It takes a while to reach the end of a 49 page Supreme Court decision. They aren’t the juiciest of readings, and they use a lot of words to say things that could be said in much simpler language. But I finally got to the very end of Justice Clarence Thomas’ dissent in Rothgery v. Gillespie County, and found a nugget that compels me to write.
At pages 48-9 of the slip opinion, Justice Thomas writes:
But we have never suggested that the accused’s right to the assistance of counsel “for his defence” entails a right to use counsel as a sword to contest pretrial detention. To the contrary, we have flatly rejected that notion, reasoning that a defendant’s liberty interests are protected by other constitutional guarantees. [Gouveia, 467 U. S., at 190] (“While the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor, the speedy trial right exists primarily to protect an individual’s liberty interest,” including the interest in reducing the “ ‘impairment of liberty imposed on an accused while released on bail’ ”). (Hyperlink added)
That’s nuts! Having a lawyer represent a defendant who is before a court on the issue of whether he should be held on bail, have his liberty restricted, at the request and insistence of either the police or the prosecutor, constitutes using “counsel as a sword to contest pretrial detention.” That’s positively loony.
It’s not that I don’t like the image of the criminal defense lawyer as a “sword”. It makes us look pretty darn cool and manly. I see myself as a massive Scottish Claymore. I am definitely not some dainty rapier or girlie foil. The sword of justice! How cool is that?
But my flights of fantasy aside, Justice Thomas’ attempt to reverse the role of defense counsel from the shield to the sword has crossed the line into the absurd. The defendant does not take the initiative, demanding that the judge (or magistrate as was the case in Rothgery) free him immediately or else. Or better yet, demand that the judge set bail on the arresting officer for levying a frivolous and outrageous accusation of criminal conduct against the defendant.
And since when is speedy trial the only protection for a defendant’s liberty interest? Not to mention, the speedy trial right exists not only for the benefit of the defendant, but for society to assure it that criminal prosecutions move forward with appropriate speed and the public is assured that crimes are dealt with in a timely fashion.
While this bit of foolery at the very back end of the Rothgery dissent is almost entirely without real world consequence, it should not go entirely unnoticed. Some day Justice Thomas may author a decision that affects a case that matters. On that day, we should remember fondly gems such as this. A sword indeed.