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Thoughts on the Oral Argument in Rothgery v. Gillespie County:
I attended this morning's oral argument in Rothgery v. Gillespie County, an important case on the right to counsel, and I wanted to offer some thoughts and impressions of the argument. (To get up to speed, you can read the argument transcript here.)

  My overall sense of the argument was that the Justices seemed less concerned with the traditional Sixth Amendment inquiry into whether the criminal case against the defendant had truly begun than the somewhat different question of the state's power to detain suspects pre-trial — and the role of counsel in determining when that power should be exercised. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Court had been pretty unconcerned about the defendant who might be stuck in prison unable to make bail before charges were formally brought. According to the Court, the question of "whether there is probable cause for detaining the arrested person pending further proceedings" was a simple matter that "can be determined reliably without an adversary hearing." To the Gerstein court, this was no big deal:
The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination, but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109 (1969). This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some case. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.

Because of its limited function and its nonadversary character, the probable cause determination is not a "critical stage" in the prosecution that would require appointed counsel.
  The Court today seemed to look at the issue very differently. The Justices didn't want to overturn Gerstein, but they seemed very worried about the possibility that people could be detained pending trial but then not charged, and that they might be stuck in the interim even though no formal charges had been filed, without a lawyer to challenge the detention. Justice Scalia was particularly aggressive on the issue, asking the lawyer for the county what possible authority the state had for detaining a person if they weren't formally charged with a crime yet (at which point the Sixth Amendment right would attach).

  The tough question was, if you want to stop this, how? Justice Souter tried to lead the way, suggesting that there was a right to counsel within a reasonable time after the Gerstein probable cause hearing. This would lead to a somewhat weird result: A defendant wouldn't have a right to counsel to determine if he should be detained under Gerstein, but he would have a right to counsel soon after he was detained to determine if he had been detained properly. Justice Scalia suggested that maybe this could be dealt with by saying that the right attached but no appointment of counsel was needed until a critical stage of the case was implicated.

  Another lurking question in the background was the effect of the Argersinger v. Hamlin line of cases, which hold that a defendant only gets a Sixth Amendment right to counsel if he is going to be imprisoned. It's not exactly clear how to reconcile these cases with the rules the Justices were contemplating at argument. Justice Breyer expressed the view that detention pre-trial was the equivalent of imprisonment under Argersinger. Perhaps; certainly at some level detention is detention is detention. At the same time, from that perspective Gerstein looks pretty odd. If detention is detention is detention, why did the Gerstein Court conclude that the initial detention hearing was no big deal and that no lawyer was needed? And what to do with the facts of this case, as Rothgery was told that he had a right to a lawyer if he couldn't make bail but had to waive the right if he was making bail? Is bail the Argersinger equivalent of probation? Or maybe a suspended sentence? It's not really clear. Did Rothgery waive any right to counsel he might have had by agreeing to be let out on bail?

  In the end, I suspect that this is the kind of case that will take a while for the Justices to work through before a majority view coalesces. Stay tuned.
George W. Bushie:
Creating their own "laws". Contrary to the Constitution.
Clowns of SCOTUS.
3.17.2008 10:30pm
Eli Rabett (www):
Guantanimo
3.17.2008 10:42pm
George Weiss (mail) (www):
the justices and the county both seemed to agree that the possibility of the guy languishing in jail, without formal charges, but after the probable cause hearing-can be effectively dealt with using the 6th speedy trial amendment.

and as the guy was on bail (at least before the indictment critical stage hit-at which point everyone agrees he gets a lawyer) what does this have to do with this case?

the other thing that stuck my attention about the oral argument is that the government said that the only reason he was not appointed an attorney after the hearing pursuant to texas law (not the constituion) was because he was out on bail. He said that had he been in jail, then the law is he gets a lawyer in 1 business day for a big county and 3 for a small county.

um so why, when he was rearrested and indicted on the offense six months after the magistration on jan 17, did he languish in jail for 6 days, until counsel was appointed on the 23rd-considering he asked for counsel six months before the indictment both before and then again after his magistration, with only a breif wavier for the magistration?

did his attorney miss this one? they could have filed a separate state claim and joined it to this case-since the principal case is a federal question, they would have supplemental jurisdiction.
3.17.2008 10:43pm
OrinKerr:
George Weiss,

The statute gives the county three business days to get the detainee a lawyer; I believe it happened to be a long weekend, thus a total of six days.
3.17.2008 10:50pm
George Weiss (mail) (www):
indeed-jan 17th was friday before presidents day. good call. still-since after the indictment he also had a constitutional right to counsel-without a doubt-is 6 days a reasonable amount of time
3.17.2008 10:54pm
byomtov (mail):
Perhaps; certainly at some level detention is detention is detention.

Huh? At some level? Being more than a little academic here, aren't you?

Lacking the benefit(?) of a legal education, I'd say that at all levels detention is detention is detention.
3.17.2008 11:23pm
Bruce:
Orin, I'll just note, given your comment over on Prawfsblawg, that this is a very doctrinal blog post--and I mean that as a compliment.
3.17.2008 11:54pm
sef:
When I worked in an urban public defender's office a guy (I'll call him "Cruz") was found in the jail who had been sitting nine months after his Gerstein hearing without a lawyer. Cruz didn't speak English, was mentally challenged. The county there didn't provide attorneys in the normal course at the Gerstein hearings. This poor fellow fell through the cracks apparently when a court administrator simply failed to list him for a court date.

Cruz was the second lost inmate that I recall handling that week while on "clean up" duty that had been loss for at least six months, although people lost for 120 days was not unheard of -- I can only imagine what it must be like in LA, Chicago, Philly, D.C., Houston, or NYC.

Although Cruz is an extreme example, the reality is in many places in this country a person who is arrested will not meet with his lawyer, or at least someone from his lawyer's office, for weeks if not months if detained. IF we are lucky Rothergy will help clean up this sort of problem.
3.18.2008 12:01am
George Weiss (mail) (www):
sef- what about the right to a speedy trial. couldn't he sue based on that after finally being given a lawyer? even without the issue of the lawyer?

plus many jurisdictions have specific day requirements by statue from the time of the detention hearing to the point of the trial.-usually a certin amount of days after detention before an indictment required-and a certain amount of time from indictment until the the trial must begin.
3.18.2008 12:10am
Respondent:
FWIW- I don't know where else to put this- I expect Chief Justice Roberts' opinion for the court in Medellin to be delivered Tuesday or Wednesday. If it's delivered Tuesday, it's too bad it will be overlooked, as it may reach some very important questions. Sorry for the thread hijack.
3.18.2008 12:54am
CrazyTrain (mail):
they seemed very worried about the possibility that people could be detained pending trial but then not charged, and that they might be stuck in the interim even though no formal charges had been filed, without a lawyer to challenge the detention

Elephant in the room. This Court -- all 9 members of it, none of whom as I recall dissented from denial of cert in Padilla II --- sanctioned the multi-year detention of a US citizen arrested on US soil without any process (let alone a lawyer) at all to challenge his detention.

Funny how quickly we lose sight of the big picture. But I am glad that Justice Scalia seemed so concerned. They should all be ashamed.
3.18.2008 1:09am
George Weiss (mail) (www):
crazytrian- the point was moot-by the time the court considered cert he had been moved to illinois.

but the fact that the 4th circuit upheld the padilla detention has always boggled my mind.
3.18.2008 1:21am
GV:
Am I the only one who finds himself always wishing the Chief Justice would shut the hell up during argument? If he wants to be an advocate, he needs to step down from the bench. (Then again, maybe my dislike of him is biasing my view of him at argument.) Justice Breyer is almost as annoying, although he at least seems to be using argument to think outloud.

Maybe Justice Thomas was on to something.
3.18.2008 1:37am
David Schwartz (mail):
I do wish the Supremes would keep quiet long enough to let people answer the questions they ask. But if the justices don't say anything, why have oral argument at all?

The point of oral argument is to provide a very rapid back and forth where litigants have chance to hear what the court's reasoning is likely to be and respond to it.

Everything else can be done much better in briefs.
3.18.2008 2:00am
OrinKerr:
Am I the only one who finds himself always wishing the Chief Justice would shut the hell up during argument? If he wants to be an advocate, he needs to step down from the bench. (Then again, maybe my dislike of him is biasing my view of him at argument.)

You may not be the only one, although I tend to really like the Chief Justice's questions. In some ways, he is the Souter of the right; going after the other side's case with sharp and insightful questions that really get to the heart of the matter. Roberts is more aggressive than Souter, perhaps too aggressive from a style perspective, but I think the two of them are probably the sharpest questioners of the bunch.
3.18.2008 2:16am
George Weiss (mail) (www):
but I think the two of them are probably the sharpest questioners of the bunch.

considering Kennady's traffic ticket hypo i cant say thats a big deal. i didn't get that at all-he must know that traffic tickets rarely meet the criteria for 6th anyway since they arn't imprisonable.

btw-who's going to hire the private investigator to figure out it, in fact, justice kennady has ever got a traffic ticket?
3.18.2008 2:22am
MJG:
On oral argument styles from the bench, the Chief's first couple of questions are almost always really sharp, and really incisive. You can tell that he has put a lot of thought into a particular hypothetical or question, and usually has an immediate follow-on based on the answer. But then there is often a precipitous drop-off, and too often when he doesn't get an answer he likes he gets very aggressive. Now, some of this is when a lawyer tries to dodge the question, either because it's bad for his side or because it's not easy and requires thought on the spot, and Roberts might be annoyed with advocacy less than he would have done. But he goes on too long.

At times, Breyer begins to turn into a caricature of himself, with absurdly long winded hypotheticals that seem to go nowhere. The AP recently did a story on his hypotheticals, with Carter Phillips providing some funny quotes.

Anyway, I always liked Stevens' style. Often only a couple of questions per argument (unless he feels like his side is being significantly undermined), usually prefaced with, "Well, may I ask one really, really simple, too easy question about something, that, you know, I'm just a little slow about? I'm really sorry, you know." (exaggeration of course) And you better answer that question right or there goes his vote.
3.18.2008 11:15am
Westie:
Orin,
Only a tangential comment: your post points out a few ways in which an appropriate result in this case would run smack dab into various precedents, which aren't all that consistent. When you say "It's not exactly clear how to reconcile these cases..." my mind pops up with "because too many of the precedents were agenda-driven?"
3.18.2008 12:09pm
OrinKerr:
Westie,

I'm not sure if you're trying to be ironic, but isn't your own agenda to arrive at an "appropriate" result?

MJG,

I like Stevens' style, too.
3.18.2008 1:18pm
Daniel T (mail):
I actually found this case much more compelling from a legal perspective than Heller. I agree with Orin that the justices didn't like the Texas practice but weren't quite sure how to solve the problem. In this sense, I thought that Stevens asked the most insightful question of the case. He seemed to grasp the concept that there mere fact a right attaches does not mean that right must be exercised, something that Beyer was totally overlooking. Just because a person doesn't do something does not mean that he has lost his right to do something.

This case is going to go against Texas. The only question is the wording.

"At the same time, from that perspective Gerstein looks pretty odd." That's because it was odd.
3.18.2008 2:48pm
Duncan Frissell (mail):
All he has to do is petition for habeus pro se.

I knew about doing this before I graduated from high school. It's not necessary to tie the system up in knots because defendants may be ignorant of their rights.
3.18.2008 3:15pm
Duncan Frissell (mail):
but the fact that the 4th circuit upheld the padilla detention has always boggled my mind.

Hey, mentally defective commie traitors fellow students of jurisprudence out there:

Hear it. Abe Lincoln held 200,000 native born US citizens "arrested" on US soil for years w/o trial, lawyers, or charges. These detentions have never been challenged by any single person.

It is perfectly legal to hold prisoners captured in war for much longer than Abdullah al-Muhajir's 3 years.

In the phrase "due process" the word "due" is an adjective modifying and limiting the noun "process". This modification means that a person only gets the "process" he is "due". It's bound to be different for different persons in different circumstances.

In a less-enlightened era, we'd have hung him.
3.18.2008 3:39pm
George Weiss (mail) (www):
It is perfectly legal to hold prisoners captured in war for much longer than Abdullah al-Muhajir's 3 years.

there's only one problem with this
how do you know they are captured in war without process?

the government constantly tells us these people are different because they don't wear uniforms-so why aren't they different because they don't wear uniforms?

the war on terrorism-if its going on now for the purposes of this argument-will go on forever. thus what your really saying is that if the government thinks 9remeber no uniforom, no trial, no proof-just the governement say so) your a terrorist-you become just like a soldier captured on a battlefield-and this will be true forever-not just "in a time of war"

if the government got pissed at me during the civil war-it would be hard for them to claim i was a confedearte solider and lock me up-since they wore uniforms and usually lived in the south.

but if the government gets annoyed because i got aquited in a drug case-it seems-all they need do is claim im a terrorist-they need no proof to detain me for the duration of conflict forever, and they know i wont have any access to the courts or a lawyer to challenge it anyway.
3.18.2008 4:01pm
CrazyTrain (mail):
Abe Lincoln held 200,000 native born US citizens "arrested" on US soil for years w/o trial, lawyers, or charges. These detentions have never been challenged by any single person.

Actually, they were challenged by a lot of people -- both in court at the time and by historians and legal scholars in retrospect. In fact, if memory serves me correct, writs of habeas were issued to many of these people and some (maybe all) were illegally ignored. So, you are just factually wrong. In any event, "Lincoln did it" is not a defense. Greatest President he may have been, but that doesn't mean he was right about everything.*

* Big problem with the media during the early 2000's was its hero worship of Bush (can you say flight suit and Chris Matthews', et al., commentary on it -- "he looks great," "woman are going to love him," "he's just a cowboy-hero"); there should be no hero-worship of anyone, even of a great President like Lincoln as it obscures our view of their actions.
3.18.2008 7:50pm
byomtov (mail):
George Weiss,

Don't expect any support from the libertarians. They're far too concerned about helmet laws and other important stuff to worry about trivialities like detentions without due (any) process.
3.18.2008 9:53pm
George Weiss (mail) (www):
byomtov-

heh.

but seriously i got the impression most people on here seemed annoyed by the padilla decision.
3.18.2008 10:32pm