Thoughts on the Oral Argument in Rothgery v. Gillespie County:
I attended this morning's oral argument in Rothgery v. Gillespie County, an important case on the right to counsel, and I wanted to offer some thoughts and impressions of the argument. (To get up to speed, you can read the argument transcript here.)

  My overall sense of the argument was that the Justices seemed less concerned with the traditional Sixth Amendment inquiry into whether the criminal case against the defendant had truly begun than the somewhat different question of the state's power to detain suspects pre-trial — and the role of counsel in determining when that power should be exercised. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Court had been pretty unconcerned about the defendant who might be stuck in prison unable to make bail before charges were formally brought. According to the Court, the question of "whether there is probable cause for detaining the arrested person pending further proceedings" was a simple matter that "can be determined reliably without an adversary hearing." To the Gerstein court, this was no big deal:
The use of an informal procedure is justified not only by the lesser consequences of a probable cause determination, but also by the nature of the determination itself. It does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands, and credibility determinations are seldom crucial in deciding whether the evidence supports a reasonable belief in guilt. See F. Miller, Prosecution: The Decision to Charge a Suspect with a Crime 64-109 (1969). This is not to say that confrontation and cross-examination might not enhance the reliability of probable cause determinations in some case. In most cases, however, their value would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.

Because of its limited function and its nonadversary character, the probable cause determination is not a "critical stage" in the prosecution that would require appointed counsel.
  The Court today seemed to look at the issue very differently. The Justices didn't want to overturn Gerstein, but they seemed very worried about the possibility that people could be detained pending trial but then not charged, and that they might be stuck in the interim even though no formal charges had been filed, without a lawyer to challenge the detention. Justice Scalia was particularly aggressive on the issue, asking the lawyer for the county what possible authority the state had for detaining a person if they weren't formally charged with a crime yet (at which point the Sixth Amendment right would attach).

  The tough question was, if you want to stop this, how? Justice Souter tried to lead the way, suggesting that there was a right to counsel within a reasonable time after the Gerstein probable cause hearing. This would lead to a somewhat weird result: A defendant wouldn't have a right to counsel to determine if he should be detained under Gerstein, but he would have a right to counsel soon after he was detained to determine if he had been detained properly. Justice Scalia suggested that maybe this could be dealt with by saying that the right attached but no appointment of counsel was needed until a critical stage of the case was implicated.

  Another lurking question in the background was the effect of the Argersinger v. Hamlin line of cases, which hold that a defendant only gets a Sixth Amendment right to counsel if he is going to be imprisoned. It's not exactly clear how to reconcile these cases with the rules the Justices were contemplating at argument. Justice Breyer expressed the view that detention pre-trial was the equivalent of imprisonment under Argersinger. Perhaps; certainly at some level detention is detention is detention. At the same time, from that perspective Gerstein looks pretty odd. If detention is detention is detention, why did the Gerstein Court conclude that the initial detention hearing was no big deal and that no lawyer was needed? And what to do with the facts of this case, as Rothgery was told that he had a right to a lawyer if he couldn't make bail but had to waive the right if he was making bail? Is bail the Argersinger equivalent of probation? Or maybe a suspended sentence? It's not really clear. Did Rothgery waive any right to counsel he might have had by agreeing to be let out on bail?

  In the end, I suspect that this is the kind of case that will take a while for the Justices to work through before a majority view coalesces. Stay tuned.