Once again, The Supremes have created more confusion than clarity. The U.S. Supreme Court's decision this week in Rothgery v. Gillispie County, Texas seems to raise more questions than it answers concerning the right to counsel in a criminal case. Rothgery had been arrested and jailed in Gillespie County and mistakenly charged with Felon in Possession of a Firearm because his record incorrectly showed that he had a previous felony conviction. At jail, Rothgery was taken in front of judge, who found probable cause to believe that Rothgery comitted the crime and set bail. Rothgery then posted bail. At this point, Rothgery had not yet been appointed a lawyer. While out on bail, Rothgery made several requests to Gillespie County for a court-appointed attorney, but was not given one. After several months, a grand jury indicted Rothgery. A judge then increased Rothgery's bail and ordered that he be rearrested. Once rearrested, Rothgery could not afford to post bail and sat in jail awaiting a court date. A court later appointed an attorney to Rothgery. The attorney then pointed out the mistake in Rothgery's criminal record to the District Attorney's Office and the case was dismissed. Rothgery sued Gillespie County, claiming that he was entitled to an attorney when he was first arrested and taken before a magistrate, and, had a lawyer been appointed to him, that he would not have been indicted and rearrested on the erroneous charge.
The Supremes sided with Rothgery in an 8-1 decision, holding that the Sixth Amendment right to counsel attaches when a person is arrested and brought before a magistrate, even if no formal charge has been filed in court yet or no prosecutor is yet aware of the case. This seems like a pretty clear-cut decision until you read the concurring opinion of Justice Alito, who is joined by Roberts and Scalia. These justices point out that, like the rest of the judges in the majority, they agree that the Sixth Amendment right to counsel attached when Rothgery was brought before the magistrate. However, they cryptically note that this attachment "does not mark the beginning of a substantive enititlement to counsel." In other words, the concurring justices seem to be saying that, even if there is a Sixth Amendment right to counsel from the time a person is arrested and brought before a judge, a person is harmed by a denial of counsel only to the extent that it prevents him from preparing for trial.
The Rothgery opinons leave a lot of unanswered questions:
1. Rothgery never had a trial. Does he get to win his lawsuit?;
2. Will Rothgery unleash a new wave of ineffective assistance of counsel or denial of counsel claims? For instance, let's say you are arrested, brought before a judge and request counsel. The judge then denies you counsel and you can't make bond. You are immediately taken back into the jail and questioned by the police after you have been denied counsel. You make incriminating statements. Does the Sixth Amendment demand that the statements not be used against you?
3. And just when do you get this lawyer? Before, during, or after the initial magistrate hearing? Rothergy doesn't say. As the Zen Master said" " We shall see."