John Farrow, et al. v. Contra Costa County, California

Over the course of 28 years, Contra Costa County denied counsel to all indigent detainees at their first appearance in court and automatically continued their cases to “counsel and plea” dates that were typically one to two weeks later. During this uncounseled period, detainees were unable to apply for bail, enter a plea, or demand a preliminary hearing within 10 court days as provided by California Penal Code § 859(b). Detainees with retained counsel were able to immediately assert these rights. The Ninth Circuit determined that this practice was constitutionally permissible. The Questions Presented Are: Is a detainee’s first appearance in court a “critical stage” of the proceedings, when bail is set and statutory liberty interests are adjudicated, as the Second and Eighth Circuits and the highest courts of Connecticut, Maryland, New York and Pennsylvania hold, or are the Fifth, Ninth and Eleventh Circuits and the Supreme Courts of Alabama, Michigan, Mississippi and Missouri correct in holding that the first court appearance is not a “critical stage,” enabling them to defer appointment of counsel until a “critical stage,” which may occur weeks, months, or more than a year later? Should this Court formulate a standard for determining when counsel must be appointed for indigent detainees under the Sixth Amendment, the Due Process Clause, or Equal Protection Clause given that the federal courts of appeals are irreconcilably divided on: (a) whether the Sixth Amendment permits indefinite denial of counsel