The main problem occurs when an indigent defendant requests an attorney but then is somehow able to make bond - a particularly common occurrence on misdemeanor cases and penny ante felonies where bond amounts are low. Defendants in custody, for the most part, have counsel appointed promptly, but not always those who bail out.
Before Rothgery, Texas law did not require appointment of counsel until a defendant was acutally indicted, which could be weeks or months after the initial arrest. But SCOTUS said that the "magistration" hearing, where bail is set, marks the initiation of adversarial proceedings that requires appointment of counsel, speakers told the group.
In Texas, if a defendant is in custody, the law requires counsel to be appointed within 1-3 working days depending on the size of the county, "if an indigent defendant is entitled to and requests appointed counsel and if adversarial proceedings have been initiated." In Rothgery, SCOTUS said adversarial proceedings begin upon magistration and a lawyer must be appointed within a reasonable time thereafter. However, the confusion comes under Texas Code of Criminal Procedure 1.051(j), which adds that:
if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant's first court appearance or when adversarial proceedings are initiated, whichever comes first.Rothgery contradicted and essentially overrides that language, but SCOTUS did not proscribe a policy to replace it. The court only declared that adversarial proceedings initiate at magistration, but declined to specify how long counties have thereafter to appoint counsel.
The "whichever comes first" language could arguably mean that - since we now know precisely WHEN adversarial proceedings commence - counsel must be appointed within 1-3 days of magistration. But Texas Association of Counties General Counsel Jim Allison disagreed with that analysis, saying counties must only appoint lawyers within a reasonable time, though the longer they wait, he said, the greater the risk a delay will harm their case.
At a minimum, said Allison, counties can no longer wait until indigent defendants are indicted to appoint a lawyer - doing nothing is not an option. The safest practice, Allison declared, would be for counties to treat defendants the same regardless of whether or not they're out on bond - that's the only way to know for sure you'll be in compliance with the SCOTUS ruling, he said.
Counties that fail to appoint counsel after magistration risk having interrogations, confessions, line-ups, and other investigative efforts thrown out based on the court case Michigan v. Jackson, said Texas Fair Defense Project chief Andrea Marsh. That case held that "post-arraignment confessions were improperly obtained - and the Sixth Amendment violated - because the defendants had requested counsel during their arraignments but were not afforded an opportunity to consult with counsel before police initiated further interrogations."
District Judge Dib Waldrip from Comal County told the group counties should try to screen cases between arrest and the magistration hearing, dividing cases into "the good, the bad and the ugly," to get rid of bad cases before setting bail and identify ones where more investigation is needed before a defendant can be prosecuted. Not only would that practice help counties better comply with Rothgery, they're wasting taxpayer money on pretrial detention not to do so, said the judge and former DA.
See prior, relate Grits posts:
- Rothgery Ramifications: 'Investigate your defendant before arresting him'
- Rothgery 'trumped' counties leeway to delay counsel appointments
- A possible explanation for Rothgery confusion
- Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
- What does Rothgery really mean?
- SCOTUS to Texas: Provide counsel earlier in the process
- Requirement to appoint indigent defendants' counsel not an 'unfunded mandate'
- Rothgery v. John Wiley Price: Move to slash Dallas defender budget couldn't come at worse time
- When does the adversarial process commence?
- Rothgery oral arguments reveal new insight about murky systems
- Do they really have to appoint you a lawyer when you ask for one?
- SCOTUS to decide in Texas case when right to counsel attaches