in the district court or county court, and for the magistration then to be moved over and to take place in an official court.

And so at that time, it could very well be.

Gregory S. Coleman:

And we would say… we would say likely at that point that, yes, that formal criminal judicial proceedings had initiated, and it’s not uncommon.

But in this circumstance–

John Paul Stevens:

What about the very proceeding in this case?

Supposing instead of a detective bringing in the affidavit, that the prosecutor did it, had the detective’s affidavit, and the prosecutor said: This is a case we intend to pursue more seriously.

That’s all he says to the judge.

Would have that been sufficient?

Gregory S. Coleman:

–No, Justice Stevens.

John Paul Stevens:

It would not?

Gregory S. Coleman:

An expression of subjective–

John Paul Stevens:

I got the impression from the briefs that the absence or presence of the prosecutor made a difference.

But you’re telling me I’m wrong under that?

Gregory S. Coleman:

–Under the circumstances where no formal charges have been brought, a statement by a prosecutor that they are looking at it or that they intend to bring some is not itself the initiation of formal adversary judicial proceedings.

Antonin Scalia:

Mr. Coleman, what happens in other jurisdictions?

I probably ought to know this, but I don’t.

Maybe you do.

When you don’t have a procedure called magistration, but someone is taken before a magistrate and with the prosecutor present, is the indictment at that point drawn up, or doesn’t the… doesn’t the prosecutor have some time to decide what the indictment ought to contain?

What… what happens at that point?

Gregory S. Coleman:

An indictment does usually take a little bit more time because it has to be taken and presented to a grand jury.

Antonin Scalia:

So what happens in the interim?

Is he… is he charged in the interim, or is he just held because he is going to be charged, which is what’s going on here.

Gregory S. Coleman:

He is not charged during that interim.

But you can have–

David H. Souter:

You mean no complaint needs to be filed by the police?

If the magistrate says, what’s this guy doing here, don’t the police normally have a complaint, in this case a… what was it, a possession of a gun by a felon, say, you know, we’re filing this complaint that charges him with possessing a gun with a felony record?

And wasn’t there such a complaint displayed here?

Gregory S. Coleman:

–No, Justice Souter.

Texas statutes do allow for the filing of a complaint in some circumstances.

It’s not frequently used.

But that’s a complaint that has to be filed in the district court or in the justice of the peace court.

Ruth Bader Ginsburg:

What was filed by the police?

Ruth Bader Ginsburg:

What was filed by the police–

Gregory S. Coleman:

Nothing was filed.

Ruth Bader Ginsburg:

–to justify holding this person?

You can’t just say the police brought someone in and they get locked up in jail.

The police had to present something–

Gregory S. Coleman:

Yes.

Ruth Bader Ginsburg:

–to show probable cause and it was the burden of the State in the presence of the police officer to prove probable cause.

So that had to be based on something.

What was it based on?

Gregory S. Coleman:

It was based on the officer’s affidavit of probable cause, which was presented at the little glass window to the magistrate and–

Ruth Bader Ginsburg:

And then… and then the defendant was told or was given Miranda warnings.

What was said to him precisely about right to counsel in the warnings that the magistrate gave him?

Gregory S. Coleman:

–Well, the warnings go through.

They are very similar to Miranda warnings.

He is told that he has a right to counsel under Texas statute for this.

He is… he is warned, as Ms. Spinelli said, about examining trial.

There is a list of things–

Ruth Bader Ginsburg:

Yes.

But if he is told… the defendant is listening to this.

And, magistrate, you just told me I have a right to counsel.

Okay, I would like counsel.

And then the magistrate says, no you’re not entitled to counsel?

Gregory S. Coleman:

–I don’t think that’s what would happen.

I think if he had insisted on counsel being present for the bail portion of the 1517 magistration, I believe that they would have gotten somebody to come and–

David H. Souter:

Would they have been obligated to get somebody to come?

Gregory S. Coleman:

–Under Texas statute they would.

David H. Souter:

Under the Sixth Amendment?

Gregory S. Coleman:

No.

David H. Souter:

No.

Samuel A. Alito, Jr.:

Suppose Texas law provided that there had to be an examining trial within a certain period of time after the magistration unless there was an intervening indictment.

Samuel A. Alito, Jr.:

Then would you not agree that under those circumstances the defendant would have been entitled to the appointment of counsel shortly after the magistration, at least in order to prepare for the examining trial?

Gregory S. Coleman:

We completely agree that if that were the case, Coleman… this Court’s decisions make absolutely clear he would have been entitled to counsel for an examining trial and would have been… we would have been obligated and would have appointed counsel at a reasonable time before that examining trial so that the preparations could take place.

Samuel A. Alito, Jr.:

Why would the situation be different simply because Texas law doesn’t require the examining trial, but gives the defendant the option of demanding one?

Gregory S. Coleman:

Because there is no prejudice to your fair trial rights from not choosing to have an examining trial.

We are unaware of any case that has said that there is a Sixth Amendment right to consult with counsel before deciding whether to ask for an examining trial.

And in fact, in Texas they are very rare because in the very unusual circumstances where somebody asks for one, more often than not the prosecutor will simply hurry up and do an indictment.

And so there will be no examining trial that takes place.

And that’s a put up or shut up procedure, but it’s not something that prejudices your fair trial rights if no examining trial actually takes place.

Anthony M. Kennedy:

If we said that when a defendant is ordered held in custody, that there is then a right of counsel, would we be contradicting any of our precedents as opposed, say, to extending them?

Gregory S. Coleman:

I certainly do believe that the court would.

I believe that a decision that the right attaches, that there is an initiation of formal judicial proceedings at the magistration, would contradict not only Kirby, but also Gerstein and Gouveia.

Anthony M. Kennedy:

Well… no.

But my assumption was assuming that the defendant is remanded to custody.

I added that.

Gregory S. Coleman:

It’s not clear to me that that makes a constitutional difference in our circumstances.

Stephen G. Breyer:

Suppose you were to say that where the State arrests an individual, brings him before a neutral official and intends and does impose a significant restraint on his liberty for the purpose of bringing that individual to trial, there is a presumption that that… forget the presumption.

If that happens for the purpose, the primary purpose, primary purpose of bringing the individual to trial, at that point the Sixth Amendment right attaches.

Now, the State would not have to give him a lawyer if there was some other purpose primary, for example, as in Gouveia, keeping the prisons safe.

For example, it’s quite clear under the circumstances, there are 14 people accused, they couldn’t have all have done it, they want to investigate further.

Or maybe there are other examples.

But, for the primary purpose, then the right attaches.

So you pick up Gerstein and add to Gerstein that additional requirement.

What about that?

What harm would that cause?

What inconvenience would it cause, what difficulties, et cetera?

Gregory S. Coleman:

I… I think the primary issue with that, Justice Breyer, is that it contradicts what the Court said in Gouveia.

The Court went through a lengthy exegesis in Gouveia about what interests in particular are protected and talked about this, this expression of a concern about our liberty interests; and that the purpose issue was not something that the Court addressed there.

It simply said that our Fourth Amendment precedents go to the liberty interests.

Our Sixth Amendment speedy-trial and other precedents go to the liberty interests.

The right to counsel is not specifically a liberty-interest protection.

Gregory S. Coleman:

It is something, as Chief Justice Roberts mentioned a few minutes ago as we set out in our brief, something that protects your right to a fair trial.

And there are… there are proceedings that take place along the way that the Court has held are critical stages, and we need and want counsel to be present for them, and so we have so dictated.

But getting behind–

Ruth Bader Ginsburg:

I thought you… I thought you recognized that if he had opted to have this examining trial to determine whether there really was probable cause, that he would be entitled to counsel at that examining trial.

And, yet, that’s detached from the fair trial.

The whole purpose of it is that they will never get to trial.

Gregory S. Coleman:

–No.

I… I disagree with that.

Coleman itself says that the reason we’re requiring counsel for a preliminary hearing or an examining trial, as we call it in Texas, is precisely because there will be witnesses, there will be arguments made; and you could waive defenses if not made there; that this is very important.

So we’re going to define even, this examining trial or preliminary hearing, even though it comes before an indictment, we’re going to define that as an event of attachment solely because your right to a fair trial could very much be prejudiced there.

And that… that doesn’t exist in this case, and that certainly the failure to ask for a examining trial does not prejudice your right to a fair trial.

Justice Breyer, you asked a hypothetical that I would like… I would like to address because it is something that happens all the time, and I think should inform the Court’s decision here.

And, that is, it is not uncommon, and some statistics that I have seen suggest that it may happen in half of the cases, where an individual is arrested, magistrated, released, and no charges are ever brought.

So the bulk of your 500 protesters are never brought.

Under Mr. Rothgery’s view of the Sixth Amendment, the county… you know, let’s say somebody is protesting whitetail deer hunting in Gillespie County.

The county would be required to appoint counsel for all of those individuals even though–

John Paul Stevens:

Only if they ask for them.

Only if they ask for the lawyer.

Gregory S. Coleman:

–If they ask for them.

John Paul Stevens:

That’s why I wondered–

David H. Souter:

And that would be subject, wouldn’t it, to sort of a condition subsequent, because if it turned out… I mean we… no counsel is required if there’s no incarceration.

So that even if the right had attached, if it turned out later that there was no incarceration or even attempt to incarcerate, then that would relate back, and there wouldn’t be a Sixth Amendment violation.

Isn’t that right?

Wouldn’t that be the answer to the… a partial answer?

Gregory S. Coleman:

If… if the court were to make a rule that depended solely on incarceration, that is true.

I don’t understand Mr. Rothgery to be making that argument because he was released on bond.

Stephen G. Breyer:

And you couldn’t… you couldn’t because of the fact that bail… if you’re going to insist on bail, that in effect is incarceration.

But the reason I asked the question, which I would ask you the same, is there are a lot of States, we’re told, that do have counsel attach in circumstances similar to this.

So they must have some way of dealing with the problem that I raised if it’s really a problem.

And I want to… and that’s… and I want to… if we’re going into this, I think I need to know how this is dealt with.

Gregory S. Coleman:

That amicus brief attempts to suggest that Texas’s statute is very different from statutes that exist in other cases… in other States, and that’s simply not true, Your Honor.

I do not understand what happens in each of those… in each of those States, but I have at least seen decisions in some of those States that suggest that they don’t act that much differently than we do, and that… that they do apply a critical-stage-type analysis in evaluating–

Stephen G. Breyer:

You see, you would have given him a counsel.

I mean, in fact, if he had wanted one, Texas would give him one.

So Texas must have… it must not be a problem.

The problem, I just–

Gregory S. Coleman:

–You mean at the magistration?

Stephen G. Breyer:

–Yes.

Gregory S. Coleman:

If he would have asked for one, he would have gotten one.

Stephen G. Breyer:

So the problem I raise can’t be a real problem.

John Paul Stevens:

–Let me ask on Texas procedure.

Supposing after the magistration he wanted to have the charges dismissed.

Could he have hired a lawyer to come in and ask the judge to dismiss the charges?

Gregory S. Coleman:

Absolutely not, Justice Stevens.

There were no charges pending.

This… this magistration that occurs in the jail is simply–

John Paul Stevens:

Let’s say he wanted to get a release from bond and said he wanted to terminate his custody.

Is there any procedure whatsoever available to a defendant to say: I want to get this monkey off my back after this bond premium?

Gregory S. Coleman:

–A release from bond, it would have theoretically been possible, yes.

John Paul Stevens:

And could he have a lawyer appear before the Court to ask for that?

Gregory S. Coleman:

I don’t–

John Paul Stevens:

Could the judge say: You got to appear yourself?

Gregory S. Coleman:

–I don’t think the judge would have said: You have to appear yourself.

I think he could have personally come forth–

John Paul Stevens:

If the prosecutor said: You are not entitled to a lawyer, wouldn’t the judge have said: You’re crazy; of course, he is entitled to a lawyer to come in for this proceeding?

Gregory S. Coleman:

–Well, that’s an issue that doesn’t come up because judges don’t exclude–

John Paul Stevens:

We are talking about theoretical problems here, and the question is whether he would he have had a right to a lawyer asking him to get released from bond.

Twenty minutes after the first proceeding ended his father hired a lawyer and brought him in.

Would the lawyer have been allowed to appear?

Gregory S. Coleman:

–The difference between the Sixth Amendment strict requirements and practicalities is a significant one.

Gregory S. Coleman:

I don’t think the Sixth Amendment would necessarily have required it.

The… I am aware–

John Paul Stevens:

Even though he is paying for his own lawyer?

Gregory S. Coleman:

–It is the same as every other–

John Paul Stevens:

That’s your answer?

Gregory S. Coleman:

–situation.

John Paul Stevens:

He would not have had a right under the Constitution to have a lawyer come in and say: I want to get released from this bond.

I find that hard to believe.

Gregory S. Coleman:

He would have… he would have the same rights as anybody else, whether retained or–

John Paul Stevens:

It would not include the right to be represented by counsel if I understand you correctly.

Gregory S. Coleman:

–It would not be a Sixth Amendment right to counsel.

There could be a right if you otherwise have a lawyer; that the State cannot exclude that lawyer from participating on your behalf.

But it would not be an “attachment”, an “appointment” issue, where you are entitled to appointment of counsel to do that.

Ruth Bader Ginsburg:

Suppose that he is out on bail, but he has a suspicion that this alleged felony… that that wasn’t cricket because it was expunged.

So he says to the judge: Judge, I want to contest my being held to some kind of criminal process because there is no basis for the charge.

So he is out on bail.

He has no lawyer, but he wants to contest the State’s right to hold him at all, and he asks for a lawyer to help him do that.

Gregory S. Coleman:

I think if… if he were to ask somebody, he would be told that you can ask for an examining trial.

If you ask for that, we will appoint you a lawyer; and you will have your examining trial unless the State decides to indict before we actually get to it.

Samuel A. Alito, Jr.:

Why is the–

David H. Souter:

Now… no, please.

Samuel A. Alito, Jr.:

–Why is the question of whether the right attaches, which seems to mean different things in different situations, a separate question from what I would think would be the question here: Whether he had the right to have counsel appointed for him.

Why isn’t that the question, and “attachment” is simply a label that is used to express one of the conditions for having the right to appoint a counsel?

Gregory S. Coleman:

I have given this great thought, Justice Alito.

In my mind, the only doctrinal difference it really makes is the situation that this Court has described in Michigan v. Jackson, which I have previously addressed in the Cobb case which I argued.

But in most other circumstances we think that the analysis is essentially the same, because the Court has never said that there isn’t a right… there is a right to have the assistance of counsel without having a critical stage.

In fact, I believe Justice Brennan… if you will allow me 15 seconds… Justice Brennan’s decision in Maine v. Moulton said:

“Recognizing that the right to the assistance of counsel is shaped by the need for the assistance of counsel, we have found that the right attaches at earlier critical stages in the criminal justice process where the results might well settle the accused’s fate and reduce the trial, itself, to a mere formality. “

Ruth Bader Ginsburg:

Is it then episodic?

That is, if the right is turned on when there is a critical event, and then the critical event is over, and no more right to counsel until the next critical event?

Ruth Bader Ginsburg:

It’s not… you have no right to counsel in between those critical events?

Gregory S. Coleman:

Once… once a case gets going, I don’t believe this Court has ever been presented with a case where there has been attachment, there have been some critical stages, and then the State has decided to deny access.

And we don’t think that the Court would like–

Ruth Bader Ginsburg:

So you only need this one critical stage, and then you get appointed counsel at that stage, and that counsel will continue thereafter.

You don’t have to–

Gregory S. Coleman:

–That is the usual course of things.

Anthony M. Kennedy:

Can you give me… can you give me some idea, or some empirical assessment, or tell me where I could go to find out, as we sit here, how many people are being held in custody after a probable-cause determination and do not have counsel appointed for them and do not have the right to have counsel appointed to them until some other critical phase takes place?

Gregory S. Coleman:

In Texas, because the Fair Defense Act permits the appointment of counsel for those who are held in custody, all persons who request counsel are appointed counsel within one business day in the large counties and within one… within three business days in the smaller counties.

And so that–

Anthony M. Kennedy:

So then there was just a misapplication of the statute here when this man was held for three days, and then he requested counsel?

Gregory S. Coleman:

–No.

Section 1.051(j) authorized the counties who went… to not appoint counsel when an individual is released on bail, and to await… to await the first critical stage or the initiation of adversary judicial proceedings; whichever occurs first, it says.

And so once this gentleman was indicted, that would disappear; and he would be entitled to counsel, as he was appointed counsel immediately upon indictment.

Anthony M. Kennedy:

Well, I’m talking about the first phase before there was an indictment, just the probable-cause phase.

You say even then there is… under this Texas statute there is a right to have counsel in one day?

Gregory S. Coleman:

The Texas statute authorizes appointment.

Gillespie County is a smaller county, so it’s three business days, Your Honor.

Upon–

Anthony M. Kennedy:

Then I am not sure why we are having this discussion.

Gregory S. Coleman:

–Well, because Mr. Rothgery was released on bail, and so the county was authorized not to appoint counsel.

David H. Souter:

If Mr. Rothgery had, immediately upon being admitted to bail, said: I want a… I was going to say a probable-cause hearing.

You have a different term for it.

Gregory S. Coleman:

“Examining trial”.

David H. Souter:

“Examining trial”.

Gregory S. Coleman:

Right.

David H. Souter:

At that point, under Texas law, the right to counsel within one or three business days would have attached?

Gregory S. Coleman:

Once… once an examining trial is scheduled, I’m not sure there are one or two days, but requests… I think that’s what would have happened.

The Constitution requires appointment of counsel for an examining trial a reasonable time before the examining trial to allow for preparation.

David H. Souter:

Now, at the… may I?

At the examining trial, is there a charge filed?

Gregory S. Coleman:

No.

The examining trial, itself–

David H. Souter:

What are they finding probable cause for if they don’t know what the charge is?

Gregory S. Coleman:

–This Court in Coleman said that the examining trial, because of the potential harm to a fair trial in the future, would define it as a–

David H. Souter:

No, but I realize if the… if somebody is going to demonstrate probable cause, the probable cause has got to be probable cause to hold someone to answer for a particular charge.

So why hasn’t there, as a matter of definition, got to be a charge, even on your reasoning, by the time the examining trial is held?

Gregory S. Coleman:

–An examining trial is an extended version of a probable-cause determination.

It is not holding on a charge–

David H. Souter:

That is right.

It is a probable-cause determination, and you’ve got to have an answer: Probable cause for what?

Gregory S. Coleman:

–Probable cause that… that a crime has been committed.

David H. Souter:

So… so, in other words, you determine whether a crime has been committed without charging the individual with the crime.

Gregory S. Coleman:

If… if that were the law, Gerstein would have to be reversed.

David H. Souter:

Well, I’m just asking what you do.

Is that the case?

Is no charge filed?

Then, at the end of the probable cause hearing you say: Well, we… the judge says: Well, you’ve got probable cause to hold this person for possessing a gun after having been convicted of a felony, but there doesn’t happen to be any charge to that effect here.

Is that the state of the law, in fact?

Gregory S. Coleman:

That is what preliminary hearings and examining trials have always been about.

Yes, Your Honor.

John G. Roberts, Jr.:

Thank you, Counsel.

Ms. Spinelli, you have three minutes.

Anthony M. Kennedy:

It seems to me that our precedents do say, Gerstein versus Pugh, that the probable-cause hearing is not an adversary proceeding where counsel is required; and if we are going to give you relief, we have to go beyond what Gerstein says.

Danielle Spinelli:

I don’t believe so, Justice Kennedy.

It’s correct that Gerstein says that the probable-cause determination made under Gerstein is not, itself, a critical stage, and we are not contending otherwise.

The Gerstein determination is something separate from the initial appearance that occurred here.

A Gerstein determination is made for the purpose of determining whether there was probable cause for an arrest.

It can be made ex parte.

It’s essentially the equivalent of what happens prior to arrest when a magistrate decides whether there is probable cause to issue a warrant.

What happened here, by contrast, was after arrest and after the police had decided to… Mr. Rothgery, he was brought before a magistrate.

Danielle Spinelli:

He was officially informed of the accusation against him, and at that time he acquired the right to contest the accusation against him in an examining trial, which we believe shows that he was accused within the meaning of the Sixth Amendment, and a prosecution had begun.

And we are not contending that that initial proceeding was, itself, a critical stage where counsel was required; and it’s not necessary to contend that in order to prevail on the point that that was when a prosecution commenced, which is the only question that we believe is properly before this Court and the only one we are asking it to resolve.

John G. Roberts, Jr.:

So Texas would be better off if they didn’t have a magistration proceeding at all, if they didn’t have a proceeding to alert the individual of the charges against him; they did not have a proceeding to read him his rights; they did not have a determination of probable cause.

They would be better off if they didn’t do any of that?

Danielle Spinelli:

Well, I mean I think you are suggesting, Mr. Chief Justice, that reaffirming the rule adopted in Jackson would create, you know, a perverse incentive for States to do away with this proceeding.

I don’t believe that that’s the case because, as Justice Breyer observed, 45 jurisdictions already follow the rule of appointing counsel at, or immediately following, the initial appearance, which the… any CDL brief lays out and which neither Respondent nor its State amici have contested.

John G. Roberts, Jr.:

Well, what’s in it for the State to provide this additional layer?

Because, of course, the person gets Miranda warnings when he is arrested.

And so why… why should the State do this?

Danielle Spinelli:

The initial appearance serves a specific, substantive purpose which I think is well described in the Seventh Circuit’s decision in Armstrong cited on page 15 of our reply brief, which is this is the proceeding at which the defendant is informed: You are now a criminal defendant.

This is the accusation against you, and these are your rights as a defendant in a criminal proceeding.

And for that reason, as the Armstrong decision says, it is commonly recognized across jurisdictions as the inception of a formal prosecution, and we believe that’s the rule that this Court has already laid out in Brewer and Jackson and should reaffirm today.

John G. Roberts, Jr.:

Why don’t you take an extra minute?

We have eaten up your rebuttal time.

Danielle Spinelli:

Of course, absolutely.

I mean, just to respond to one other question that arose during the course of Respondent’s argument, I think it is important to understand that in Texas, as in other jurisdictions, there are two phases in a felony prosecution.

There is an initial phase that commences in a magistrate court where a document setting out the charges will be filed either by the police or by a prosecutor, and the magistrate at that point has jurisdiction over that criminal case.

It is only later that an indictment or information will be filed in the general trial court with jurisdiction to enter final judgment.

But this Court has repeatedly rejected the notion that a prosecution begins only in that second phase.

It rejected it expressly in Moore.

It rejected it in Coleman, in Brewer, in Jackson, and in statements in Kirby and McNeil.

So that can’t be the rule.

John G. Roberts, Jr.:

Thank you, Counsel.

Danielle Spinelli:

Thank you.

John G. Roberts, Jr.:

The case is submitted.