Wednesday, June 25, 2008

A possible explanation for Rothgery confusion

Folks are still trying to figure out what the Rothgery case decided by SCOTUS this week really means. A perhaps helpful insight comes from the blogger at South Carolina Criminal Defense Lawyer, who points out that:
this was not an appeal from a criminal conviction. It was not a question of a statement that a defendant was asking to be suppressed because he was denied his Sixth Amendment right to counsel. This was a civil claim under 42 U. S. C. §1983. The Plaintiff was arrested and charged with felon in possession of a handgun, although he was not a felon. At his first appearance before a magistrate, he asked repeatedly for his attorney which was not provided to him. He appeared before a magistrate, was released on bail, was indicted and re-arrested, and spent three weeks in jail before an appointed attorney was able to explain to the prosecutor that he was not a felon and should not have been arrested in the first place.

His claim was that if he had been provided a lawyer within a reasonable time after he requested one at the initial appearance before the magistrate, he would not have been indicted, re-arrested, and jailed for those three weeks.

So part of the confusion about Rothgery may be that, since the ruling stems from a civil case, it contains none of the usual trappings one expects from a criminal court decision - the exclusion of evidence, etc.. For example, the court notably declined to dictate at what point in the process Gillespie County must appoint a lawyer, narrowly defining the question they answered in terms of the civil case. However, IMO the court's conclusion that Texas' article 15.17 hearing marks the point of attachment for the Sixth Amendment right to counsel still has significant implications for Texas criminal law - at least for counties that weren't appointing counsel until after indictment - even if that's not the context in which SCOTUS decided the question. This was a narrow decision, but for Texas at least, not quite vanishing.


Anonymous said...

What is baffling about the case is, Why wouldn't a magistrate NOT take a look at ones criminal history, especially if they are adamant about not having one? A simple NCIC/TCIC check which they could request would provide the needed information. Wouldn't it be prudent to prevent WASTING a grand juries time and FALSELY imprisoning someone?

What has been done to rectify this situation in Gillespie county AND are other counties putting into place procedures so that this doesn't happen again?

Anonymous said...

As long as a right is defined, the violation of that right will carry with it the usual penalties, such as exclusion of evidence.

This case should be rubbed in the noses of everyone who has ever said "if you're innocent, you've got nothing to hide."

TxBluesMan said...

Rage, the problem in this case is that it is a Sec 1983 civil case, not a criminal case. The criminal case was already disposed of, which is why Rothgery brought the civil action.

There was nothing to exclude.

He should have been given counsel at his arraignment.

The problem is that most Texas counties believe that if you can post bond, you are not indigent. SCOTUS did not rule on that part, but sent the case back to determine if there were violations. All they indicated is that the right to counsel attached at the first court hearing.

Gritsforbreakfast said...

Bluesy, do you think the specific SCOTUS determination about attachment at a 15.17 hearing is enough to require earlier appointment of counsel in situations like you describe, or did they leave enough wiggle room to avoid it?

I agree with Scott Greenfield that Justice Souter did us few favors with this decision. But once counties must admit the right to counsel has attached after the bail hearing, one wonders for how long they can justify failing to appoint any?

I foresee attempts at delaying the inevitable, but this ruling seems to set us on a path toward earlier appointments, even if it didn't overtly require it.

TxBluesMan said...


You know as well as I the view of most counties towards appointing counsel is not good.

I think they will try and wiggle, for example requiring a hearing on the indigent status of the defendant, and probably require him to argue his status pro se.

Although the current law (CCP Art 26.04) says that you can't consider if a defendant can make bail, that is the common practice throughout the state.

CCP Art 15.17 already required the magistrate to appoint counsel if requested and we know that they weren't doing that...

W W Woodward said...

For what it’s worth:

Anonymous 6/25/2008 10:58:00 AM
“Deferred Adjudications are not convictions”

News flash --- Several Texas licensing agencies - Texas Commission on Law Enforcement Officer Standards and Education for one – count deferred adjudications as convictions, not withstanding the Code of Criminal Procedure.

Anonymous 6/25/2008 02:26:00 PM
“He did plead guilty to a felony in California but the plea was part of a package that was supposed to expunge the conviction once he'd completed community supervision.”

Rothgery’s plea of Guilty in California may ban him from ever possessing or owning a firearm as far as the Federal Gun Control Act of 1968 and BATFE are concerned whether the case was adjudicated or deferred.