Rothgery v Gillespie County Brief Amici Curiae in Support of Petitioner

    No. 07-440

I n the

(Erwrt of tl|e ISnttEi States

Walter Allen  Rothgery,
Petitioner,

v.

Gillespie County, Texas,
Respondent.

O n Writ of Certiorari to the 
U nited States Court of Appeals for the F ifth Circuit

B R IE F  AM ICI CURIAE  OF TH E BRENNAN CENTER FOR  
J U S T IC E , T H E  N A A C P  L E G A L  D E F E N S E  A N D  
EDUCATIONAL FUND, AND THE NATIONAL LEGAL AID  

AND D E F E N D E R  ASSOCIATION IN  
SUPPO RT OF PE T IT IO N E R

Anthony J. F ranze 
Counsel of Record 

Son B. N guyen 
M ichael S. Tye 
YongSang Kim 
Arnold & P orter LLP 

555 12th Street, NW 
Washington, DC 20004 
(202) 942-5000

Counsel for Amici Curiae

[Additional Counsel Listed on Inside Cover]

C O U N S E L  PR ES S  
(800) 274-3321 • (800) 359-6859

Craig A. Stewart 
Arnold & P orter LLP 

399 Park Avenue 
New York, NY 10022 
(212) 715-1000



David S. Udell 
Laura K. Abel
Brennan Center for J ustice 

at NYU School of Law 
161 Avenue of the Americas 
12th Floor
New York, NY 10013 
(212) 998-6730

T ed M. Shaw 
Director Counsel 

J acqueline A. B errien 
D ebo E Adegbile 
Christina Swarns 
NAACP L egal Defense 

& E ducational F und, I nc. 
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 965-2200

J o-Ann Wallace 
National L egal A id 

& Defender Association 
1140 Connecticut Ave., NW 
Suite 900
Washington, DC 20036 
(202) 452-0620



I

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ..................  iii

STATEMENT OF IN TER EST.......................... 1

SUMMARY OF ARGUMENT................................ 2

ARGUMENT ...........................................................  6

I. AS IT HAS IN THE FOURTH AND 
FIFTH  AMENDMENT CONTEXTS,
THIS COURT SHOULD REJECT A 
SUBJECTIVE TEST FOR DETERMIN­
ING WHEN SIXTH AMENDMENT 
RIGHTS ATTACH ................................... 6

A. The Lower Court’s Subjective Test,
Like Those Rejected for Determining 
When Fourth and Fifth Amendment 
Rights Attach, Should Not Govern the 
Sixth Amendment.............................  6

B. The Reasons for Applying Objective
Rather Than Subjective Tests in the 
Fourth and Fifth Amendment Contexts 
Have Equal Force in the Sixth 
Amendment Context ........................  9

Page



Contents

II. “ADVERSARY JUDICIAL PROCEED­
ING S” HAVE BEGUN W HEN A 
PERSON IS BROUGHT BEFORE A 
MAGISTRATE, INFORMED OF THE 
ACCUSATION AGAINST HIM, AND 
HAS RESTRAINTS IMPOSED ON HIS 
L IB ER T Y .................................................  15

A. P re-Indictm ent Proceedings in
Texas: Arrest to Magistration .......  15

B. The Initial Appearance: A Citizen is
Brought Before a Court, Advised of 
the Accusations, and His or Her 
Liberty Is Restrained ......................  17

C. At the Magistration, the Court Grants
or Denies the Accused B a il............... 19

CONCLUSION ...................................................  27

ii

Page



I l l

TABLE OF CITED AUTHORITIES

CASES

Alabama v. Shelton,
535 U.S. 654 (2002) ..........................................  24

Albright v. Oliver,
510 U.S. 266 (1994) ..........................................  23

Berkemerv. McCarty,
468 U.S. 420 (1984) ..........................................  7

Brendlin v. California,
127 S. Ct. 2400 (2007) ...................... ..........4, 5, 8-10

Brewer v. Williams,
430 U.S. 387 (1977) ...................................... passim

County of Riverside v. McLaughlin,
500 U.S. 44 (1991) ............................................ 20

Dunaway v. New York,
442 U.S. 200 (1979) ..........................................  13

Gerstein v. Pugh,
420 U.S. 103 (1975) .............................  12,18, 24, 25

Gideon v. Wainwright,
372 U.S. 335 (1963) ..........................................1,3,5

Kirby v. Illinois,
406 U.S. 682 (1972) ..........................................  3

Page



IV

Cited Authorities

Lomax v. Alabama,
629 F.2d 413 (5th Cir. 1980)........................ 3-4, 9-10

McGee v. Estelle,
625 F.2d 1206 (5th Cir. 1980)...........................  4, 9

Michigan v. Jackson,
475 U.S. 625 (1986) ...................................... passim

Minnesota v. Murphy,
465 U.S. 420 (1984) ..........................................  7

Missouri v. Seibert,
542 U.S. 600 (2004) ..........................................  14

Nix v. Williams,
467 U.S. 431 (1984) ..........................................  14

Powell v. Alabama,
287 U.S. 45 (1932) ............................................ 26

Stansbury v. California,
511 U.S. 318 (1994) ...................................... passim

Tague v. Louisiana,
444 U.S. 469 (1980) ..........................................  14

United States v. Matlock,
415 U.S. 164 (1974) ..........................................  14

Yarborough v. Alvarado,
541 U.S. 652 (2004) ..........................................  6

Page



V

STATUTES

18 U.S.C. § 3146 (1975)........................................  24

Tex. Code Crim. Proc.
art. 1.051 ..........................................................  21
art. 2.19 ............................................................  10
art. 14.03 ..........................................................  16
art. 14.04 ..........................................................  16
art. 14.05 ..........................................................  16
art. 14.06 ...........................................................17,18
art. 15.17 ......................................................17,18,19
art. 15.22 ..........................................................  16
art. 15.24 ..........................................................  16
art. 15.25 ..........................................................  16
art. 16.01 ..........................................................  18
art. 16.06 ..........................................................  18
art. 16.07 ..........................................................  18
art. 16.17 ..........................................................  18
art. 17.01 ..........................................................  19
art. 17.27 ..........................................................  19
art. 17.43 ..........................................................  24
art. 17.44 ..........................................................  24
art. 17.441 ......................................................... 24
art. 17.47 ..........................................................  24

Cited Authorities
Page



Cited Authorities

OTHER MATERIALS

ACLU of Texas,
Prisons and Jail Accountability Project (PJAP), 
http://www.aclutx.org/projects/prisons.php .. 22

ACLU of Texas,
Prisons and Jail Project, 
http ://www. aclutx.org/proj ects/ 
prisonspg.php?pid=93 .....................................22,23

Alan J. Beck & Timothy A. Hughes,
Sexual Violence Reported by Correctional 
Authorities, 200V Bureau of Justice 
Statistics (2005),
http://www.ojp.usdoj. gov/bjs/pub/pdf/ 
svrca04.pdf ....................................................... 23

Barry Mahoney & Walt Smith,
Pretrial Release and Detention in  Harris 
County. Assessment and Recommendations 
(2005), h ttp ://effectivealt.w eb.aplus.net/ 
sitebuildercontent/sitebuilderfiles/reportfinal 
harriscountypretrial.doc .................................11,24

Bureau of Justice Statistics,
Indigent Defense Statistics: Racial Disparity 
and the Use of Publicly Financed Counsel, 
http://www.ojp.usdoj.gOv/bjs/id.htm#racial .. 17

Page

http://www.aclutx.org/projects/prisons.php
http://www.ojp.usdoj
http://effectivealt.web.aplus.net/
http://www.ojp.usdoj.gOv/bjs/id.htm%23racial


Cited Authorities

Dottie Carmichael et al.,
Evaluating the Impact of Direct Electronic 
Filing in Criminal Cases: Closing the Paper 
Trap, Public Policy Research Institute, Texas 
A&M University (2006), http://www.courts. state. 
tx.us/tfid/pdf/FinalReport7-12-06wackn.pdf . . .  11,21

Dottie Carmichael et al.,
Study to Assess the Im pacts o f the F air  
Defense Act on Texas Counties, Public Policy 
Research Institute, Texas A&M University 
(2005), http://www.courts.state.tx.us/tfid/ 
Resources.asp........................................ 11-12, 20, 25

Michael Puisis,
Findings on the Medical and Mental Health 
Programs of the Dallas County Jails (2005), 
http://www.dallasnews.com/sharedcontent/ 
dws/img/03-05/jailhealth3.pdf ........................ 22

Michael K. Moore & Allan K. Butcher,
Examining the Impact of Criminal Defense 
Reform in Texas: Has the Fair Defense Act 
Been Effective? (2005), http://www.courts. state. 
tx.us/tfid/pdf/ButcherMooreSPWSA05.pdf .. 20, 25

Polly Ross Hughes,
Revised Numbers Show Jail Overcrowding is 
Worse, Houston Chronicle, Aug. 5, 2005, 
available at http://www.solutionsfortexas.net/ 
id408.html

Page

22

http://www.courts
http://www.courts.state.tx.us/tfid/
http://www.dallasnews.com/sharedcontent/
http://www.courts
http://www.solutionsfortexas.net/


Vll l

Press Release, Bexar County, Texas District

Cited Authorities
Page

Attorney’s Office, Burglary Ring Busted (Dec.
20, 2007), http://www.bexar.org/da2/Press 
Release/2007/12202007.htm ...........................  11

Press Release, Denton County, Texas, Sheriff’s 
Office, $1/2 Million Worth of Heroin Seized,
3 Arrested, http://sheriff.dentoncounty.com/ 
View_Press_Release.asp?id=175.....................10-11

Texas Appleseed Fair Defense Project,
The Fair Defense Report, Analysis of Indigent 
Defense Practices in  Texas (2000), http:// 
www.texasappleseed.net/pdf/projects_fair
defense_fairref.pdf .......................................... 19-20

Texas Commission on Jail Standards,
Jail Population Report (2008), http://www.tcjs. 
state.tx.us/docs/abrerpt.pdf ............................19, 22

Texas Task Force on Indigent Defense,
2006 Annual Report and Expenditure Report: 
Evidence-based Practices Are Good for Public 
Defense (2007), http://www.courts.state.tx. 
us/tfid/pdf/TFIDFY06ARFINAL012507.pdf . . . .  16

Wesley Shackelford,
Review of Tarrant County Indigent Defense 
System  (2006), http://www.courts.state.tx.us/ 
tfid/pdf/Tarrant%20County%20Report.pdf) . . .  16-17

http://www.texasappleseed.net/pdf/projects_fair
http://www.tcjs
http://www.courts.state.tx
http://www.courts.state.tx.us/


1

STATEMENT OF INTEREST1

The Brennan Center for Justice at New York 
University School of Law is a non-partisan public policy 
and law institute that focuses on fundamental issues of 
democracy and justice. An important part of the Brennan 
Center’s work is its effort to close the “justice gap” by 
strengthening public defender services and working to 
secure the promise of Gideon v. Wainwright, 372 U.S. 
335 (1963). Because the subjective test adopted by the 
court below jeopardizes indigent defendants’ Sixth and 
Fourteenth Amendment rights, the Brennan Center has 
a strong interest in this case.

The NAACP Legal Defense and Educational Fund, 
Inc. (LDF) is the nation’s oldest civil rights law firm, 
founded as an arm of the NAACP in 1939 by Charles 
Hamilton Houston and Thurgood Marshall. LDF was 
chartered by the Appellate Division of the Supreme 
Court of New York in 1940 as a non-profit legal aid 
society “to render legal aid gratuitously to such Negroes 
as may appear to be worthy thereof, who are suffering 
legal injustices by reason of race or color and unable to 
employ and engage legal aid and assistance on account 
of poverty.” Since 1957, LDF has operated independently 
from the NAACP This Court has recognized that LDF 
“has a corporate reputation for expertness in presenting

1 No counsel for a party authored this brief in whole or in 
part, and no counsel or party made a monetary contribution 
intended to fund the preparation or submission of this brief. No 
person other than amici or their counsel made a monetary 
contribution to its preparation or submission. Both Petitioner 
and Respondent have consented to the filing of this brief, and 
pursuant to Rule 37.3(a), the letters of consent have been filed 
with the Clerk of the Court.



2

and arguing the difficult questions of law that frequently 
arise in civil rights litigation.” NAACP v. Button, 371 
U.S. 415,422 (1963). LDF is interested in this civil rights 
case because the lower court’s narrow approach to 
determining when Sixth Amendment rights attach 
jeopardizes the rights of indigent defendants, including 
African Americans and other minorities who studies 
show are, on average, more likely to require the 
appointment of counsel.

The National Legal Aid and Defender Association 
(NLADA) is a nonprofit corporation that works to 
support indigent defender services and civil legal 
assistance to those who cannot afford lawyers. NLADA 
has approximately 700 program members, representing 
12,000 lawyers, including nonprofit organizations, 
government agencies, legal aid organizations, and law 
firms. NLADA American Council of Chief Defenders is 
a leadership council that is dedicated to promoting fair 
justice systems and ensuring that citizens who are 
accused of crimes have adequate legal representation. 
The question of precisely when the right to counsel 
attaches is one of significant importance to NLADA and 
its members.



3

SUMMARY OF ARGUMENT

The Sixth Amendment righ t to counsel is so 
fam iliar—so ingrained in our society—th a t the 
constitutional importance of the right is “obvious.” 
Gideon v. Wainwright, 372 U.S. 335, 344 (1963). The 
parties here do not dispute that the right to counsel can 
attach long before trial. Pet’r Br. at 2; Respon. Cert. Opp. 
at 7. Nor is there any dispute that Sixth Amendment 
rights attach upon “[t]he initiation of adversary judicial 
criminal proceedings.” Kirby v. Illinois, 406 U.S. 682, 
689 (1972). The central questions here are when such 
judicial criminal proceedings are initiated and how that 
is determined.

As Petitioner demonstrates, these questions were 
squarely answered in Brewer v. Williams, 430 U.S. 387 
(1977), and Michigan v. Jackson, 475 U.S. 625 (1986), 
which—applying Kirby's, straightforward, objective 
approach—held that adversary judicial proceedings had 
begun when a defendant was brought before a judicial 
officer, was apprised of the accusation against him, and 
had restrictions imposed on his liberty to ensure he 
answered that accusation.

Contrary to Brewer and Jackson, the Fifth Circuit 
did not apply any objective standard in the proceedings 
below. Instead, drawing on pre-Jackson Fifth Circuit 
precedent, the court employed a subjective test to 
determine when Sixth Amendment rights attach—a test 
that, as the Fifth Circuit itself put it, requires an inquiry 
into “the sometimes elusive degree to which the 
prosecutorial forces of the state have focused on an



4

individual.” Pet. App. 6a (quoting Lomax v. Alabama, 
629 F.2d 413, 415 (5th Cir. 1980)). Reasoning that the 
inquiry depends on when prosecuting attorneys have 
“focused on” a citizen, the Fifth Circuit held that 
“adversary judicial proceedings cannot initiate without 
some prosecutorial awareness or involvement.” Id. at n.7 
(paraphrasing McGee v. Estelle, 625 F.2d 1206,1208 (5th 
Cir. 1980)).

The Fifth Circuit’s approach departs not only from 
Brewer and Jackson, but also from this Court’s repeated 
holdings rejecting nearly identical subjective tests to 
determine when other fundamental rights attach.

For example, when considering the appropriate test 
for determining when a citizen has been placed in 
“custody,” thereby triggering the Fifth Amendment 
righ t to M iranda  warnings, this Court expressly 
rejected lower court holdings that M iranda  rights 
attached only when the questioning officers’ suspicions 
had “focused on” the defendant. Stansbury v. California, 
511 U.S. 318, 321, 323 (1994) (per curiam). Instead, the 
Court applied an objective test that addressed “how a 
reasonable person in the position of the individual being 
questioned would gauge the breadth of his or her 
‘freedom of action.’” Id. at 325. (quotation omitted). 
Similarly, when considering the appropriate test for 
determining when there has been a “seizure” triggering 
Fourth Amendment rights, this Court rejected lower 
court tests that anchored attachment in part to whether 
government officials “intended to investigate” the citizen 
detained. Brendlin v. California, 127 S. Ct. 2400, 2408 
(2007) (“[W]e have repeatedly rejected attempts to



5

introduce this kind of subjectivity  into Fourth 
Amendment analysis”)- Rather, the Court opted for an 
objective standard that addressed whether “a reasonable 
person would have believed that he was not free to leave.” 
Id. at 2405 (quotation omitted).

This Court likewise should reject the subjective test 
employed by the Fifth Circuit to determine whether a 
defendant has become an “accused”—i.e., “faced with 
the prosecutorial forces of organized society, and 
immersed in the intricacies of substantive and procedural 
criminal law.” Jackson, 475 U.S. at 631 (quoting United 
States v. Gouveia, 467 U.S. 180, 189 (1984)).

The F ifth  C ircuit’s subjective te s t cannot be 
reconciled with Brewer and Jackson, is out of line with 
this Court’s Fourth and Fifth Amendment jurisprudence, 
and conflicts with the “noble ideal[s],” Gideon, 372 U.S. 
at 344, of the Sixth Amendment. This Court should 
reverse the decision below.



6

ARGUMENT

I. AS IT HAS IN THE FOURTH AND FIFTH  
AMENDMENT CONTEXTS, THIS COURT 
SHOULD REJECT A SUBJECTIVE TEST FOR 
DETERMINING WHEN SIXTH AMENDMENT 
RIGHTS ATTACH

A. The Lower Court’s Subjective Test, Like 
Those Rejected for Determining When Fourth 
and Fifth Amendment Rights Attach, Should 
Not Govern the Sixth Amendment

This Court repeatedly has rejected application of 
subjective tests , like the one applied below, in 
determining when certain Fourth and Fifth Amendment 
rights attach.

For example, in determining whether a suspect is in 
“custody” triggering Miranda rights, the Court has 
consistently applied an objective standard, rejecting 
lower court tests that are nearly indistinguishable from 
the one applied by the Fifth Circuit here. See Stansbury, 
511 U.S. at 324-26; see also Yarborough v. Alvarado, 541 
U.S. 652, 662-63 (2004).

In Stansbury, law enforcement officers took the 
defendant to the station and questioned him concerning 
an encounter with a murder victim. 511 U.S. at 320-21. 
The officers did not provide Miranda warnings when 
they began the questioning because they considered 
someone else the lead suspect. Id. at 320. It was only 
after the defendant’s statements aroused suspicions that 
the officers gave the defendant his Miranda warnings. 
Id. After the state charged him with first-degree murder, 
the defendant moved to suppress statem ents made



7

before he was Mirandized, and the evidence discovered 
as a result of those statements. Id. at 321. The California 
courts held that the statements and evidence were 
admissible because the defendant was not “in custody”— 
the event triggering the right to Miranda warnings— 
until the questioning police officers’ suspicions had 
“focused on” him. Id. at 321-22.

This Court rejected the California courts’ subjective 
test. I t held that attachment of Miranda rights “depends 
on the objective circumstances of the interrogation, not 
on the subjective views harbored by e ither the 
interrogating officers or the person being questioned.” 
Id. at 323. Citing prior precedents, the Court reiterated 
the virtues of an objective inquiry over trying to parse 
the state of mind and “focus” of government officials. 
Id. at 323-24 (citing Beckwith v. United States, 425 U.S. 
341, 345-46 (1976) (“[It] was the compulsive aspect of 
custodial interrogation, and not the strength or content 
of the governm ent’s suspicions at the time the 
questioning was conducted, which led the Court to 
impose the M iranda  requirem ents with regard to 
custodial questioning.”); Berkemerv. McCarty, 468 U.S. 
420, 442 (1984) (“[T]he only relevant inquiry is how a 
reasonable man in the suspect’s position would have 
understood his situation.”); Minnesota v. Murphy, 465 
U.S. 420,431 (1984) (“The mere fact that an investigation 
has focused on a suspect does not trigger the need for 
Miranda warnings in noncustodial settings, and the 
probation officer’s knowledge and intent have no bearing 
on the outcome of this case.”)).

An objective inquiry, the Court reasoned, is required 
because a defendant cannot be expected “to probe [an] 
officer’s innermost thoughts” to determine whether the



8

officer has “focused on” the defendant. Id. at 324. 
Further, this Court recognized that the “threat to a 
citizen’s Fifth Amendment rights that Miranda was 
designed to neutralize has little to do with” the subjective 
views of officers and should not be anchored to the 
potentially “evolving” intent or understandings of 
government officials. See id. at 324-25 (quotation 
omitted).

To this end, this Court adopted an objective test to 
determine whether a person is in “custody”: “[H]ow a 
reasonable person in the position of the individual being 
questioned would gauge the breadth of his or her
‘freedom of action’----[I]t is the objective surroundings,
and not any undisclosed views, that control the Miranda 
custody inquiry.” Id. at 325 (quotation omitted).

This Court has applied a similar objective test in 
considering whether a citizen has been “seized” within 
the meaning of the Fourth Amendment’s protection 
against unreasonable searches and seizures, again 
rejecting subjective tests used by lower courts. Brendlin, 
127 S. Ct. at 2405-06 (describing longstanding objective 
test used for determining whether “seizure” occurred 
as “whether ‘a reasonable person would feel free to 
decline the officers’ requests or otherwise terminate the 
encounter’”). In Brendlin, this Court recently applied 
this test to consider whether the passenger of an 
automobile pulled over during a traffic stop is “seized” 
under the Fourth Amendment. Id. at 2403. In finding a 
seizure in those circumstances, the Court rejected a 
subjective test applied by a state high court that would 
have hinged Fourth Amendment rights in large part on 
whether the officer “intended to investigate” the 
passenger when the car was pulled over. Id. at 2408. This



9

Court concluded that “we have repeatedly rejected 
attem pts to introduce this kind of subjectivity into 
Fourth Amendment analysis.” Id.

In sum, in assessing the proper standards for 
determining when certain Fourth and Fifth Amendment 
rights attach, this Court has adopted objective tests and 
expressly rejected  subjective inquiries v irtually  
indistinguishable from the one applied by the Fifth 
Circuit. There is no principled basis for a departure from 
this approach in the Sixth Amendment context.

B. The Reasons for Applying Objective Rather 
Than Subjective Tests in the Fourth and Fifth 
Amendment Contexts Have Equal Force in the 
Sixth Amendment Context

The rationale articulated by this Court for using 
objective tests to determine when Fourth and Fifth 
Amendment rights attach is equally applicable to the 
Sixth Amendment analysis.

As a threshold matter, the trigger for Fourth, Fifth, 
or Sixth Amendment rights should not vary or be 
dependent on the elusive and evolving “focus” or 
awareness of government officials. See Brendlin, 127 S. 
Ct. at 2408; Stansbury, 511 U.S. at 324-25. The Fifth 
Circuit’s test does just that, by concluding that “an 
adversary criminal proceeding has not begun in a case”— 
and hence the right to counsel has not attached—“where 
the prosecution officers are unaware of either the 
charges or the arrest.” Pet. App. 6a (quotingMcGee, 625 
F.2d at 1208). As the Fifth Circuit acknowledged below, 
this te s t essentially requires an inquiry into the 
“sometimes elusive degree to which the prosecutorial



10

forces of the state have focused on an individual.” Id. 
(quoting Lomax, 629 F.2d at 415 (emphasis added)). This 
is precisely the type of “elusive” inquiry this Court 
rejected as improperly subjective and unworkable in the 
Fourth and Fifth Amendment contexts. Stansbury, 511 
U.S. at 321,324 (rejecting lower court test that attached 
rights to Miranda warning on whether the officers’ 
suspicions had “focused on” the defendant); Brendlin, 
127 S. Ct. at 2408-09 (rejecting lower court test that 
attached Fourth Amendment rights based on whether 
officer “intended to investigate” passenger of 
automobile).

Beyond the difficulty in delving into a government 
official’s mindset—which requires a speculative inquiry 
to determine what a prosecutor “knows,” what he or she 
is “focused on,” and when he or she becomes “involved”— 
a subjective te s t makes the attachm ent of Sixth 
Amendment rights contingent on arb itrary  and/or 
fortuitous circumstances. For instance, “awareness” of 
a Texas prosecutor could fluctuate depending on the day 
of arrest, since jails may be required to report their 
arrestees to county prosecutor offices on particular days. 
See Tex. Code Crim. Proc. art. 2.19 (“On the first day of 
each month, the sheriff shall give notice, in writing, to 
the district or county attorney, where there be one, as 
to all prisoners in his custody, naming them, and of the 
authority under which he detains them.”). Awareness or 
“involvement” could also depend on any number of other 
random circumstances, such as whether a sheriff’s or 
prosecutor’s office issues a press release shortly after a 
high-profile arrest. See, e.g., Press Release, Denton 
County, Texas, Sheriff’s Office, $1/2 Million Worth of 
H eroin Seized, 3 Arrested, h ttp ://sheriff. denton

http://sheriff


11

county.com/View_Press_Release. asp?id=175; see also 
Press Release, Bexar County Texas District Attorney’s 
Office, Burglary Ring Busted (Dec. 20, 2007), http:// 
www.bexar.org/da2/PressRelease/2007/12202007.htm.

Indeed, the right could vary depending on the 
sophistication, or lack thereof, of a jurisdiction’s 
computer intake system. Some Texas counties, for 
example, have computer systems that provide arrest and 
detention information simultaneously to prosecutors, law 
enforcem ent officers, jail personnel, and clerks. 
Prosecutors in these jurisdictions use these systems to 
pre-screen cases early in the process before an initial 
appearance. Dottie Carmichael et ah, Evaluating the 
Impact of Direct Electronic Filing in Criminal Cases: 
Closing the Paper Trap, Public Policy Research 
Institute, Texas A&M University 2-3 (2006) [hereinafter 
Carmichael 2006], http://www.courts.state.tx.us/tfid/pdf/ 
FinalReport7-12-06wackn.pdf.2 Thus, government 
“awareness,” and Sixth Amendment rights, could depend 
on how electronic information is processed, which is 
not only arbitrary, but varies from county to county 
See Dottie Carmichael et al., Study to Assess the Impacts 
of the Fair Defense Act on Texas Counties, Public Policy 
Research Institute, Texas A&M University 27-28 (2005) 
[hereinafter Carmichael 2005], http://www.courts.state. 
tx.us/tfid/Resources.asp (noting that in Dallas County, 
prosecutors generally pre-screen cases within 72 hours 
of arrest, but that few other counties can meet that pace). 
Similarly, under the Fifth Circuit’s test, the right could

2 See also Barry Mahoney & Walt Smith, Pretrial Release and 
Detention in Harris County: Assessment and Recommendations 
2-3 (2005), http://effectivealt.web.aplus.net/sitebuildercontent/ 
sitebuilderfiles/reportfinalharriscounty pretrial.doc.

http://www.bexar.org/da2/PressRelease/2007/12202007.htm
http://www.courts.state.tx.us/tfid/pdf/
http://www.courts.state
http://effectivealt.web.aplus.net/sitebuildercontent/


12

vary depending on the resources and staffing of the 
various prosecutor offices in Texas’s 254 counties, leaving 
the Sixth Amendment right not to objective standards, 
but instead to the wide-ranging daily work-loads of 
individual prosecutors.

Finally, leaving the timing for “awareness,” “focus” 
or “involvement” in the first instance to the voluntary 
acts of government officials creates the opportunity for 
manipulation to gain prosecutorial advantages.3

By contrast, the objective approach applied in Brewer 
and Jackson provides a clear and consistent framework 
for protecting Sixth Amendment rights. I t fixes the 
attachment of the right to counsel on the occurrence of 
objectively verifiable proceedings and avoids, in keeping 
with Fourth and Fifth Amendment precedents, uncertain, 
evolving subjective inquiries of government officials. As 
Brewer and Jackson hold, under that objective approach, 
“adversary judicial proceedings” have begun, at the very 
least, when an arrestee is brought for his first appearance 
before a judge, who informs him of the accusation against 
him and restricts his liberty (including release on bail). That 
event provides an objective marker that the person 
formerly a “suspect” has become an “accused” within the 
meaning of the Sixth Amendment. Reaffirming that the 
right to counsel attaches in these circumstances would allow

3 Cf Gerstein v. Pugh, 420 U.S. 103,118 (1975) (“A democratic 
society . . . naturally guards against the m isuse of the law 
enforcement process. Zeal in tracking down crime is not in itself an 
assurance of soberness of judgment. Disinterestedness in law 
enforcement does not alone prevent disregard of cherished liberties. 
Experience has therefore counseled that safeguards must be 
provided against the dangers of the overzealous as well as the 
despotic.” (quotation omitted)).



13

the government—including courts, prosecutors, police 
officers, and those implementing criminal justice 
procedures and policies—to know with a high degree of 
certainty when the right to counsel is triggered. 
Cf. Dunaway v. New York, 442 U.S. 200, 213-14 (1979) 
(“A single, familiar standard is essential to guide police 
officers, who have only limited time and expertise to reflect 
on and balance the social and individual interests involved 
in the specific circumstances they confront.”)- Because 
uncertainty and delay surrounding the appointment of 
counsel imposes a real harm on defendants, using an 
objective marker to determine the right to counsel is 
far preferable to relying on elusive understandings, 
happenstance, or a fact-intensive, backward-looking, and 
often time-consuming inquiry.

Moreover, an objective test also avoids unwarranted 
departu re  from other constitutional principles. 
A subjective test, like the one used below, that seeks to 
determine a prosecutor’s “focus” or knowledge departs 
from the principle, recognized by this Court in Jackson, 
that knowledge is imputed from one state actor to 
another for Sixth Amendment purposes:

Sixth Amendment principles require that we 
impute the State’s knowledge from one state 
actor to another. For the Sixth Amendment 
concerns the confrontation between the State 
and the individual. One set of state actors (the 
police) may not claim ignorance of defendants’ 
unequivocal request for counsel to another 
state actor (the court).

475 U.S. at 634 (footnote omitted).



14

F urther, a subjective test, which requ ires a 
defendant to establish government knowledge or “focus,” 
places an undue burden on the accused. For example, 
though the decision below is not entirely clear, the Fifth 
Circuit appears to have presumed that the burden of 
showing prosecutorial knowledge, focus, or involvement 
rests on a criminal defendant. Pet. App. 7a (“Rothgery 
provides no reason why the officer’s acts should somehow 
be imputed to the prosecutor’s office or should otherwise 
be interpreted to signal that Rothgery was opposed by 
the prosecutorial forces of the state.”). Such an approach 
is inconsistent with this Court’s precedents imposing 
such burdens on the government, not the accused. 
See, e.g.,Missouri v. Seibert, 542 U.S. 600,608 n.l (2004) 
(government bears burden to show an individual’s waiver 
of Miranda rights and voluntariness of confession); 
N ix  v. W illiams, 467 U.S. 431, 444-45, n.5 (1984) 
(government bears burden to show inevitable discovery 
of evidence obtained by unlawful means); United States 
v. Matlock, 415 U.S. 164, 177 (1974) (government bears 
burden to show voluntariness of consent to search). 
Placing the burden on the government is particularly 
appropriate where, as here, the relevant information is 
in the hands of the government. See Tague v. Louisiana, 
444 U.S. 469,470-71 (1980) (per curiam) (“Since the State 
is responsible for establishing the isolated circumstances 
under which the interrogation takes place and has the 
only means of making available corroborated evidence 
of warnings given during incommunicado interrogation, 
the burden is rightly on its shoulders.” (quotingMiranda 
v. Arizona, 384 U.S. 436, 475 (1966)).

Ultimately, an objective test focuses, as it should, on 
the nature and consequences of the proceeding itself.



15

By shifting the focus away from the proceeding, the Fifth 
C ircuit’s te s t injects im proper subjectivity and 
arbitrariness into the Sixth Amendment analysis. That 
subjective approach has been rejected for the Fourth 
and Fifth Amendments. It should be rejected here.

II. “ADVERSARY JUDICIAL PROCEEDINGS” 
HAVE BEGUN WHEN A PERSON IS BROUGHT 
BEFORE A MAGISTRATE, INFORMED OF THE 
ACCUSATION AGAINST HIM, AND HAS 
RESTRAINTS IMPOSED ON HIS LIBERTY

The objective test employed by Brewer and Jackson 
properly recognizes that a suspect becomes an “accused” 
within the meaning of the Sixth Amendment, adversary 
judicial proceedings commence, and his right to counsel 
therefore attaches, once he is informed of the accusations 
against him by a judicial officer and committed to jail or 
bail. There can be no question that an accused at 
this stage in the system has been “faced with the 
prosecutorial forces of organized society, and immersed 
in the intricacies of substantive and procedural criminal 
law.” Jackson, 475 U.S. at 631 (quotation omitted). 
A detailed examination of the Texas pre-indictment 
system bears this out.

A. Pre-Indictment Proceedings in Texas: Arrest 
to Magistration

Under Texas law, the police may arrest citizens in a 
variety of circumstances with or without a warrant. 
Where, as here, the situation involves a warrantless 
arrest, Texas law generally permits such arrests when 
individuals are “found in suspicious places and under 
circumstances which reasonably show that such persons 
have been guilty of some felony . . .  breach of the peace



16

. . .  or threaten, or are about to commit some offense 
against the laws.” Tex. Code Crim. Proc. art. 14.03(a)(1). 
Warrantless arrests can be made for conduct within an 
officer’s view, or, for various offenses, outside an officer’s 
presence. Id. art. 14.03(b); see also id. art. 14.04 
(warrantless arrest permissible when officer receives 
“representation of a credible person, that a felony has 
been committed, and that the offender is about to 
escape”). Mr. Rothgery, for instance, was arrested 
without a warrant for unlawful possession of a firearm 
by a felon.

Though the circumstances allowing for warrantless 
arrest are wide-ranging, they are still limited by statute, 
and few citizens would know or understand when an 
officer’s arrest is improperly made.

As defined by Texas law, an arrest, with or without a 
warrant, occurs when the accused is “actually placed 
under restraint or taken into custody by an officer . . . . ” 
Id. art. 15.22. In making an arrest an officer may use 
force. Id. art. 15.24. And, with certain exceptions, 
id. art. 14.05, he “may break down the door of any house 
for the purpose of making an arrest, if he be refused 
admittance after giving notice of his authority and 
purpose.” Id. art. 15.25. In Texas, approximately six out 
of ten of those arrested are indigent.4

4 “In 2006, 62 percent of felony defendants in Texas courts 
received appointed counsel.” Texas Task Force on Indigent 
D efense, 2006 A nnual R eport and E xpenditure Report: 
Evidence-based Practices Are Good for Public Defense 3 (2007), 
http://www.courts.state.tx.us/tfid/pdf/TFIDFY06AR FINAL  
012507.pdf. The rates can vary significantly by county. In some

(Cont’d)

http://www.courts.state.tx.us/tfid/pdf/TFIDFY06AR


17

A fter an a rre s t (with or w ithout a w arrant), 
individuals may sit in jail for up to 48 hours before being 
taken to a magistrate. See Tex. Code Crim. Proc. arts. 
14.06(a), 15.17(a).

B. The Initial Appearance: A Citizen is Brought 
Before a Court, Advised of the Accusations, 
and His or Her Liberty Is Restrained

After spending up to two days in jail following a 
warranted or warrantless arrest, an arrestee in the 
Texas system is next brought before a magistrate for an 
initial appearance in what typically is called the 
“magistration.” There, he is advised “of the accusation 
against him and of any affidavit filed therew ith.” 
Id. art. 15.17(a) (emphasis added). He also is advised of 
“his right to retain counsel, of his right to remain silent, 
of his right to have an attorney present during any 
interview with peace officers or attorneys representing *

(Cont’d)
counties the felony appointment rate is over 80%; in others less 
than 30%. W esley Shackelford, Review of Tarrant County 
Indigent Defense System  3 (2006), http://www.courts, state.tx.us/ 
tfid/pdf/Tarrant%20County%20Report.pdf. (containing statistics 
on 10 Texas counties). Statistics show that nationwide African 
Americans and other minorities are, on average, more likely to 
require the appointment of counsel: According to the Bureau of 
Justice Statistics, as of 2001, “69% of white State prison inmates 
reported they had lawyers appointed by the court,” whereas 
“77% of blacks and 73% of Hispanics had publicly financed 
attorneys. In Federal prison black inmates were more likely than 
whites and Hispanics to have public counsel: 65% for blacks, 57% 
for whites and 56% for Hispanics.” Bureau of Justice Statistics, 
Indigent Defense Statistics: Racial Disparity and the Use of 
Publicly Financed Counsel, http://www.ojp.usdoj.gov/bjs/ 
id.htm#racial.

http://www.courts
http://www.ojp.usdoj.gov/bjs/


18

the state, of his right to terminate the interview at any 
time, and of his right to have an examining trial.” 5 
Id. In cases where the defendant is arrested without 
a w arran t, for convenience, the probable cause 
determination required by Gerstein v. Pugh, 420 U.S. 
103 (1975), often is combined with the initial appearance. 
See Tex. Code Crim. Proc. 14.06(a).

In Mr. Rothgery’s magistration, for example, he was 
confronted with an Affidavit of Probable Cause sworn 
by the arresting officer that stated the “charge” against 
him, the magistrate found that “probable cause existed 
for the arrest of the individual accused therein,” and 
informed Rothgery that he was “accused of the criminal 
offense of: unlawful possession of a firearm by a felon.” 
Pet App. 33a-35a (emphasis added).

During this initial appearance, the magistrate is 
statutorily required to “inform the person arrested of 
the person’s right to request the appointment of counsel 
if the person cannot afford counsel . . . .  [and] of the 
procedures for requesting appointment of counsel. . . . ” 
Tex. Code Crim. Proc. art. 15.17(a). The magistrate at 
Mr. Rothgery’s magistration provided this information. 
Pet. App. 35a-37a. 6

6 Under Texas law, “[t]he accused in any felony case shall 
have the right to an examining trial before indictment . . .
whether he be in custody or on b a il___ ” Tex. Code Crim. Proc.
art. 16.01. This pre-indictm ent right gives an accused the 
opportunity to “examine into the truth of the accusation made.” 
Id. The accused and government may call and question witnesses. 
Id. arts. 16.06-.07. After the examining trial, the judge can make 
an order committing the defendant to jail, grant bail, or discharge 
him for lack of probable cause. Id. art. 16.17.



19

C. At the Magistration, the Court Grants or 
Denies the Accused Bail

During this initial appearance, the m agistrate 
“admit[s] the person arrested to bail if allowed by law,” 
or jails those who lack the means to post bail. See, e.g., 
Tex. Code Crim. Proc. arts. 15.17(a), 17.27. “‘Bail’ is the 
security given by the accused that he will appear and 
answer before the proper court the accusation brought
against him ----” Id. art. 17.01 (emphasis added). Unlike
many defendants,6 Mr. Rothgery managed to post bail.

Historically in Texas, those denied bail often waited 
weeks—or even months—before they were indicted and 
provided counsel. As one report found:

Delay in appointment of counsel is a major 
concern in many counties. For instance, in 
some counties, indictm ent triggers the 
appointment of counsel. Indictment can occur 
months after arrest, leaving the defendant in 
jail with no access to counsel during that 
period. Even in counties where it is not 
indictment that triggers appointment, but 
some other earlier appearance before the 
court, that might not occur for weeks after 
a rre s t. In e ither case, even for those 
defendants out on bond, the practice whereby 
counsel is appointed some or a considerable 6

6 According to the Texas Commission on Jail Standards Jail 
Population Report, as of January 1, 2008, more than 50% of the 
state’s county and city jail detainee population are pretrial and 
have not been convicted of a crime. See generally  Texas 
Commission on Jail Standards, Jail Population Report (2008), 
http://www.tcjs.state.tx.us/docs/abrerpt.pdf.

http://www.tcjs.state.tx.us/docs/abrerpt.pdf


20

time after arrest works to the defendant’s 
detriment in that counsel is impeded in pursuing 
witnesses and factual leads in a timely, 
expeditious fashion.

Texas Appleseed Fair Defense Project, The Fair Defense 
Report, Analysis of Indigent Defense Practices in Texas 
29 (2000), http://www.texasappleseed.net/pdf/projects_ 
fairdefense_fairref.pdf; accord Michael K. Moore & Allan 
K. Butcher, Examining the Impact of Criminal Defense 
Reform in Texas: Has the Fair Defense Act Been Effective ? 
14 (2005), http://www.courts.state.tx.us/tfid/pdf/Butcher 
MooreSPWSA05.pdf.7

The Fifth Circuit’s rule—under which counsel need not 
be appointed until indictment absent some pre-indictment 
prosecutorial involvement—would permit such lengthy 
stays in jail with no access to counsel. Moreover, that would 
be so even for defendants who, like Rothgery, could readily 
prove their innocence and obtain dismissal of the charges 
against them with a lawyer’s help. Under the Fifth Circuit’s 
rule, that is, “a law-abiding citizen wrongfully arrested 
may be compelled to await the grace of a Dickensian 
bureaucratic machine, as it churns its cycle” for an 
indefinite period—without the assistance of counsel to 
demonstrate “that there is absolutely no reason to hold him, 
that a mistake has been made.” County of Riverside v. 
McLaughlin, 500 U.S. 44,71 (1991) (Scalia, J., dissenting).

7 Accord Carmichael 2005, supra, at 27 (“At every study site 
except Dallas, stakeholders recall that before [the Fair Defense Act], 
indigent defendants charged with both misdemeanors and felonies 
were commonly detained for months with no advocate to protect 
their legal rights and interests. Since the FDA, defendants may 
still be held in custody while prosecutors review their case. However, 
it is no longer without access to an attorney.”).

http://www.texasappleseed.net/pdf/projects_
http://www.courts.state.tx.us/tfid/pdf/Butcher


21

Because of these and other problems, Texas law was 
amended to provide that a person denied or financially 
unable to post bail at magistration is provided counsel 
within three business days in counties, like Gillespie 
County, with populations of less than 250,000, and within 
one business day in counties with a population of over 
250,000. See Tex. Code Crim. Proc. art. 1.051(c). These 
reform s, however, do not apply to persons, like 
Mr. Rothgery, released on bond. See id. art. 1.051(j). 
Moreover, even in Texas, some studies suggest that large 
percentages of defendants are not appointed counsel 
within the statutory time frames. See Carmichael 2006, 
supra, at 98, Figure 9-3 (reflecting percent of individuals 
without counsel 4, 7, 14 days of confinement). In one 
county, for example, only 20% of defendants had counsel 
in four days and only 73% of defendants had received 
counsel after 14 days of confinement. Id. In another 
county, only 38% of defendants were appointed counsel 
within four days and only 65% of defendants received 
counsel within two weeks. Id. Even the county with the 
highest appointment rates had only slightly more than 
half of the defendants (56%) receiving court appointed 
counsel within four days, and only 88% within two 
weeks. Id.8

Most significantly, as discussed above, the Fifth 
Circuit’s rule would permit reversal of these reforms and 
permit states to incarcerate defendants without access 
to counsel, potentially for as long as several months, 
while they await indictment. Such jail time—which, in

8 The study could not draw conclusions as to why this was 
the case, though some of these individuals may not have 
requested counsel (and thus not triggered the deadlines for 
appointment which begin upon the defendant’s request).



22

the case of innocent defendants like Mr. Rothgery, serves 
no valid purpose—presents serious risks. Texas jails are 
overcrowded. See ACLU of Texas, Prisons and Jail 
Accountability Project (PJAP), http://www.aclutx.org/ 
projects/prisons.php. For example, in Harris County, at 
least 1,700 jail inmates reportedly were sleeping on 
mattresses on the floor in June 2005. See Polly Ross 
Hughes, Revised Numbers Show Jail Overcrowding is 
Worse, Houston Chronicle, Aug. 5, 2005, available at 
http://www.solutionsfortexas.net/id408.html; see also 
Texas Commission on Jail Standards, Jail Population 
Report (2008), http://www.tcjs.state.tx.us/docs/abrerpt. 
pdf. (reflecting county-by-county jail populations and 
capacities as of January 2008).

The facilities and conditions often fail to meet the 
standards set by the Texas Commission on Jail 
Standards. See ACLU of Texas, Prisons and Jail Project, 
http://www.aclutx.org/projects/prisonspg.php?pid=93. 
Further, aside from the overcrowded poor conditions, 
those jailed face serious health risks. In Bexar County, 
for instance, more than 900 inmates tested positive for 
tuberculosis in 2005 and 301 tested  positive for 
methicillin resistant staphylococcus aureus. See id.; 
see also Michael Puisis, Findings on the Medical and 
Mental Health Programs of the Dallas County Jails 30- 
32 (2005), http://www.dallasnews.com/sharedcontent/ 
dws/img/03-05/jailhealth3.pdf (discussing significant 
tuberculosis problems in Dallas County jails). In 
addition, Texas jails have a significant problem with 
hepatitis C. See ACLU of Texas, Prisons and Jail 
Project, http://www.aclutx.org/projects/prisonspg.php 
?pid=93 (“In a public hearing before the Subcommittee 
of Healthcare and Special Populations of the House

http://www.aclutx.org/
http://www.solutionsfortexas.net/id408.html
http://www.tcjs.state.tx.us/docs/abrerpt
http://www.aclutx.org/projects/prisonspg.php?pid=93
http://www.dallasnews.com/sharedcontent/
http://www.aclutx.org/projects/prisonspg.php


23

Correction Committee, staff from the Correctional 
Managed Health Committee stated that 30% of prisoners 
received from the county jails test positive for Hepatitis 
C upon entry to the Texas Department of Criminal
Justice.”).

Those jailed also face a serious risk of violence, 
including sexual violence. In 2004, the Bureau of Justice 
Statistics reported hundreds of cases of sexual assault 
in local jails nationwide. See Alan J. Beck & Timothy A. 
Hughes, Sexual Violence Reported by Correctional 
Authorities, 200k, Bureau of Justice Statistics (2005), 
http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca04.pdf. Id. at 
App. Table la. (providing statistics on sexual violence in 
Texas prisons).

Moreover, even a defendant who is able to post bond 
and obtain release on bail following his initial appearance 
suffers significant harms:

He is required to appear in court at the state’s 
command. He is often subject . . .  to the 
condition that he seek formal permission from 
the court (at significant expense) before 
exercising what would otherwise be his 
unquestioned righ t to travel outside the 
jurisdiction. Pending prosecution, his 
employment prospects may be diminished 
severely, he may suffer reputational harm, and 
he will experience the financial and emotional 
strain of preparing a defense.

Albright v. Oliver, 510 U.S. 266, 278 (1994) (Ginsburg, 
J., concurring). The mere possibility that the defendant 
could be returned to jail for violating bail conditions is

http://www.ojp.usdoj.gov/bjs/pub/pdf/svrca04.pdf


24

by itself a significant intrusion on his liberty. Cf. Alabama 
v. Shelton, 535 U.S. 654, 658 (2002) (“[A] suspended 
sentence that may ‘end up in the actual deprivation of a 
person’s liberty’ may not be imposed unless the defendant 
was accorded ‘the guiding hand of counsel’ in the 
prosecution for the crime charged.” (quotation omitted)). 
Further, as this Court has recognized, “pretrial release may 
be accompanied by burdensome conditions that effect a 
significant restraint of liberty.” Gerstein, 420 U.S. at 114 
(citing 18 U.S.C. §§ 3146(a)(2), (5)).9

Perhaps most significant of all, as th is case 
demonstrates, the consequences of delaying appointment 
of counsel can be devastating: such delay prevents 
counsel from promptly investigating the facts before 
witnesses disappear or evidence is destroyed; assessing 
the defendant’s mental and emotional state; ensuring 
that the accused understands and can invoke his 
rights and that the state properly follows its statutory

9 In Gerstein, this Court cited as examples of “burdensome 
conditions” provisions of the federal law in effect at the time allowing 
bail conditions, such as “restrictions on the travel, association, or 
place of abode of the person,” 18 U.S.C. § 3146(a)(2) (1975), and 
“any other condition deemed reasonably necessary to assure 
appearance as required,” id. § 3146(a)(5). Texas law specifies many 
other conditions, allowing the government to order defendants: to 
home confinement, Tex. Code Crim. Proc. art. 17.44(a)(1); to 
electronic monitoring and curfew, id. art. 17.43(a); to submit to DNA 
samples, id. art. 17.47; to undergo controlled substance testing, 
id. art. 17.44(a)(2); and to submit to the installation of a device that 
may prevent ignition of a motor vehicle, id. art. 17.441. A review of 
one county’s approach to bond found that the extent of conditions 
depended on the specific judge; indeed, one judge imposed a total 
of 1,240 conditions on 301 different defendants. Mahoney & Smith, 
supra, at 16-17.



25

procedures (such as the right to an examining trial, 
see supra note 5); and redressing unjust errors like the 
one made in Mr. Rothgery’s case. As one Texas report put 
it, “[wjaiting until indictment to provide an attorney, which 
was not an uncommon occurrence in many pre FDA 
jurisdictions, was not unlike awaiting until the autopsy to 
provide a physician.” Moore & Butcher, supra, at 14; 
see also id. (“For the right to an attorney to be meaningful 
. . . .  [t]he counsel should be assigned within a reasonable 
number or hours or days and not a matter of weeks or 
months after the arrest.”). When the “stakes are this high,” 
cf. Gerstein, 420 U.S. at 114, the appointment of counsel is 
essential if the Sixth Amendment is to provide meaningful 
protection to the accused.

The recent Texas experience suggests that appointing 
counsel early on has minimal cost and substantial benefits.10 
But without a constitutional requirement, there could be 
resistance to adopting similar procedures in other 
jurisdictions. Indeed, affirmation of the Fifth Circuit’s 
approach could encourage jurisdictions currently providing 
counsel upon the initial appearance to succumb to common 
misperceptions concerning the cost of providing counsel 
in such circumstances and change course. That would 
dramatically undermine the Sixth Amendment’s 
protections.

*  *  *

10 See Carmichael 2005, supra, at 27-28.



26

In sum, “[wjhatever else it may mean, the right to 
counsel granted by the Sixth and Fourteenth Amendments 
means at least that a person is entitled to the help of a 
lawyer at or after the time that judicial proceedings have 
been initiated against him ‘whether by way of formal 
charge, preliminary hearing, indictment, information, or 
arraignment.”’ Brewer, 430 U.S. at 398 (quotation omitted). 
Given the constitutional issues at stake, using an objective 
standard to determine when the right to counsel attaches 
is far preferable to relying on the subjective, arbitrary, and 
elusive “focus,” “aw areness,” or “involvement” of 
government officials.

The objective test applied by this Court in Brewer and 
Jackson is straightforward, well-reasoned, and workable. 
The Fifth Circuit’s subjective test, on the other hand, 
cannot be reconciled with Brewer and Jackson, is 
inconsistent with this Court’s Fourth and Fifth Amendment 
jurisprudence, and denies a poor defendant an essential 
right: “the guiding hand of counsel at every step in the 
proceedings against him.” Powell v. Alabama, 287 U.S. 45, 
69 (1932). This Court should reject the Fifth Circuit’s 
subjective test and reverse.



27

CONCLUSION
For the foregoing reasons, the judgment of the Fifth 

Circuit should be reversed.

Craig A. Stewart 
Arnold & P orter LLP 
399 Park Avenue 
New York, NY 10022 
(212) 715-1000

David S. Udell 
L aura K. Abel 
B rennan Center for 

J ustice at NYU 
School of L aw 

161 Avenue of the Americas 
12th Floor
New York, NY 10013 
(212) 998-6730

Respectfully submitted,

Anthony J . F ranze 
Counsel of Record 

Son B. N guyen 
M ichael S. Tye 
YongSang Kim 
Arnold & P orter LLP 
55512th Street, NW 
Washington, DC 20004 
(202)942-5000

T ed M. Shaw 
Director Counsel 

J acqueline A. Berrien 
Debo P Adegbile 
Christina Swarns 
NAACP L egal Defense 

& E ducational F und, Inc. 
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212)965-2200

J o-Ann Wallace 
N ational L egal Aid 

& Defender Association 
1140 Connecticut Ave., NW 
Suite 900
Washington, DC 20036 
(202)452-0620

Counsel for Amici Curiae