(dissenting).
I agree with the majority opinion on the issue of whether it is proper for this court under its rules and previous decisions to exercise jurisdiction in this matter.
I disagree with the majority on the principal question.
In Wyoming, in determining probable cause in preliminary hearings before a justice of the peace, we have adopted an adversary procedure.1
The majority opinion, referring to Gordon v. Justice Court for Yuba Judicial District of Sutter County, 12 Cal.3d 323, 115 Cal.Rptr. 632, 525 P.2d 72, reh. den. (1974), where the question under consideration was whether it 'was constitutionally required that a justice of the peace conducting a misdemeanor trial be a lawyer, calls attention to a footnote in that case2 and observes as follows:
“We think there is an important and obvious distinction. The finding of guilty in a misdemeanor trial (subject only to a right of appeal which is specifically rejected by the California court as being a ready source of relief) is a final judgment; the finding of probable cause after the preliminary hearing .... determines only the propriety of a trial, complete in every way with every protection that the Constitution, laws and decisions of this state have been able to develop. The problems which the California court lists as presenting difficult legal questions in misdemeanor trials necessitating the presence of a lawyer justice: existence of complex legal questions, perhaps of constitutional nature; difficult evidentiary problems; conduct of jury trial and ruling on questions of evidence; acceptance of guilty pleas and instruction to the defendant as to the effect of the plea; lack of expertise to make proper sentencing decisions; are inapplicable to preliminary examination wherein procedures are historically more informal and the only question is whether there is probable cause to conclude that a crime has been committed and that the accused has committed it.”
Of course it is true that in a probable cause inquiry in our justice courts in felony proceedings, there would be no necessity for the justice of the peace to conduct a jury trial. However, I cannot agree that the other problems are “inapplicable” and there would be a necessity for the justice to be able to contemplate intelligently and professionally the other matters enumerated in Gordon, supra.
To me there is an analogy between the matter with which we are here concerned *52and the right of the indigent accused to have an attorney by his side at all critical stages of the criminal process — including the preliminary hearing where probable cause is the ultimate question in jurisdictions which have adopted the adversary procedure at the justice court level.
In his consideration of corollary matters decided by the United States Supreme Court, Mr. Justice McClintock observes in the majority opinion the following:
“ . . . . that a person accused of a crime 'requires the guiding hand of counsel at every step of the proceedings against him,’ Powell v. Alabama, 287 U. S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932), and it must be guaranteed to the accused ‘that he need not stand alone against the state at any stage of the prosecution, formal or informal, where counsel’s absence might derogate from the accused’s right to a fair trial,’ (emphasis supplied) United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967). Although Gerstein v. Pugh, 420 U.S. 105, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) casts some doubt as to whether the preliminary hearing is in all jurisdictions a critical stage in the proceedings, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) indicates that under Alabama law it is such a critical stage and that counsel is then required since the hearing gives the defendant the opportunity to cross examine so as to disclose fatal weaknesses in the State’s case, perhaps resulting in a finding of no probable cause, gives opportunity to fashion an impeachment tool or preserve favorable testimony for use at the trial, may be used for discovery, and counsel can more effectively argue for psychiatric examination and admission to bail.”
As the majority opinion recognizes, the United States Supreme Court has held (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 287) that a preliminary hearing is such a “critical stage” of the criminal process as to require the defendant be furnished counsel where probable cause is the ultimate question in jurisdictions employing adversary techniques. If we accept Coleman to be the law, I am simply unable to see why the same rule is not applicable, in the overall process of protecting the accused’s Fourteenth Amendment rights, when the question is one of whether or not the judge who is to make the decisions on these complicated legal questions will be learned in the law.
In deciding that indigent defendants had a right to counsel at the preliminary hearing stage where probable cause is the ultimate question, in Coleman v. Alabama, supra, the United States Supreme Court there made observations that I think are pertinent here:
In Alabama a preliminary hearing was not a required step in the prosecution— the prosecutor could seek, under Alabama statutes, an indictment directly without a preliminary hearing (as he may do in Wyoming) — in Alabama the accused is not required to advance any defense and any failure to do so does not preclude him from availing himself of every defense he may have upon the trial of the case— Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), bars the admission of testimony given at a pretrial proceeding where the accused did not have the benefit of cross-examination by and through counsel and therefore, in absence of counsel, nothing occurring at the preliminary hearing in Alabama can substantially prejudice the rights of the accused on trial. Notwithstanding the above, the Court in Coleman says:
“However, from the fact that in cases where the accused has no lawyer at the hearing the Alabama courts prohibit the State’s use at trial of anything that occurred at the hearing, it does not follow that the Alabama preliminary hearing is not a ‘critical stage’ of the State’s criminal process. The determination whether the hearing is a ‘critical stage’ requiring the provision of counsel depends, as noted, upon an analysis ‘wheth*53er potential substantial prejudice to defendant’s rights inheres in the . confrontation and the ability of counsel to help avoid that prejudice.’ ” (Citing Wade, supra) [Italics mine]
The Court goes on to say:
“Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyers skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.” [Italics mine]
The Court then held:
“The inability of the indigent accused on his own to realize these advantages of a lawyer’s assistance compels the conclusion that the Alabama preliminary hearing is a ‘critical stage’ of the State’s criminal process at which the accused is cas much entitled to such aid [of coun-sell * * * as at the trial itself.’ Powell v. Alabama, supra, 287 U.S. at 57, 53 S.Ct. at 60.” [Italics mine]
In the case before us here, the author of the maj ority opinion says:
“Conceding that the techniques mentioned in Coleman are important elements in the preparation of a case, and bearing in mind that our rule permits cross examination of state witnesses and the presentation of evidence in behalf of defendant, so that it can properly be said that the preliminary examination is under Wyoming law a critical stage of the proceedings, we cannot conclude that the defense has a constitutional right to turn the preliminary examination into a full trial and present all defenses, affirmative and otherwise, and thereby secure a complete dismissal of the charge.”
[Italics mine]
With this recognition that under Wyoming law as expressed by Rule 7(b), W.R. Cr.P., providing for an adversary procedure, the preliminary examination (where probable cause is the ultimate determination) is a “critical stage of the proceedings,” I think it is dangerous to then conclude that the “constitutional right”' involved herein is:
“to turn the preliminary examination into a full trial and present all defenses, affirmative and otherwise, and thereby secure a complete dismissal of the charge.”
The “constitutional right” involved, it seems to me, is not whether the accused will be permitted to turn the preliminary hearing into a full trial, but whether his Fourteenth Amendment rights can be protected in the give and take of an adversary procedure in which an attorney must be provided because of the uniquely complicated aspects of the hearing and yet the judge is without the knowledge requisite to manage the technicalities that Coleman speaks about and which the majority identifies as:
“important elements in the preparation of a case. ...”
The majority opinion says:
“. . . . Gordon (supra) accepts as completely analogous and authoritative those decisions requiring the appointment of counsel. It is said, 525 P.2d at 78: ' * * * Since our legal system re*54gards denial of counsel as a denial of fundamental fairness, it logically follows that the failure to provide a judge qualified to comprehend and utilize counsel’s legal arguments likewise must be considered a denial of due process.’ ”
The majority does not accept this analogy — I do. It is in this very area that I simply cannot agree with my brothers of the court.
How can it be said that it is a violation of the defendant’s rights under the Fourteenth Amendment and Article 1, Sectipn 6, of the Wyoming Constitution to deny the accused an attorney at a preliminary hearing, but that it is not a denial of those same rights to deny him a judge learned in the law who can understand the attorney ?
At a “critical stage” of the criminal process where the accused’s freedom is in the balance and “fair trial” is the issue, what good is it for the accused to be protected by a rule of law which says he is
“ ‘as much entitled to such aid [of counsel] . . . . as at the trial itself.’ ”, (Powell v. Alabama, from Coleman v. Alabama, supra)
when we don’t go on to say that this entitlement at this critical stage of the criminal process includes a judge who will be able to understand and comprehend counsel’s representation with respect to specialized areas of the law involving, for example, the guilty plea — the right to psychiatric examination — right to bail — direct examination of witnesses — cross-examination of witnesses — and even the ultimate decision of whether or not the state has made a case against the accused and whether or not, therefore, under the applicable authority, the magistrate should refuse to bind the accused over ?
If the magistarate is not learned in the law, how can he tell whether or not a lawyer who is required by the Fourteenth Amendment to the United States Constitution to be serving the accused, has
“exposed a fatal weakness in the State’s case.” ?
If the magistrate cannot recognize a “fatal weakness in the State’s case,” then it follows that he cannot know whether to bind the accused over.
If “erroneous or improper prosecution” (Coleman) takes place and the lawyer is present to call these intricate matters to the court’s attention, must not there be someone learned in legal matters present to hear the call? Isn’t that the other half of giving the defendant the full measure of his due process protection f
It would have done Einstein no good to have explained his theory of relativity to me. I would not have understood it. I am not equipped to understand it. The same, I feel, applies to a layman justice of the peace in preliminary hearing matters in Wyoming. It is no criticism of the justice of the peace — to the contrary — it is a criticism of the system which places such a heavy burden of responsibility upon untrained people in an area of human relations that demands training and professionalism.
The majority opinion relies heavily upon the rule of Gerstein v. Pugh, 420 U.S. 105, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The question in that case was one of probable cause under the Fourth Amendment of the United States Constitution which protects against unfounded invasion of liberty and property. Gerstein adhered to the Court’s former ruling in Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 957, 8 L. Ed.2d 98 (1962), where that decision held:
“[AJdversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. The sole issue is whether there is probable cause for detaining the arrested person pending further proceedings. This issue can be determined reliably without an adversary hearing. . . .” [Italics mine]
But it is just here that I make the distinction between the Gerstein case and the *55matter at hand. Gerstein is bottomed in the concept that no adversary hearing is required in a Fourth Amendment probable cause question, and IF THAT WERE TRUE HERE I WOULD AGREE WITH THE MAIORITY OPINION IN ALL OF ITS ASPECTS. That is not the case here since our Rule 7(b), W.R.Cr.P., provides for an adversary proceeding in preliminary hearings. This fact is recognized in the majority opinion as I read that writing.
The adversary procedure distinction is clearly made in Gerstein.
First off, the Court says:
“. . . . the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint on liberty following arrest.”
The Court goes on:
“. . . . adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment.” [Emphasis mine]
and then comments on the adversary proceeding differences between the Fourth Amendment probable cause problem confronting it and the Coleman v. Alabama preliminary hearing probable cause problem. The Court, in Gerstein, observes that the lower courts had held:
“. . . . the determination of probable cause must be accompanied by the full panoply of adversary safeguards — ■ counsel, confrontation, cross-examination, and compulsory process for witnesses.”
The Court then went on to say:
“A full preliminary hearing of this sort is modeled after the procedure used in many States to determine whether the evidence justifies going to trial under an information or presenting the case to a grand jury. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Y. Kamisar, W. LaFave & J. Israel, Modern Criminal Procedure 957-967, 996-1000 (4th ed. 1974). The standard of proof required of the prosecution is usually referred to as ‘probable cause,’ but in some jurisdictions it may approach a prima facie case of guilt, A.L.I. Model Code of Pre-arraignment Procedure, Commentary on Article 330, at 90-91 (Tent. Draft No. 5 1972). When the hearing takes this form, adversary procedures are customarily employed. The importance of the issue to both the State and the accused justifies the presentation of witnesses and full exploration of their testimony on cross-examination., This kind of hearing also requires appointment of counsel for indigent defendants. Coleman v. Alabama, supra. And, as the hearing assumes increased importance and the procedures become more complex, the likelihood that it can be held promptly after arrest diminishes. See A.L.I. Model Code of Pre-arraignment Procedure, supra, at 33-34.” [Emphasis mine]
Then the Court goes on to say that adversary safeguards are not necessary in Fourth Amendment probable cause matters.
So I would distinguish what Gerstein v. Pugh holds from the problem we are dealing with here on the language of Gerstein itself. We are here admittedly and by force of Criminal Rules of Procedure, in an adversary proceeding while Gerstein was determining probable cause under the Fourth Amendment in a non-adversary process. None of the technical problems that we have in a probable cause determination under our adversary proceedings were there present.
I would therefore conclude- — our Criminal Rules provide for an adversary proceeding at the preliminary hearing level where probable cause is the issue and where the accused is embroiled in a critical stage of the criminal process which will ultimately determine whether he will be bound over to the district court to stand trial for a felony — which could result in his imprisonment.
*56At the preliminary hearing the indigent must be provided with counsel because his guarantee of fair trial must be implemented and protected — his freedom is at stake —he must be advised whether he should testify or not — he must have advice on the question of whether there is a strong or weak case against him from the point of view of the applicable law. He must be able to recognize, through counsel, whether the State has a fatal weakness in its case —he must have someone by his side to be able to recognize whether the prosecution is erroneous or improper — someone must advise with him about the likelihood of probable cause being found — the consequences thereof — the costs of trial — the amount of bond — whether psychiatric help is indicated — and a myriad of other complicated things which are present and cry out for advice and solution. Since our proceedings are adversary he must have counsel to cross-examine the State’s witnesses — object to improper testimony and evidentiary offers and stand by him if he is to be bound over, to protect him against unfair treatment or improvident and uninformed decisions between the preliminary hearing and the trial. These are only a few things that come to mind which call for legal advice.
The ultimate goal is to insure a fair trial for the accused. In a state like Wyoming where the preliminary hearing is a critical stage of the criminal process and is conducted under an adversary proceeding from which the accused will be bound over to the district court for trial, depending upon whether or not the justice of the peace finds there is probable cause to believe he committed the alleged crime, I would hold that it must be presumed that the fair trial guaranties cannot be insured unless the judge who conducts the preliminary hearing and makes the decision at this level is learned in the law. He must be knowledgeable enough in the pertinent legal matters to provide professional leadership, guidance and judgment in all aspects of the prehearing — hearing, and post-hearing affairs coming under his jurisdiction. He must be able to respond and react on the same professional level as the attorneys who prosecute and defend in the language, the intricacies and nuances of trial behavior. The questions arising out of cross-examination — trial tactics — the law applicable to evidentiary matters, procedural questions and ultimately, the decision of whether the accused will be bound over for trial with interim and ultimate jeopardy of freedom in the balance — are all for him to resolve.
I feel that the justice of the peace, before he is asked to perform in this arena, with these high human stakes, should have the advantage of an educational background which would surely, confidently and with full protection to the accused, permit him to discharge his professional duties.
Before I close, I must make myself clear on two tangential points :
First, I know that if my interpretation of the law were to eventually be adopted, it would upset the justice of the peace program in this State. As unhappy an event as this might be, the fact is, however, that this is a problem for the legislature and not for the courts. The accused’s constitutional rights are the paramount issue even though an unsettling of the established order of things may be the result.
Secondly, these expressions may not rightfully be interpreted as a criticism of the work that the lay justices of the peace are doing in Wyoming. I am in a position to know at first hand that their work is superlative. That is not, however, the issue raised by the petition.
I would, for the reasons herein stated, have granted the writ.
. In applicable part, Rule 7(b), Wyoming Rules of Criminal Procedure, provides:
“If the defendant does not waive examination, the commissioner shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and he may introduce evidence in his otvn behalf. If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him. The commissioner shall admit the defendant to bail as provided in these rules." [Italics mine]
. “Although petitioners were not charged with felony offenses and, accordingly, the question is not before us, we fail to see any distinction of consequence between misdemeanor trials involving a potential jail sentence, and felony preliminary examinations which present similar potential loss of freedom. Thus, a strong argument could be made that an attorney judge is essential to afford the defendant due process during the preliminary hearing.”