THOMAS, J., DISSENTING
ROTHGERY V. GILLESPIE COUNTY
554 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 07-440
WALTER A. ROTHGERY, PETITIONER
v.
GILLESPIE COUNTY, TEXAS
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 23, 2008]
Justice Thomas, dissenting.
The Court holds today—for the
first time after plenary consideration of the question—that a
criminal prosecution begins, and that the Sixth Amendment right to
counsel therefore attaches, when an individual who has been placed
under arrest makes an initial appearance before a magistrate for a
probable-cause determination and the setting of bail. Because the
Court’s holding is not supported by the original meaning of the
Sixth Amendment or any reasonable interpretation of our precedents,
I respectfully dissent.
I
The Sixth Amendment provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right
… to have the Assistance of Counsel for his defence.” The text of
the Sixth Amendment thus makes clear that the right to counsel
arises only upon initiation of a “criminal prosecutio[n].” For that
reason, the Court has repeatedly stressed that the Sixth Amendment
right to counsel “does not attach until a prosecution is
commenced.”
McNeil v.
Wisconsin,
501 U. S. 171, 175 (1991); see also
United States v.
Gouveia,
467 U. S. 180, 188
(1984) (“[T]he literal language of the Amendment … requires the
existence of both a ‘criminal prosecutio[n]’ and an
‘accused’ ”). Echoing this refrain, the Court today reiterates
that “[t]he Sixth Amendment right of the ‘accused’ to assistance of
counsel in ‘all criminal prosecutions’ is limited by its terms.”
Ante, at 5 (footnote omitted).
Given the Court’s repeated
insistence that the right to counsel is textually limited to
“criminal prosecutions,” one would expect the Court’s jurisprudence
in this area to be grounded in an understanding of what those words
meant when the Sixth Amendment was adopted. Inexplicably, however,
neither today’s decision nor any of the other numerous decisions in
which the Court has construed the right to counsel has attempted to
discern the original meaning of “criminal prosecutio[n].” I think
it appropriate to examine what a “criminal prosecutio[n]” would
have been understood to entail by those who adopted the Sixth
Amendment.
A
There is no better place to begin
than with Blackstone, “whose works constituted the preeminent
authority on English law for the founding generation.”
Alden v.
Maine,
527 U. S. 706, 715
(1999). Blackstone devoted more than 100 pages of his Commentaries
on the Laws of England to a discussion of the “regular and ordinary
method of proceeding in the courts of criminal jurisdiction.” 4 W.
Blackstone, Commentaries *289 (hereinafter Blackstone).
At the outset of his discussion,
Blackstone organized the various stages of a criminal proceeding
“under twelve general heads, following each other in a progressive
order.”
Ibid. The first six relate to pretrial events: “1.
Arrest; 2. Commitment and bail; 3.
Prosecution; 4.
Process; 5. Arraignment, and it’s incidents; 6. Plea, and issue.”
Ibid. (emphasis added). Thus, the first significant fact
is that Blackstone did not describe the entire criminal process as
a “prosecution,” but rather listed prosecution as the third step in
a list of successive stages. For a more complete understanding of
what Blackstone meant by “prosecution,” however, we must turn to
chapter 23, entitled “Of the Several Modes of Prosecution.”
Id., at *301. There, Blackstone explained that—after
arrest and examination by a justice of the peace to determine
whether a suspect should be discharged, committed to prison, or
admitted to bail,
id., at *296—the “next step towards the
punishment of offenders is their
prosecution, or the
manner of their formal accusation,”
id., at *301
(emphasis added).
Blackstone thus provides a definition of
“prosecution”: the manner of an offender’s “formal accusation.” The
modifier “formal” is significant because it distinguishes
“prosecution” from earlier stages of the process involving a
different kind of accusation: the allegation of criminal conduct
necessary to justify arrest and detention.
Blackstone’s discussion of arrest, commitment, and bail makes clear
that a person could not be arrested and detained without a “charge”
or “accusation,”
i.e., an allegation, supported by
probable cause, that the person had committed a crime. See
id., at *289–*300. But the accusation justifying arrest
and detention was clearly preliminary to the “formal accusation”
that Blackstone identified with “prosecution.” See
id., at
*290, *318.
By “formal accusation,” Blackstone meant, in
most cases, “indictment, the most usual and effectual means of
prosecution.”
Id., at *302. Blackstone defined an
“indictment” as “a written accusation of one or more persons of a
crime or misdemeanor, preferred to, and presented upon oath by, a
grand jury.”
Ibid. (emphasis deleted). If the grand jury
was “satisfied of the truth of the accusation,” it endorsed the
indictment,
id., at *305–*306, which was then “publicly
delivered into court,”
id., at *306, “afterwards to be
tried and determined,”
id., at *303, “before an officer
having power to punish the [charged] offence,” 2 T. Cunningham, A
New and Complete Law Dictionary (2d ed. 1771).
In addition to indictment, Blackstone
identified two other “methods of prosecution at the suit of the
king.” 4 Blackstone *312. The first was presentment, which, like an
indictment, was a grand jury’s formal accusation “of an offence,
inquirable in the Court where it [was] presented.” 5 G. Jacob, The
Law-Dictionary 278–279 (1811). The principal difference was that
the accusation arose from “the notice taken by a grand jury of any
offence from their own knowledge or observation” rather than from a
“bill of indictment laid before them.” 4 Blackstone *301. The
second was information, “the only species of proceeding at the suit
of the king, without a previous indictment or presentment by a
grand jury.”
Id., at *308. After an information was filed,
it was “tried,”
id., at *309, in the same way as an
indictment: “The same notice was given, the same process was
issued, the same pleas were allowed, the same trial by jury was
had, the same judgment was given by the same judges, as if the
prosecution had originally been by indictment,”
id., at
*310.
From the foregoing, the basic elements of a
criminal “prosecution” emerge with reasonable clarity.
“Prosecution,” as Blackstone used the term, referred to
“instituting a criminal suit,”
id., at *309, by filing a
formal charging document—an indictment, presentment, or
information—upon which the defendant was to be tried in a court
with power to punish the alleged offense. And, significantly,
Blackstone’s usage appears to have accorded with the ordinary
meaning of the term. See 2 N. Webster, An American Dictionary of
the English Language (1828) (defining “prosecution” as “[t]he
institution or commencement and continuance of a criminal suit; the
process of exhibiting formal charges against an offender before a
legal tribunal, and pursuing them to final judgment,” and noting
that “
[p]rosecutions may be by presentment, information or
indictment”).
B
With Blackstone as our guide, it
is significant that the Framers used the words “criminal
prosecutions” in the Sixth Amendment rather than some other
formulation such as “criminal proceedings” or “criminal cases.”
Indeed, elsewhere in the Bill of Rights we find just such an
alternative formulation: In contrast to the Sixth Amendment, the
Fifth Amendment refers to “criminal case[s].” U. S. Const., Amdt. 5
(“No person … shall be compelled in any criminal case to be a
witness against himself”).
In
Counselman v.
Hitchcock,
142 U. S. 547 (1892),
the Court indicated that the difference in phraseology was not
accidental. There the Court held that the Fifth Amendment right not
to be compelled to be a witness against oneself “in any criminal
case” could be invoked by a witness testifying before a grand jury.
The Court rejected the argument that there could be no “criminal
case” prior to indictment, reasoning that a “criminal case” under
the Fifth Amendment is much broader than a “criminal prosecutio[n]”
under the Sixth Amendment.
Id., at 563.
The following Term, the Court construed the
phrase “criminal prosecution” in a statutory context, and this time
the Court squarely held that a “prosecution” does not encompass
preindictment stages of the criminal process. In
Virginia
v.
Paul,
148 U. S. 107 (1893),
the Court considered Revised Statute §643, which authorized removal
to federal court of any “ ‘criminal prosecution’ ”
“ ‘commenced in any court of a State’ ” against a federal
officer.
Id., at 115. The respondent, a deputy marshal,
had been arrested by Virginia authorities on a warrant for murder
and was held in county jail awaiting his appearance before a
justice of the peace “with a view to a commitment to await the
action of the grand jury.”
Id., at 118. He filed a
petition for removal of “ ‘said cause’ ” to federal
court.
Ibid. The question before the Court was whether a
“ ‘criminal prosecution’ ” had “ ‘commenced’ ”
within the meaning of the statute at the time the respondent filed
his removal petition.
The Court held that a criminal prosecution had
not commenced, and that removal was therefore not authorized by the
terms of the statute. The Court noted that under Virginia law
murder could be prosecuted only “by indictment found in the county
court,” and that “a justice of the peace, upon a previous
complaint, [could] do no more than to examine whether there [was]
good cause for believing that the accused [was] guilty, and to
commit him for trial before the court having jurisdiction of the
offence.”
Ibid. Accordingly, where “no indictment was
found, or other action taken, in the county court,” there was as
yet no “ ‘criminal prosecution.’ ”
Id., at 119.
The appearance before the justice of the peace did not qualify as a
“prosecution”:
“Proceedings before a magistrate to commit a person
to jail, or to hold him to bail, in order to secure his appearance
to answer for a crime or offence which the magistrate has no
jurisdiction himself to try, before the court in which he may be
prosecuted and tried, are but preliminary to the prosecution, and
are no more a commencement of the prosecution, than is an arrest by
an officer without a warrant for a felony committed in his
presence.”
Ibid.
C
The foregoing historical summary
is strong evidence that the term “criminal prosecutio[n]” in the
Sixth Amendment refers to the commencement of a criminal suit by
filing formal charges in a court with jurisdiction to try and
punish the defendant. And on this understanding of the Sixth
Amendment, it is clear that petitioner’s initial appearance before
the magistrate did not commence a “criminal prosecutio[n].” No
formal charges had been filed. The only document submitted to the
magistrate was the arresting officer’s affidavit of probable cause.
The officer stated that he “ha[d] good reason to believe” that
petitioner was a felon and had been “walking around [an] RV park
with a gun belt on, carrying a pistol, handcuffs, mace spray, extra
bullets and a knife.” App. to Pet. for Cert. 33a. The officer
therefore “charge[d]” that petitioner had “commit[ted] the offense
of unlawful possession of a firearm by a felon—3rd degree felony.”
Ibid. The magistrate certified that he had examined the
affidavit and “determined that probable cause existed for the
arrest of the individual accused therein.”
Id., at 34a.
Later that day, petitioner was released on bail, and did not hear
from the State again until he was indicted six months later.
The affidavit of probable cause
clearly was not the type of formal accusation Blackstone identified
with the commencement of a criminal “prosecution.” Rather, it was
the preliminary accusation necessary to justify arrest and
detention—stages of the criminal process that Blackstone placed
before prosecution. The affidavit was not a pleading that
instituted a criminal prosecution, such as an indictment,
presentment, or information; and the magistrate to whom it was
presented had no jurisdiction to try and convict petitioner for the
felony offense charged therein. See
Teal v.
State, 230 S. W. 3d 172, 174 (Tex. Crim. App. 2007)
(“The Texas Constitution requires that, unless waived by the
defendant, the State must obtain a grand jury indictment in a
felony case”); Tex. Crim. Proc. Code Ann., Arts. 4.05, 4.11(a)
(West 2005). That is most assuredly why the magistrate informed
petitioner that charges “
will be filed” in district court.
App. to Pet. for Cert. 35a (emphasis added).
The original meaning of the Sixth Amendment,
then, cuts decisively against the Court’s conclusion that
petitioner’s right to counsel attached at his initial appearance
before the magistrate. But we are not writing on a blank slate:
This Court has a substantial body of more recent precedent
construing the Sixth Amendment right to counsel.
II
As the Court notes, our cases
have “pegged commencement” of a criminal prosecution,
ante, at 5, to “the initiation of adversary judicial
criminal proceedings—whether by way of formal charge, preliminary
hearing, indictment, information, or arraignment,”
Kirby
v.
Illinois,
406 U. S. 682, 689
(1972) (plurality opinion). The Court has repeated this formulation
in virtually every right-to-counsel case decided since
Kirby. Because
Kirby’s formulation of the
attachment test has been accorded such precedential significance,
it is important to determine precisely what
Kirby
said:
“In a line of constitutional
cases in this Court stemming back to the Court’s landmark opinion
in
Powell v.
Alabama,
287 U. S. 45 [(1932)], it has been
firmly established that a person’s Sixth and Fourteenth Amendment
right to counsel attaches only at or after the time that adversary
judicial proceedings have been initiated against him. See
Powell v.
Alabama,
supra; Johnson v.
Zerbst,
304 U. S. 458 [(1938)];
Hamilton v.
Alabama,
368 U.
S. 52 [(1961)];
Gideon v.
Wainwright,
372 U. S. 335 [(1963)];
White
v.
Maryland,
373 U.
S. 59 [(1963)
(per curiam)];
Massiah v.
United States,
377 U. S. 201 [(1964)];
United
States v.
Wade,
388 U. S. 218 [(1967)];
Gilbert v.
California,
388 U. S. 263 [(1967)];
Coleman v.
Alabama,
399 U. S. 1 [(1970)].
“This is not to say that a defendant in a
criminal case has a constitutional right to counsel only at the
trial itself. The
Powell case makes clear that the right
attaches at the time of arraignment, and the Court has recently
held that it exists also at the time of a preliminary hearing.
Coleman v.
Alabama,
supra. But the point
is that, while members of the Court have differed as to existence
of the right to counsel in the contexts of some of the above cases,
all of those cases have involved points of time at or
after the initiation of adversary judicial criminal
proceedings—whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.”
Id., at 688–689
(footnote omitted).
It is noteworthy that
Kirby did not purport to announce anything new; rather, it
simply catalogued what the Court had previously held. And the point
of the plurality’s discussion was that the criminal process
contains stages
prior to commencement of a criminal
prosecution. The holding of the case was that the right to counsel
did not apply at a station house lineup that took place
“
before the defendant had been indicted or otherwise
formally charged with any criminal offense.”
Id., at
684.
Kirby gave five examples of events
that initiate “adversary judicial criminal proceedings”: formal
charge, preliminary hearing, indictment, information, and
arraignment. None of these supports the result the Court reaches
today. I will apply them
seriatim. No indictment or
information had been filed when petitioner appeared before the
magistrate. Nor was there any other formal charge. Although the
plurality in
Kirby did not define “formal charge,” there
is no reason to believe it would have included an affidavit of
probable cause in that category. None of the cases on which it
relied stood for that proposition. Indeed, all of them—with the
exception of
White v.
Maryland,
373 U.
S. 59 (1963)
(per curiam), and
Coleman v.
Alabama,
399 U. S. 1 (1970)—involved
postindictment proceedings. See
Powell v.
Alabama,
287 U. S. 45, 49 (1932) (postindictment
arraignment);
Johnson v.
Zerbst,
304 U. S. 458, 460 (1938) (trial);
Hamilton v.
Alabama,
368 U.
S. 52, 53, n. 3 (1961) (postindictment arraignment);
Gideon v.
Wainwright,
372 U. S. 335, 337 (1963) (trial);
Massiah v.
United States,
377 U. S. 201 (1964) (postindictment
interrogation);
United States v.
Wade,
388 U. S. 218, 219–220 (1967)
(postindictment lineup);
Gilbert v.
California,
388 U. S. 263, 269 (1967)
(postindictment lineup).
Nor was petitioner’s initial appearance a
preliminary hearing. The comparable proceeding in Texas is called
an “examining trial.” See
ante, at 9, n. 12. More
importantly, petitioner’s initial appearance was unlike the
preliminary hearings that were held to constitute “critical stages”
in
White and
Coleman, because it did not involve
entry of a plea, cf.
White,
supra, at 60, and was
nonadversarial, cf.
Coleman,
supra, at 9. There
was no prosecutor present, there were no witnesses to
cross-examine, there was no case to discover, and the result of the
proceeding was not to bind petitioner over to the grand jury or the
trial court.
Finally, petitioner’s initial appearance was
not what
Kirby described as an “arraignment.” An
arraignment, in its traditional and usual sense, is a
postindictment proceeding at which the defendant enters a plea.
See,
e.g., W. LaFave, J. Israel, & N. King,
Criminal Procedure §1.3(n), p. 19 (4th ed. 2004); 4 Blackstone
*322. Although the word “arraignment” is sometimes used to describe
an initial appearance before a magistrate, see LaFave,
supra, §1.3(j), at 16, that is not what
Kirby
meant when it said that the right to counsel attaches at an
“arraignment.” Rather, it meant the traditional, postindictment
arraignment where the defendant enters a plea. This would be the
most reasonable assumption even if there were nothing else to go
on, since that is the primary meaning of the word, especially when
used unmodified.
But there is no need to assume.
Kirby
purported to describe only what the Court had already held, and
none of the cases
Kirby cited involved an initial
appearance. Only two of the cases involved arraignments, and both
were postindictment arraignments at which the defendant entered a
plea.
Hamilton,
supra, at 53, n. 3;
Powell, 287 U. S., at 49. And the considerations that
drove the Court’s analysis in those cases are not present here. See
id., at 57 (emphasizing that “from the time of their
arraignment until the beginning of their trial, when consultation,
thoroughgoing investigation and preparation were vitally important,
the defendants did not have the aid of counsel”);
Hamilton,
supra, at 53–55 (emphasizing that the
defendant entered a plea and was required to raise or waive certain
defenses).
Kirby’s inclusion of “arraignment” in the list
of adversary judicial proceedings that trigger the right to counsel
thus provides no support for the view that the right to counsel
attaches at an initial appearance before a magistrate.
III
It is clear that when
Kirby was decided in 1972 there was no precedent in this
Court for the conclusion that a criminal prosecution begins, and
the right to counsel therefore attaches, at an initial appearance
before a magistrate. The Court concludes, however, that two
subsequent decisions—
Brewer v.
Williams,
430 U. S. 387 (1977),
and
Michigan v.
Jackson,
475 U. S. 625
(1986)—stand for that proposition. Those decisions, which relied
almost exclusively on
Kirby, cannot bear the weight the
Court puts on them.[
Footnote
1]
In
Brewer, the defendant
challenged his conviction for murdering a 10-year-old girl on the
ground that his Sixth Amendment right to counsel had been violated
when detectives elicited incriminating statements from him while
transporting him from Davenport, Iowa, where he had been arrested
on a warrant for abduction and “arraigned before a judge … on the
outstanding arrest warrant,” to Des Moines, where he was to be
tried. 430 U. S., at 390–391. The principal issue was whether the
defendant had waived his right to have counsel present during
police questioning when he voluntarily engaged one of the
detectives in a “wide-ranging conversation.”
Id., at 392.
He subsequently agreed to lead the detectives to the girl’s body in
response to the so-called “ ‘Christian burial speech,’ ”
in which one of the detectives told the defendant that “ ‘the
parents of this little girl should be entitled to a Christian
burial for the little girl who was snatched away from them on
Christmas [E]ve and murdered.’ ”
Id., at 392–393. Not
surprisingly, the parties vigorously disputed the waiver issue, and
it sharply divided the Court.
In contrast, the question whether the
defendant’s right to counsel had attached was neither raised in the
courts below nor disputed before this Court. Nonetheless, the
Court, after quoting
Kirby’s formulation of the test,
offered its conclusory observations:
“There can be no doubt in the
present case that judicial proceedings had been initiated against
Williams before the start of the automobile ride from Davenport to
Des Moines. A warrant had been issued for his arrest, he had been
arraigned on that warrant before a judge in a Davenport courtroom,
and he had been committed by the court to confinement in jail. The
State does not contend otherwise.” 430 U. S., at 399.
Brewer’s cursory
treatment of the attachment issue demonstrates precisely why, when
“an issue [is] not addressed by the parties,” it is “imprudent of
us to address it … with any pretense of settling it for all time.”
Metropolitan Stevedore Co. v.
Rambo,
521 U. S. 121, 136
(1997). As an initial matter, the Court’s discussion of the facts
reveals little about what happened at the proceeding. There is no
indication, for example, whether it was adversarial or whether the
defendant was required to enter a plea or raise or waive any
defenses—facts that earlier cases such as
Hamilton,
White, and
Coleman had found significant.
Even assuming, however, that the arraignment
in
Brewer was functionally identical to the initial
appearance here,
Brewer offered no reasoning for its
conclusion that the right to counsel attached at such a proceeding.
One is left with the distinct impression that the Court simply saw
the word “arraignment” in
Kirby’s attachment test and
concluded that the right must have attached because the defendant
had been “arraigned.” There is no indication that
Brewer
considered the difference between an arraignment on a warrant and
an arraignment at which the defendant pleads to the indictment.
The Court finds it significant that
Brewer expressed “ ‘no doubt’ ” that the right
had attached.
Ante, at 19 (quoting 430 U. S., at 399).
There was no need for a “lengthy disquisitio[n],” the Court says,
because
Brewer purportedly “found the attachment issue an
easy one.”
Ante, at 18–19. What the Court neglects to
mention is that
Brewer’s attachment holding is
indisputably no longer good law. That is because we have
subsequently held that the Sixth Amendment right to counsel is
“offense specific,” meaning that it attaches only to those offenses
for which the defendant has been formally charged, and not to
“other offenses ‘closely related factually’ to the charged
offense.”
Texas v.
Cobb,
532 U. S. 162, 164
(2001). Because the defendant in
Brewer had been arraigned
only on the abduction warrant, there is no doubt that, under
Cobb, his right to counsel had not yet attached with
respect to the murder charges that were subsequently brought. See
532 U. S., at 184 (Breyer, J., dissenting) (noting that under the
majority’s rule, “[the defendant’s] murder conviction should have
remained undisturbed”). But the Court in
Cobb did not
consider itself bound by
Brewer’s implicit holding on the
attachment question. See 532 U. S., at 169 (“Constitutional rights
are not defined by inferences from opinions which did not address
the question at issue”). And here, as in
Cobb,
Brewer did not address the fact that the arraignment on
the warrant was not the same type of arraignment at which the right
to counsel had previously been held to attach, and the parties did
not argue the question.
Brewer is thus entitled to no more
precedential weight here than it was in
Cobb.
Nor does
Jackson control. In
Jackson, as in
Brewer, the attachment issue was
secondary. The question presented was “not whether respondents had
a right to counsel at their postarraignment, custodial
interrogations,” 475 U. S., at 629, but “whether respondents
validly waived their right to counsel,”
id., at 630. And,
as in
Brewer, the Court’s waiver holding was vigorously
disputed. See 475 U. S., at 637–642 (Rehnquist, J., dissenting);
see also
Cobb, supra, at 174–177 (Kennedy, J., concurring)
(questioning
Jackson’s vitality). Unlike in
Brewer, however, the attachment question was at least
contested in
Jackson—but barely. With respect to
respondent Jackson, the State conceded the issue.
Jackson,
supra, at 629, n. 3. And with respect to respondent
Bladel, the State had conceded the issue below, see
People
v.
Bladel, 421 Mich. 39, 77, 365 N. W. 2d 56, 74
(1984) (Boyle, J., dissenting), and raised it for the first time
before this Court, devoting only three pages of its brief to the
question, see Brief for Petitioner in
Michigan v.
Bladel, O. T. 1985, No. 84–1539, pp. 24–26.
The Court disposed of the issue in a footnote.
See
Jackson,
supra, at 629–630, n. 3. As in
Brewer, the Court did not describe the nature of the
proceeding. It stated only that the respondents were “arraigned.”
475 U. S., at 627–628. The Court phrased the question presented in
terms of “arraignment,”
id., at 626 (“The question
presented by these two cases is whether the same rule applies to a
defendant who has been formally charged with a crime and who has
requested appointment of counsel at his arraignment”), and repeated
the words “arraignment” or “postarraignment” no fewer than 35 times
in the course of its opinion.
There is no way to know from the Court’s
opinion in
Jackson whether the arraignment at issue there
was the same type of arraignment at which the right to counsel had
been held to attach in
Powell and
Hamilton. Only
upon examination of the parties’ briefs does it become clear that
the proceeding was in fact an initial appearance. But
Jackson did not even acknowledge, much less “flatly
rejec[t] the distinction between initial arraignment and
arraignment on the indictment.”
Ante, at 9. Instead, it
offered one sentence of analysis—“In view of the clear language in
our decisions about the significance of arraignment, the State’s
argument is untenable”—followed by a string citation to four cases,
each of which quoted
Kirby. 475 U. S., at 629–630,
n. 3. For emphasis, the Court italicized the words “or
arraignment” in
Kirby’s attachment test. 475 U. S., at
629, n. 3 (internal quotation marks omitted).
The only rule that can be derived from the
face of the opinion in
Jackson is that if a proceeding is
called an “arraignment,” the right to counsel attaches.[
Footnote 2] That rule would not govern
this case because petitioner’s initial appearance was not called an
“arraignment” (the parties refer to it as a “magistration”). And
that would, in any case, be a silly rule. The Sixth Amendment
consequences of a proceeding should turn on the substance of what
happens there, not on what the State chooses to call it. But the
Court in
Jackson did not focus on the substantive
distinction between an initial arraignment and an arraignment on
the indictment. Instead, the Court simply cited
Kirby and
left it at that. In these circumstances, I would recognize
Jackson for what it was—a cursory treatment of an issue
that was not the primary focus of the Court’s opinion. Surely
Jackson’s footnote must yield to our reasoned
precedents.
And our reasoned precedents provide no support
for the conclusion that the right to counsel attaches at an initial
appearance before a magistrate.
Kirby explained why the
right attaches “after the initiation of adversary judicial criminal
proceedings”:
“The initiation of judicial
criminal proceedings is far from a mere formalism. It is the
starting point of our whole system of adversary criminal justice.
For it is only then that the government has committed itself to
prosecute, and only then that the adverse positions of government
and defendant have solidified. It is then that a defendant finds
himself faced with the prosecutorial forces of organized society,
and immersed in the intricacies of substantive and procedural
criminal law. It is this point, therefore, that marks the
commencement of the ‘criminal prosecutions’ to which alone the
explicit guarantees of the Sixth Amendment are applicable.” 406 U.
S., at 689–690 (plurality opinion).
None of these defining
characteristics of a “criminal prosecution” applies to petitioner’s
initial appearance before the magistrate. The initial appearance
was not an “adversary” proceeding, and petitioner was not “faced
with the prosecutorial forces of organized society.” Instead, he
stood in front of a “little glass window,” filled out various
forms, and was read his
Miranda rights. Brief for
Respondent 5. The State had not committed itself to prosecute—only
a prosecutor may file felony charges in Texas, see Tex. Code Ann.,
Crim. Proc. Arts. 2.01, 2.02 (West 2005), and there is no evidence
that any prosecutor was even aware of petitioner’s arrest or
appearance. The adverse positions of government and defendant had
not yet solidified—the State’s prosecutorial officers had not yet
decided whether to press charges and, if so, which charges to
press. And petitioner was not immersed in the intricacies of
substantive and procedural criminal law—shortly after the
proceeding he was free on bail, and no further proceedings occurred
until six months later when he was indicted.
Moreover, the Court’s holding that the right
to counsel attaches at an initial appearance is untethered from any
interest that we have heretofore associated with the right to
counsel. The Court has repeatedly emphasized that “[t]he purpose of
the constitutional guaranty of a right to counsel is to protect an
accused from conviction resulting from his own ignorance of his
legal and constitutional rights.”
Johnson, 304 U. S., at
465. The “core purpose” of the right, the Court has said, is to
“assure ‘Assistance’ at trial, when the accused [is] confronted
with both the intricacies of the law and the advocacy of the public
prosecutor.”
United States v.
Ash,
413 U. S. 300, 309
(1973). The Court has extended the right to counsel to pretrial
events only when the absence of counsel would derogate from the
defendant’s right to a fair trial. See,
e.g.,
Wade, 388 U. S., at 227.
Neither petitioner nor the Court identifies
any way in which petitioner’s ability to receive a fair trial was
undermined by the absence of counsel during the period between his
initial appearance and his indictment. Nothing during that period
exposed petitioner to the risk that he would be convicted as the
result of ignorance of his rights. Instead, the gravamen of
petitioner’s complaint is that if counsel had been appointed
earlier, he would have been able to stave off indictment by
convincing the prosecutor that petitioner was not guilty of the
crime alleged. But the Sixth Amendment protects against the risk of
erroneous
conviction, not the risk of unwarranted
prosecution. See
Gouveia, 467 U. S., at 191
(rejecting the notion that the “purpose of the right to counsel is
to provide a defendant with a preindictment private
investigator”).
Petitioner argues that the right to counsel is
implicated here because restrictions were imposed on his liberty
when he was required to post bail. But we have never suggested that
the accused’s right to the assistance of counsel “for his defence”
entails a right to use counsel as a sword to contest pretrial
detention. To the contrary, we have flatly rejected that notion,
reasoning that a defendant’s liberty interests are protected by
other constitutional guarantees. See
id., at 190 (“While
the right to counsel exists to protect the accused during
trial-type confrontations with the prosecutor, the speedy trial
right exists primarily to protect an individual’s liberty
interest,” including the interest in reducing the
“ ‘impairment of liberty imposed on an accused while released
on bail’ ”).
IV
In sum, neither the original
meaning of the Sixth Amendment right to counsel nor our precedents
interpreting the scope of that right supports the Court’s holding
that the right attaches at an initial appearance before a
magistrate. Because I would affirm the judgment below,
I respectfully dissent.
Footnote 1
The Court also relies on
McNeil v.
Wisconsin,
501 U. S. 171 (1991), to support its
assertion that the right to counsel attaches upon an initial
appearance before a magistrate.
Ante, at 10–11. But in
McNeil, the Court expressed no view whatsoever on the
attachment issue. Rather, it noted that the issue was “undisputed,”
and “accept[ed] for purposes of the present case, that … [the
defendant’s] Sixth Amendment right had attached.” 501 U. S., at
175. We do not ordinarily give weight to assumptions made in prior
cases about matters that were not in dispute.
Footnote 2
The Court asserts that
Jackson’s
“conclusion was driven by the same considerations the Court had
endorsed in
Brewer,” namely, that “by the time a defendant
is brought before a judicial officer, is informed of a formally
lodged accusation, and has restrictions imposed on his liberty in
aid of the prosecution, the State’s relationship with the defendant
has become solidly adversarial.”
Ante, at 9. But
Jackson said nothing of the sort.
Moreover, even looking behind the opinion,
Jackson does not support the result the Court reaches
today. Respondent Bladel entered a “not guilty” plea at his
arraignment, see Brief for Petitioner in
Michigan v.
Bladel, O. T. 1985, No. 84–1539, p. 4, and both
Hamilton v.
Alabama,
368 U.
S. 52 (1961), and
White v.
Maryland,
373 U.
S. 59 (1963)
(per curiam), had already held that a
defendant has a right to counsel when he enters a plea. The Court
suggests that this fact is irrelevant because the magistrate in
Bladel’s case “had no jurisdiction to accept a plea of guilty to a
felony charge.”
Ante, at 10, n. 13. But that
distinction does not appear in either
Hamilton or
White. See
Hamilton,
supra, at 55 (“Only
the presence of counsel could have enabled this accused to know all
the defenses available to him and to plead intelligently”);
White,
supra, at 60 (“[P]etitioner entered a plea
before the magistrate and that plea was taken at a time when he had
no counsel”). Thus, the most that
Jackson can possibly be
made to stand for is that the right to counsel attaches at an
initial appearance where the defendant enters a plea. And that rule
would not govern this case because petitioner did not enter a plea
at his initial appearance.
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