Rothgery v. Gillespie--Decision of June 23, 2008

As predicted, the Supreme Court (8-1; Opinion by Souter, dissent by Thomas) reversed the 5th Circuit Court of Appeals and held that a criminal defendant's right to counsel attaches at the first appearance of the defendant before a magistrate and not, as in this case, six months later when the state actually decided to prosecute. When Rothgery was finally appointed a lawyer six months later, his lawyer discovered what Rothgery was saying all along--that he was improperly being held as a felon in possession of a firearm when, in fact, the felony charge he had racked up in CA had already been dropped. Processing paperwork took another three months, and Rothgery was finally released (though he had been released on bond for most of the time) about nine months after the erroneous arrest. My sense is that even though the Court discussed the "law" of the case, the egregious nature of the facts helped Mr. Greenlaw considerably.

Yet some clarification is needed in understanding the case. The Court concluded that its holding in this case was narrow. Here is how Justice Souter words the last paragraph of the decision:

"Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery's Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Because the Fifth Circuit came to a different conclusion on this threshold issue, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion."

So, the Court concluded that the Sixth Amendment right to counsel "attaches" at the initial hearing, where he learns the charge against him and his liberty is subject to restriction. But the unsaid point in all this is whether there is a distinction between the right to counsel and the actual provision of counsel. That is, the Court didn't want to reach the question (probably because the majority would have lost or it would have been too "messy" a decision) of whether counsel had to be appointed within a specified time from the time of first appearance. Rights had attached, but counsel's appointment might, therefore, be dealyed. One gets the impression that they wanted to leave this sticky question for another day and another Court. But a significant point had been made--attachment of right happens early. What that exactly means, well, they will have to wait around for another case where there are, possibly, egregious facts, in order to reach this question.

That this is precisely what is "going on" in this case is confirmed by reading the first paragraph of Justice Aliot's concurring opinion, joined by CJ Roberts and Justice Scalia:

"I join the Court's opinion because I do not understand it to hold that a defendant is entitled to the assistance of appointed counsel as soon as his Sixth Amendment right attaches. As I interpret our precedents, the term “attachment” signifies nothing more than the beginning of the defendant's prosecution. It does not mark the beginning of a substantive entitlement to the assistance of counsel. I write separately to elaborate on my understanding of the term “attachment” and its relationship to the Amendment's substantive guarantee of “the Assistance of Counsel for [the] defence.”

Of course, this concurrence begs the question in every criminal defense law firm and DA office in the country--ok, when does the guy, whose right has attached, actually get his attorney? Can we make his case like "Guantanamo lite," and not provide it for him for years? I wouldn't think so. But, how about a few months? Possibly. I think that sometime in the future the Court will have to fashion a sort of "reasonable speed" rule, where the only thing that delays the actual appointment of counsel is the necessary administrative time to get the appointment done. Then, depending on the attorney's calendar and other things, it might take him/her a while to get "up to speed."

The Court specifically didn't rule on the issue of whether a six-month delay in appointing a lawyer for Rothgery prejudiced him. I think that I will close with the statement with which I closed my initial essay: if any of the Justices themselves had been detained and not provided counsel for six months, they would be hot indeed. Why not grant that same anger and sense of entitlement to an indigent criminal defendant?

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