In a peculiar case, Rothgery v. Gillespie County, naturally coming from the Sovereign Nation of Texas, the Supreme Court will hear argument today about when the right to counsel attaches.  The those who practice in jurisdictions of the United States, this case sounds plain screwy, but this is Texas.

According to petitioner’s brief, This fellow, Walter Rothgery, was arrested in Gillespie County, Texas, for being a felon in possession of a firearm.  He wasn’t a felon, but that’s not the point.  He was arrested and the following morning brought before a magistrate, which apparently is a local judge who makes an initial probable cause determination and sets bail.  Despite Rothgery’s requests for a lawyer, none was assigned.

The hearing held was called a “magistration”, where the police provide an affidavit to the magistrate saying, in effect, he committed the crime because I say so.  There’s no prosecutor present, and the magistrate then endorses the affidavit to show that he concludes there was probable cause for the arrest, and they all go out for a beer.  Except Rothgery, who does back to the jail cell.  Seriously, it’s that simple in Gillespie County.

Now a little interesting history on the 6th Amendment right to counsel, per Orin Kerr :

If I understand the history of the right to counsel, it was originally understood to mean that defense attorneys are permitted if a defendant had hired one, not that the government would provide one for him. The common law practice in the 16th and 17th centuries had banned defense attorneys in criminal cases; defendants were not permitted to use them, as it was feared that the defense attorneys would distract the jury and get in the way. If I recall my history correctly, Parliament had established a right for an attorney to appear and argue on a defendant’s behalf in the late 17th century in treason cases, and that had gradually spread in the 18th century to other criminal cases. The first Congress did not provide a lawyer for defendants beyond capital cases, further suggesting that the Constitutional right to counsel was originally understood to mean only a right to have an attorney appear on a defendant’s behalf if the defendant had hired the attorney on his own.

This should give you a better appreciation of Gideon v. Wainwright, and how revolutionary it was to provide counsel to the indigent.

As for Mr. Rothgery, who spent 3 weeks in jail, was later indicted, rearrested, given counsel who later proved that he was not a felon and had the case dismissed, he’s a little miffed about having to go through all that when it could have been avoided had he been given an attorney in the first place.  Hence, the case.

While I would like to tell you that this case has no consequence for the civilized world, and is only a Texas peccadillo, I don’t believe that’s true.  There are still plenty of little local-yokel “justice courts” around, including New York, where police show up with villains in shackles to have judges, often non-lawyer judges, decide probable cause and whether to hold a person in jail until a real judge can be found.  Just because it isn’t called by a silly name like “magistration” doesn’t make the process appear any closer to real justice.

In Rothgery, the denial of indigent counsel at the magistration stage was approved because there was no prosecutor either, thus connecting the right to defense counsel to the appearance of a prosecutor.  If they don’t have one, we don’t get one either, in other words. 

Of course, given the nature of this magistration proceeding, there’s no need to send a prosecutor out on horseback, since the fix is in when the cop submits the affidavit that says,

“I charge that . . . on or about the 15[th] day of July, 2002, . . . Defendant, Walter A. Rothgery did . . . commit the offense of unlawful possession of a firearm by a felon—3rd degree felony [Penal Code §] 46.04 against the peace and dignity of the state.”

Seriously, how many prosecutors do you need to come up with this sort of hard-driving accusation?

The underlying issue in Rothgery really does have meaning for the rest of us as well.  For upstate New York practitioners, who appear in local courts where the rules seem to come out of the blue, where there is no law that anyone else would recognize as such, where the judges run the local gas station and don’t know nothing about birthin’ no due process, the absence of an attorney for the defendant can prove critical. 

It may be hard to imagine for us city lawyers that this still goes on, but obviously it does and it will as long as there are placed called “courts” that continue procedures that would make us pull our hair out.  While originalists will remind us that these local courts, with their local peculiarities, were common in the country way back when, so was paying the constable a salary based on the number of drunkards arrested that day. 

Orin suggest that part of the problem with these types of cases is that the language used varies around the country, causing confusion as to what is required and when it has to be given.  Orin suggests:

The Supreme Court might get around this by trying to define the Sixth Amendment right by reference to something else the Constitution requires, such as the Gerstein v. Pugh probable cause hearing required after arrests under the Fourth Amendment.

But isn’t that exactly what happens in a magistration, where the magistrate signs off on the meaningless cop affidavit so that they can hold the defendant until they can take the guy to a real court?  Shifting nomenclature doesn’t change what’s supposed to happen at the proceedings, and obliterate all related rights. 

It strikes me that the problem is that localities just don’t want to spend the money on providing indigent defense when it’s inconvenient, and are not going to do it until someone puts a gun to their head and forces them to behave like a real court.  Until then, they are going to hold on to their quick, convenient, traditional procedures that have served them (though not the defendant) well up to now.  So it’s now up to the Supremes to decide whether these local courts are going to start behaving like real courts.  And then it will be up to the rest of us, likely court by court, to force them to actually do so.  I bet they aren’t going to change easily.