OK, so SCOTUS says in Rothgery that 6th Amendment right to counsel "attaches" at point of magistration after arrest on complaint. So, what, exactly does that mean to the police who may still contact defendant for various investigative purposes?

I'd like to hear your opinions on whether police, for example, may interrogate a suspect without the presence of a lawyer.

For an example of some very creative police work and a discussion of some of these issues (issued before Rothgery), read this opinion. Does Rothgery change the outcome?

The focus will now shift from attachment of the right to the criticalness of the stage. I think Gentry is not affected since the court said it need not deal with the Rothgery issue. Furthermore, attachment alone will not mean all investigation must cease, only custodial interrogation. The phone call was not a judicial proceeding.

If Rothgery doesn't change the outcome in Gentry it will be because the courts find some other justification for sticking it to her... for she is clearly guilty.

Anyway, if you look at what Gillespie County actually argued, and you also look at the amici from TAC/TDCAA and the State of Texas et. al. you'll see all the same logic relied on by the 10th COA in Gentry, including the "critical stage" analysis. The Supremes were not impressed by these arguments and said they were not "acceptable justification."

So if Gentry is clearly within her rights to invoke the 6th amendment right to counsel, Edwards v. Arizona might then prohibit the police from initiating contact with her. If that's the way this plays out then she'll be getting away with murder and that's a dang shame.


http://scotuswiki.com/index.php?title=Rothgery_v._Gillespie_County

[edited for spelling]

[This message was edited by AlexLayman on 07-20-08 at .]

Alexlayman makes a critical point, if you will pardon the pun. In Rothgery, SCOTUS did surprise us all by avoiding any discussions of critical stages and such. SCOTUS boldly declared magistration to be the new dividing line, moving it well backward from indictment.

And it is quite possible that SCOTUS could also drag backward in the timeline for a criminal case the somewhat less flexible rules of the 6th Amendment Right to Counsel. It is not out of the realm of possibility that the ability of law enforcement to engage in investigative techniques that cause any contact with a charged defendant will be discouraged by the various interpretations of the 6th Amendment Right to Counsel that draw a somewhat brighter line than the 5th Amendment Right to Counsel.

On the other hand, I found the Waco Court of Appeals to be quite appropriate in announcing that the Right to Counsel is not some sort of super "protective cloak" around a suspect. After all, what sort of critical stage is taking place at the moment dear Mrs. Gentry is poking in the mud of a pond, looking for the pistol she has attempted to hide from police? Should her lawyer have been notified of the need to stand beside her at that moment?

Actually, now that I think about it, weren't the police, at that moment, actually investigating a separate crime of tampering with evidence? Oh, we are going to see years and years of new litigation on these issues.

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After all, what sort of critical stage is taking place at the moment dear Mrs. Gentry is poking in the mud of a pond, looking for the pistol she has attempted to hide from police?

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Just ask OJ: she was looking for the real killer!