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Law School Case Brief

Rothgery v. Gillespie Cty. - 554 U.S. 191, 128 S. Ct. 2578 (2008)


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.


Relying on erroneous information that petitioner Rothgery had a previous felony conviction, Texas police arrested Rothgery as a felon in possession of a firearm. The officers brought Rothgery before a magistrate, 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 committed Rothgery to jail, but 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 the present 42 U.S.C. § 1983 action against respondent Gillespie 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 asserted that the County's unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment was entered violated 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. Rothgery's petition for certiorari review was granted.


Did the right to counsel attach at the initial appearance before a judicial officer? 




The United States Supreme Court held that prior case law clearly established that the right to counsel attached at the initial appearance before a judicial officer. The article 15.17 hearing was an initial appearance as the accused was taken before a magistrate judge, informed of the formal accusation against him, and sent to jail until he posted bail. According to the Court, the lower court's attachment standard, which depended on whether a prosecutor had a hand in starting the adversarial judicial proceedings, was wrong. Under the federal standard, an accusation filed with a judicial officer was sufficiently formal, and the government's commitment to prosecute it sufficiently concrete, when the accusation prompted arraignment and restrictions on the accused's liberty to facilitate the prosecution.

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