I think they said the magistrate hearing is part of the criminal prosecution even if there is no prosecuting attorney.

In all criminal prosecutions, the accused shall 
enjoy the right to [...] have the Assistance of Counsel 
for his defence.

Whether the accused is actually attempting his defense at these hearings is another question.

This is what happens when constitutional law results from an evaluation of the practices in multiple jurisdictions rather than a historical view of what words mean. The SCOTUS, particularly in the Warren era, viewed the constitution as a method for promoting the federalism of state practices. In reality, the constitution is a place where the minimum rights are established for protection.

So, we have lately seen the pronouncement that individuals under 18 or retarded are not eligible for the death penalty without any principled constitutional explanation other than stating that the majority of jurisdictions seems to handle it that way. (While I might agree with such a rule, that doesn't mean that I think it can or should be read into an otherwise broad constitutional provision.) Now, same has happened for the ever-moving line for triggering the right to counsel under the 6th Amendment.

Some states, like Texas, have promoted better practices by adding procedures that benefit the defendant (such as an early magistration and process for initiating the appointment of counsel). (Again, I might support such a statutory addition to the code of criminal procedure, but that doesn't mean it should be a constitutional rule.) In a constitutional world where the majority practice = a constitutional rule, SCOTUS has simply taken a poll and moved the line earlier in the process.

That doesn't take wise judges or a principled reason. That's just political muscle. And the law is the worse for it. Thomas takes the principled approach, although it is a bit late in the day to get a majority to join him on that expedition in history.

(OK, so if the magistration triggers the right to counsel, why shouldn't the magistrate be delaying the announcement of the charge and setting bail until an attorney can be hired or appointed? Gee, ya think the defendant would like that bit of constitutional wizardry? That question points back to language of the 6th Amendment, as noted by the concurring and dissenting opinions, indicating that the right to counsel is for the effective defense of a person in a trial. Nothing is happening at magistration to be defended. Probable cause determination and bond setting don't involve a defense to a charge.)

[This message was edited by JB on 06-24-08 at .]

[This message was edited by JB on 06-24-08 at .]

[This message was edited by JB on 06-25-08 at .]

Released Defendants to Get Speedier Access to Counsel

By Tony Mauro and Mary Alice Robbins
Legal Times (aka Texas Lawyer)

June 26, 2008

Indigent defendants released from custody in Texas can get court-appointed attorneys much sooner than in the past under a June 23 ruling by the U.S. Supreme Court.

In an 8-1 decision in Rothgery v. Gillespie County, the Supreme Court ruled that a defendant's Sixth Amendment right to counsel attaches at his first appearance before a magistrate, whether or not the prosecutor is also on hand.

The ruling in Rothgery dealt with a Texas "magistration" procedure under which a defendant goes before a magistrate judge, has bail set and can be imprisoned -- all without the involvement of a prosecutor or the appointment of defense counsel.

Wesley Shackelford, special counsel for the Texas Task Force on Indigent Defense, says the Supreme Court's ruling in Rothgery defines when "adversarial judicial proceedings" are initiated under Texas law -- an issue Shackelford says has not been totally clear since the Texas Legislature passed the Fair Defense Act in 2001.

For the rest of the article, click HERE.