Mr. Rothgery who was arrested and refused an appointed attorney on what turned out to be wrongful gun charge, appears to me likely to prevail in the case, judging purely from Justices' comments. Justices Scalia, Ginsberg, Souter, Stevens, Kennedy and Breyer all seemed to be actively seeking ways to uphold the plaintiff's petition. Scalia outright said as much, as did Kennedy, who declared openly that what "we're looking for here, at least one of the things we might look for in this case, is a specific rule to give to the States so the State knows when counsel has to be appointed."
Chief Justice Roberts, by contrast, appeared intent on arguing Gillespie County's side more vehemently, while Alito's questions suggested that, at a minimum, he's thinking seriously about how Texas' system of appointing counsel should work compared to how it does. Clarence Thomas was his usual, silent self.
Having just read through the oral arguments transcript, I wanted to point out a few astonishing (to me, anyway) bits that emerged in the debate. First, this comment from the attorney for the state, Gregory Coleman, absolutely floored me:
some statistics that I have seen suggest that it may happen in half of the cases, where an individual is arrested, magistrated, released, and no official charges are ever broughtCan this possibly be true?!! Can it possibly be the case that in HALF of Texas' arrests, "no official charges are ever brought"? Why in the world are we arresting them, then? I'd like to know a lot more about that statistic and whether that's really the case. It seems improbable, but if that's really true, then our justice system is broken a lot worse than I've heretofore believed.
Justice Scalia picked up on this perhaps more strongly than any of the others when questioning Rothgery's attorney:
JUSTICE SCALIA: ... Texas made one of two possible constitutional violations. Either it was unconstitutional for Texas to require him to make bail, or it was unconstitutional for Texas not to provide him with an attorney. Why should -- why should we find that the latter was the problem rather than the former?Another astonishing exchange occurred on the same topic when the state's attorney essentially confirmed Scalia's interpretation under questioning from Justice Souter:
MS. SPINELLI: Well, there is certainly nothing unconstitutional about requiring bail, as we know.
JUSTICE SCALIA: Well, there certainly is if you're not charged. I think it's a very strong point in your favor that he was required to make bail, because I don't think you can hold somebody without charging him
JUSTICE SOUTER: What you're saying, in answer to Justice Kennedy's question, that an individual can be brought into court, held in jail for three weeks without charge, and no right to counsel applies? I think that's your answer, but I want to make sure. I'll be candid to say I'm surprised. But if that's your position, I want to make sure I understand it.What more can you add to that? Screw habeas corpus - they can arrest you, jail you, and not charge you for weeks without giving you a lawyer, according to this grotesque theory of justice. Justice Souter openly scoffed at Coleman's reasoning, declaring:
MR. COLEMAN: Gerstein says that there must be --
JUSTICE SOUTER: I want to know what your answer is here. Get to authority later, but I want to know whether your position is that an individual may be brought by a police officer before a magistrate, charged with no crime, required to post bail, and if he doesn't post bail, be held for three weeks without charge.
MR. COLEMAN: That could not happen in Texas.
JUSTICE SOUTER: I'm not asking whether it could happen; I'm asking whether it would be constitutional without appointing counsel.
MR. COLEMAN: It would be -- not be a violation of the Sixth Amendment right to counsel.
JUSTICE SOUTER ... In other words, if the lawyer comes in and says, you know, my client is sitting in jail, you've had him there for three days now, and no complaint has been filed against him, we don't know why he is being held -- your answer -- the -- it's a constitutional answer to say, well, you know, that's for us to know and you to find out? (Laughter.)According to amici brief mentioned during the debate, 45 states provide defendants counsel upon their initial magistration, so Texas and a handful of other states (I don't know offhand which ones) are outliers nationally, and it wouldn't surprise me a bit if the high court takes this opportunity to create a national standard on the question, as Justice Kennedy overtly implied.
For more information, visit the website of the Texas Fair Defense Project, which brought the suit. Here are some initial reactions so far from the blogosphere (UPDATED):
- R. Enochs: When has adversarial proceeding commenced for Sixth Amendment purposes triggering a right to counsel?
- The Volokh Conspiracy: Thoughts on the oral argument in Rothgery v. Gillespie County, and Two thoughts on Rothgery
- Prawfsblawg: Message to Originalists and their Foes: Think 1868 not 1791
- Simple Justice: Rothgery Oral Argument: It's Easy to Be PC, and When does the right to counsel attach?
- Z the Legal Blog: Rothgery argued today in Supreme Court
- Stand Down: Another Rothgery Preview
- Cincinnati Law Library Blog: Right to counsel Supreme Court case
- South Texas Chisme: With Republicans, Americans can be arrested and held without a lawyer
- Grey at Law: Would you rather have a handgun or a lawyer?