Nelson Garcia, Jr. v. Brian Foster, 20-CV-335 (E.D. Wis. 11/9/21).
Garcia challenged his robbery conviction on two grounds. (1) He was denied his right to counsel at a post-arrest police line up. (2) He was denied his right to go pro se at trial. While habeas wins are rare, what’s most remarkable is how blatantly the Wisconsin Court of Appeals violated SCOTUS precedent on both issues. To top that, SCOW granted review and then split 3-3 allowing the court of appeals decision to stand. Now, at long last, the Eastern District grants Garcia the relief SCOTUS requires.
Right to counsel. The 4th Amendment ordinarily requires a probable cause determination within 48 hours of a person’s arrest. City of Riverside v. McLaughlin, 500 U.S. 44 (1991). Riverside allows states to integrate this requirement into their differing pre-trial procedures. Texas, for example, requires a combined probable cause/bail hearing where the defendant appears in person. The magistrate reviews an officer’s sworn affidavit, decides probable cause, informs the defendant of the accusation, and sets bail.
The Sixth Amendment right to counsel attaches at the defendant’s first appearance before a judicial officer where he is told of the formal accusation against him and restrictions are placed on his liberty. Rothergy v. Gillespie City, Tex., 554 U.S. 191 (2008). Rothergy considered Texas’s procedure and held that the defendant’s 6th Amendment right to counsel attaches at the probable cause/bail hearing just described.
Milwaukee County has a paper procedure. A court commissioner reviews a sworn affidavit, issues a form finding probable cause and setting bail, and distributes it to the arrested person.
The Wisconsin Court of Appeals held that Garcia did not have a right to counsel at his post-arrest police line up because his 6th Amendment rights did not attach when the commissioner found probable cause. It noted that unlike Texas’s procedure, Milwaukee County’s procedure does not require the defendant’s in-person appearance, and its form does not say that he is “charged” with a crime. COA Opinion, ¶¶20-31.
The Eastern District declared this decision contrary to, and an unreasonable application of, Rothergy, which did not hinge on the defendant’s in-person appearance. Nor does Rothergy require the word “charge.” Instead, it holds that the right to counsel attaches when the defendant is “told of the formal accusation against him.” (E.D. Decision, at 13 (citing Rothergy, 554 U.S. at 194)). Per Riverside, Milwaukee County simply adopted a different procedure for accomplishing this goal–one that is the functional equivalent of the Texas procedure described in Rothergy.
Right to self-representation. Before trial, Garcia moved to go pro se, but the trial court denied his motion. According to the Wisconsin Court of Appeals, a defendant can forfeit his right to go pro se when the trial court becomes convinced that “the orderly and efficient progression of the case [is] being frustrated.” COA Opinion, ¶44 (citing State v. Cummings, 199 Wis. 2d 721, 752-53 n.15, 546 N.W.2d 406 (1996))(emphasis supplied). The court of appeals held that Garcia had engaged in conduct satisfying this test.
SCOTUS holds that a “trial judge may terminate self-representation by a defendant who deliberately engages in serious obstructionist misconduct.” Faretta v. California, 422 U.S. 806, 834 n. 46 (1975)(emphasis supplied)(citing Illinois v. Allen, 397 U.S. 337 (1970). Thus, the court of appeals applied a standard that is contrary to the one that Faretta requires for waiver of the 6th Amendment right to self-representation. (E.D. Decision at 18).
Bottom line: The Eastern District granted Garcia’s petition for writ of habeas corpus!