Yesterday in Rothgery v. Gillespie County the Supreme Court held that the right to counsel attaches at a defendant’s first appearance before a magistrate. The Court further held it does not matter whether a prosecutor is also present before the magistrate. Based on an erroneous criminal background check, Rothgery was arrested by Texas police officers for being a felon in possession of a firearm. The officers had no warrant, but promptly brought Rothgery before a magistrate judge. At the hearing the judge informed Rothgery of the accusation, set his bail at $5,000, and committed him to jail, from which he was released after posting a surety bond.
After his release, Rothgery made several written and oral requests for the appointment of counsel. These requests appear to have been ignored. Rothgery was later indicted by a Texas grand jury for unlawful possession of a firearm by a felon. This indictment resulted in his rearrest and an order increasing his bail to $15,000. When Rothgery could not post it, he was put in jail and remained there for three weeks. Six months after the first appearance before a magistrate, Rothgery was assigned counsel. Counsel promptly obtained a bail reduction and assembled paperwork confirming that Rothgery had never been convicted of a felony. Once the district attorney learned of this, he filed a motion to dismiss the indictment. The court granted the motion.
The case before the Supreme Court began when Rothgery brought a Section 1983 action against the County, claiming that if the County had provided a lawyer within a reasonable time after the first hearing, he would not have been indicted, rearrested, or jailed for three weeks. The District Court and the Court of Appeals held that Rothgery’s claim could not stand because no prosecutor was present during the initial hearing. Thus the right of counsel did not attach.
The Supreme Court of the United States reversed. The Court held that by focusing on whether a prosecutor was present at the initial hearing, the lower courts effectively focused not on the start of adversarial judicial proceedings, but on the activities and knowledge of a particular state official. The Supreme Court reaffirmed that the right to counsel attaches at the first formal proceeding, regardless of whether the prosecutor is in the room. An accusation filed with the judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, that the right of counsel must attach.