CrimProf Blog

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

Monday, June 23, 2008

SCOTUS Clarifies When Sixth Amendment Right to Counsel Attaches

The Court decided Rothgery v. Gillespie County today.  In an 8-1 decision, the Court held that the Sixth Amendment right to counsel attached after the Petitioner was arraigned before a magistrate -- that is, when the magistrate determined there was probable cause to charge him with a criminal offense -- even though he was not indicted until six months later.  Only Justice Thomas dissented.

The virtual unanimity, however, masks a deeper division on the Court.  Rothgery was out on bond until he was indicted.  He claims he was harmed by the deprivation of counsel in that, once he was indicted, he was rearrested and jailed for three weeks until his appointed counsel proved to the prosecutor that Rothgery did not violate the criminal statute at issue (essentially, it was a felon-in-possession statute, and Rothgery had never been convicted of a felony).  In a separate opinion joined by the Chief Justice and Justice Scalia, Justice Alito cautioned against reading the decision too broadly.  It held only that the Sixth Amendment attached for Rothgery; but it did not hold that any Sixth Amendment rights were violated.  Since the Sixth Amendment right to counsel is essentially a trial right, the concurrence pointed out, it remains to be seen whether Rothgery's claim was cognizable, given that he was never tried. [Mike Mannheimer]

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