Farrow v. Lipetzky

Decision Date07 August 2013
Docket NumberCase No. 12-cv-06495-JCS
PartiesJOHN FARROW, et al., Plaintiffs, v. ROBIN LIPETZKY, Defendant.
CourtU.S. District Court — Northern District of California

Plaintiffs John Farrow ("Farrow") and Jerome Wade ("Wade") (collectively, "Plaintiffs") brought this putative class action against Defendant Robin Lipetzky, in her official capacity as the Contra Costa County Public Defender ("Defendant"). Plaintiffs allege causes of action (1) under 42 U.S.C. § 1983 for (a) violation of the Sixth Amendment to the United States Constitution; and (b) violations of the Fourteenth Amendment to the United States Constitution; (2) under the Bane Act for violation of their statutory speedy trial rights; and (3) for violation of California Government Code § 27706. Plaintiffs claim that Defendant violated their rights by failing to provide counsel at Plaintiffs' initial appearance on criminal charges -- resulting in a continuance of the proceedings for appointment of counsel. This case focuses on the constitutionality of that continuance: may the Public Defender not provide counsel for appointment at an initial appearance, where the result is a continuance of the remainder of the arraignment 7 to 13 days for appointment of counsel? This Order holds that, in the circumstances pleaded here, such a procedure is constitutional.

Presently before the Court is Defendant's Motion to Dismiss the Second Amended Complaint ("Motion"). A hearing was held on the Motion on July 26, 2013. At the Court's request, the parties submitted supplemental briefing on August 2, 2013. For the following reasons, the Motion is GRANTED. Wade will be given leave to amend his Sixth Amendmentclaim within the constraints set forth in this Order. Farrow's federal claims are dismissed with prejudice. Plaintiffs' state law claims are dismissed without prejudice.1

A. The May 8, 2013 Order Dismissing the Complaint Without Prejudice
1. The Sixth Amendment Claim

In the May 8, 2013 Order Dismissing the Complaint Without Prejudice ("Order"), the Court found that the motion at issue raised two related questions:

First, does the failure to provide counsel at an initial appearance (at which the only events that occur are the provision of a copy of the charges to the defendant, the inquiry as to whether the defendant desires appointed counsel, and the continuance of the matter to allow for appointment of counsel) violate the Sixth Amendment guarantee of counsel in a criminal case? Second, where the matter is continued for 5 to 13 days, at which time counsel appears with the defendant, does the delay in appointment of counsel violate the Sixth Amendment?

Order, 1. The Court answered both questions in the negative. Id.

First, the Court concluded that the Sixth Amendment right to counsel attached at the initial appearance because, on the facts alleged, that was when prosecution began as to each Plaintiff. Id. at 13-14. Second, the Court stated: "Once the right to counsel attaches, the accused is entitled to appointed counsel during any 'critical stage' of the post-attachment proceedings." Id. at 14 (citing Rothgery v. Gillespie County, Texas, 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008)). Third, the Court analyzed whether either (1) the initial appearance; or (2) the 5 to 13 day waiting period were, on the facts alleged, critical stages at which Plaintiffs were entitled to counsel. Id. at 14-22.

To begin its analysis, the Court noted that "[c]ourts decide whether a state criminal proceeding is critical by looking to the functions of the proceeding under state law." Id. at 15 (citing Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)). The Court stated that the Ninth Circuit has developed a three-factor test for determining whether a stage is critical. Id. (citing Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989); U.S. v. Benford, 574F.3d 1228, 1232 (9th Cir. 2009)). The Court described the test as follows: "Any one of these three factors may be sufficient to make a stage critical: (1) failure to pursue strategies or remedies results in a loss of significant rights; (2) skilled counsel would be useful in helping the accused understand the legal confrontation; and (3) the proceeding tests the merits of the accused's case." Id. The Court reasoned that: (1) because nothing happened at the initial appearance any failure to pursue strategies or remedies at that appearance did not result in a loss of significant rights; and (2) there was no legal confrontation or proceeding at which accused was unrepresented following the request for counsel. Id. at 16-17. The Court further concluded that the fact that, had counsel been appointed, counsel might have applied for a release on bail, caused a plea to be entered, or triggered statutory speedy trial rights did not change the analysis. Id. at 17. The Court distinguished cases, cited by Plaintiffs, in which pretrial liberty interests were adjudicated in the absence of counsel. Id. at 19-20.

Next, the Court analyzed whether the five to thirteen day waiting period between the initial appearance, at which counsel was present, and the further arraignment, at which counsel was appointed, was a critical stage of the post-attachment proceedings. Id. at 16-17, 20-22. Although Plaintiffs did not allege that any event took place during the waiting period at which counsel would have been necessary, the court noted that Rothgery further requires the appointment of counsel a reasonable time prior to any critical stage after attachment to allow adequate representation at that critical stage. Id. at 16-17, 20. However, the Court stated that Plaintiffs had not alleged that they were prejudiced, or impeded, at any later critical stages by the absence of counsel during the five-to-thirteen day waiting period. Id. at 22.

Based on all of the above, the Court dismissed Plaintiffs' Sixth Amendment claim, on the facts alleged, with leave to amend. Id. at 22.

2. Fourteenth Amendment Claims Predicated on a Violation of State Statutory Speedy Trial Rights

The Court concluded that Plaintiffs had not alleged a violation of their state speedy trial rights because the facts alleged were consistent with the requirements of California Penal Code §§ 859b, 1049.5, and 1382. Id. at 27. Further, the Court found that, on the facts alleged, theprocedures of § 1050 were not triggered. Id. Accordingly, the Court dismissed Plaintiffs' Fourteenth Amendment claims predicated on a violation of their state statutory speedy trial rights with leave to amend. Id. at 28.

3. State Law Claims

After dismissing Plaintiffs' remaining federal cause of action, which has been replaced with a different federal cause of action in Plaintiffs' Second Amended Complaint ("SAC"), the Court declined to exercise its supplemental jurisdiction over Plaintiffs' remaining state law claims. Id. at 31-32.

B. The Second Amended Complaint

Pursuant to a now discontinued practice, Defendant withheld legal representation to all indigent, in-custody, criminal defendants for a period of 5 to 13 days after their initial Court appearance, and sometimes longer. SAC, ¶¶ 1-2.2 At the first court appearance, dubbed "arraignment," no plea is taken, bail is set without consideration of the favorable information counsel would ordinarily provide to the court regarding the criminal defendant's circumstances, the case is referred to the probation department for an evaluation concerning bail, and counsel is not appointed as required by California law. Id. at ¶ 3. The probation department's evaluation and report is based entirely upon information provided by government sources. Id. An indigent criminal defendant's request for court-appointed counsel triggers referral to the Public Defender and an automatic continuance for "further arraignment." Id. at ¶ 4. Criminal defendants are not apprised of their statutory speedy trial rights prior to the automatic continuance in violation of California law. Id. at ¶ 6. Good cause for continuance is never shown as required by California Penal Code § 1050. Id. This thwarts the intent of the California legislature's statutory speedy trial scheme, which requires that in-custody criminal defendants receive probable cause determinations through a preliminary hearing at the earliest time possible to protect their crucial liberty interest. Id. at ¶ 7.

Turning to Plaintiffs, Farrow was arrested on August 30, 2011. Id. at ¶ 28. He appearedalone in court for his arraignment on September 2, 2011. Id. at ¶ 29. The court asked him if he could afford counsel, and he replied that he could not. Id. at ¶ 30. The court then asked him if he wanted the court to appoint counsel, and he said that he did. Id. The court set bail, referred the matter to the Public Defender, and continued the matter to September 15, 2011 for "further arraignment" without advising Farrow of his right to a prompt arraignment, his right to bail, or his right to a speedy preliminary hearing and trial. Id. Farrow languished in jail, without meaningful examination of bail, the protection of statutory speedy trial rights, or legal representation, for thirteen days. Id. Also at his September 2, 2011 arraignment, the court referred the matter for a bail study. Id. at ¶ 31. The bail study was conducted between Farrow's first and second court appearances and, because Farrow was not represented by counsel, there was no means for the probation department to include any favorable information in the highly influential report. Id. at ¶ 31.

At the further arraignment held 16 days after his arrest and 13 days after his first court appearance, counsel was appointed for Farrow and he was permitted to enter a plea. Id. at ¶ 32. He immediately asserted his right to a speedy preliminary hearing and his preliminary hearing was held on September 27, 2011. Id. at ¶ 33. As a result of the delay in the appointment...

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