Monday, December 03, 2007

SCOTUS to decide in Texas case when right to counsel attaches

SCOTUSBlog brings word that a case brought by the Texas Fair Defense Project in Fredericksburg has been granted cert, meaning the case will be decide by the highest court in the land. According to Lyle Denniston,
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. ...

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.
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!

Here's a little more on the case from TFDP's newly upgraded website:
Rothgery v. Gillespie County

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:
UPDATE: 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.

6 comments:

Doran Williams said...

I want to suggest that the point to be decided is a bit narrower than Grits has expressed it.

It is not a question of whether Mr. Rothgery had a right to counsel. Had he not been indigent, he could have retained counsel at any point in the process when he had access to a telephone. The issue is one of when Mr. Rothgery, being indigent, had a right to have an attorney appointed by the court to assist him.

I've not read any of the pleadings, briefs, or court opinions, but I suspect that all the issues have been thoroughly raised and argued. I agree that this will be a case to watch: The 5th Circuit will almost always find the way to make things difficult for defendants, and are usually sustained by SCOTUS, either explicitly or by denial of cert. But I think they may have gone too far in this case. If having a right to appointed counsel means anything at all, it means having counsel at those critical junctions in the prosecution where assistance of counsel can mean the difference between freedom and incarceration. It seems unlikely that the SCOTUS would hold that an individual, because of indigency, can be incarcerated for extended periods in situations where a non-indigent arrested person can hire an attorney to assist in the tussel over incarcertion.

Anonymous said...

7:17:

That's the heart of the right to counsel issue. The right to counsel in this situation is taken away if he can't afford one but was not appointed one. You cite a distinction without a difference.

Does anyone else see this as a tangent of Miranda? If they weaken the right to counsel here, they get a chance to nibble further at the edges of Miranda in other ways too.

Perhaps the TFDP should drop this issue. While this particular guy may be entitled to some redress, these facts are bad for the larger picture. And bad facts make bad law.

Doran Williams said...

Mr. Anon. Miranda is not at risk by this case: It is the holding in Gideon v. Wainwright which is at issue. From Wikipedia

"Gideon v. Wainwright, 372 U.S. 335 (1963), is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants unable to afford their own attorneys."

Anonymous said...

doran:

I'm looking a bit deeper though. The supremes were widely rumored to be looking for a case with which to challenge Miranda. The "you have a right to an attorney" (whether indigent (Gideon) or not), instruction in Miranda would be taken out altogether if they didn't have a right to an attorney at all at a certain point. Because if you don't have the right to one, it doesn't matter if you can afford one or not, you don't get one.

Gideon would not be affected if the state provides one when you're entitled to one, but Miranda would be if you aren't entitled to one in the first place.

Doran Williams said...

Gideon would have to be overturned or drastically limited, to get to where you think the SCOTUS wants to go with Miranda. I don't see SCOTUS doing that, given that the Gideon decision was by a unanimous Supreme Court.

A Miranda warning does not address the issue of when an arrested person may speak with an attorney; it just informs that person that he has a right to an attorney and a right to be taken before a judge. Those rights originate in the Constitution and are firmly engraved in our criminal law; there is simply no way the Supreme Court could say otherwise.

The issue in Mr. Rothgery's case is "when", not "if." Since Miranda does not address "when," Miranda is not at issue.

I'm not sure if SCOTUS or any of the federal courts of appeals have ever addressed the "when" question in the context of Gideon. It will be interesting to see how they deal with it.

For instance, it would be ludicrously unwieldly if "when" happens immediately upon arrest. On the other hand, there is really nothing unwieldly or unreasonable about requiring appointed counsel for an indigent at a point in the process when that indigent's long term freedom is at risk, which it is at a court hearing on bail or no-bail. This implies, I admit, that an arrested person may have to remain in jail until a court is in regular session. But that happens most of the time, anyway.

Anonymous said...

Gideon would have to be overturned or drastically limited, to get to where you think the SCOTUS wants to go with Miranda. I don't see SCOTUS doing that, given that the Gideon decision was by a unanimous Supreme Court.

Not true. Gideon deals with getting people a lawyer when they're entitled to one. Miranda deals with telling people when they're entitled to one and warning them of their actions. It's the step before Gideon applies.

And anyway, my original point was that in nibbling away at the edges (like Gideon), they will more easily be able to take out Miranda.


Those rights originate in the Constitution and are firmly engraved in our criminal law; there is simply no way the Supreme Court could say otherwise.

Buddy, you're kidding me if you don't think that the current CCA and SCOTUS would take a shot at something they disagree with. Namely, civil rights of criminal defendants.

The issue in Mr. Rothgery's case is "when", not "if." Since Miranda does not address "when," Miranda is not at issue.

If you take away the "if" the "when" doesn't matter.

For instance, it would be ludicrously unwieldly if "when" happens immediately upon arrest.

Yet sometimes it does.

On the other hand, there is really nothing unwieldly or unreasonable about requiring appointed counsel for an indigent at a point in the process when that indigent's long term freedom is at risk, which it is at a court hearing on bail or no-bail.

Long term freedom isn't the test of when a person is entitled to an attorney. If they're at the point to where their long term freedom is even a question, they're already entitled to it. Detainment is the test, from what I remember. If a person reasonably believes that they are not free to leave the presence of the police, whether they're at the station or even in their own home, then they've been detained and are entitled to counsel.

"This implies, I admit, that an arrested person may have to remain in jail until a court is in regular session. But that happens most of the time, anyway."

But the cops aren't free to continue to question them. When considering a person's right to an attorney the issue isn't the length of time they'll be held, it's whether or not the police can continue to question them. The cops can do a great deal of damage in just a few minutes. But your "long term freedom" test would not be implicated if they got what they wanted in a short period of time.