CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, June 24, 2008

Supreme Court Says Right to Counsel Begins With First Appearance Before Judge

Supreme_court4 A defendant's Sixth Amendment right to counsel attaches at his first appearance before a magistrate, whether or not the prosecutor is also on hand, the Supreme Court ruled on Monday.

The Court's 8-1 decision in Rothgery v. Gillespie County, Texas, came as the justices began their final week before adjourning for the summer. The justices will take the bench again on Wednesday and possibly one other day this week.

The ruling in Rothgery dealt with a Texas "magistration" procedure under which a defendant goes before a magistrate judge, has bail set, and can be imprisoned -- all without the involvement of a prosecutor or the appointment of defense counsel.

Walter Rothgery had been picked up in Fredericksburg, Texas, based on an erroneous California police report and was arrested as a felon with a firearm. He was jailed for a period, but posted bail. It was not until six months after his initial appearance before a judge that counsel was appointed -- at which point the lawyer documented the erroneous report and got Rothgery's indictment dismissed.

Justice David Souter, writing for the majority, said that when a state's commitment to prosecute is strong enough to prompt arraignment and imprisonment of an individual, "by that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it."

The decision may have limited impact because 43 states, plus the federal and Washington, D.C., governments, already appoint counsel for indigent defendants before or just after the initial appearance before a judge. And even in the remaining states -- Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas, and Virginia -- procedures in many cases conform to the Court's view of the Sixth Amendment right. [Mark Godsey]

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