Thomas v. Justice Court of Washakie County

Before GUTHRIE, J., C. and Mc- CLINTOCK, RAPER, THOMAS and ROSE, JJ.

McCLINTOCK, Justice. Thomas, Lenora charged Eloise in Jus- tice Court of County, Washakie Wyoming with the crime manslaughter in viola- 6-58, tion of by original pro- W.S.1957 § ceedings in prohibit this Court seeks to justice said Ray court and Pendergraft, a nonlawyer justice peace of the of that court, from proceeding hearing of the matter. On about Janu- ary 31, Thomas, Jerry Wayne 1975 one petitioner, husband of the was dead found alongside Highway 20, approximately Worland, nine Wyoming. miles north of charged Petitioner was arrested and voluntary manslaughter, felony. pre- A liminary April 7, hearing was set for Ray Pendergraft, acting quali- and' justice peace fied of the of Washakie County, attorney. who is not present proceeding was filed after he had in an denied motion the accused to call attorney-justice to hear matter. Pendergraft appointed Judge was 7, 1975, January pursuant 5-99.3, provisions 5-99.2 W.S. §§ Cum.Supp. question is No bias, probity raised as to his lack application is and the issue under the whether it is a denial due in vi- olation Art. Con- § stitution and the Fourteenth Amendment the Constitution of the United States Judge nonattorney justice Pendergraft, a peace, to conduct hearing in this matter.

Although party has raised neither question, we think that before we reach must first deter issue on the merits we Court, mine for this whether it decisions, Shaver, Wyo. In Miskimmins previous its rules and under (1899) 58 P. 411 it is said that where jurisdiction exercise of the matter.1 proceeds court in an man- unconstitutional held that we would previously haveWe destroy ju- ner the is to effect thereof upon the merits in advance of a trial court, risdiction of the so follows that if the consti- charge determine a criminal proceeding was an un- court which the under tutionality the statute of deny pe- as constitutional manner so Wyo- of charged. In State defendant was titioner due law it would a be District Court v. ming ex rel. Owen prohibition, proper provided that case for P.2d 806 County, Wyo., 393 Sheridan plain, speedy, adequate and there is no it (1964), is said: remedy ordinary course of law. As in the ques- unnecessary argument, pe- to consider at the oral “It we were advised any basis validity recog- the statute’s own presently tion of titioner is free on her pro- writ of elementary that a nizance, argued it is there is no since it was that but party only when issue continue hibition will this will assurance that condition adequate other seeking it is without and that if after the wrong about redress for means of in not be required, bond is defendant tribu- by an inferior possibility act of position deposit be inflicted it. The * ** attacking com- by If deprived nal. that she could be therefore exists any grounds plaint upon constitutional liberty pending disposition final of her able crime were person charged with a represented charge. presently She is proceed supreme court to counsel, cause the by assured by court-appointed as action, forum the criminal against the per- rights needy protect law to our administration the usual course in the that sons, may agree so counsel we disrupted. No law would deposit any surety criminal requirement to the issuance cause for sufficient could in material amount other bond be de- presented, writ must been in her might result a problem that nied.” incarceration. District rel. In State ex Sheehan Conkling Lany, De 167 think We District, Fourth Court of Judicial pertinent (1958) is 250 Neb. 91 N.W.2d we said:

Wyo., P.2d exercise on the whether we should jurisdiction. jurisdiction. was only In that case contention tests “Prohibition justice plain, in there is a ade- made the district court will issue where ordinary disqualified personal remedy in- speedy quate and was case, and a outcome of the law.” terest course of the jurisdiction. in all given “power view, the district courts with jurisdiction under such rules and complete and other writs prescribed jurisdiction superintending Constitution law vested in which * n district * In this prohibition, cases *_>> court. exercise case jurisdiction by shall not have been exclusively Article and of all vests this ** law,” control over issue writs necessary Our of its application habeas * court and ” shall constitution regulations Court with appellate § proceedings “original Article by and corpus, some not have been Art. was “all inferior mandamus, by made other jurisdiction proceedings as law vested “a § establishes Wyoming certiorari § revisory general courts, to the court vests re by We therefore cedure found none. court jurisdiction which relates find no statute supervisory tive to the issue clares courts and exclusively Section petitioners State of * * * 5-99.7, a writ exercise of in some other such this Court their powers only AV.S.1957, or rule of civil has advised us writs of power applications only judges no doubt prohibition over jurisdiction rule to act “is filing court shall have * ^[*] setting * * hereby as to our in this procedure Cum.Supp. justice that he could * ^{[*] [*]} this and our Rule 17 by forth vested with prohibition * * *." matter. a district power *. Counsel Said general Court. courts rela- have sought The court prohibition against her was then considered showing facts writ of writ, that the Upon had large denial of decided a in district court. number of cases in which she Supreme disqualified had been appeal was taken to the personal by said, interest and practice 91 N.W.2d that the The court Nebraska. continuing: was 253: “ * ** prohibition rule that Under such a general is the situation we “It think, ordinary public because of the to when resorted interest and cannot be ade- concern in every charged law are one provided usual remedies crime being not intended tried it is before a and available as disinterested quate * * * qualified judge, therefor. a substitute solu- to be writ, problem tion to this However, grant is to the writ function cited, prevent appellee many acting herein from cases further evidenced situations in all cases in which she is extended to cover has been This, disqualified. where, prevent tribunal not the though the inferior would even appellee superior acting justice court from as of the jurisdiction, had peace to is- in necessary and advisable such cases if she removes her it deemed disqualification irre- palpable by having require- prevent the writ to sue ap- 29-2709, R.R.S.1943, it ments especially when of section injustice, mediable remedy complied adequate with in each case.” peared there existed it prevent by appeal or otherwise judicial Taking notice of our rec- own occurring.” from ords collated in supervi- the course of our powers sory justice peace over the of the continued, 91 N.W.2d The court then courts, we that note at the time 256: justices peace are of the in this case have his party “A a state are the bar and who members of judge who is by a heard and determined It therefore who are nonmembers. disqualified by interest from not prelimi- for follows that the occasion * * * As stated determining it. nonlegal nary hearings justices before Doolittle, supra, Forest Co. v. in Coal frequent fairly could be and unless 210, 46 ‘The W.Va. 239: S.E. 54. question upon is now decided doubt uniformly almost hold authorities time, point may for to the continue some a an inferior is re- judge when of court persons of felonies vexation of accused (incompetent act) judg- cused before attorneys uncertainty their in a in he has an inter- case which proper proceeding. to the him, est, disqualifies such as apparent him the issue in applied restrain is hibition is for to which, in cause, it will is one sitting application from volved further for the if, upon application view of granted, be Gordon v. Justice therefor, County, 12 disquali- is Yuba District appears it that he of Sutter Judicial remedy Cal.Rptr. Cal.3d 525 P.2d is the fied. “Prohibition in all prevent (1974) consistently is dis- raised by judge who be action cases qualified hearings in criminal by interest or otherwise.” justice a nonlaw- Jurisdiction, peace where the of the their Works on Courts and yer. question This indicates prohibition “A will lie writ of public in an one of serious interest and one that proceeding restrain a from oppor should laid earliest by rea- to rest disqualified action in which he is tunity. have interest, although the court over While could son of appeal and jurisdiction been saved and raised presides may he which petitioner’s im Eng.Enc.Law, uncertainty concerning the 23 Am. & cause.” ” status been eliminated mediate would have 2 Ed. 223.’ provided of no fendant to bail finding complaint, be- rules.” cause for criminal of this case lieve that circumstances years many justices peace For sufficiently justify exer- exceptional lawyers. were not This was first in the instance. jurisdiction

cise changed by partially Wyo- Ch. S.L. W.S.1957, ming 1971, seq., 5-99.1 et § the merits of the Proceeding to Cum.Supp., provides to be cause, holding we conclude that qualified election to the office can- by a hearing or examination practice must be didate authorized to law felony nonlawyer justice peace in However, Wyoming. attorney even an due not a denial of matter does constitute opposition running for the office without application writ unless he not be considered elected denied. should be prohibition polls majority of “the votes of elec- tors and in the ab- voting” election the 1869 Since enactment laws for majority sence such the Board of Coun- territory law has Wyoming, our directed ty particular county Commissioners person felony that a arrested for shall be appoint person authorized before a for the taken “[sjuch appointee may who is person be a purpose inquiry complaint. into the “If practice Wyo- not examination, authorized law upon appears the whole 5-99.2, ming,” W.S.1957, Cum.Supp. committed, that there has been no offense § any vacancy Similarly, when occurs there is county are office the commissioners autho- prisoner offense, holding the to answer the until appoint rized someone to serve the Chapter 74, 36, discharged.” he shall be § 5-99.3, next W. general election. Section 1869, 7-173, now W.S. S.L. § Cum.Supp. nothing There is S.1957, 1973 the finds such 1957. If offense required appointee that such indicate suspect cause to re- hold the he is attorney and, pre- as we have an provide proper quired to bond in all out, pointed Pendergraft viously Judge was Generally speaking, bailable offenses. provisions the appointed law. under statutory provisions in remained effect without change since substantial predicated whole case is on Petitioner’s adopted Wy- In 1972 this Court Supreme decision of the recent oming Procedure, Rules of Criminal which California, Court for Gordon v. Justice part superseded previous did statutes but District of Sutter Coun Yuba Judicial quoted. just not eliminate the In provision 323, 632, ty, Cal.Rptr. 12 525 P. 115 Cal.3d pertinent part now 7(b), Rule W.R.Cr.P. court, 72, 2d 74 which provides: constitutionally required it is holding that carry trial of cases misdemeanor “If the defendant does waive exami- possibility imprison with them the nation, shall hear the commissioner lawyer justice conducted a before time. The evidence within reasonable this ob peace, in footnote makes defendant cross-examine witnesses servation : evi- against him and he introduce “ * ** were not Although petitioners If dence in his behalf. from own and, ac- charged felony offenses appears evidence it to the commissioner us, before question is not cordingly, the there is believe of conse- see distinction we fail to

that an offense been committed and has in- trials quence misdemeanor between it, defendant committed jail sentence, and potential fel- volving a commissioner forthwith hold him shall pre- ony examinations which court; answer district otherwise of freedom. potential loss sent similar discharge shall him. commissioner be made argument could Thus, strong The admit commissioner shall

47 attorney is essential to af- that an United Wade, 218, States v. 388 U.S. process during ford the defendant due S.Ct. 18 L.Ed.2d Al- preliminary hearing.” though Pugh, Gerstein v. U.S. S.Ct. (1975) L.Ed.2d 54 casts some important think there is and ob- We doubt as to whether hear- finding guilty vious distinction. ing is jurisdictions in all a critical stage (subject only the misdemeanor trial the proceedings, Coleman Alabama, reject- appeal specifically which being ready ed the California court as (1970) indicates that under Alabama law it judgment; relief) source final is such a critical and that counsel is prelimi- finding of cause after then since the hearing gives the nary hearing2 proprie- determines defendant the opportunity to cross examine trial, ty complete every way of a so as to disclose fatal weaknesses in the constitution, every protection that the laws case, perhaps State’s resulting in finding been able and decisions of this state have probable cause, of no gives opportunity to problems develop. which the Cali- fashion impeachment preserve tool or presenting difficult le- fornia court lists testimony favorable trial, for use at the gal questions in misdemeanor trials neces- may be discovery, used for can counsel sitating presence lawyer-justice: of a more effectively argue psychiatric ex- complex legal questions, per- existence of amination and admission to bail. nature; haps of constitutional difficult ev- identiary problems; jury conduct trial pursuit inquiry of its as to whether a evidence; ruling questions ac- trial before a nonlawyer ceptance guilty pleas and instruction to peace comports with the demands of due the defendant as effect of process, question deals with the fur- plea; expertise lack of to make ther whether there has been a fair decisions; sentencing inapplicable trial, or, more accurately, the likelihood proced- examinations wherein trial, there will be a fair ac- Gordon historically ures are more informal and the cepts completely analogous and authori- only question probable whether tative requiring ap- those decisions cause to' conclude that a crime has been pointment said, of counsel. It is 525 P.2d committed and accused has com- at 78: mitted it. “ * * * legal system Since our re- gards denial of counsel as a denial of been person has held that a accused of fairness, logically fundamental follows “requires guiding crime hand of coun- provide quali- that the failure to a every step proceedings against sel at of the comprehend fied to and utilize counsel’s him,” Alabama, 45, 69, Powell v. 287 U.S. legal arguments consid- likewise must be 64, 158, 55, 53 S.Ct. 77 L.Ed. 84 A.L.R. 527 ered a process.” denial due of guaranteed and it must be to the accused “that he need not stand taking alone Decisions other from states3 against the any stage prose- state at of rejected different none view are because cution, informal, formal or where counsel’s of “convincingly them resolved the inherent might derogate absence from the accused’s inconsistency guaranteeing a defendant trial,” right (emphasis supplied) represent an attorney to him without fair Ditty Hampton, Ky., 2. Such determination comes with the detention 490 S.W.2d 772 possible dismissed, (1972), appeal 885, and incarceration of the defendant if 414 94 U.S. post and, later, 133; 219, he cannot bond as we shall see 38 L.Ed.2d Crouch Jus imposing District, this is the reason for Fourth Amend- Ariz. tice of Peace Court of Sixth 7 requirements 460, (1968) City App. ; as to the De conduct of the 440 P.2d 1000 hearing. Nevertheless, Kushmer, 334, it is in no sense a trial. Ill.2d catur v. 253 N.E.2d (1969). 425, 428 preside by prosecutor him- at the someone other than the viding attorney judge proceedings.”4 self, 112, 862). (420 but U.S. 95 S.Ct. “ probable rule practi- cause is ‘[t]he techniques Conceding that the mentioned cal, conception affording nontechnical in the important elements in Coleman compromise been best that has found case, bearing mind preparation of and accommodating opposing these often permits examination that our rule cross laws interests [enforcement evi- presentation of state witnesses and the protection community’s against defendant, so that it can in behalf of dence protection from mistakes on officers’ preliminary ex- properly be said that the * * part] *.’ Brinegar v. United Wyoming law a critical amination is under 176, 338 U.S. States 69 S.Ct. proceedings, we cannot con- L.Ed. has a clude that the defense constitutional implement the “To Fourth Amendment’s turn the examination right to protection against defenses, unfounded invasions present a full trial and into liberty privacy, otherwise, the Court re- thereby se- affirmative quired charge. existence of complete cure a dismissal by be decided finding no cause a neutral law Under our magistrate possible'. tached acquittal and whenever does not constitute an cause principle classic statement of this there would be no that we can see bar States, appears in Johnson v. United proceeding another another before 13-14, 68 S.Ct. proceeding by L.Ed. for a 436, (1948): proceedings for indict- indictment.5 ment, only the defendant have “ would Amendment, point ‘The Fourth no but he counsel would grasped which often zealous offi- examination cross or to witnesses cers, is not that it denies law enforce- in his behalf. own support of ment the the usual inferences reasonable men draw from evi- petitioner think We misses protection requir- dence. Its consists purpose prelimi real constitutional that those inferences be drawn nary examination which is to deter magistrate neutral and detached instead properly mine if the accused is detained to judged by being engaged officer clearly pointed charge. answer the It is competitive enterprise often protec Pugh, supra, out in Gerstein v. ” ferreting out crime.’ rights Fourth tion of Amendment accordingly the Fourth liberty property held that unfounded invasion of court determina requires judicial Amendment determination of examination, interesting query by diseharge it could 4. An is left on unanswered jeopardy, hardly Gordon in said that such constituted that both the Fourteenth Amend- 450, p. 1, 21 Am Jr 2d Law § and in Criminal the federal constitution and Art. discharge Wyoming require does not § 6 of the is said “the Constitution person filing complaint deprived liberty, life, another shall with bar new not be prosecution property process magistrate and does bar a without due not law. How process by nonlawyer alleged can it be due offense indictment.” deprive property by a defendant of his right people be secure their 6.“The fine, by litigant property or a civil of his effects, against houses, papers persons, judgment, yet deprive not be due seizures, shall not searches unreasonable liberty? query original him of his is The not * * 1, Article § be violated opinion, sug- with the writer of this but was identical lan- contains Constitution gested by concurring opin- Mr. Justice Powell’s guage which we make observations Argersinger Hamlin, 25, 51, ion in 407 U.S. respect to the federal constitution with 2006, 92 S.Ct. equally applicable our as state be considered precedents 5. While we have no from this constitution. specifically ruling Court on the effect of a sup (1949).” (Emphasis prerequisite L.Ed. tion of liberty following plied.) ar restraint on extended judgment prosecutorial rest and that mere and continues (420 U.S. at 95 S.Ct. at requirement of meet did not 867), however, court, adhered The amendment. “The use of an procedure informal is Washing ruling Beck

to its former justified only by not the lesser conse- 541, 545, ton, 82 S.Ct. L. 369 U.S. quences aof cause determina- 95 S.Ct. (1962), (420 Ed.2d 98 tion but by also the nature of the deter- 866), mination itself. require does not fine resolution of conflicting evidence prerequi- not judicial “that that a pre- reasonable-doubt or even a prosecution information. site to ponderance demands, standard and credi- * ** Appeals Thus, as the Court bility determinations are seldom crucial below, although suspect who is noted in deciding whether the sup- evidence challenge detained presently ports a reasonable belief in guilt. confinement, a probable cause for »* * * on the will not be vacated conviction then, Considering, that the constitu- was detained that the defendant ground tional basis for the hearing is a determination of pending trial without against improper detention, insure probable cause.7 legislature fact that the Wyoming and this * * * * * * may by given statute and rule have essen- safeguards are not “[Ajdversary is, the accused greater rights, certain probable cause determination right tial for the cross-examination Amendment. Fourth behalf, witnesses in his own does proba- there is expand is whether sole issue not The limited constitutional per- detaining arrested ble cause have a person detached and neutral proceedings. This pending son further termine that charge has foundation in reliably without can be determined attorney issue fact. per- who addresses this adversary hearing. The standard is son behalf of his client speaking to a stand- lay person just the same as that arrest. upon the trial of the the sus- to believe probable cause speak laymen. case he would Were we ard— a crime—traditional- pect has committed upon to concede that case, the trial of the in a by magistrate ly been decided has where must evidence be offered and re- hearsay and nonadversary proceeding rejected, ceived or where the evidence that testimony, ap- the court weighed, written received must be legal where proved- proof. informal modes decisions must be reached in the determi- “ ‘In dealing ever, as the very considerations of everyday life on which cal; ^[*] probabilities. they are the ^{[*] [*]} name These factual and ^[*] implies, are not techni ^[*] cause, how practical ^[*] deal —a amination must have all the attributes of a trial. nation as to whether the defendant is or is not could not conclude guilty, point we specifically do not reach—we there should be a a preliminary lawyer-justice ex- prudent reasonable and men, legal In Crouch v. of Peace Court of Justice technicians, act. The standard proof Precinct, Ariz.App. 460, of Sixth 7 440 P.2d is accordingly correlative 1000, to what must 1006 it is said: (1968) proved.’ be Brinegar v. States, United “Generally speaking, the denial of due 160, 174-175, 338 U.S. 1302, 69 S.Ct. 93 process is a denial of ‘fundamental fair correctly interpret If we decisions, appears position defendant. This to be the proper effect is whether a preliminary by Spears, exam- taken this Court in State v. 76 ination was had or properly whether Wyo. 82, it was 300 P.2d 551 and State v. unimportant conducted is considering Vines, Wyo. 212, (1935). on' 49 P.2d 826 54 appeal legality of the conviction of the

50 ‘preliminary hearing’ to determine of of a the universal sense shocking to

ness, is or rea- ex whether there cause justice’. v. United States Kinsella 297, 234, ground to that the arrest- 80 sonable believe S.Ct. Singleton, 361 rel. U.S. parolee ed has committed acts that Speaking of due would parole a of condi- law, Su constitute violation our States process of United is a state free tions.” preme has said that procedure of its courts ‘regulate to The function of conception of its own accordance hearing guilt is inno not to determine or doing it in so policy and fairness unless cence, eager petitioner however so root justice principle of offends some may be to establish her counsel innocence of conscience ed in traditions and A proceedings. find at this of as people to ranked fundamen our as ing by no of * * * not run procedure does Its tal. acquittal would not constitute verdict be Amendment the Fourteenth foul of petitioner not that she and would assure our may seem to cause another method proceeded against by indict may not be give wiser or thinking to be fairer or informa filing of another or pris promise protection surer peace. justice of the tion before another Snyder v. Common oner at bar.’ see need such we no circumstances Under 97, Massachusetts, 54 wealth U.S. opera system upset that has been 330, (1934).” S.Ct. 78 L.Ed. 1869, only re in this state since tion Morrissey Upon analysis believe this provision tending toward cent our law 2593, Brewer, 471, 408 U.S. designation justices of the pertinent. quite is (1972) L.Ed.2d 484 deny the legal having training. doWe process case, holding the due inso approach hold that merits of this but hearing before a convict- required a clause hearings far are concerned found paroled defendant could ed process under ei there no denial due is parole therefore guilty of violation and Wyoming constitutions. ther the federal or violation, the subject penalty for such petition prohibition .writ proc- specifically court ruled that due denied, issued and the alternative writ among hearing required ess in other such April 4, 1975 is dis- from this Court hearing ‘neutral and detached’ things “a solved. board,

body parole as a traditional such judicial which need not be members of- GUTHRIE, (concurring). Chief Justice supplied) or lawyers(emphasis ficers fol- 92 S.Ct. 2604. The without reservation Although I concur lowing language highly significant, is also insofar in this case holding majority concerned, id. at at 2602: 92 S.Ct. doI question principal “* * * this agreeing an unease confess seem in. would [D]ue a writ proper basis presents case inquiry be require that some minimal however, dissent not, prohibition. I do reasonably near at or conducted because opinion phase place alleged parole violation is a my brothers view of promptly as aft- arrest and as convenient the ad- hereof exercise er case for arrest while fresh and information * * * possible far-reach- importance an mitted sources are available. Such a contention. of such effect

inquiry seen as the nature should be nonlawyer particular 8. This decision involved the trial referring court, as dis- Grouch appears directly con- of a misdemeanor precise question, held that posing trary holding. in its In State v. Gordon process. due denial of Dziggel, had Ariz.App. been 492 P.2d holding related jected by necessary being the writer California court as appears ready relief) a re- interpreted judg- source of is a final not be his concurrence ment; finding versal, modification, departure probable from the aft- cause preliminary hearing er the ex rel. Owen v. .... rule of the case of State Wyo., trial, County, only determines propriety District Court of Sheridan complete scope every way every pro- do extend the with 393 P.2d 806. Nor I Constitution, Shaver, Wyo. tection laws and Miskimmins v. my decisions of far as broth- this state have been able so P. L.R.A. herein, develop. problems the hold- The apply believing that which the Cali- ers it fornia court presenting situa- lists as factual difficult should be confined legal questions in misdemeanor trials ne- tion. presence cessitating lawyer jus- of a ROSE, (dissenting). complex tice: legal ques- existence of Justice tions, nature; perhaps of constitutional agree majority opinion on the I with problems; difficult evidentiary conduct of whether it is for this court issue jury questions trial ruling previous decisions to under its rules and evidence; acceptance pleas guilty jurisdiction in this matter. exercise instruction to the defendant as to the ef- prin- majority on the disagree I fect plea; expertise lack question. cipal proper sentencing decisions; make are probable Wyoming, determining inapplicable preliminary examination hearings jus- cause before procedures historically wherein are more peace, adopted an ad- tice of the we have only question informal and the is wheth- versary procedure.1 er there is cause to conclude referring majority opinion, to Gor that a crime has been committed and don v. Court for Yuba Dis that the accused has it.” committed Justice Judicial County, trict of Sutter Cal.3d Of course it is true that in a Cal.Rptr. 632, reh. P.2d den. inquiry justice in our courts felo- where the under consider ny proceedings, there would be necessi- ation constitutionally was whether it 'was ty justice for the peace to conduct that a con jury However, agree trial. I cannot ducting lawyer, a misdemeanor trial abe problems the other “inapplicable” calls attention to a footnote in that case2 necessity there would abe for the and observes as follows: contemplate be able to intelligently and professionally important the other matters enumerat-

“We think there is an and ob- Gordon, supra. ed in guilty vious distinction. finding in a misdemeanor (subject trial to a analogy To me is an between the appeal specifically which is re- matter with here which we are concerned applicable 7(b), part, provided 1. In to bail as in these rules." Rule defendant Procedure, provides: Rules of Criminal [Italics mine] “If the defendant does not waive examina- tion, the commissioner shall hear the evidence “Although petitioners charged were not within a reasonable time. The felony and, accordingly, ques- offenses defendant cross-examine witnesses us, him tion is not before we fail to see distinc- and he introduce evidence in his otvn consequence tion of between misdemeanor appears involving potential jail evidence sentence, behalf. If from trials the commissioner felony there is examinations which cause to believe potential has been similar loss of offense freedom. and that Thus, committed strong has com- argument defendant could be made that it, mitted the commissioner shall attorney judge is essential forthwith to afford the de- court; hold him to answer in the district during fendant due discharge otherwise commissioner shall hearing.” him. The commissioner shall admit 52 counsel where ant be furnished indigent accused right the question in juris- is the ultimate at all critical cause attorney his side have techniques. employing adversary dictions process including of the criminal stages — law, am accept to be I If the Coleman hearing preliminary where

the why the rule simply to see same unable jurisdic- question in is the ultimate process in the overall adversary applicable, is not adopted the have tions which Amend- Fourteenth the accused’s protecting procedure justice court level. at the question is the one rights, when corollary matters his In consideration is to make the who whether or not Supreme by the United States decided complicated legal decisions on the Court, in McClintock observes Mr. Justice questions learned in the law. will be majority opinion following: the the had deciding indigent defendants In “ person . that a accused . . . preliminary hear- at the to counsel 'requires guiding the hand crime ulti- stage probable cause is ing where step proceedings every counsel at Alabama, su- question, in v. mate Coleman Alabama, him,’ 287 U. against Powell v. Supreme pra, States Court the United 55, 158, 45, 69, 84 53 77 L.Ed. S. S.Ct. pertinent think observations that I made guar- and it must be 527 (1932), A.L.R. here: not anteed to the accused ‘that he need preliminary hearing was Alabama a stage any at stand alone state prosecution— required step not informal, prosecution, formal or seek, Alabama prosecutor under could might derogate where counsel’s absence statutes, directly without an indictment trial,’ right to a from the accused’s fair preliminary hearing (as he do v. (emphasis supplied) United States is not Alabama the accused Wyoming) —in 1926, L. Wade, 218, 18 388 U.S. 87 S.Ct. any defense and advance Although Gerstein Ed.2d 1149 preclude him to do so does not failure 105, 854, 43 Pugh, 420 U.S. S.Ct. he availing every defense from himself toas casts some doubt (1975) L.Ed.2d upon the trial of case— may have hearing preliminary whether 400, Texas, State of 380 U.S. Pointer v. jurisdictions stage in a critical bars 85 S.Ct. Alabama, proceedings, Coleman testimony given at a the admission of 90 S.Ct. 26 L.Ed.2d U.S. did pretrial proceeding where the accused law that under Alabama (1970) indicates not the benefit of cross-examination and that counsel it is such critical therefore, through counsel and hearing gives required since the is then counsel, occurring nothing absence of opportunity to cross the defendant hearing in can Alabama so to disclose fatal weakness- examine substantially rights of prejudice the case, resulting perhaps es State’s Notwithstanding on trial. accused cause, gives no finding above, says: in Coleman Court impeachment opportunity to fashion an preserve testimony tool or favorable “However, from the fact cases trial, may used for discov- at the use lawyer where accused effectively ery, and counsel can more prohibit hearing the Alabama courts argue psychiatric examination anything use at trial of State’s admission to bail.” hearing, does at the occurred fol- hear- that the Alabama majority opinion recognizes, low As the stage’ State’s not a ‘critical Supreme has held United States process. determination Alabama, criminal (Coleman v. stage’ hearing a ‘critical whether 287) that a L.Ed.2d provision of counsel requiring the stage” is such “critical ‘wheth- noted, upon analysis pends, the defend- require criminal as to prejudice preparation case, to the potential substantial er of and bearing in . rights inheres the mind that our permits fendant’s rule cross exami- ability to the of counsel confrontation and nation state witnesses and presen- the of ” prejudice.’ (Citing help tation avoid evidence in of of behalf defend- Wade, ant, supra) so that it can properly mine] be said that [Italics the preliminary examination is under goes say: The Court on Wyoming law a critical stage the pro- of ceedings, we cannot conclude that the “Plainly guiding the hand of counsel at defense has a constitutional to turn preliminary hearing the is essential the preliminary examination into a full against an protect indigent the accused trial present and defenses, all affirma- improper prosecution. erroneous or otherwise, tive and and thereby secure a First, examination lawyers the skilled complete dismissal of charge.” the and cross-examination witnesses [Italics mine] expose weaknesses State's fatal recognition With this Wyo- that under magistrate case that lead the ming expressed law as by Rule 7(b), W.R. Second, to bind the accused over. refuse Cr.P., providing adversary an proce- for event, interrogation the skilled dure, preliminary (where examination experienced can lawyer witnesses probable cause is the ultimate determina- impeachment use tool vital fashion tion) is a proceed- “critical wit- cross-examination State’s ings,” I think it is dangerous to then con- trial, testimony nesses at the or preserve clude that right”' the “constitutional in- witness accused favorable volved herein is: Third, appear who does not at trial. “to turn dis- effectively trained counsel can more examination into a full trial defenses, his cover the case the State otherwise, affirmative and thereby possible preparation client and make complete secure a dismissal of meet that case defense charge.” Fourth, at the trial. can also counsel preliminary hearing at the influential right” “constitutional involved, it in making arguments effective me, seems to is not whether the accused necessity accused such on matters permitted will be to turn the early psychiatric examination hearing trial, into full but whether his bail.” [Italics mine] Fourteenth rights Amendment can be give tected adversary take of an The Court then held: procedure in which an attorney must inability indigent accused “The provided compli- because of the uniquely advantages realize these his own to aspects cated yet compels lawyer’s the conclu assistance judge is without knowledge requisite hear sion Alabama manage the technicalities that Coleman stage’ a ‘critical State’s speaks about majority and which iden- process at which the accused criminal tifies as: aid coun- cas entitled such much [of “important preparation elements in the * ** the trial as at itself.’ sell of a case. ...” Alabama, supra, Powell v. opinion majority says: 57, 53 at 60.” [Italics mine] . “. . . accepts (supra) Gordon here, In the case before us the author of completely analogous and authoritative opinion majority says: those decisions requiring appoint- techniques that the mentioned “Conceding said, ment of counsel. 525 P.2d ' * * * important in Coleman elements 78: legal system Since our re- in the State’s “exposed a fatal weakness denial as a counsel gards denial ? case.” logically fairness, it follows fundamental quali- provide failure recognize a “fatal magistrate cannot If the counsel’s utilize comprehend case,” fied then it fol- weakness the State’s must be consid- likewise arguments legal he cannot know whether to bind lows that ” process.’ due a denial of ered the accused over. improper prosecution” “erroneous or accept If this analo- not does majority The place lawyer is (Coleman) takes very I area that in this It is gy do.—I present call matters to to these intricate my brothers agree with simply cannot attention, must not the court’s the court. legal in someone learned matters is it a violation it be said can How the Isn’t that the other hear call? half the Four- under rights defendant’s of the the the measure giving defendant full 1, Sectipn Article and Amendment teenth process protection his due f deny Wyoming Constitution the good have done Einstein no It would attorney aat accused explained relativity his theory of of those denial hearing, it not a is but it. I am me. I would not have understood learned judge rights deny him same same, not it. The equipped to understand the attor- can understand the law who feel, layman justice applies I to a ney ? peace preliminary hearing matters the criminal stage” of aAt “critical Wyoming. is no criticism of the is in freedom accused’s where contrary is criti- —to —it issue, trial” is and “fair the balance system places cism of the which such a pro- to be accused good is it for the what upon heavy responsibility un- burden of is says he rule of law which tected people in trained an area of human rela- “ profes- tions that and training demands aid coun- to such much entitled ‘as [of ”, sionalism. trial at the itself.’ . . . . as sel] Alabama, from Coleman (Powell heavily majority opinion upon The relies Alabama, supra) rule Pugh, of Gerstein v. 420 U.S. 95 S.Ct. The say that this en- go don’t when in that case was one of of the crimi- at this critical titlement cause under Fourth Amendment will who process includes nal the United States Constitution comprehend coun- able understand against liberty tects unfounded invasion special- respect to representation with sel’s property. Gerstein adhered to the involving, for ex- law areas ized Washing- Court’s ruling former Beck v. psychi- right to plea ample, guilty —the ton, 955, 957, 369 U.S. L. ex- bail —direct atric examination — Ed.2d 98 where that decision held: amination witnesses —cross-examination deci- ultimate even of witnesses —and “[AJdversary safeguards are not essen- has made state not the or sion whether tial for the cause determination or and whether the accused a case required by Fourth Amendment. au- applicable not, therefore, under The sole issue is proba- whether there is should refuse thority, magistrate detaining ble cause for per- the arrested over ? bind the accused pending son proceedings. further This issue can reliably be determined without in the magistarate is learned If an adversary hearing. . .” . [Italics law- not a law, he tell whether how can mine] Fourteenth required yer is who just But it is Constitu- here that I make dis- States Amendment to United accused, tinction between the Gerstein case serving the tion to be 957-967, (4th matter at hand. bottomed 1974). Gerstein 996-1000 ed. concept adversary hearing required proof prose that no standard of usually in a Fourth Amendment cution is ‘probable referred to as cause,’ question, jurisdictions THAT but in and IF some WERE approach prima HERE I guilt, TRUE WOULD AGREE WITH case facie THE MAIORITY ALL Model Pre-arraignment OPINION IN A.L.I. Code of Procedure, Commentary OF case ITS ASPECTS. That not the on Article W.R.Cr.P., pro- here (Tent. since our Rule 90-91 7(b), 1972). Draft 5No. pre- adversary proceeding vides for an When the hearing takes this form, ad hearings. liminary recognized versary procedures fact is are customarily This em opinion majority as I read that ployed. writ- The importance of the issue to ing. both the State justifies accused presentation of witnesses full adversary procedure distinction is exploration of their testimony on cross- clearly made in Gerstein. examination., hearing This kind also off, says: First the Court requires appointment indi counsel gent Alabama, Coleman v. “. . . . the Fourth Amendment re- defendants. And, supra. as the assumes in quires judicial proba- determination of importance creased procedures ble as a prerequisite to extended cause complex, become more the likelihood that liberty following restraint on arrest.” promptly it can be held after arrest di goes The Court on: minishes. See A.L.I. Model Code adversary “. . . . safeguards are Pre-arraignment Procedure, supra, not essential for the probable cause deter- [Emphasis 33-34.” mine] required by mination Fourth Amend- say Then the Court goes on to ad- [Emphasis ment.” mine] versary safeguards necessary are not and adversary then comments probable Fourth Amendment matters. cause ceeding differences between the Fourth distinguish So I would what Gerstein probable problem Amendment cause con- problem Pugh holds from the we are deal- fronting it and the Coleman Alabama ing language with here on the of Gerstein prob- hearing probable cause admittedly by itself. We are here Court, Gerstein, lem. observes Procedure, in force of Criminal Rules of the lower courts had held: adversary proceeding while Gerstein was “. . proba- . . the determination of determining probable cause under accompanied ble cause must be non-adversary Fourth in a Amendment adversary — n panoply safeguards full process. problems None of the technical counsel, confrontation, cross-examina- have in cause determi- tion, process compulsory wit- adversary proceedings nation under our nesses.” present. were there say: The Court then went on to I would therefore conclude-—our Crimi- “A full hearing of provide this sort nal an adversary proceed- Rules procedure is modeled after the preliminary hearing used where level many States to determine whether cause where is the issue and justifies evidence going trial under the accused is in a critical embroiled presenting information or the case to a of the criminal which will ulti- grand Alabama, jury. mately See Coleman v. determine whether he will be bound over to the district court to stand trial for (1970) ; Kamisar, felony Y. impris- W. LaFave & could result in his J. —which Israel, Modern Criminal onment. Procedure pertinent le- knowledgeable enough in indigent hearing the At the professional provide leader- gal matters his because provided with counsel must be aspects guidance judgment in all ship, implement- fair trial must guarantee of post-hear- prehearing hearing, at stake freedom is protected ed and — —his jurisdiction. coming under his ing affairs should he whether —he must be advised respond and react on must be able to He on the testify must have advice or not—he attorneys professional same level strong or there is whether language, prosecute defend point who him from the weak case of trial behav- the intricacies and nuances must be applicable law. He view of the arising out cross-ex- questions ior. The counsel, whether through recognize, able to applicable law amination—trial tactics—the in its case weakness has a fatal the State matters, procedural ques- evidentiary to be his side must have someone —he ultimately, the of wheth- tions and decision prosecution recognize whether able to for trial er the be bound over accused will improper must erroneous —someone jeopardy interim and ultimate of free- the likelihood of about advise with him for him to re- dom in balance—are all conse- being found—the trial —the solve. quences costs thereof—the psychiatric help

amount of bond—whether peace, I feel be- that the myriad com- of other is indicated—and arena, perform this fore he is asked to cry plicated present and things stakes, high human with these should our and solution. Since out for advice advantage an educational back- adversary he must have proceedings are ground surely, confidently and which would wit- cross-examine State’s counsel to accused, permit protection with full to the testimony and object improper nesses— professional him to his duties. discharge by him if he and stand evidentiary offers close, myself Before I I must make clear over, him protect is to be bound points tangential on two : improvident and unin- unfair treatment or First, my interpretation I know that if between formed decisions eventually adopted, are hearing the trial. These law were to call it would upset peace to mind which things few come gram unhappy legal this State. As an event advice. might is, however, be, as this fact fair goal is insure a trial The ultimate legislature problem this is a for the the accused. In state like not for the constitu- courts. The accused’s preliminary hearing a critical where paramount rights tional issue are even con- stage of the criminal though unsettling of the established or- adversary proceeding from ducted under der of things may be the result. accused will be bound over which the expressions Secondly, trial, depending upon court for the district interpreted rightfully criticism of peace or not the whether lay justices the work that believe probable cause to finds there is Wyoming. position am doing I in a crime, alleged committed the I would he to know at first hand that their work is su- presumed that it must be fair hold not, perlative. however, That is the issue unless guaranties trial cannot be insured petition. raised judge who conducts the would, stated, at this lev- and makes decision I for the reasons herein must granted el is learned in the law. He be have the writ.

Case Details

Case Name: Thomas v. Justice Court of Washakie County

Court Name: Wyoming Supreme Court

Date Published: Jul 14, 1975

Citation: 538 P.2d 42

Docket Number: 4538

Court Abbreviation: Wyo.