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Rothgery Wins at the Supreme Court... or Does He?

After reading the Supreme Court's ruling in Rothergy v. Gillespie County, I'm left with one simple question: Did Rothgery win the case or not?  By way of background, Rothgery was arrested and jailed for possession of a firearm because his record erroneously indicated that he'd previously been convicted of a felony.  Rothgery argued that he should have been assigned counsel when he went before the magistrate at the initial probable cause proceeding, and that had the court done so, the lawyer would have discovered the error in his record, thereby sparing Rothgery time in the slammer.  The Sixth Circuit, however, disagreed, holding that because a prosecutor was not involved in the matter before the magistrate, the proceeding was not a "prosecution" within the meaning of the Sixth Amendment, and therefore, the right to counsel did not attach.

In today's Rothgery decision, the majority reversed the Sixth Circuit's ruling, holding that:

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.

Well, this sounds like a win for Rothgery... until you take a look at the concurrence by Alito, joined by Roberts and Scalia.  The trio acknowledges that "attachment marks the beginning of the prosecution," but that  attachment of the Sixth Amendment right "does not mark the beginning of a substantive entitlement to counsel."  In other words, as the concurring Justices understand the opinion, Rothgery's Sixth Amendment rights attached when he appeared before the magistrate, but the state was only required to provide counsel to the extent necessary to guarantee Rothgery effective assistance at trial.  In this case, Rothgery never went to trial -- so did he win this case or not?  I just can't tell. 

At least I'm not alone in my confusion.  At Volokh, Orin Kerr writes that he's trying to understand what it means for the Sixth Amendment to attach, while Scott Greenfield says "the question remains whether the defendant must have counsel present at the proceeding, or whether he has to request it, or whether he gets counsel afterward."

Justice Thomas, the lone dissenter, stays out of this mess by taking the position that by its terms, the Sixth Amendment only applies when a prosecution is commenced -- and no prosecution took place here.  I don't agree with Thomas' narrow interpretation, but at least I can understand it. 

Posted by Carolyn Elefant on June 23, 2008 at 01:57 PM | Permalink | Comments (2)

Comments

That's Fifth Circuit.

Posted by: Fredster | Jun 23, 2008 10:41:38 PM

The 6th amendment gives a citizen the right, In all criminal prosecutions [...] to have the Assistance of Counsel for his defence.

If the court says the right has attached, then the hearing must be part of the "criminal prosecution."

The court didn't say that the hearing was necessarily the BEGINNING of the criminal prosecution. It might be, or maybe it started during the investigation.

A two-part test is written into the 6th amendment:
1) Is it a criminal prosecution?
2) Is the citizen attempting a defense?

If you are just sitting there exercising your right to remain silent then you aren't really doing much defense. On the other hand I you are denying the charge, offering an alternate explanation, denying the probable cause to the officer and magistrate, and asking for an attorney… well clearly you're defending yourself and have the right to assistance of counsel.

Since the court tells us that Rothgery was subject to a criminal prosecution at the time he requested assistance of counsel, the question of whether Rothgery "wins" is now a simple fact question: Was he harmed by this violation of his rights?

If we look at the events that transpired after Rothgery actually had a lawyer then the answer is clearly "yes, he was harmed."

Posted by: wonka wonka | Jun 24, 2008 10:38:45 AM

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