Marcia Coyle reports, "Right to counsel probed by justices," in today's National Law Journal. Rothgery v. Gillespie County is being argued in the Supreme Court right now. The transcript should be available later today, here.
The rights of one man who wanted a lawyer and didn't get one, and of another man who didn't want a lawyer but was forced to take one, converge in the U.S. Supreme Court this month in two cases probing the scope of the right to counsel.
Walter Rothgery of Texas and Ahmad Edwards of Indiana have little in common today except an abiding belief that their Sixth Amendment rights were violated when they were at critical points in the criminal justice system.
Rothgery is a free man today after belatedly, in his view, getting an appointed lawyer who then easily showed he was not guilty of the charges lodged against him. Edwards is serving a 30-year prison term, his request to represent himself having been denied and his appointed lawyer, in his view, having failed to present the defense he sought.
"The Sixth Amendment right to counsel has been treated by the Supreme Court with a bit more care and as having value, more so than a number of the other criminal procedural rights," said criminal law scholar Joshua Dressler of Ohio State University Michael E. Moritz College of Law.
"While one may automatically assume the Supreme Court will come down on the side of the government in Fourth Amendment and Miranda cases, it's a little less obvious they will do so when you come to the right to counsel," added Dressler, who signed a law professors' amicus brief supporting Rothgery. "In a number of other areas, they have shown a willingness to assert that right with power."
Rothgery's case, to be argued on March 17, asks a rather straightforward question about when the right to counsel attaches. Does the right attach at an arrested person's initial appearance before a magistrate to hear the charges and to face bail or jail, or, as the lower federal appellate court held, only when the government has committed itself to prosecute? Rothgery v. Gillespie County, Tex., No. 07-440.
Edwards' case, which will be heard on March 26, is more complex, according to scholars and litigators, because it deals with the Sixth Amendment's implied right of self-representation. That right often may seem in tension with the right to a fair trial, particularly when, as here, there are issues of the defendant's mental competency.
And:
The appellate court said there was no "prosecutorial knowledge or involvement" in Rothgery's arrest when he initially appeared before the magistrate, only after his indictment.
The 5th Circuit's "prosecution involvement" rule is not the test applied by the Supreme Court and other federal courts, said Andrea Marsh, head of the Texas Fair Defense Project and co-counsel in the high court for Rothgery with Seth Waxman, partner in Wilmer Cutler Pickering Hale and Dorr's Washington office. Waxman will argue the case.
In applying the Kirby test, the Supreme Court, according to Marsh and Waxman, held in Brewer v. Williams, 430 U.S. 387 (1977), and reaffirmed in Michigan v. Jackson, 475 U.S. 625 (1986), that an initial post-arrest "arraignment," at which the defendant is informed of the accusation against him and committed to custody, "signals 'the initiation of adversary judicial proceedings.' "
The Texas practice of waiting until indictment to provide counsel is out of step with the rest of the states, according to a survey by Ian Heath Gershengorn, partner in the Washington office of Chicago-based Jenner & Block, who authored an amicus brief for the NACDL in support of Rothgery. Forty-five states and the federal government provide counsel before, at, or just after first arraignment.
"It's clear if counsel had been provided earlier, Rothgery would have been able to avoid jail time and being out on bail with that accusation on his head," said Gershengorn. "It's also emblematic more broadly of the need for counsel at that stage. So often getting to the crime scene and talking with witnesses early are critical to being able to provide an effective defense."
But Gillespie County, represented by Gregory Coleman, partner in Austin, Texas' Yetter & Warden, contends the initial appearance before a magistrate — known as "magistration" — was neither the formal initiation of adversarial judicial proceedings nor a critical stage of proceedings.
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