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A Narrow, Almost Vanishing, Opinion on Counsel

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Understatement of the day award goes to Justice David Souter, writing for the Court in Rothgery v. Gillespie County, Texas, No. 07-440. "Our holding is narrow." Indeed, the holding decides an easy technical question but resolves nothing of consequence. If the holding were any narrower, it would disappear altogether.

Once upon a time, Walter Rothgery pleaded guilty to a felony in California. However, in California in some cases a plea can be withdrawn and charges dismissed after a defendant completes a period of probation or diversion. Probably as a result of this quirk in another jurisdiction's law (the opinion doesn't really say), the records available to police in Gillespie County, Texas indicated that Rothgery had been convicted of a felony. He was arrested for possession of a firearm by a felon, granted bail, indicted, jailed after being unable to post the increased bail after indictment, and finally appointed counsel after three weeks in jail. After counsel determined the status of the prior proceedings, Rothgery was released, and the charges were dismissed. Then he sued the county in federal court under 42 U.S.C. § 1983.

Today's opinion holds that the Sixth Amendment right to counsel "attached" at the first hearing, where the magistrate found probable cause and set bail. In Texas, this is called an article 15.17 hearing. The Fifth Circuit erred in focusing on when the district attorney gets involved.

Okay, but what exactly is the consequence of the right to counsel having "attached"? We don't know any more about that today than we did yesterday. Does that mean that the state has an affirmative obligation under the federal Constitution to appoint counsel at that point, and is there liability for money damages for any adverse consequence of failure to do so? The Court doesn't say. "We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this."

Justice Alito's concurring opinion recaps past holdings about what the attachment of the right to counsel means. It means that counsel must be present for any critical stage of the proceedings. Critical stages are those proceedings where the absence of counsel might impair the subsequent trial. They include the preliminary hearing, pretrial lineup, pretrial interrogation, pretrial psychiatric exam, and "certain kinds of arraignments." (Concurring opinion, at slip op. pp. 4-5.) There was no Supreme Court precedent for the proposition that the state is obligated to appoint counsel for indigent defendants for the purpose of proceedings that may be important for other reasons but do not impact the ultimate trial, and there still is no such precedent today.

Justice Thomas dissents on historical, originalist grounds. Of course, to be truly faithful to history the Court would have to overrule Gideon v. Wainwright, 372 U.S. 335 (1963) and be done with the whole appointed counsel matter, and that is not going to happen. The Chief Justice and Justice Scalia praise Justice Thomas's analysis but conclude that too much water has passed under the precedent bridge to go back now.

Why is today's opinion so narrow? Well, the question presented by Rothgery's counsel was narrow. As a result, "the case is remanded for further proceedings consistent with this opinion." (Slip op. at 20.) It would be consistent with the opinion to reinstate the original judgment on better-considered grounds, and that may be all Rothgery gets for his trouble.

Narrowness in opinions is a virtue I have praised before, but sometimes one can have too much of a good thing. Counsel would be well advised to state their questions broadly enough that the answer actually resolves the main issue in their client's case.

3 Comments

The answer is right there on the page of the opinion.

The court says the right attaches at the 15.17 hearing.

Don't get in a tizzy about what exactly that means...

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

The question you need to ask is "When does the defense begin?"

It will probably be different for each defendant. Some will deny guilt right up front and offer an alternate explanation to the arresting officer. These defendants have clearly begun their defense and should be afforded an attorney if requested. Other defendants will exercise their right to remain silent. Their defense probably wont really start until plea negotiations.

So the answer to "when should we give him a lawyer" should be "when he asks for one." Duh!

The underlying question in this case is not when the state "should" give defendant a lawyer but rather when the Sixth Amendment requires that it do so. What is good policy and what is constitutionally required are very different questions.

The Supreme Court did not answer that question in its Rothgery opinion. The passage expressly saying it did not is quoted in the main post. So the Fifth Circuit will have to address the question on remand.

In all criminal prosecutions [... a person has the right ...] to have the Assistance of Counsel for his defence.


If the right is attached then the hearing in front of the magistrate must be part of the criminal prosecution.

If it is part of the criminal prosecution, you have the right to assistance of counsel.


Think of it this way: If you had a privatly retained lawyer, could they keep him out of the hearing on the grounds that it was not part of the criminal prosecution?

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