U.S. Supreme Court Opinions: July 7, 2008

Daily Record, The (Baltimore), Jul 7, 2008

U.S. SUPREME COURT

Criminal Procedure

Right to counsel

BOTTOM LINE: A criminal defendant's initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.

CASE: Rothgery v. Gillespie Co., Texas, No. 07-440 (decided June 23, 2008) (Justices Roberts, Stevens, Scalia, Kennedy, SOUTER, Breyer & Alito) (Justices Roberts & Scalia & Alito, concurring) (Justice Thomas, dissenting).

FACTS: Texas police relied on erroneous information that petitioner Rothgery had a previous felony conviction to arrest him as a felon in possession of a firearm.

The officers brought Rothgery before a magistrate judge, as required by state law, for a so-called "article 15.17 hearing," at which the Fourth Amendment probable-cause determination was made, bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail, and he was released after posting a surety bond. Rothgery had no money for a lawyer and made several unheeded oral and written requests for appointed counsel.

He was subsequently indicted and rearrested, his bail was increased, and he was jailed when he could not post the bail. Subsequently, Rothgery was assigned a lawyer, who assembled the paperwork that prompted the indictment's dismissal.

Rothgery then brought this 42 U.S.C. [section]1983 action against respondent County, claiming that if it had provided him a lawyer within a reasonable time after the article 15.17 hearing, he would not have been indicted, rearrested, or jailed. He asserted that the County's unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violated his Sixth Amendment right to counsel.

The district court granted the County summary judgment, and the 5th Circuit affirmed, considering itself bound by Circuit precedent to the effect that the right to counsel did not attach at the article 15.17 hearing because the relevant prosecutors were not aware of, or involved in, Rothgery's arrest or appearance at the hearing, and there was no indication that the officer at Rothgery's appearance had any power to commit the State to prosecute without a prosecutor's knowledge or involvement.

The Supreme Court vacated and remanded.

LAW: Texas's article 15.17 hearing marks the point of attachment, with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made. The Court has twice held that the right to counsel attaches at the initial appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty. See Michigan v. Jackson, 475 U.S. 625; Brewer v. Williams, 430 U.S. 387.

Rothgery's hearing was an initial appearance: he was taken before a magistrate judge, informed of the formal accusation against him, and sent to jail until he posted bail. Thus, Brewer and Jackson controlled.

In McNeil v. Wisconsin, 501 U.S. 171, the Court reaffirmed that "[t]he Sixth Amendment right to counsel attaches at the first formal proceeding against an accused," and observed that "in most States...free counsel is made available at that time." That observation remains true today. The overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment.

The Court was advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel before, at, or just after initial appearance. To the extent the remaining 7 States have denied appointed counsel at that time, they were a distinct minority. Neither the 5th Circuit nor the County offered an acceptable justification for the minority practice.

The 5th Circuit found the determining factor to be that no prosecutor was aware of Rothgery's article 15.17 hearing or involved in it. This prosecutorial awareness standard was wrong, however. Neither Brewer nor Jackson said a word about the prosecutor's involvement as a relevant fact, much less a controlling one. Those cases left no room for the factual enquiry the Circuit would have required, and with good reason: an attachment rule that turned on determining the moment of a prosecutor's first involvement would be "wholly unworkable and impossible to administer," Escobedo v. Illinois, 378 U.S. 478.

The 5th Circuit derived its rule from the statement, in Kirby v. Illinois, 406 U.S. 682, that the right to counsel attaches when the government has "committed itself to prosecute." But what counts as such a commitment is an issue of federal law unaffected by allocations of power among state officials under state law, cf. Moran v. Burbine, 475 U.S. 412, n. 3, and under the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government's commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused's liberty, see, e.g., Kirby, supra, at 689.