Plenty of counties complain about the Fair Defense Act, but the US Supreme Court will soon decide in a Texas case whether even its requirements don't go far enough. SCOTUS will hear oral arguments at 11 a.m. (EST) in a suit brought by the Texas Fair Defense Project clarifying when in the arrest process the right to counsel kicks in. (See earlier Grits coverage, and the SCOTUS Wiki page on the case.)
The case arises from an incident in Fredericksburg, described in more detail in this Houston Chronicle article, where a man (it turned out wrongly) accused on a gun charge spent extra time in jail because he wasn't appointed attorney when he first went before a judge. Mr. Walter Rothgery was accused of being a felon in possession of a firearm, but it turned out the database accusing him of having a felony conviction was wrong. As a result, reported the Chronicle:
Good luck today to Rothgery, Andrea Marsh, and the Texas Fair Defense Project. (As an aside, how cool is it for an attorney to have the first lawsuit you ever file go all the way to oral arguments at the US Supreme Court?! Congrats and good luck to Andrea, Harry, and everybody else in their shop.)
Rothgery spent the next six months in legal limbo: unable to get a full-time job because of the report of a conviction hanging over him and unable to afford a lawyer. He was indicted, re-arrested, had his bail tripled and moved to a county jail more than 100 miles from his home.
A sympathetic warden there helped him find a lawyer, who obtained documentation proving he had no felony record.
Three weeks later, Rothgery was released again on bail, and Gillespie County prosecutors ultimately dropped the charge. He was a free man.
"I guess everybody who gets arrested says they're innocent," Rothgery said. "Sometimes they are."
Rothgery's case caught the attention of Andrea Marsh, a rookie civil liberties lawyer who filed the first lawsuit of her career on his behalf against the county in 2004 alleging his Sixth Amendment right to an attorney was violated.
If a lawyer had been appointed, the mistake underlying his arrest would have been discovered and he wouldn't have been subjected to bond for a lengthy period and wrongfully jailed, she argued.
"I always thought once you ask for a lawyer you get a lawyer," Rothgery said.
On the prosecutors' association user forum in December, one of their lobbyists, Shannon Edmonds, lamented that if SCOTUS restricts the ability to hold defendants in jail without appointing a lawyer, it may result in "fewer valid confessions." Moreover, he said, if SCOTUS requires appointment of counsel earlier in the process, "counties will squeal about the costs, leading to a statewide push for the creation of more local public defender offices."
More public defender offices, if you ask me, would be a good outcome from this case, if Edmonds' prediction holds true. If Rothgery wins, depending on the contents of the opinion, counties can "squeal" all they want but they still have to pay.
As for fewer confessions, though, let's interrogate this assertion for a second. Why would more people confess under the current system? Because they don't have a lawyer's advice! That certainly won't be an argument SCOTUS accepts (I would hope) for delaying appointment of an attorney. The other reason failing to appoint a lawyer would boost confessions is when the defendant sitting in jail and that's the quickest option to get out - particularly on lower level charges where probation or a short jail sentence is the most likely outcome. But "lock 'em up without a lawyer till they confess" isn't what the American justice system should be about, is it?
Edmonds further suggested that "more prosecutors might go to direct file systems with 24/7 review to weed out bad cases up front in an attempt to save the county some money (but only if they can convince their commissioners to fund it!)." Such a direct file system, incidentally, is part of the campaign platform of Mindy Montford, a candidate in the runoff for Travis County DA.
Stay tuned: As the originating state for the suit, depending on the outcome, the Rothgery case could have a big impact sooner than later in Texas on both defendants' rights to counsel and already-strained county budgets.
MORE: See two posts about Rothgery from Orin Kerr at the Volokh Conspiracy.