PRETRIAL MOTION PRACTICE

In March 1971 respondents Pugh and Henderson were arrested in Dade County, Florida. Each was charged with several offenses under a prosecutor's information. Pugh was denied bail because one of the charges against him carried a potential life sentence. Henderson remained in custody because he was unable to post a $4,500 bond. In Florida, indictments are required only for prosecution of capital offenses. Prosecutors may charge all other crimes by information without a prior preliminary hearing and without obtaining leave of court. At the time respondents were arrested, a Florida rule seemed to authorize adversary preliminary hearings to test probable cause for detention in all cases. The Florida courts had held that the filing of an information foreclosed the suspect's right to a preliminary hearing. They had also held that habeas corpus could not be used, except perhaps in exceptional circumstances, to test the probable cause for detention under an information. The only possible methods for obtaining a judicial determination of probable cause were a special statute allowing a preliminary hearing after 30 days. Arraignment was often delayed a month or more after arrest, as the District Court found. Respondents Pugh and Henderson filed a class action against Dade County officials in the Federal District Court claiming a constitutional right to a judicial hearing on the issue of probable cause and requesting declaratory and injunctive relief. Respondents Turner and Faulk, also in custody under informations, subsequently intervened. Petitioner Gerstein, the State Attorney for Dade County, was one of several defendants. After an initial delay while the Florida Legislature considered a bill that would have afforded preliminary hearings to persons charged by information, the District Court granted the relief sought. The court certified the case as a class action under Fed. Rule Civ. Proc. 23(b)(2) and ordered the Dade County defendants to give the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention. It also ordered them to submit a plan providing preliminary hearings in all cases instituted by information. The defendants submitted a plan prepared by Sheriff E. Wilson Purdy and the District Court adopted it with modifications. The final order prescribed a detailed post-arrest procedure. Upon arrest the accused would be taken before a magistrate for a first appearance hearing. The magistrate would explain the charges, advise the accused of his rights, appoint counsel if he was indigent, and proceed with a probable cause determination unless either the prosecutor or the accused was unprepared. If either requested more time, the magistrate would set the date for a preliminary hearing. The hearing was to be held within four days if the accused was in custody and within 10 days if he had been released pending trial. The Court of Appeals for the Fifth Circuit stayed the District Court's order pending appeal. While the case was awaiting decision, the Dade County judiciary voluntarily adopted a similar procedure of its own. Upon learning of this development, the Court of Appeals remanded the case for specific findings on the constitutionality of the new Dade County system. Before the District Court issued its findings, however, the Florida Supreme Court amended the procedural rules governing preliminary hearings statewide, and the parties agreed that the District Court should direct its inquiry to the new rules rather than the Dade County procedures. Under the amended rules every arrested person must be taken before a judicial officer within 24 hours. This first appearance is similar to the first appearance hearing ordered by the District Court in all respects but the crucial one: the magistrate does not make a determination of probable cause. The rule amendments also changed the procedure for preliminary hearings, restricting them to felony charges and codifying the rule that no hearings are available to persons charged by information or indictment. In a supplemental opinion the District Court held that the amended rules had not answered the basic constitutional objection since a defendant charged by information still could be detained pending trial without a judicial determination of probable cause. The Court of Appeals affirmed, modifying the District Court's decree in minor particulars and suggesting that the form of preliminary hearing provided by the amended Florida rules would be acceptable as long as it was provided to all defendants in custody pending trial. State Attorney Gerstein petitioned for review and the Supreme Court granted certiorari because of the importance of the issue.

Theon Jackson is a mentally defective deaf mute with a mental level of a pre-school child. He cannot read, write, or otherwise communicate except through limited sign language. In May 1968, at age 27, he was charged in the Criminal Court of Marion County, Indiana, with separate robberies of two women that had occurred the preceding July, involving property valued at four dollars and five dollars respectively. As the statute requires, the court appointed two psychiatrists to examine Jackson. A competency hearing was subsequently held at which petitioner was represented by counsel. At the hearing, the court received the doctors' joint report concluding that Jackson was unable to understand the nature of the charges or participate in his defense due to his communication skills, hearing loss, and mental deficiency. The doctors testified that it was extremely unlikely Jackson could ever develop the necessary skills, and the interpreter testified that Indiana had no facilities that could help someone in Jackson's condition. The trial court found that Jackson lacked comprehension sufficient to make his defense and ordered him committed to the Indiana Department of Mental Health until certified sane. Jackson's counsel filed a motion for a new trial arguing that the commitment amounted to a life sentence without conviction and deprived him of constitutional rights, but the trial court denied the motion. The Supreme Court of Indiana affirmed the denial. The United States Supreme Court granted certiorari. By the time of the Supreme Court's consideration, Jackson had been confined for three and one-half years on the basis of the incompetency finding.

In 1995 Amanda Mitchell and 22 other defendants were indicted in the Eastern District of Pennsylvania for offenses arising from a conspiracy to distribute cocaine in Allentown from 1989 to 1994. Mitchell was charged with one count of conspiring to distribute five or more kilograms of cocaine and three counts of distributing cocaine within 1,000 feet of a school or playground. Without a plea agreement she pleaded guilty to all four counts. She reserved the right to contest the drug quantity attributable to her under the conspiracy count. The District Court advised her that quantity would be determined at sentencing. Before accepting the plea the District Court conducted the Rule 11 colloquy. It informed Mitchell that the range of punishment was complex because the amount of cocaine had not yet been established. She faced a mandatory minimum of ten years if held responsible for at least five kilograms. Mitchell stated under oath that she had done "some of it." After consulting counsel she reaffirmed her intention to plead guilty to all charges. The court accepted the plea. In 1996 nine codefendants went to trial. Three cooperating codefendants who had pleaded guilty testified at Mitchell's sentencing hearing. They adopted their trial testimony. One furnished additional information on the amount of cocaine petitioner sold. According to him, petitioner worked two to three times a week, selling one and one-half to two ounces of cocaine a day, from April 1992 to August 1992. Then, from August 1992 to December 1993 she worked three to five times a week, and from January 1994 to March 1994 she was one of those in charge of cocaine distribution for Riddick. Mitchell offered no evidence and did not testify. Her counsel argued that only the three documented sales to undercover buyer Alvitta Mack totaling two ounces should be credited. The District Court ruled that Mitchell had no right to remain silent at sentencing because of her guilty plea. It expressly relied on her failure to testify in crediting the codefendants' testimony. The court found her responsible for more than five kilograms and imposed the ten-year mandatory minimum sentence together with six years of supervised release and a $200 special assessment. The Court of Appeals for the Third Circuit affirmed. The Supreme Court granted certiorari.

Anthony Faretta was charged with grand theft in an information filed in the Superior Court of Los Angeles County, California. At the arraignment, the Superior Court Judge assigned to preside over the case appointed the public defender to represent him. Two and a half months later, Faretta requested that the judge allow him to represent himself. The judge questioned him about his ability to conduct his own defense. Faretta replied that he had some experience with the law. He had once represented himself in a criminal prosecution. He had a high school education. The judge initially accepted Faretta's waiver of the assistance of counsel in a preliminary ruling. The judge indicated that he might reverse this ruling if it later appeared that Faretta was unable adequately to represent himself. Several weeks thereafter, the judge sua sponte held a hearing to inquire into Faretta's ability to conduct his own defense. The judge questioned him specifically about both the hearsay rule and the state law governing the challenge of potential jurors. After consideration of Faretta's answers, the judge observed his demeanor. The judge ruled that Faretta had not made an intelligent and knowing waiver of his right to the assistance of counsel. The judge also ruled that Faretta had no constitutional right to conduct his own defense. The judge reversed his earlier ruling and appointed the public defender to represent Faretta. Faretta's subsequent request for leave to act as cocounsel was rejected. His efforts to make motions on his own behalf were rejected. Throughout the subsequent trial, the judge required that Faretta's defense be conducted only through the appointed lawyer from the public defender's office. At the conclusion of the trial, the jury found Faretta guilty as charged. The judge sentenced him to prison. The California Court of Appeal affirmed the trial judge's ruling that Faretta had no federal or state constitutional right to represent himself. A petition for rehearing was denied without opinion. The California Supreme Court denied review. The Supreme Court granted certiorari.