Andrea Marsh and the Texas Fair Defense Project have been recognized as Impact Players of 2008 by Texas Lawyer,in the latest issue. LINK
Andrea Marsh: The Test Case
Andrea Marsh's first case was a doozy. Rothgery v. Gillespie County went
all the way to the U.S. Supreme Court and established a "bright-line"
rule that a criminal defendant's Sixth Amendment right to counsel
attaches when he first appears before a judge.
The high court's June 8-1 ruling in Rothgery is important
to indigent defendants who, like Marsh's client, Walter Rothgery, might
otherwise have to wait months before a court appoints them an attorney.
"People's lives are really on hold when they're facing criminal
charges," says Marsh, founder and executive director of the Texas Fair
Defense Project. "It's difficult for them to keep jobs, to find jobs. .
. . It's certainly difficult for them to plan for their family's future
if they don't know what they're facing in terms of possible jail time
or possible sentences."
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Texas Fair Defense Project founder and executive director Andrea Marsh |
The Supreme Court's majority opinion provides the following background on Rothgery
: In 2002, law enforcement officers, relying on an erroneous record,
arrested Rothgery in Fredericksburg as a felon with a firearm, although
he had never been convicted of a felony. Rothgery requested an
appointed attorney when he appeared before a magistrate, who informed
Rothgery of the accusations against him, set his bail at $5,000 and
committed him to jail from which he was released after posting a bond.
Rothgery also made several more requests for the appointment of an
attorney that went unheeded. In January 2003, a grand jury indicted
Rothgery for unlawful possession of a firearm by a felon, resulting in
his re-arrest and an increase in his bail to $15,000, which he could
not pay. Rothgery remained in jail for three weeks before he received a
court-appointed attorney, who obtained a reduction in the bail and
provided paperwork that showed Rothgery had never been convicted of a
felony, resulting in the dismissal of the charge.
Marsh says Rothgery sought her legal assistance in 2004 shortly
before she left Texas Rural Legal Aid, now Texas RioGrande Legal Aid,
to start the Fair Defense Project, now a nonprofit organization that
works to assure fairness in the criminal justice system. While at TRLA,
Marsh says she had identified an area in which many counties were not
complying with the Texas Fair Defense Act of 2001: Delays were
occurring in the appointment of attorneys for defendants who post bonds
to gain their release from jail.
Finding the facts of Rothgery's case compelling, Marsh says, she
sought help from William Christian, a shareholder in Graves Dougherty
Hearon & Moody in Austin and a former assistant federal public
defender for the Southern District of Texas in Corpus Christi.
Christian and Danielle Spinelli, a partner in WilmerHale in Washington,
D.C., who argued Rothgery at the Supreme Court, were among the attorneys who worked with Marsh on the case.
In 2004, Rothgery filed a 42 U.S.C. §1983 suit in the U.S. District
Court for the Western District in Austin, seeking damages against
Gillespie County for violating his Sixth Amendment right to counsel.
Based on the argument that Rothgery did not have a constitutional right
to counsel at that point in the process, U.S. District Judge Lee Yeakel
granted the county's motion for summary judgment in 2006. The 5th U.S.
Circuit Court of Appeals, in affirming Yeakel's decision in 2007, held
that a defendant's Sixth Amendment right to counsel did not attach
until prosecutors become involved in the case. Rothgery petitioned the
Supreme Court for a writ of certiorari in September 2007.
The issue the Supreme Court addressed in Rothgery had been
in controversy for a number of years in Texas. William H. Beardall Jr.,
executive director of the Equal Justice Center, a nonprofit employment
justice and civil rights organization in Austin, says proponents of
indigent defense reforms had disagreed with counties and prosecutors
about when adversarial judicial proceedings begin during the 2001
debate over the Fair Defense Act. "We faced a political standoff over
that issue," says Beardall, who helped draft the legislation.
Beardall says a compromise was necessary to win passage of the Fair
Defense Act. Under the compromise, the Legislature included language in
Texas Code of Criminal Procedure Article 1.051(j) that if an indigent
defendant is released from jail prior to having an attorney appointed,
the appointment of counsel "is not required until the defendant's first
court appearance or when adversarial judicial proceedings are
initiated, whichever comes first."
Beardall says he and others pushing for reforms in the indigent
defense system knew they would need a test case to determine at what
point adversarial judicial proceedings begin in a case. " Rothgery turned out to be the test case," he says.
Christian says the Supreme Court's opinion in Rothgery "makes
clear an area of the law that wasn't clear." If counties continue to
delay appointing attorneys for indigent defendants until the time of
indictment, "they're in clear violation of the law," he says.
Beardall, who also is an adjunct professor at the University of Texas School of Law, says the decision in Rothgery
impacts not only Texas but also other states where the timing of
appointing counsel for indigents remained an unresolved issue. "One of
the great things about the Rothgery decision is it provides
an understandable, clear-cut, bright-line rule that assures people who
are arrested and required to defend themselves against a criminal
charge will get counsel appointed promptly if they can't afford to hire
a lawyer," he says.
There has been uncertainty over that issue, Beardall says, since the U.S. Supreme Court held in 1963's Gideon v. Wainwright that
state courts are required under the Sixth Amendment to provide counsel
for criminal defendants who cannot afford to hire attorneys.
Marsh's representation of Rothgery in the civil rights suit continues. The U.S. Supreme Court remanded Rothgery to
the 5th Circuit, which in August remanded the case to the U.S. District
Court in Austin. In an Oct. 29 order, Yeakel scheduled trial in the
case for sometime in May 2009.
With two lawyers on staff, Marsh says her organization works to
improve the criminal-defense system in Texas, but it also has a small
litigation docket, typically handling about two cases per year. " Rothgery has been the most high-profile," she says.
-- Mary Alice Robbins
Earlier this year, Marsh was recognized by Texas Lawyer as one one of the Extraordinary Women in Law in the state, as noted in this post.