The Supreme Court agreed on Monday to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed and sends the individual to jail, or whether it only ataches when a prosecutor prepares to or makes a charge. ...Congrats to TFDP head honcho Andrea Marsh and Chief Counsel Harry Williams on getting this major opportunity. When an advocacy group sets out to file impact litigation in federal court to change local practices, this is exactly where they hope to end up: with an opportunity to set new precedent on behalf of defendants. Good luck, folks!
The new right-to-counsel case the Justices will hear, with oral argument likely in March, involves a Fredericksburg, Texas, man, Walter Allen Rothgery, who sought but was denied the aid of an attorney when he appeared before a magistrate at a probable cause hearing. The magistrate found probable cause to support a charge that Rothgery was a felon who had a gun; Rothgery was sent to jail. He was released on bond, but rearrested later after a grand jury indicted him. Once he obtained a lawyer, the charges were dismissed; the felony allegation against him turned out to have been an error because charges against him in California had been dismissed.
Rothgery sued the county in a civil rights lawsuit over the denial of a lawyer at the first hearing. The County opposed the lawsuit, contending that the right to counsel did not attach until he actually had been indicted — a claim ultimately upheld by the Fifth Circuit Court. Rothgery’s appeal was supported by 22 law professors urging the Justices to clarify when the right to counsel attaches.
Here's a little more on the case from TFDP's newly upgraded website:
Rothgery v. Gillespie CountyUPDATE: At the TDCAA message board they've labeled this a case to watch, with a commenter adding that the Texas courts have failed to clarify the question. MORE: See coverage from the Austin Statesman.
In Rothgery v. Gillespie County, TFDP represents an individual who was denied counsel for over six months while free on bond. Mr. Rothgery was arrested for being a felon in possession of a gun when he was not, in fact, a felon. Although Mr. Rothgery repeatedly asked for a court-appointed lawyer, it was not until Mr. Rothgery was re-arrested and spent time in jail that the county gave him an attorney. Once appointed counsel, Mr. Rothgery‘s lawyer was quickly able to obtain paperwork that showed Mr. Rothgery was not a felon, and the charges were dismissed.
In June 2007, the Fifth Circuit Court of Appeals in New Orleans upheld the dismissal of Mr. Rothgery‘s claims, finding that Mr. Rothgery‘s right to counsel did not attach until a prosecutor became involved in the case, which did not occur until months after Mr. Rothgery had been committed on charges filed by law enforcement shortly after his arrest. In reaching this disposition, the Fifth Circuit employed a test that has not been used either in Texas courts or in other federal courts and created a split with other federal courts of appeal. TFDP is seeking Supreme Court review of the case.
Rothgery v. Gillespie County case documents: