Rothgery Gets a Lawyer

The Supremes have decided Rothgery v. Gillespie County, that dopey Texas case where they decided that a “magistration hearing” is a good time to put people in jail but a bad time to provide them with counsel.  Past discussions can be found here and here.

But aside from this, the decision doesn’t provide much by way of guidance.  The holding appears to be:

[A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

Does that create a new tripartite test, requiring (1) initial appearance before a judicial officer, (2) he learned of the charges, and (3) his liberty is subject to restriction.  If one of these things is missing, does that mean the right to counsel doesn’t attach?  Isn’t it really all about the “liberty subject to restriction,” and the others factors are just the norm, but not critical?

And then, the question remains whether the defendant must have counsel present at the proceeding, or whether he has to request it, or whether he gets counsel afterward. 

Lots of questions.  The Court has now gotten away from the semantic problem, what the proceeding is called, and into the substantive problem of what happens at the proceeding, regardless of what it’s called.  It also rejected Gillespie County’s argument that it has to do with the availability or presence of a prosecutor.

In the end, we know that what Gillespie County did was wrong.  We just don’t know what is right.  I guess we’ll just have to wait for the next decision on the issue to bring us a little closer to understanding when these out-of-the-way jurisdictions are going to start affording counsel to defendants before they lock them up.

4 comments on “Rothgery Gets a Lawyer

  1. Bea Vo

    The 6th amendment gives a citizen the right […] to have the Assistance of Counsel for his defence.

    The court says the right attaches at the 15.17 hearing.

    So the proper question is: When does the defense begin?

    And the answer is: It depends.

    If Rothgery was telling the officer and the magistrate something like: “You got the wrong guy. I’m not a felony. I’m innocent!” Well then it is an easy question to answer. If, on the other hand, he just nodded and went back to his jail cell then it isnt so very clear.

    Yes it is messy but thats why we have human judges and juries instead of computers.

  2. SHG

    Thank you for bringing such an interesting perspective and clarity to a decision that has befuddled lawyers across the country.

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