The Supreme Court granted cert today in Rothgery v. Gillespie County. It is a Sec. 1983 case, but SCOTUS blog is reporting that the underlying issue is whether the 6th amendment right to counsel attaches when a defendant is magistrated in Texas. Here's a link to the docket sheet: Docket Sheet

We could certainly use clarity in this area. Texas courts have not been so helpful in deciding the precise time when adversarial proceedings commence. With Seth Waxman's involvement--the petitioner's attorney--perhaps we will get it.

JAS

To read the 5th Circuit Court of Appeals decision, click here.

The 5th Circuit opinion seems to focus on whether prosecutors knew about and made decisions regarding the arrest. So, for those prosecutor offices that have some sort of direct file system, the moment that the 6th Amendment attaches arrives sooner than offices that let defendants sit in jail for months before indictment. That seems odd.

Of course, much of this should have been rendered irrelevant by Legislative changes that mandate appointment of counsel closer to the time of arrest.

For a related discussion on this issue, see a previous thread by clicking here.

Our discussion seems to have foreseen the issue now before the SCOTUS.

Should SCOTUS decide that Texas must start appointing counsel upon magistration, what will the consequences be? Here are a few that come to mind:

- fewer valid confessions (unless more officers follow JB's recommendations)

- counties will squeal about the costs, leading to a statewide push for the creation of more local public defender offices

- more prosecutors might go to direct file systems with 24/7 review to weed out bad cases up front in an attempt to save the county some money (but only if they can convince their commissioners to fund it!)

- local gov'ts will need more revenue -- potentially tens of millions of dollars statewide -- to pay for all of this, requiring them and/or the legislature to get creative (again) in finding sources for that revenue.

Any other consequences that you see?

More people arrested late Friday night will spend the entire weekend in jail.

You can read them here:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-440.pdf

I was reading the arguments this morning, and it struck me that the petitioner's attorney really had NO idea what they were actually asking for. SCOTUS isn't going to issue an opinion saying "Mr. Defendant should've had an attorney by this point," they want a rule about when the right to counsel attaches and when one has to be appointed. But the attorney seemed unable to actually articulate any kind of rule, even when the justices seemed to be guiding her along.

Kind of reads like no one in the room knew much about Texas criminal law. Justice Kennedy, known to be a swing vote, had this to say:

"It seems to me that our precedents do say, Gerstein versus Pugh, that the probable-cause hearing is not an adversary proceeding where counsel is required; and if we are going to give you relief, we have to go beyond what Gerstein says."

The judges also seemed to realize that making the 6th Amendment right to counsel triggered by involvement of a prosecutor would create a disincentive for prosecutors to get involved in a case in an advisory role.

[This message was edited by JB on 03-18-08 at .]

[This message was edited by JB on 03-18-08 at .]

After reading the transcript, it kind of seems like everyone there was at a loss. Or maybe I'm the one at a loss. Coleman's distinction between trial rights and liberty interests seemed to make some sense, but with all the "what if" questions pinging about, it was hard (for me at least) to figure out what was going on. At the point Stevens (or was it Breyer) asks "Do you see what I'm doing there?" I wanted to shout "NO!"

Coleman, I think, seemed to be saying:

Look, this guy may have been treated badly, and there may be some sort of legal violation here, but it sure isn't a 6th Amendment right to counsel violation.

Given the tone of the argument, the best resolution might well be to dismiss the cert as improvidently granted. I don't see how the SCOTUS can say anything better than was already said by the 5th Circuit.

Yeah, I got that. It made sense to me, and Roberts seemed to latch on to it quickly. But things all got fuzzy when they tried to extend out the circumstances to every possible dire consequence. I guess it's that viewing continued detention as a liberty interest and not a trial right effectively leaves the defendant with no way to challenge the legality of the detention because he doesn't have an attorney to tell him how to do it.

[This message was edited by David Newell on 03-18-08 at .]

Its about time. Our local judges are holding that a person invokes his rights as soon as he is magistrated and asks for the attorney to be paid for by the state. We disagree and think they are just asking for payment, not invoking their rights. Its making things very difficult for us these days. Hopefully the Supreme Court will overturn this interpretation, and bring common sense back to things.

One of the most confusing arguments I have read in the SCOTUS. Perhaps the defense should have been permitted to say more before the Court launched into them.

What I got from it was wild stabs in every direction with no coherent, concrete structured argument to build upon. Didn't both sides take the position during argument they didn't want to change the law? Certainly the defense offered no real guidance on what the law should be.

Before this, I thought we needed some resolution. Now I think we are better off where we are. It seems the standard for automatic attachment has to be flexible because of the different events that can arise--not just in Texas. Trying to create specific language beyond what we have already may create more problems that it solves.

I wonder why Waxman didn't argue the case?

JAS

[This message was edited by JAS on 03-19-08 at .]

[This message was edited by JAS on 03-19-08 at .]

Wshew! I'm glad it's not just me.

I sure hope the briefs made more sense. Anyone read them?

JAS

Here, from SCOTUSblog. 6th am. right attaches at 15.17 hearing. Read on for a more scholarly analysis than mine.

Thoughts?

JAS

This case makes it even more important that law enforcement understand the advantage of noncustodial interviews. There will now clearly be no opportunity to interview at the jail following arrest, as a 6th Amendment attachment is much more difficult to overcome.

So, make plans to attend a regional seminar on Confessions this summer. Learn how to avoid the litigation of Miranda. See how easy it is to get a noncustodial confession that will be accepted by the court and jury.

First training is in San Antonio this Friday.

OK, so let me see if I have this right:

- Art. 15.17 hearings now = the initiation of adversarial judicial proceedings, so an accused's 6th A. rt. to counsel attaches at that point; but

- the court declines to say when that right must be effectuated by the actual appointment of counsel; and

- Alito's concurrence clarifies that the majority opinion does not constitutionally require the assistance of counsel at a 15.17 hearing; however

- CCP Art. 1.051(a) says a defendant is entitled to be represented by counsel "in an adversarial judicial proceeding," which now includes a 15.17 hearing, so

- despite Alito's concurrence, Texas law gives defendants a statutory right to counsel at a 15.17 hearing, even though there is still no constitutional right to it? Did that just happen? And how does the 1-day/3-day deadline apply in that situation?!?

Color me confused.

The holding also torpedoes the 2001 legislative compromise of Art. 1.051(j) that permitted counties to delay appointment of counsel "until first court appearance or when adversarial judicial proceedings are initiated, whichever comes first" -- if the latter now includes 15.17 hearings, then this either/or is eviscerated. But is that a significant number of defendants? I don't know.

Any other thoughts?