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When Does the Right to Counsel Attach?:
Tomorrow the Supreme Court will be holding oral argument in Rothgery v. Gillespie County (briefs here), a very interesting case on when an indigent criminal defendant gets a constitutional right to have an attorney appointed to represent him.

  Rothgery was arrested, held overnight, given a probable cause hearing, and then released on bail while the government decided whether to bring formal charges. Months later, he was indicted and given counsel; his lawyer got the charges dismissed because it turned out that Rothgery wasn't in fact a "felon" for purposes of a felon in possession law.

  Rothgery then brought a civil suit arguing that his constitutional rights had been violated when he was not provided counsel at the earlier stage. The Court has never clearly stated exactly when the constitutional right to counsel attaches in this sort of setting, mostly because Sixth Amendment cases typically arise in the context of a motion to suppress the defendant's statements and the defendant almost never makes statements at these early proceedings.

  I've just started reading the briefs, so I don't yet know where I come out. More soon, I hope.

Related Posts (on one page):

  1. Two Thoughts on Rothgery:
  2. When Does the Right to Counsel Attach?:
eyesay:
The Court has never clearly stated exactly when the constitutional right to counsel attaches
And neither does the Constitution!

That is why we have a Supreme Court. Sometimes, the Supremes are called upon, and have no choice but to, make law, to fill in the ambiguities left by the framers.
3.16.2008 7:16pm
OrinKerr:
eyesay,

Are you sure the framers left this ambiguity? As I understand it, the original intent of the Sixth Amendment was to allow defense attorneys if a defendant had hired one, not provide one for him for free. For centuries, the common law practice had been to ban defense attorneys in criminal cases; defendants were not permitted to use them, for fear that the defense attorneys would distract the jury. Parliament had established a right to counsel in the late 17th century in treason cases, and that had gradually spread in the 18th century to other criminal cases; it was that sense of the right to counsel that the framers wanted to establish.

As far as I know, no one contests that Rothgery had a right to an attorney if he had already hired one. Rather, the question is whether he has a right to an attorney provided to him for free under the Supreme Court's 20th century cases. I don't think this was an ambiguity left open by the framers. Of course, you might think the framer's intent was irrelevant, and that's another argument, but your argument seems puzzling here.
3.16.2008 7:41pm
George Weiss (mail) (www):
this is what strikes me about the case:

the case is, admittedly, mostly about when the sixth attaches.

if you say it attaches at the IP, then he goes to a jury for damages for the entire period from his IP to the time counsel was appointed. (months)

if not, then you affirm the court below...but

even if you agree with the understanding that no right to counsel attaches until there are prosecutors involved-

it seems that Rothgery should point out that even after his indictment on January 17th, he still spent 6 days in jail afterward, until counsel was appointed until the 23rd. How could he have been indicted without a prosecutor involved?

thus, even if you agree with the 5th circuit (which I would under their own precedent, but would say is a clean slate before the supreme court) its unclear why he shouldn't be compensated for the 17-23rd period.

of course, it doesn't appear Rothgery is raising this issue.
3.16.2008 7:46pm
BRM:
Maybe he should have spent his bail money on a lawyer.
3.16.2008 8:20pm
BruceM (mail) (www):
The way I see it, as long as someone is in jail or on bond, they are entitled to counsel, and were entitled to have a lawyer the moment they were brought before a magistrate to determine probable cause. If he had had counsel when he was arraigned, his counsel could have pointed out that the information the police had relied upon in their affidavit was false (he was in fact not a felon and the record from California was erroneous).

Allowing counsel the moment a person becomes a defendant is not only the fair and proper thing to do, it's also the efficient thing to do.

Somehow, I'm sure Orin will disagree with me :)

BRM: nobody should have to pick between their right to counsel or their right to freedom.
3.16.2008 8:28pm
alias:
Bruce writes:

as long as someone is in jail or on bond, they are entitled to counsel
...
Allowing counsel the moment a person becomes a defendant is not only the fair and proper thing to do, it's also the efficient thing to do.
Well, which is it? As I understand it, a person isn't a "defendant" until he's been formally charged. Rothgery wasn't a "defendant" yet in this case.

Also, while it might be fair and proper, I doubt it's efficient. For every defense lawyer who helps clear up misinformation at arraignments, there are probably several who just make those things longer than they need to be by being argumentative.
3.16.2008 8:40pm
OrinKerr:
BruceM,

As I said in the post, I don't yet know my views. I'm curious, though: Did you reach your views after reading the briefs and the cases, or did you know the answer without needing to consult these sources?
3.16.2008 8:40pm
Just Saying:
Orin-- You're a master of the question you already know the answer to. But I couldn't help but read the blog of the commentator you responded to:

http://brucem.livejournal.com/77706.html


Those "Smiling Bob" ads were a crime in and of themselves. Inundating media with ads for fradulent products is the gravest crime against humanity. While I have stated 20 years in prison should be the statutory maximum for violent crimes like rape, assault, and murder, the mass advertising of fraudulent products (spam being the prime example) is a crime against humanity at large and is the only crime I feel should be eligible for the death penalty. Yes, I do feel Steve Warshak's crime is worse than a serial killer or a child rapist (not to minimize those crimes - they are horrendous).


Right then.
3.16.2008 9:01pm
Dave N (mail):
I haven't read the briefs and I should do so before commenting. From a common-sense perspective, it seems that the the Sixth Amendment right to counsel should attach when there are formal charges brought--and a reasonable amount of time should be set at the 48 hour hearing for the state to do so (or the person should be released).
3.16.2008 9:06pm
Soronel Haetir (mail):

Having read both of the primary briefs though not the reference cases of Kirby, Brewer and Jackson I would have to say that the adversarial judicial procedures had begun at least sometime during the initial appearance.

By denying appointment of councel Rothjury had 0 real ability to invoke his option of a prelinary hearing.
3.16.2008 9:12pm
BruceM (mail) (www):
Orin: Since it's a Texas case and since I practice in Texas I did read the briefs a while back. How can someone standing before a judge, in handcuffs and an orange jumpsuit, having formal charges read against him not be considered being at a "critical stage" of the proceedings for the 6th Amendment not to attach? As cynical as I am about the SCOTUS when it comes to criminal law issues, I am fairly confident the Court will rule in favor of Rothgery. The state tries to distinguish warrantless arrests (like Rothgery's) from arrests stemming from warrants. I find this argument unconvincing.

Just Saying: If inundating my television with constant advertisements for fake* penis enlargement pills is not worthy of the death penalty then nothing is.


* Before you ask me "how do you know they're fake unless you bought them! Har Har!" let me preempt you by assuring you I've never bought any medication that has the words "herbal" or "natural" in the advertisements. Aside from the fact that common sense dictates there's no such thing as a pill that could make your body grow larger, let alone one isolated part of your body, the herbal/natural/alternative medicine appellations are code for "fraud."
3.16.2008 9:26pm
Kovarsky (mail):
i think greg coleman is arguing this case. if it's the one i'm thinking of, i think they can decide this on waiver right?
3.16.2008 9:27pm
OrinKerr:
How can someone standing before a judge, in handcuffs and an orange jumpsuit, having formal charges read against him not be considered being at a "critical stage" of the proceedings for the 6th Amendment not to attach?

Objection. Assumes facts not in evidence.

If inundating my television with constant advertisements for fake* penis enlargement pills is not worthy of the death penalty then nothing is.

I hope that's a joke.
3.16.2008 9:49pm
BruceM (mail) (www):
Also, for whatever it's worth, I'm not sure I buy the argument that one must read all the briefs submitted in a case before one can have an valid opinion on the way the case should be resolved. Yeah, in hyper-technical ERISA cases that come down to the wording of statutes or regulations it's probably a good idea to read the briefs before forming an opinion... though someone probably wouldn't have an opinion on such a case unless they had read the briefs. Many people have valid opinions on DC v. Heller even though they have not read the briefs (has anyone read every single Amicus brief filed in that case?). I certainly agree that an opinion formed after reading the briefs is more informed than an opinion formed without having read the briefs. But I don't agree that such a less-informed opinion is a per se invalid opinion.

Alias: by "defendant" I meant a person who has had criminal judicial proceedings initiated against him. I should have been more clear.
3.16.2008 9:53pm
BruceM (mail) (www):
Orin: I'm not assuming facts not in evidence. Actually, I suppose I am assuming the jumpsuit was orange. Most of them are, though some counties in Texas have blue jumpsuits, one has green that I can recall, and Bell County actually has those old-fashioned black and white striped ones (first time I had ever seen 'em outside of a movie).

Yes, my comment on executing penis pill peddlers is made tongue-in-cheek. Throughout all the controversial things I say, I've always been consistent in that I do not trust the government enough to permit it to use the death penalty. I do think Steve Warshak and his codefendants committed a very serious crime. In addition to stealing money from tens of thousands of people through unauthorized credit card charges, his "Smiling Bob" commercials singlehandedly diminished the advancement and self-respect of our society.
3.16.2008 10:02pm
DC:
As I said in the post, I don't yet know my views. I'm curious, though: Did you reach your views after reading the briefs and the cases, or did you know the answer without needing to consult these sources?


I've never quite understood the value of snidely engaging with posters like this.
3.16.2008 10:07pm
George Weiss (mail) (www):
I've never quite understood the value of snidely engaging with posters like this.

it keeps me entertained for one
3.16.2008 10:11pm
OrinKerr:
BruceM,

Re facts not in evidence, I was thinking mostly of the reading of formal charges. If I recall, the lower court did not hold a hearing into the exact nature of the prelim hearing. I tend to think that may be the fatal flaw with the case, actually; the exact nature of the Texas prelim hearing was not developed in the record.
3.16.2008 10:43pm
BruceM (mail) (www):
Orin: It's my understanding that an affidavit of the arresting officer was read before the magistrate (i.e. sworn complaint), stating the facts of the offense (felon in possession of firearm based on previous California felony conviction) and the magistrate found probable cause that Rothgery had committed this 3rd degree felony. While there is a huge disparity in the nature different counties in Texas handle initial arraignments and the record could have more detail on the matter, I don't think the details would be dispositive of whether appointed counsel should have been denied. At the very least, since it was a felony charge, only the officer's sworn complaint would be read at the arraignment, and assuming the magistrate finds probable cause, the defendant would be put on bond pending indictment by a grand jury.

As I recall Rothgery was given a $5,000 bond pending indictment, which he was able to post ($500 paid to bondsman). Once the indictment was handed down several weeks later, his bond was raised to $50,000 which he could not afford to pay and he was thus remanded to the county jail. Only then was counsel appointed and the charge was dismissed once it was shown he did not actually have a prior felony conviction. He had been charged with a felony in California a few years back but given a deferred adjudication sentence which, if he completed, the charge would be dismissed. He did complete it and the charge was dismissed, thus no felony conviction. It was a computer error which caused all of his troubles. Appointing counsel at the time of the initial arraignment would have increased the chance that this could have been resolved before the indictment, or at the very least during the grand jury proceedings. Also, I think counsel should be there when determining the amount of bond in a given case. Most people are not sophisticated enough to know what to argue to get a lesser bond (not a flight risk or danger to community, ties to community, job, family, income, etc.).
3.16.2008 11:07pm
George Weiss (mail) (www):
Also, I think counsel should be there when determining the amount of bond in a given case. Most people are not sophisticated enough to know what to argue to get a lesser bond (not a flight risk or danger to community, ties to community, job, family, income, etc.)

he clearly waived that right
3.16.2008 11:12pm
George Weiss (mail) (www):
this is also an interesting argument for why prosecutors should not have absolute immunity.

a small amount of due diligence before indicting the guy and rearresting him and asking for a 1000% increase in bail would have saved this guy without a lawyer.

but the prosecutor just has no incentive to do this due diligence.

only prosecutors and judges and legislatures benefit from absolute immunity...

not cops
not doctors
not executive agencies

is the work of a prosecutor more important than all of that?
3.16.2008 11:20pm
Daniel Chapman (mail):
Wow, Bruce... did you really write that? Sheesh.
3.16.2008 11:41pm
BruceM (mail) (www):
George: how can he knowingly and intelligently waive any right without being allowed counsel with whom to confer?
3.16.2008 11:43pm
George Weiss (mail) (www):
George: how can he knowingly and intelligently waive any right without being allowed counsel with whom to confer?

if you don't think you can wave a right without counsel present...then your rewriting the entire criminal jurisprudence history of the united states

are you going to tell me you cant waive your Miranda rights until they give you counsel..even if you explicitly say your waving that right in the interest of time?
3.16.2008 11:47pm
Vinnie (mail):
As a layperson my rule of thumb is if the cuffs come out or I can't go home now I need a lawyer. So far I have not needed one but it is good to have a plan.
3.16.2008 11:48pm
BruceM (mail) (www):
George: I don't think you can waive a right without being informed about it. The whole point of miranda is that you have to be told those rights ("you have the right to remain silent, etc.".

When you said "He clearly waived that right" I assume you were talking about his right to argue for lesser bond. I don't think that's really an issue of waiver but rather an issue of legal knowledge. Most people don't know what the issues involved in setting bond are, and would only argue, at most, about how much money they have and what they can afford (which is just one factor). If you were talking about him waiving his right to counsel at that time, well, he asked for counsel and that's what this whole case is about (so I doubt that's what you were talking about).

I do believe people have to be informed about a right before they can waive it. For example I think it is a violation of Due Process for a police officer to ask for consent to search a car or house without contemporaneously informing the suspect that they have the right to refuse giving consent. I know the courts don't agree with me on that, but I have my own opinions of what the law should and should not be.

Vinnie: that's a good rule of thumb. Custody = lawyer.

Daniel Chapman: Did I really write what, the thing about the penis pill guy? Yeah, but read my whole blog post, not just that one sentence or two so as to put it in context.
3.17.2008 12:11am
z9z99:
An honest question: Does every criminal defendant who succesfully invokes the exclusionary rule because his fourth amendment rights are violated have a 1983 claim? Does every defendant who successfully invokes Miranda have a 1983 claim?
3.17.2008 12:13am
George Weiss (mail) (www):
If you were talking about him waiving his right to counsel at that time, well, he asked for counsel and that's what this whole case is about (so I doubt that's what you were talking about).

nope, i meant the lawyer. He had no right to have counsel present for the bail hearing, because he waived that right. As for the importance of being warned of your rights, it seems to me the magistrate and the defendant had a pretty in depth conversation there about the benefits and pluses of going the lawyer route-and he chose no lawyer in the intrest of time.
3.17.2008 12:15am
OrinKerr:
z9z99 writes:

Does every criminal defendant who succesfully invokes the exclusionary rule because his fourth amendment rights are violated have a 1983 claim? Does every defendant who successfully invokes Miranda have a 1983 claim?

1) In the case of a warrantless search or seizure, a defendant could have evidence excluded but not succeed on a 1983 action given qualified immunity. Also, if the action is by federal officials, it would be a Bivens claim not a 1983 action.

2) No, see Chavez v. Martinez.
3.17.2008 12:16am
Soronel Haetir (mail):
George,

I would make the argument that the lack of available councel at the initial appearance was a ploy by the government.

However lack of councel at that appearance is not at issue, as his brief makes clear. What is at issue is lack of councel between that appearance and the grand jury proceedings.
3.17.2008 12:47am
z9z99:
OrinKerr,

I'm not trying to be dense here, but didn't Chavez v. Martinez turn on the Court finding that a violation of constitutional rights did NOT occur, where successfully invoking Miranda indicates that such a violation DID occur?

In deciding whether an officer is entitled to qualified immunity, we must first determine whether the officer's alleged conduct violated a constitutional right. See Katz, 533 U.S., at 201. If not, the officer is entitled to qualified immunity, and we need not consider whether the asserted right was "clearly established." Ibid. We conclude that Martinez's allegations fail to state a violation of his constitutional rights.
3.17.2008 1:00am
George Weiss (mail) (www):
However lack of councel at that appearance is not at issue, as his brief makes clear. What is at issue is lack of councel between that appearance and the grand jury proceedings.

im aware of that. However, it did seem to be an issue between me and bruce M
3.17.2008 1:09am
George Weiss (mail) (www):
I would make the argument that the lack of available councel at the initial appearance was a ploy by the government.

there is absolutely no evidence of bad faith.
3.17.2008 1:14am
z9z99:
O.K. I've reached an opinion. I think that most of the Sixth Amendment flotsam quibbled over in the briefs is simply the accumulated uncertainty borne of equivocal jurisprudence. Hugo Black was much more precise in Johnson v. Zerbst:


The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights[...],


Since I have no reason to think Justice Black a liar, I conclude from his pronouncement that the right to counsel does not attach until such stage of a prosecution that a defendant's risk of conviction (not pretrial incarceration) is irretrievably increased by the absence of counsel.
3.17.2008 2:13am
BruceM (mail) (www):
George: I re-read the brief and I see what you're talking about. Rothgery asked for counsel immediately upon being arrested, even before the arraignment. At the arraignment, when he again asked for counsel, he was told that he would either have to waive counsel for the purposes of the arraignment or wait in jail until at attorney could be appointed and his bail could be set. So, he was improperly coerced into waiving counsel at the arraignment. He shouldn't have been given that choice. That being said, you are right that his civil rights action takes his waiver into account and argues that the right to counsel should have attached immediately subsequent to the arraignment. I was wrong when I said his 1983 claim was that he should have had counsel at the arraignment (though I think he should have and was improperly coerced into waiving it upon threat of languishing in prison vs getting bond set).

A lot of courts in Texas have a few lawyers sitting in the courtroom who are appointed for arraignment if the defendant requests counsel and indicates under oath that they cannot afford an attorney. If Rothgery had been in one of these counties, he would have had counsel when he requested it. It's questionable enough if the right to counsel doesn't apply at the initial arraignment when the charges are read and when bond is set, but it's certainly improper for the right to counsel not to attach until one is formally indicted a few weeks later. Among other issues, it creates a huge disparity between states that require grand jury indictments for felonies and states that do not.
3.17.2008 4:47am
Daniel Chapman (mail):
I have no interest in reading your blog, Bruce, and I don't really care if that line was "taken out of context" or not. Really the 20 year statutory maximum prison sentence for ANY crime is absurd enough, even if the rest is meant to be sarcastic. Your values are completely out of whack.
3.17.2008 7:48am
BruceM (mail) (www):
If you don't read what I say how can you possibly know what my values are?
3.17.2008 11:44am
Bob from Ohio (mail):

If you don't read what I say how can you possibly know what my values are?


He read your comments on Holocaust v. Israel last week?
3.17.2008 12:31pm
George Weiss (mail) (www):
bruceM-yes this is why its good to read the briefs. good to see were on the same page now.

As far as coercion for the initial wavier-which he is not arguing (again-hes only arguing he should of had a lawyer after the proceeding and before the indictment)..well you may have something there-unless its indeed true that getting a lawyer for the bail hearing might have taken a while-in which case, far from being coerced, he made a rational decision based on the circumstances. (how could the magistrate or he have known how useful it would have been to have a lawyer appointed at the bail hearing, for the purposes of use after the hearing?)

you claim that many states have lawyers sitting ready at arraignment for this kind of thing-but in this case, its not clear that a such a lawyer would have been able to help him discover the "prior felony" issue-that kind of ad hoc lawyer would only have been able to help with bail...which seemed pretty reasonable at 5000, given the nature of offense and the surety level of only $500. (and the fact that this is texas here)




as far as getting back to the case im agnostic on the issue like orin.
On the one hand-it seems it makes sense, from a normative perspective, that lawyers should be provided when you have a guy who's probably going to face indictment, so that he can possibly use that lawyer to convince the prosecutor not to bring charges (as sometimes people do).

On the other hand, if the supreme court does grant his request, it will be a new idea (not one the supreme court has priorly ruled against, just a new idea) that you have a right to a lawyer from the first point you had that right until the end-instead of just having the lawyer for the important parts of the proceedings.

It may not make sense to announce such a rule in this case, since this case, as orin points out, is a little unusual to have a situation like this. The lawyer was really useful at a non critical stage, (unusual) and he also happened to not have one appointed from before due to a wavier issue, but then requested one before his indictment and during the non critical stage (also unusual).
3.17.2008 1:34pm
Daniel Chapman (mail):
I'll admit I really don't care to going over to your blog and reading your entire blogging history in order to debate that little snippet that should be dismissed out of hand. If you were being sarcastic or for some other reason didn't actually MEAN the maximum sentence for any crime should be 20 years in jail, just come out and say it.

If you mean it, then I've read what you write, and I'm entitled to make my own judgment. You're nuts.

(For the sake of argument, I'm going to ASSUME you are being sarcastic when you follow up "murder should have a maximum of a 20 year sentence" with "mass advertising fraud is worthy of the death penalty." No one could actually be THAT crazy...)
3.17.2008 3:01pm
BruceM (mail) (www):
you claim that many states have lawyers sitting ready at arraignment for this kind of thing-but in this case, its not clear that a such a lawyer would have been able to help him discover the "prior felony" issue-that kind of ad hoc lawyer would only have been able to help with bail...which seemed pretty reasonable at 5000, given the nature of offense and the surety level of only $500. (and the fact that this is texas here)

I dunno... in this case if Rothgery had a chance to talk to a lawyer before probable cause was determined at the arraignment, he could have told the lawyer that he was charged with a felony in california but successfully completed deferred adjudication and the felony conviction was dismissed and thus not on his record. The lawyer could have then made that argument and even called Rothgery as a witness. If the only evidence of probable cause the state had was the officer's affidavit that a computer search of Rothgery's name pulled up a felony conviction from California, and Rothgery himself was able to controvert that by saying the computer record is erroneous because he completed deferred adjudication and thus no felony conviction resulted, I would say further investigation would be necessary for probable cause to be found. The only evidence of the crime was a computer record, we all know computer records can be erroneous. An incriminating computer record versus sworn testimony controverting and explaining the computer record would lead me to find that probable cause does not exist. The state is free to investigate the matter further - they can call up California and get the court records to determine whether Rothgery actually had a felony conviction or not.

But if Rothgery isn't given a chance to argue against a finding of probable cause or to provide necessary information relevant to that determination, what's the point of having a PC determination? Sure, most of the time the probable cause affidavit is descriptive testimony stating how the suspect committed every element of the offense. Here, the cop's PC affidavit came down to "I swear I ran a computer search that showed Rothgery has a prior felony conviction out of California and he had a firearm." The cop had no knowledge of the purported felony conviction beyond what the computer search told him.

If done properly, probable cause would not have been found and the state would have had to investigate the matter further. Upon doing so it would have determined that the computer record was, in fact, erroneous and that Rothgery was thus innocent of being a felon in possession of a firearm as he was not a felon.

There is an overriding societal problem of wanting to lock up people by default and sort things out later. I think that's ultimately the overriding issue in this case. People don't consider it a big deal for a fellow citizen to be thrown into a cage.


Daniel: I was being sarcastic about executing the penis pill peddler, as I said above. But like most civilized countries, I think 20 years locked up in a little cage is more than sufficient as a maximum penalty. Maybe a few crimes - mass murder, genocide, treason during wartime - could be punished by life in prison. But for the average rape, murder, robbery, theft, drug offense, assault, DWI, possession of kiddie porn, firearm offense, 20 years locked in a cage is more than sufficient. One year is a long time. We're so used to tossing out insanely long sentences for everything, life for this, life for that, that people don't realize that a mere week being kept in a cage is a long time. A year is very long. Two whole decades (imagine where you were 20 years ago and imagine having been kept in a 8' by 10' cage from then up until now) is sufficiently harsh for any crime.

If you think it's not, then I think you're crazy. There comes a point where increased sentences cease to be a deterrent. Nobody is going to commit a crime under the penalty of 20 years incarceration but be deterred if facing life incarceration. Nobody says "Raping that girl is worth 20 years in prison, but no more than 20 years." Any punishment over 20 years is solely for the benefit of the victims' desire for revenge. Pure revenge should not be a goal of our penal system.
3.17.2008 4:11pm
George Weiss (mail) (www):
brucem-

i actually agree with your sentencing understanding...people don't get how long even 1 year in prison is-and how much it costs the state to keep him there. (which doesn't mean i think 20 years is always enough..just that i think sentencing schemes in the US are way to high)

back to the hypothetical issue of whether a ad hoc arraignment lawyer could have helped him with the prior felony issue (again recognizing that it doesn't matter as far as the case-because he is only arguing that he had a right to an attorney after the haring, and thus his wavier, ended)...i would point out that rothgery may not had completely understood the meaning of deferred adjudication and how that meshes with the prior felony law. if he did-then he probably would have told the prosecutor or the officer or the magistrate something to that effect-and it doesnt seem he did. (and if he did mention it-then there are serious prosecutorial misconduct issues here..that are not alleged)

thus..he waived his right to counsal at the time of the hearing-and he id so with a warning form the magistrate that he had right to one for the hearing- a lawyer probably couldn't have helped him anyway on the spot without doing some digging...and in the unlikely event he could have...there is no way that could be considered a coercive waiver-since nobody at the time knew of the prior felony issue..

thus i think the legal question before the court is also the good one i.e. whether after his hearing ended and he asked for a lawyer he had a right to one before the indictment began.

except-i wonder, as i said before, why rothgery's lawyer didn't point out when he brought this suit that even if he had no right to a lawyer until the indictment-he was indicted and still spent 6 days in jail without one...and its clear no matter what your stance on the issue before the court that after the idictment he had a right to a lawyer.
3.17.2008 4:42pm
BruceM (mail) (www):
George:

I agree that Rothgery may not have understood what deferred adjudication meant vis a vis his criminal record, though most clients I've had, when taking deferred adjudication, ask "so if I complete it, I won't have this charge on my record, right?" as their first question. Assuming he didn't understand it, had he been provided a laywer, a competent lawyer would have incquired as to the nature of Rothgery's alleged California felony conviction. I'd say there's a good chance Rothgery would have known enough to say something like "I was charged with that crime but I got probation and they said if I completed it the charge would not be on my record, and that's what happened." The lawyer could have conveyed that more eloquently to the court at the PC hearing.

I just read the Oral Argument Trascript in this case and clearly the Court is as bothered as I was about whether Rothgery should have had counsel AT the arraignment or immediately after the arriagnment. Even though his attorney is saying they are not arguing that Rothgery had a right to counsel at the arraignment/magistration, he is saying the right to counsel attached at that point. Other than Rothgery's waiver, which I think was improperly coerced given his timely request for counsel (it was coercive in that he had to choose between waiving counsel and getting bond set or languishing in the county jail), I don't see why they're making this concession. To say the right to counsel attaches at the END of the arraignment makes no sense. The only logical answer is that he had a right to counsel at the arriagnment itself, at least insofar as a probable cause determination was made. If the arraignment was only to tell him you've been accused, re-read the Miranda warnings, and tell him he has a right to counsel and that there will be a hearing to set bail as soon as he can get counsel or have it appointed, then it would be okay for counsel to be absent. I think the very nature of a determination of probable cause is adversarial in nature, even if it's just a magistrate reading a police officer's affidavit.
3.17.2008 4:59pm
BruceM (mail) (www):
How about this for a test of whether the right to counsel attaches: Ask "Is there anything a defense attorney could have actually done?" other than stand there and provide moral support. If any decisions (bond/bail, probable cause) are going to be made, then an attorney could do something and thus the suspect-defendant should be entitled to one. If no decisions are made and only warnings are given and notices read, then having an attorney there couldn't possibly make any difference and thus there's no reason to require one at that juncture.

That's how I'd decide the case. Since probable cause was determined and bail was set, Rothgery should have had counsel present. Is there a huge flaw in my reasoning here? Seems like a simple, bright-line way of deciding the issue.
3.17.2008 5:44pm
George Weiss (mail) (www):
i read the oral argument. orin should post soon about it.

for now..i think when you say some of the justices were bothered by the fact that he had no lawyer at the hearing

whats really going on is

some of the justices were bothered by the position of the gov that even if he hadn't waived the lawyer for the magistration-he still wouldn't have had needed a lawyer from a constitutional prospective (albeit they agree he would from a texas law perspective) at the magistration-and thus rothgery, according to them, doesn't need a lawyer after the hearing because he never had a right to one originally and no constitutional wavier was necessary for the appear-he never waived any constitutional right and it thus doesn't "kick back in" after the wavier like Rothgery is arguing.

thus the gov is attempting to win in three diffrent ways

1. argue he want a criminal defendant for the sixth to attach (which they spent about half the oral argument on)..and sclaia and breyer seemed to destroy this argument of the gov by pointing out that if he wasn't then why was he arrested and let out on bail?
2. argue that he never had a lawyer right under the sixth at the magistration because the magistration isnt a proceeding that attaches the sixth.
3. argue that even if he did have a right at that proceeding-it doesn't just kick back in after the wavier of the right until there is another critical phase.
3.17.2008 6:24pm
BruceM (mail) (www):
I think it was horribly imprudent for Rothgery's lawyer to stipulate that they are not claiming he had a right to a lawyer at the arraignment. It was conceded irrespective of the waiver. The Justices were all confused by Ms. Spinelli's argument because of this concession/stipulation. She could not answer any of the Justices questions about when Rothgery should have been entitled to counsel. They all skimmed over it, but I think what is really at issue is whether a lawyer could have assisted the accused. That's why I think the test I proposed in my last post is the way the case should be decided. But Rothgery's lawyers made a huge mistake by not contending he was entitled to counsel at the arraignment insofar as important decisions (bail, probable cause) were made at that time. By conceding flat out that under no circumstances was Rothgery entitled to counsel at the arraignment, I don't see any purpose to this case. The best Spinelli could come up with is that Rothgery should have been appointed counsel reasonably soon after the arraignment. That's asinine, and he would have been appointed counsel soon afterwards anyway. I still can't tell what Rothgery is really asking the Court for after reading the oral argument transcript.
3.17.2008 7:02pm
George Weiss (mail) (www):
the other thing that stuck my attention about the oral argument is that the government said that the only reason he was not appointed an attorney after the hearing pursuant to texas law (not the constituion) was because he was out on bail. He said that had he been in jail, then the law is he gets a lawyer in 1 business day for a big county and 3 for a small county.

um so why, when he was rearrested and indicted on the offense six months after the magistration on jan 17, did he languish in jail for 6 days, until counsel was appointed on the 23rd-considering he asked for counsel six months before the indictment both before and then again after his magistration, with only a breif wavier for the magistration?

did his attorney miss this one? they could have filed a separate state claim and joined it to this case-since the principal case is a federal question, they would have supplemental jurisdiction.
3.17.2008 7:19pm
tomjedrz (mail):
In response to the question in the post title ...

IANAL, so my response is more based in ethics and my understanding of our history.

If the government is holding me against my will, I have a right to counsel. If the government is holding my property (bail money) in exchange for not holding me against my will, I have a right to counsel.

And, we have decided when someone has a right to counsel, we will provide one if they can't afford it. This seems reasonable.

Aside #1 --
I hope that Rothgery got his $500 back! I wonder if he can sue California for providing inaccurate information to (whichever state) arrested him?

Aside #2 --
Several commenters have indicated that defense counsel would have saved the day by asking about the conviction and figuring out that an error occurred. Should not the prosecutor have done the same thing?
3.17.2008 7:32pm
George Weiss (mail) (www):
Aside #2 --
Several commenters have indicated that defense counsel would have saved the day by asking about the conviction and figuring out that an error occurred. Should not the prosecutor have done the same thing?

exactly. except that because they have absolute discretion and absolute immunity from liability for prosecution, even when they knew there is no probable cause (which is not the case here-it was an accident) they have no incentive to check
3.17.2008 8:05pm
BruceM (mail) (www):
The state made a big deal about how there was no "prosecutor" at this hearing. Usually there is. There are 254 counties in Texas and probably 254 different ways of handling appointment of counsel. If the prosecutor was not present, I assume the magistrate (who I believe in this case was a Gillespie County Justice of the Peace - note that Texas JP's are not even required to have law degrees and most do not) simply gave Rotghery the requisite warnings and read the police officer's affidavit, took it at face value as it was uncontroverted, and found probable cause, then set bond at $500. Here's the catch. I bet the magistrate/JP had a table provided by the Gillespie County District Attorney's office stating how to calculate bond given certain factors. Harris County has something similar. So while a prosecutor may not have physically been present to argue over setting bond, the prosecutor's office was represented by the bond calculation sheet. I'm quite confident that the magistrate didn't pull the $500 figure out of his ass. That amount was recommended by the DA. So I would say a prosecutor was constructively present.

Whether or not the prosecutor should have to verify the prior felony conviction for himself or can just take the word of the police officer who said he ran the computer search that found the felony conviction really depends on your personal definition of "probable cause." This case is somewhat sui generis in the fact that the probable cause could be verified by a simple long-distance phone call to California to see if a computerized court record was correct (probable cause) or erroneous (no probable cause). Most cases are not that easily resolved.

If you think probable cause merely means "a cop said it happened and that's enough, no further verification/corroboration/investigation is necessary" then the prosecutors had no duty to call California. If you think probable cause is closer to "more likely than not committed the crime" then I think there would be a duty to do minimal verification/corroboration/investigation of the alleged facts.

Courts have, unfortunately, held that probable cause is a very low threshold, much lower than "more likely than not"... some have said it's closer to 10-20% likelihood of guilt. I think that's wrong. I think probable cause should be over 50% certain. That's what "probable" means. Probable cause should be equivalent to "by a preponderance of the evidence." Then guilt has to be shown beyond a reasonable doubt. Unfortuantely for me and my fellow citizens, my notions of justice are nearly universally mocked (at least by those who have never faced the ass-end of the criminal justice system).

I hope that Rothgery got his $500 back! I wonder if he can sue California for providing inaccurate information to (whichever state) arrested him?

Hah! [In the snooty voice of the evil South African diplomat in Lethal Weapon 2] "Soverign Immuuuuuuuuuuuunity! Muahaha!!"
3.17.2008 9:07pm
George Weiss (mail) (www):
1. court commissioners that are used for PC hearings are typically not required to have JD's. Usually they are contract hourly employees who have high school diplomas. They are there to be available so that a person can have his initial appearance within the constitutionally required 48 hours of arrest when there is no warrant. They aren't required to have JD's in my state either. They are even used by the feds when no magistrate is available so that they can make the 48 hour deadline. (snow storm-3 day holiday weekend)

2. i agree that the idea that the proceeding wasn't adversarial is a joke. The cop reads out a sworn affidavit against the guy before a magistrate to determine probable cause. If the guy wants, he can argue against the probable cause showing (ie the adversity of two opposing parties appearing before a natural magistrate....is the cop supposed to be neutral also?

3. why are you arguing about the threshold of probable cause...no evidence of the mistake was presented at the hearing..thus even if there was a higher standard it wouldn't have mattered here.
3.17.2008 9:32pm
George Weiss (mail) (www):
I hope that Rothgery got his $500 back! I wonder if he can sue California for providing inaccurate information to (whichever state) arrested him?

even aside from any immunity issues-California didn't act unreasonably in any way-they didn't even do anything other than maintain a database which texas misread. hows that their fault?

the real person who should be labile is the prosecutor once he got involved for going through with indictment (a pretty serious step for which work is involved-not just a routine arrest or something) and asking the court for increased bail...thus the real culprit is absolute immunity for prosecutors.
3.17.2008 9:35pm
BruceM (mail) (www):
George, I was saying the threshold of probable cause is relevant to tomjedrz's "aside #2" regarding the prosecutor's duty to investigate and possibly find the error.

I don't have a problem with magistrates not having JDs if they're there just to inform someone of their rights and inform them of the charges against them. But if they're going to set bail or, more important, determine whether probable cause exists, then I think they should be licensed to practice law. Reading off a checklist = no JD/law license required. Making a determination that affects the accused individual = should need law license.

It's not clear whether the Texas cop misread the database (saw felony arrest instead of felon conviction) or whether California entered in the data incorrectly (or failed to update it when Rotghery completed deferred adjudication). Frankly I think it is the latter. I think Rothgery's record showed a felony conviction despite the fact that he completed deferred adjudication and thus the felony was discharged and not a conviction on his record. Computer errors like that happen all the time (which, incidentally, should reduce the likelihood that such a computer record alone can establish probable cause).

the real person who should be labile is the prosecutor once he got involved for going through with indictment

Exactly. It's one thing to be arrested based on a cop reading a computer record. It's another to have the prosecutor, a licensed attorney with a fiduciary duty to see justice done, present the "facts" to the grand jury without any corroboration. How could the grand jury indict someone for being a felon in possession without actually seeing the court records that establish a prior felony conviction? It's inconceivable. The state would need the court records from California to prove its case at trial anyway, so it's not like it was a huge imposition to get them for the grand jury. The prosecutor procured the indictment of Rothgery by defrauding the grand jury, as far as I'm concerned.
3.17.2008 10:00pm
George Weiss (mail) (www):
i don't know-wardens and parole boards and cops and administrative clerks in executive agencies make discretionary legal decisions all the time. should all those people need jd's?
3.17.2008 10:12pm
George Weiss (mail) (www):
also again-if the magistrate was Oliver Wendell Holmes-it still wouldn't have helped-only after doing some digging into the case could one possibly find out something like this.
3.17.2008 10:13pm
BruceM (mail) (www):
I agree, the quality of magistrates is a side issue. I just got off on the tangent since it was somewhat relevant to the overall unfairness of the adversarial hearing.

I'm not saying making discretionary legal decisions is the hallmark of requiring a law license. Just those that affect a criminal defendant in an adversarial setting. I'm sure you'd agree that Justice Holmes' determination of probable cause would carry more weight than Billy Dwayne Hicks, Justice of the Peace, who has a 10th grade education and operates his JP court out of the kitchen of his double-wide trailer home.

The next logical question to ask me, of course, is why a grand jury made up of people with 10th grade educations and no law degrees should be able to sit on a grand jury and determine probable cause. 200+ years ago grand juries actually served a purpose and protected citizens from rogue proseuctors and unfair, unjust laws. Today, though, grand juries are just another tool of the prosecutor. I'm in support of abolishing the grand jury. An ex-parte hearing where the prosecutor tells the grand jurors whatever he wants, has no duty to share Brady evidence with them, and the grand jurors are told that the prosecutor is fair, honest, forthwright, and honest is a mockery of justice. Instead of grand jury indictments, prosecutors should just file sworn informations stating the elements of the crime, etc. The accused should be permitted to promptly have an examining trial before a judge to determine whether probable cause exists (as is permitted in Texas pre-indictment if you choose to have one). Prosecutors should be held liable for the defendant's expenses if probable cause is not found. And of course, prosecutors should be held personally liable for the defendant's expenses if he should be acquitted. Though, I think we should have 3 verdicts as is done in Ireland: Guilty, Not Proven (not guilty), and Innocent. Only upon a verdict of Innocent should the prosecutor be held liable.

Maybe one day, once I conquer the universe, I shall instill my model system of criminal law and procedure, and justice shall forever endure. *Dream*
3.17.2008 11:22pm