U. S. Supreme Court: Right To Counsel Attaches At "Probable Cause" Hearing With Or Without "Prosecutor’s Knowledge Or Involvement"

In another important case released a couple of days ago, the U. S. Supreme Court held in ROTHGERY v. GILLESPIE COUNTY, TEXAS, 07–440 (2008), that a "probable cause" hearing is an "adversarial" one entitling the accused to a lawyer, whether or not a prosecutor was aware of, or was involved with, the prosecution.

Below is the Court's analysis:

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. §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 asserts that the County’s unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel. The District Court granted the County summary judgment, and the Fifth 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.

Held: 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. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct.

Editor's comment: This case is so rudimentarily first year law school stuff (though I must admit it was not yet settled, but logic EASILY dictated the same conclusion reached by the majority) that one would NOT have expected any Justice to dissent, but writing a dissent was where Justice Thomas found himself writing -- ALONE!

You may read that dissent, if you need to WASTE your time!!