Orin Kerr, who must have a permanent “get in free” card from the Supreme Court considering how he jumped the long line outside for today’s oral argument in D.C v. Heller, reports on yesterday’s argument in Rothgery v. Gillespie County.

Orin saw it this way:

My overall sense of the argument was that the Justices seemed less concerned with the traditional Sixth Amendment inquiry into whether the criminal case against the defendant had truly begun than the somewhat different question of the state’s power to detain suspects pre-trial — and the role of counsel in determining when that power should be exercised. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Court had been pretty unconcerned about the defendant who might be stuck in prison unable to make bail before charges were formally brought. According to the Court, the question of “whether there is probable cause for detaining the arrested person pending further proceedings” was a simple matter that “can be determined reliably without an adversary hearing.”

This scares me.  In fact, it scares the daylights out of me for two reasons.  First, the initial probable cause determination is not a simple matter, not at all.  I can’t count how many times I’ve seen allegations that don’t amount to a crime proffered as the basis for arrest and used to hold a person for bail or jail. 

If the judge took a critical view of these complaint, essentially stepped into the defense lawyers shoes and challenged an empty allegation each and every time, then the Court’s “simple thing” might be true.  But that’s not how it goes down.  Judges don’t play the adversary to the cops.  At least most of them don’t, and if the judge isn’t going to parse the allegations for content to make certain that the allegations amount to a crime, then the proceeding is a rubber-stamp sham.

Moreover, some allegations are facially false.  Who is going to tell the judge that the cops are full of it, and show the court from inconsistencies in the allegations, or omissions in the events, that they nailed some poor guy to put him in the can a few days before the truth shows up to let him out?

This happens.  All the time.  For every serious case, there are a thousand minor garbage cases, where the cops allege that a defendant assaulted them by striking their fist with the defendant’s face.  You would hope judges would toss these cases immediately, but the fact is  they don’t.  Show a little disrespect and buy yourself a few days in the pen, courtesy of a judge who skips right over any real review of probable cause unless some defense lawyer forces the issue.  Even then, it’s a struggle, but at least there’s someone to fight the vapid, false or facially garbage complaint. 

Judges tend to be the weakest link in this process.  If there’s no lawyer for the defendant, who will try to make the judge do his job? 

Secondarily, I think every Supreme needs to spend a night in the holding cell, or perhaps on the Rock (Rikers Island).  I can’t comprehend how they can be so cavalier about an innocent person sitting in a jail cell for a few days or weeks.  No big deal?  Are they nuts?  It’s a huge deal.  It is a monumental deal.  If a person has committed no crime, then 5 minutes in a cell is a big deal.  Let our Justices enjoy an American cheese sandwich on white bread while fending off the smiling faces sharing the holding pen.  How dare they trivialize a few days in jail.  This is outrageous.

My hope would be that they didn’t appear too concerned about these matters because the wrongfulness was so clear and flagrant as to be unworthy of question, and they were moving on to the issue of holding uncharged defendants.  But my hopes have been dashed too many times.

The Court today seemed to look at the issue very differently. The Justices didn’t want to overturn Gerstein, but they seemed very worried about the possibility that people could be detained pending trial but then not charged, and that they might be stuck in the interim even though no formal charges had been filed, without a lawyer to challenge the detention.

A fair concern, but when does it start?  Do the cops get to put the defendant in the cell for the first night for free?  The first week?  Month?  Every minute in a cell for an innocent person is wrong.  Why ignore the initiation and only grow concerned that it could go on at length?  Am I missing something here?

Any innocent person who has been through the system can tell you about the pleasure of being an overnight guest of the State.  I’m sure the cells in Gillespie County aren’t mini-Club Meds.  I’m equally sure that I enjoy the ability to go home every night to my family, and I fully expect to be able to do so since I’ve committed no crime.  Doesn’t Chief Justice Roberts feel the same?  Why would he not appreciate the fact that others share this expectation? 

No, I’m not at all happy with the nature of the Court’s concerns.  You can bet your bottom dollar that the probable cause determination is no “simple matter,” and that the days or weeks in jail following a rubber stamp matter.  They matter a lot.  Enough for our Supreme Court to appreciate what it means to a person and take it very seriously.  I hope they do.

Here’s  the link to the transcript of the argument, courtesy of Howard Bashman.