tag:blogger.com,1999:blog-8597101.post6902865675448515683..comments2024-03-25T20:06:39.794-05:00Comments on Grits for Breakfast: Oral arguments at SCOTUS in Texas right to counsel case reveal new insights about murky systemsGritsforbreakfasthttp://www.blogger.com/profile/10152152869466958902noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-8597101.post-15889467761116393782008-04-10T07:08:00.000-05:002008-04-10T07:08:00.000-05:00I too was disappointed in the argument. Being a T...I too was disappointed in the argument. Being a Texas Lawyer who handles criminal cases routinely, I am accutely aware of the burden incarceration places on people.<BR/><BR/>I do not beleive that the system is "not adversarial in nature" just because there is no prosecutor present. At magistration, the magistrate is usually looking at an arrest report and/or has an officer who advises the court of the charges made against the defendant. The key factor in my mind is: Is this a "Critical Stage" in the proceedings? The answer is YES. Why is this a critical stage? Because significant restrictions on your US and State Constitutional rights are at risk/issue. Namely your liberty.<BR/><BR/>I was so disappointed when the Justices discussed traffic tickets. Do they not understand that Class C misdemeanors do NOT carry a right to appointed Counsel? The distinction here is that where a charge is present that carries with it the risk of incarceration for more than six months, a right to appointed counsel exists. (Note that a defendant has a right to counsel in all proceedings, and appointed counsel in only speciffic proceedings.) In Mr. Rothergy's case, Felon in Poss. of a Firearm charge is a charge that he would have been entitled to appointed counsel if he could not afford one. This was not a traffic ticket case where a fine (property rights) was at risk but one where Mr. Rothergy's freedom was at risk (liberty).<BR/><BR/>I find it appalling to hear magistrates advise my office that they are going to wait for indictment before they hold the examining trial. I find it appalling that courts refuse to follow T.C.C.P. Art. 17.151 because they don't want to release the defendant from jail. (The Carson Case from the Texarkana Court of Appeals.)<BR/><BR/>I find it appalling that we set up our juveniles to have to either stand on their rights or waive them without even having the right to have their parents present. If we can't trust them to vote for President, how can we be certain that their maturity is sufficient enough to waive their Constitutional rights to counsel?<BR/><BR/>Mr. Rothergy had the right to counsel because it was a critical stage in the procedings, he was charged with a felony offense, his liberty and other rights were at risk in a critical stage of the proceedings. He could not speak without waiving the right to remain silent, and possibly he was unversed in Texas Criminal Procedure. He would be entitled to appointed counsel if he was found to be indigent as well.Unknownhttps://www.blogger.com/profile/17196407506848949468noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-2528215161823874072008-03-19T08:09:00.000-05:002008-03-19T08:09:00.000-05:00What a fiasco. I agree that both sides seemed unp...What a fiasco. I agree that both sides seemed unprepared, but I think the plaintiffs were unprepared for the court to be so strongly on their side. They went in complaining of one constitutional violation, and came out with the court helping them prove up a second.<BR/><BR/>It sounds like the state's side was argued by someone trained to argue before SCOTUS by Chuck osenthal.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-10028824209514371602008-03-19T00:11:00.000-05:002008-03-19T00:11:00.000-05:00And then there are counties which shall remain nam...And then there are counties which shall remain nameless (but I'm sitting in one of them) where the right to counsel doesn't attach until AFTER the suspect has been arrested, jailed for several days, interrogated numerous times, sent for a polygraph examination and made to sign a complete written confession (with, of course, the Miranda warning conveniently located at the end) and sometimes only after he has been indicted.The Local Crankhttps://www.blogger.com/profile/16673363936902590966noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-85363907211908388502008-03-18T20:21:00.000-05:002008-03-18T20:21:00.000-05:00Our local municipal judge (not a lawyer) has reque...Our local municipal judge (not a lawyer) has requested probable cause affidavits and or sworn complaints on all arrests brought before him whether class C misdemeanors or traffic citations (also class C misdemeanors). <BR/><BR/>Even-though the judge is not an attorney he believes in the presumption of innocence and is concerned with having the arresting officer establish probable cause by at least addressing the elements of the offense for which the defendant is charged.<BR/><BR/>He is meeting resistance (actually down right refusal to comply) from our local police officer. Of course our mayor is more interested in traffic citation revenue and the police officer is determined that the judge will not tell him how to file his charges.<BR/><BR/>This has resulted in a real pissing contest. I personally do not believe that the judge is being unreasonable, and this comes from someone with over 30 years in law enforcement and corrections.W W Woodwardhttps://www.blogger.com/profile/13326046112820327760noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-89069019152848507872008-03-18T17:03:00.000-05:002008-03-18T17:03:00.000-05:00Yes, except the point he was making was kind of we...Yes, except the point he was making was kind of weird. This case only applies where there's a prospect of jail time (B misdemeanors and higher) where they have to appoint counsel. He was actually completely confused and off base on that, I thought - and his traffic ticket hypothetical seemed to make little sense in the context of the case.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-72022112939896507302008-03-18T16:11:00.000-05:002008-03-18T16:11:00.000-05:00BTW, Kennedy also got a laugh with a quip about tr...BTW, Kennedy also got a laugh with a quip about traffic tickets...you need to give the Supremes more credit (except Thomas) when they get laughs in the court room.<BR/><BR/>But good news on the constitutional rights front regardless.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-14531994306246322852008-03-18T15:45:00.000-05:002008-03-18T15:45:00.000-05:00"I was offended how poorly both sides did in that ..."I was offended how poorly both sides did in that argument."<BR/><BR/>I kind of agreed with that, although I have to say I thought the briefs and amici fleshed the issue out pretty well. And don't worry, jigmeister - to the extent I'm "lawyer bashing," it's an equal opportunity affair! (Plus, some of my best friends, etc. ... :) )<BR/><BR/>Both attorneys seemed a bit parochial and unprepared for the type of theoretical questions the Justices were asking. I don't think Rothgery's lawyer was prepared for Roberts to come after her so aggressively right off the bat, and similarly Coleman seemed oblivious to why Souter was basically mocking him.<BR/><BR/>With so many other states able to solve the problems Roberts was raising, and Scalia onboard with the liberals, I do think the court will be able to craft some sort of new rule out of this case.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-1652101349954271842008-03-18T15:24:00.000-05:002008-03-18T15:24:00.000-05:00Grits,1st I was offended how poorly both sides did...Grits,<BR/><BR/>1st I was offended how poorly both sides did in that argument. I got the impression that the court had no idea what Texas law was or what the law should be at the end of the arguments. I think your lawyer bashing would be appropriate here.<BR/><BR/>2nd there is a tremendous disparity between what occurs in rural areas of the state and the major metropolitan areas that create these problems. In large jurisdictions a first appearance (after a magistrate hearing within 24 hours)occurs within 36 hours of arrest (perhaps 48 if the arrest happens Friday afternoon) and upon showing of indigency, counsel is appointed. In fact the law requires that charges be filed within 48 hours of arrest. At that time right to counsel attaches.<BR/><BR/>It should be the law and practice nationwide that counsel attaches within 48 hours of arrest.<BR/><BR/>3rd: I agree with Scott. If that was the totality of the police affidavit there was no probable cause provided to the magistrate and he should have ordered an immediate release. Probable cause requires sworn facts leading a neutral and detached magistrate to believe that the law was probably violated by the individual arrested. This affidavit only stated that the law was violated, not how the officer knew that.<BR/><BR/>I am afraid that happens in too many jurisdictions, especially where the magistrate has no legal training or is too close to the police in that jurisdiction. That law ought to change as well.<BR/><BR/>I do think we will see the court make some statement setting a time period when right to counsel attaches.jigmeisterhttps://www.blogger.com/profile/01924600460740103836noreply@blogger.com