Nelson Garcia, Jr. v. Randall Hepp
Decided April 25, 2023 (2023)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The Sixth Amendment right to counsel attaches once the government has formally committed to prosecute an individual through a judicial proceeding, such as a probable cause determination and bail setting, even if the individual is not physically present at that proceeding.
Facts:
- In December 2011, a man entered a bank in Milwaukee and robbed a teller of $3,500, with the robbery caught on camera.
- Police released the video footage to the media, and several tipsters identified Nelson Garcia as the robber.
- On January 2, 2012, police arrested Nelson Garcia without a warrant.
- On January 4, 2012, Detective Ralph Spano submitted a “Probable Cause Statement and Judicial Determination” form (CR-215) to a Milwaukee County court commissioner to establish a basis for Garcia’s continued detention.
- On January 4, 2012, a court commissioner found probable cause to believe Garcia committed bank robbery and violated parole, and set his bail at $50,000, while Garcia remained in his jail cell and was not present for the CR-215 determination.
- A few hours after the court commissioner made the probable cause finding, and without appointing counsel for Garcia, the police conducted an in-person lineup with two tellers.
- During the lineup, teller D.L. identified Garcia as the robber, stating she was 100% certain, but the second teller did not make a positive identification.
- On January 7, 2012, three days after the lineup, Wisconsin prosecutors filed a criminal complaint charging Garcia with bank robbery.
Procedural Posture:
- Nelson Garcia was convicted of bank robbery following a jury trial in a Milwaukee County trial court, where the state used an eyewitness identification from a lineup conducted without counsel.
- Garcia appealed his conviction to the Wisconsin Court of Appeals, arguing his Sixth Amendment right to counsel attached when the court commissioner found probable cause and set bail.
- The Wisconsin Court of Appeals rejected Garcia’s arguments, distinguishing his case from Rothgery v. Gillespie County based on his absence from the probable cause hearing, and affirmed his conviction.
- Garcia then appealed to the Supreme Court of Wisconsin, which granted his petition.
- The Supreme Court of Wisconsin, an evenly divided court, affirmed Garcia's conviction without an explanation of the merits.
- With all state avenues exhausted, Garcia pursued federal habeas corpus relief under 28 U.S.C. § 2254(d)(1) in the United States District Court for the Eastern District of Wisconsin.
- The District Court granted Garcia’s § 2254 petition, concluding that the Wisconsin Court of Appeals had unreasonably applied both Rothgery and Faretta v. California.
- The state (Randall Hepp, the warden) appealed the district court’s ruling to the United States Court of Appeals for the Seventh Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Sixth Amendment right to counsel attach when a state court commissioner makes a judicial determination of probable cause and sets bail for an arrested individual, even if the individual is not physically present at that proceeding, thereby triggering the right to counsel at a subsequent lineup?
Opinions:
Majority - Scudder, Circuit Judge
Yes, the Sixth Amendment right to counsel attaches when a court commissioner makes a judicial determination of probable cause and sets bail, even if the defendant is not physically present at that proceeding. The court affirmed the district court's grant of habeas relief, finding that the Wisconsin Court of Appeals unreasonably applied clearly established Supreme Court law, particularly Rothgery v. Gillespie County. The Sixth Amendment right to counsel attaches at the initiation of "adversary judicial proceedings," which occurs when the government has "committed itself to prosecute." Rothgery clarified that the presence of a prosecutor is not required for attachment, emphasizing substance over form, and drawing on a body of Sixth Amendment jurisprudence including Kirby, Brewer, and Jackson. The CR-215 proceeding in Garcia’s case—where a detective presented an accusation to a judicial officer, probable cause was found, and bail was set, thereby restricting Garcia's liberty—clearly signaled the state's formal commitment to prosecute him. The physical absence of Garcia from this proceeding was an immaterial factual distinction that should not control the attachment inquiry, as the Supreme Court's precedents focus on the government's actions to initiate adversarial proceedings. To hold otherwise would allow states to circumvent constitutional protections through procedural variations. Therefore, the Wisconsin Court of Appeals’ decision was an "unreasonable application" of clearly established federal law under 28 U.S.C. § 2254(d)(1).
Dissenting - Kirsch, Circuit Judge
No, the Sixth Amendment right to counsel does not necessarily attach when a court commissioner makes a judicial determination of probable cause and sets bail without the defendant's physical presence, and the Wisconsin Court of Appeals' decision was not objectively unreasonable under the highly deferential standard of 28 U.S.C. § 2254(d)(1). Justice Kirsch argued that Rothgery v. Gillespie County repeatedly used phrases like “initial appearance,” “first appearance,” and “before a judge” more than 25 times, including in its opening and concluding statements, suggesting that a defendant's physical appearance before a judicial officer is a prerequisite for the attachment of the Sixth Amendment right to counsel following a warrantless arrest. It was a reasonable interpretation for the Wisconsin Court of Appeals to rely on Garcia's absence from the CR-215 proceeding, especially given that determining when "adversarial judicial proceedings" begin is a difficult inquiry. Moreover, prior federal cases have held that the mere filing of a federal criminal complaint (which accuses and prompts judicial action) does not trigger the right to counsel. The fact that the moment of attachment has been a point of legal debate, as acknowledged by one of the district court cases cited by the majority, further indicates that the state court’s conclusion was not beyond "fairminded disagreement" and thus should not be overturned on federal habeas review.
Analysis:
This case significantly reinforces the functional interpretation of the Sixth Amendment right to counsel, ensuring that constitutional protections attach based on the substantive initiation of adversarial judicial proceedings rather than mere procedural formalities or the defendant's physical presence. It underscores that state governments cannot manipulate pretrial procedures to delay or avoid the constitutional obligation to provide counsel when they have formally committed to prosecute and restricted an individual’s liberty. The decision also highlights the demanding nature of the “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), clarifying that state court decisions must adhere to the broader body of Supreme Court precedent, not just the latest ruling, and that factual distinctions must be genuinely material to be controlling.
