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Seventh Circuit: Whether Right to Counsel ‘Attaches’ Is Not Dependent on Defendant’s Appearance at Probable Cause Hearing

by Anthony W Accurso

The U.S. Court of Appeals for the Seventh Circuit ruled that Wisconsin courts denied a defendant his Sixth Amendment right to counsel by failing to appoint counsel until after he had been ordered detained by a magistrate and required to participate in an in-person lineup – that is, after his right to counsel had “attached.”

Nelson Garcia, Jr. was picked up for a parole violation on January 2, 2012, by Milwaukee Police. They received several anonymous tips identifying Garcia as the person who had robbed a Milwaukee bank the previous month.

Two days after his arrest, Detective Ralph Spano appeared in court to submit a form CR-215 to a court commissioner in Milwaukee County. This form requested the continued detention of Garcia on the basis of police having probable cause to believe he robbed the bank in question, and it included Spano’s description of the bank’s surveillance footage and the subsequent hotline tips. The court commissioner approved the request, setting bail at $50,000. Garcia was not present at this hearing, nor was there any record that he received the completed form.

A few hours after the form was processed, police conducted an in-person lineup with Garcia and two bank tellers. Garcia was made to participate without the benefit of a defense attorney. One of the two tellers made a positive identification of Garcia.

By January 7, the State filed formal charges against Garcia. He refused to plead guilty, and the bank teller’s identification of him was featured at trial. Garcia was convicted and sentenced to 15 years of imprisonment.

Garcia appealed, claiming the State violated his Sixth Amendment right by failing to provide counsel at critical stages of his prosecution. Both the Court of Appeals and the Supreme Court of Wisconsin affirmed his conviction. Citing Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court of Appeals said that Garcia’s right to counsel did not attach during the CR-215 hearing because Garcia was not present at the proceeding. It claimed he had no right to counsel until he was formally charged. An evenly divided Wisconsin Supreme Court affirmed without explanation.

Garcia then filed a habeas petition in the U.S. District Court for the Eastern District of Wisconsin, invoking 28 U.S.C. § 2254(d)(1) and arguing that the Wisconsin Court of Appeal’s decision was an unreasonable application of clearly establish law with respect to his Sixth Amendment rights. The District Court granted his writ, ruling that the state court unreasonably applied Rothgery in affirming Garcia’s conviction. The State timely appealed.

The Court noted that the decisions of state courts are due deference unless they are “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” Harrington v. Richter, 562 U.S. 86 (2011). Congress intentionally set the bar high for federal habeas petitioners by requiring that federal courts “shall not” grant relief unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1).

The Court stated that § 2254(d)(1)’s two clauses have “independent meaning.” See Williams v. Taylor, 529 U.S. 362 (2000). First, the “contrary to” clause mandates that a state court decision is not entitled to any deference if it “applies a rule that contradicts the governing law set forth in” the Supreme Court’s cases or “confronts a set of fact that is materially indistinguishable from a decision of [the Supreme Court] but reaches a different result.” Brown v. Payton, 544 U.S. 133 (2005). Second, the “unreasonable application” clause requires that federal courts afford no deference to a state court decision when “the state court applies [the Supreme Court’s] precedents to the facts in an objectively unreasonable manner.” Id.

In order to conduct the required analysis under § 2254(d)(1), a court must first identify the “clearly establish Federal law” to be applied. § 2254(d)(1). This phrase refers to the governing case law of the Supreme Court at the time of the state court decision. Williams. The Court explained that “clearly established” case law means more than a single case; instead, courts must consider all cases that “provide a body of clearly established law” applicable to the issue. Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019).

The Sixth Amendment guarantees a defendant’s access to counsel, but “only at or after the time that adversary judicial proceedings have been initiated against” the accused. Kirby v. Illinois, 406 U.S. 682 (1972) (plurality opinion). This is distinguished from a “routine police investigation,” during which persons do not have a right to counsel. Id. There is no “bright line” distinguishing between the two, as the process can vary from state to state.

The Court explained that Sixth Amendment analysis consists of two separate inquiries: (1) attachment and (2) critical stages. Although the “critical stages” analysis is generally the second step, the Court stated that it would briefly discuss it first because it’s not an issue in this case. In United States v. Wade, 388 U.S. 218 (1967), the Supreme Court held that the defendant’s post-indictment, pretrial lineup constituted a “critical stage” that required counsel. The parties to the present case agree that Garcia’s in-person lineup was a “critical stage” under Wade.

However, the parties disagree on the issue of “attachment,” according to the Court. Prior to concluding that a defendant is entitled to counsel under the Sixth Amendment, a court must first determine that a criminal prosecution has commenced. See Kirby. The right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated.” Id. The Court explained that the Supreme Court has repeatedly instructed that “the focus of the Sixth Amendment attachment inquiry is on the actions of the state, not the accused.” See Brewer v. Williams, 430 U.S. 387 (1977).

In Rothgery, the Supreme Court rejected the Fifth Circuit’s position that adversary judicial proceedings had not commenced, and thus the defendant’s Sixth Amendment rights had not yet attached, because no prosecutor was involved in the arrest or appearance before the magistrate. The Rothgery Court explained that such a narrow focus on a particular state official’s activities, instead of the broader examination of the initiation of adversarial judicial proceedings, is not the test for the attachment inquiry. Rather, the inquiry focuses on the familiar indicators of the government’s “commitment to prosecute,” the Rothgery Court stated.

The Court determined that Garcia’s Sixth Amendment right to counsel attached when the county court commissioner appeared in court and executed the CR-215 form. It faulted the Wisconsin Court of Appeals for relying too narrowly on Rothgery in its denial of Garcia’s appeal, rather than “engaging with the clearly established body of Sixth Amendment law of which Rothgery is a part.” It observed that the Texas procedure at issue in Rothgery is “identical” to the procedure used by Milwaukee County in this case, “except that Walter Rothgery was present in the courtroom for his hearing and Nelson Garcia was not.”

The Court explained that the state court incorrectly focused on a “mere factual distinction while overlooking the clearly establish legal rule directed at other aspects of the CR-215 proceeding.” But this distinction by itself is not enough to conclude that Garcia’s Sixth Amendment rights didn’t attach, stated the Court, adding that nothing in Rothgery or the Supreme Court’s case law involving the issue of attachment indicates that the defendant’s physical presence at the probable cause proceeding is dispositive of whether attachment occurred. In fact, a concise restatement of the Supreme Court’s rule on attachment establishes that defendant’s physical presence at such a proceeding is not relevant for attachment: “Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute as spelled out in Brewer and Jackson.” Rothgery. The Court concluded that it “is of no Sixth Amendment consequence that Garcia never appeared in court during the CR-215 proceeding.”

In affirming the District Court’s decision, the Court agreed that the CR-215 hearing was the turning point at which “the government’s role … shifted from investigation to accusation.” Moran v. Burbine, 475 U.S. 412 (1986). It stated that, “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. Thus, the Court ruled that the “state’s failure to appoint counsel for the lineup therefore violated Garcia’s Sixth Amendment rights.”

The Court admonished the State, writing it “cannot escape the Sixth Amendment’s requirements by keeping arrestees in jail while taking formal actions toward prosecution.”

Accordingly, the Circuit affirmed the District Court’s order granting Garcia’s writ of habeas corpus. See: Garcia v. Hepp, 65 F.4th 945 (7th Cir. 2023).  

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