Supreme Court Rules Right to Lawyer Begins At First Court Appearance

The Supreme Court ruled today that the right to a lawyer begins when a defendant if first brought before a magistrate or judge after arrest, even if prosecutors were not involved in the arrest or court appearance. The Court expressly rejects the "prosecutorial awareness" test. The case is Rothgery v. Gillespie County, No. 07-0440. The opinion is here (pdf).

The court ruled 8-1 Monday in favor of Walter Rothgery, whose request for a lawyer was denied by local Texas authorities for six months. Rothgery was arrested in Texas for carrying a gun as a convicted felon, based on a background check that erroneously showed a felony drug conviction in California.

A lawyer would have quickly shown that the report of the previous conviction was mistaken, which would have eliminated the reason for the arrest in the first place.

The issue for the Court was, "Whether the Sixth Amendment right to counsel attaches to defendants brought before a magistrate and jailed pending posting of bond if prosecutors were not involved in the arrest or court appearance."[More...]

The petitioner, Walter Rothgery, maintains that his Sixth Amendment rights were violated when he was arrested and brought before a magistrate who informed him of the accusation against him, found probable cause, and sent him to jail pending the posting of bail or the disposition of charges, but when respondent Gillespie County failed to appoint counsel for him until after he was indicted.

From the introduction to the opinion:

A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject
to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.
Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct.

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  • Display: Sort:
    Which was it? Scalia or Thomas? (5.00 / 1) (#3)
    by ineedalife on Mon Jun 23, 2008 at 12:37:38 PM EST
    Who was the Nazi that dissented on this one?

    And Who Would Have Guessed (5.00 / 1) (#5)
    by squeaky on Mon Jun 23, 2008 at 12:46:52 PM EST
    That Thomas would be the lone dissent.


    The Sixth Amendment provides that "[i]n all criminal
    prosecutions, the accused shall enjoy the right . . . to have
    the Assistance of Counsel for his defence."  The text of the
    Sixth Amendment thus makes clear that the right to
    counsel arises only upon initiation of a "criminal prosecu-
    tio[n]."  For that reason, the Court has repeatedly stressed
    that the Sixth Amendment right to counsel "does not
    attach until a prosecution is commenced."  

    Good thing that the seven others who were the majority are not so literally minded. I wonder it Justice Thomas jumps up and down vigorously before taking Pepto Bismol. On the instructions it says "shake well before using".

    8 to 1 (5.00 / 2) (#6)
    by Carolyn in Baltimore on Mon Jun 23, 2008 at 12:50:35 PM EST
    I just glanced at Thomas's dissent. Apparently the plaintiff was not harmed by being in jail for months without being indicted.

    Maybe we should require.... (5.00 / 3) (#7)
    by kdog on Mon Jun 23, 2008 at 01:01:43 PM EST
    all new justices to spend 3 months in a cage before being sworn in.

    Kinda like how some police depts. require their officers to be stung by a taser before being issued one.


    Silly me.... (4.00 / 1) (#2)
    by kdog on Mon Jun 23, 2008 at 12:27:41 PM EST
    I thought it was etched in stone that you had the right to an attorney immediately following arrest.

    I know Miranda rights aren't what they once where...but they are still around right?

    Holy smokes. (none / 0) (#1)
    by Marco21 on Mon Jun 23, 2008 at 12:14:05 PM EST
    Was he jailed for 6 months or did he make bail?

    He made bail initially (5.00 / 3) (#4)
    by ineedalife on Mon Jun 23, 2008 at 12:41:51 PM EST
    But later was jailed for what looks like three weeks after his bail was raised and he finally was given an attorney.

    Common sense would say that as soon as they snap the cuffs on, you need an attorney. If the state has intervened and is denying you your freedom that should be far enough.