Right to counsel attaches during written probable cause process

By Alexandria Staubach
 
The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution.

White

Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón.
 
When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process.
 
The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists.
 
Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000.
 
On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf.
 
The State then issued a criminal complaint against Robinson for robbery of a financial institution.
 
Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached.
 
The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution.

“The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.”
 
The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities.
 
The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote.
 
“An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote.
 
The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel.
 
While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’”
 
Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law.
 
Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding.
 
When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009.
 
Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts.
 
The Robinson court concluded that the law is now settled on the matter.

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