Right to attorney begins soon after arrest (June 23, 2008)

The Supreme Court refined the contours of the Sixth Amendment right to counsel in a civil rights suit where the plaintiff charged that he was denied an attorney during a non-prosecutorial court hearing after which he was sent into custody.

In the case, Rothgery v. Gillespie County, TX, No. 07-440, police arrested Walter Rothgery for being a felon in possession of a firearm. He was taken before a judge for processing, and no prosecutor was present. Rothgery asked to receive counsel, but was told that would take several days. When he learned that waiting for an attorney would delay the setting of bail and thereby extend his jail stay, he waived his right to counsel for that hearing. The court found probable cause that he had committed the crime and ordered him held until he posted bond or the charges were disposed of.

Rothgery posted bond and was released. He continued to inquire, in writing, about the appointment of counsel, but none was assigned to him. Several months later, the grand jury indicted him for the crime and his bail was hiked. Police rearrested him until he could post the heftier bail. At his court hearing, he again sought counsel.

One week later, an attorney was assigned to represent Rothgery. The lawyer produced evidence that Rothgery was not a felon, meaning he could not be a felon in possession of a firearm as charged. After three weeks behind bars, Rothgery was freed.

Rothgery sued Gillespie by violating his civil rights by failing to appoint counsel as required by the Sixth Amendment. The district court, and later the Fifth Circuit Court of Appeals, rejected his claim. The Fifth Circuit reasoned that because the first court hearing did not involve a prosecutor, the Sixth Amendment right to counsel was not triggered.

In urging the Supreme Court to review the case, Rothgery argued that most other federal appellate courts and state high courts that have reviewed the issue have concluded that whether or not a prosecutor is involved, the Sixth Amendment is implicated in any court proceeding where a defendant is advised of the charges against him and of his rights.

In addition to Rothgery, a coalition of twenty-two law professors asked the Court to take the case. The consortium included Yale Kamisar of the University of Michigan Law School and Tracey Meares of Yale Law School.

On June 23, the Supreme Court overturned the appeals court decision.

"Our holding is narrow," Justice David H. Souter wrote for the 8-1 majority."We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: 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."

In dissent, Justice Clarence Thomas charged that the majority's "holding is not supported by the original meaning of the Sixth Amendment or any reasonable interpretation of our precedents."