Nelson Garcia, Jr., v. Randall Hepp, No. 21-3268, 4/25/23, affirming Nelson Garcia, Jr. v. Brian Foster
A long line of Supreme Court cases holds that a criminal defendant’s right to counsel attaches when he or she becomes a criminal defendant: when he or she is formally accused of a crime. Most recently, in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court applied this rule to conclude that the defendant had the right to counsel when a police officer brought him before a judge and the judge found probable cause, committed him to jail, and set bail. In Milwaukee County, though, when a person is arrested without a warrant, judges routinely find probable cause, order detention, and set bail without seeing the person. As happened in Garcia’s case, an officer presents a judge a form–the CR-215–detailing the basis for suspecting the person; the judge can then check a box indicating that probable cause exists and can also set bond. The form is then distributed to, among others, the person being held.
Whether this procedure triggers the right to counsel matters in this case because after the CR-215 was completed, police subjected Garcia to a lineup; this is a “critical stage” at which he would have been entitled to a lawyer if the right had attached. United States v. Wade, 388 U.S. 218 (1967). But more generally, the issue has been and remains the subject of a great deal of litigation. Right now, in fact, the question is pending in the Wisconsin Supreme Court, in State v. Robinson. But the Seventh Circuit has acted first; its decision is the latest in a long string of federal cases holding that Milwaukee County can’t delay the attachment of counsel by simply holding the first steps of a criminal proceeding ex parte. (The first case in that string, United States v. West, No. 08-CR-157, 2009 WL 5217976 (E.D. Wis. Mar. 3, 2009), doesn’t seem to be available online.)
Our supreme court accepted Garcia’s petition for review, but divided 3-3 and so affirmed without an opinion. This means the Seventh Circuit reviews the court of appeals’ opinion as the “last reasoned state-court decision” on the merits. Johnson v. Williams, 568 U.S. 289, 297 & n.1 (2013). The state court had looked at Rothgery and decided it didn’t apply because of a single factual distinction: Rothgery was present for the probable-cause and bond determinations, and Garcia was not. Per the Seventh Circuit, this was not just wrong, but unreasonable; Garcia’s absence from the hearing had nothing to do with whether his prosecution had commenced. And the state court’s singular focus on Rothgery meant it ignored a slew of prior cases clearly establishing that it’s the commencement of prosecution that makes the counsel right attach:
The Wisconsin Court of Appeals too narrowly distinguished Garcia’s case from Rothgery without engaging with the clearly established body of Sixth Amendment law of which Rothgery is a part. The Wisconsin court incorrectly rested its decision on a mere factual distinction while overlooking the clearly established legal rule directed at other aspects of the CR-215 proceeding. Though Garcia’s absence from the courtroom during the CR-215 hearing was certainly a “new factual permutation[ ],” it was a difference small enough to leave “the necessity to apply the earlier rule … beyond doubt.” White v. Woodall, 572 U.S. 415, 427 (2014) (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). The Wisconsin Court of Appeals failed to fully consider the clearly established rule that attachment occurs at the initiation of “adversarial judicial proceedings,” Rothgery, 554 U.S. at 198–99, and this error led to the court’s incorrect and unreasonable conclusion.
However you state the legal test for attachment, Milwaukee’s CR-215 hearing fits the bill. Regardless of Garcia’s absence from the courtroom, the commissioner’s execution of the CR-215 form constituted “the first formal proceeding against [him as] an accused.” McNeil, 501 U.S. at 181. Nor could the execution of the form be called anything other than an “adversary judicial proceeding[ ]” against Garcia, especially given the detective’s delivery and presentation of the form to the commissioner in his courtroom. Gouveia, 467 U.S. at 188–89; Brewer, 430 U.S. at 401. By the time the court commissioner made a judicial determination of probable cause and set the terms of Garcia’s bail, it had become clear both that “the government’s role [had] shift[ed] from investigation to accusation,” Burbine, 475 U.S. at 430, and that Garcia, who “had previously been just a ‘suspect,’” was now “an ‘accused’ within the meaning of the Sixth Amendment.” Jackson, 475 U.S. at 632. From that point on, Garcia found himself “faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” Kirby, 406 U.S. at 689 (plurality opinion).
Judge Kirsch dissents. He doesn’t claim the Wisconsin court’s opinion was correct–just that it wasn’t so incorrect as to be unreasonable. He chiefly relies on Rothgery‘s repeated use of “initial appearance” and related phrases in describing the procedure at which the counsel right attached in that case.
So now we’re in an interesting position. Perhaps the Wisconsin court in Robinson will agree with the decision here. But it doesn’t have to; federal circuit decisions don’t bind state courts. If SCOW disagrees with the Seventh Circuit, we’ll have a clear split that only one court can definitively resolve.