Opinion Recap: Rothgery v. Gillespie County

Stanford student Patrick Nemeroff offers this summary of Monday’s decision in Rothgery v. Gillespie County.

On Monday, the Supreme Court ruled 8-1 in Rothgery v. Gillespie County that a defendant’s Sixth Amendment right to counsel attached after his initial appearance before a magistrate where he was informed of the charges against him, the Fourth Amendment probable-cause determination was made, and bail was set. The Court relied heavily on its 1986 ruling in Michigan v. Jackson and its 1977 ruling in Brewer v. Williams to hold that Texas’s article 15.17 hearing initiated adversarial proceedings against Rothgery, thus marking the point of attachment and obligating the state to appoint counsel within a reasonable time once a request for assistance has been made. In holding that the hearing alone was sufficient to initiate adversarial proceedings, the Court rejected the Fifth Circuit’s “prosecutorial awareness” test on which respondent Gillespie County had relied. In a narrowly written opinion, however, the Court declined to address the logical next question: what constitutes a reasonable time for appointment of counsel once the right has attached and the request has been made.

Justice Souter, writing for the majority, answered the question presented by concluding that Jackson and Brewer directly control. In both cases, Souter explained, the Court held that the right to counsel attaches upon a defendant’s initial appearance before a judicial officer at which the defendant is informed of the charges against him and has restrictions imposed upon his liberty. Those holdings reject formalistic distinctions among types of hearings and therefore require the conclusion that Rothgery’s Sixth Amendment right attached upon his initial appearance. The Court’s more recent 1991 ruling in McNeil v. Wisconsin supports this conclusion, as does the practice of forty-three states and the federal government of appointing counsel before, at, or just after the initial appearance.

Having established that Brewer and Jackson control, the Court considered and dismissed each of the County’s arguments for why the right should not attach upon the initial hearing. First, the Court rejected the Fifth Circuit’s “prosecutorial awareness” test, under which initiation of adversarial proceedings depends upon the involvement of a prosecutor. Brewer and Jackson left no room for consideration of prosecutorial involvement, and they did so for good reason, because such a rule would be “wholly unworkable and impossible to administer” by making attachment of the right depend upon difficult and sometimes arbitrary distinctions about when the police communicated an arrest to a prosecutor. Furthermore, from the defendant’s perspective, adversarial proceedings certainly have been initiated once he has been informed of charges and had his liberty restricted, regardless of whether the prosecutor is involved

Next, Justice Souter addressed the County’s reliance on United States v. Gouveia for the argument that rights other than the Sixth Amendment right to counsel protect a defendant’s pretrial liberty interest. In the County’s view, the fact that an initial hearing restricts a defendant’s liberty should have no bearing on whether the right to counsel attaches. In Gouveia, the Court held that the right to counsel did not attach to prison inmates placed in an administrative detention unit during an investigation for murder. Justice Souter distinguished Gouveia on the ground that the defendants in that case asked the Court to extend the right to counsel to a point earlier than formal judicial proceedings. Also, Justice Souter noted that the Court’s ruling in Jackson, reaffirming the Brewer rule, came two years after Gouveia.

Finally, the Court relied on Brewer and Jackson again to reject the County’s proposed alternative test to the Fifth Circuit’s “prosecutorial awareness” test. The County argued that prosecutorial awareness is one form of evidence of society’s commitment to prosecute, though not the only one, but that in any event Rothgery’s initial hearing was not sufficient to cause the right to counsel to attach. The majority dismissed this argument out of hand, referring back to its previous discussion of Brewer and Jackson. The Court went on to reject the County’s contentions that Brewer and Jackson are vague and limited in precedential value, holding that the two cases clearly address the point at which the right to counsel attaches and set it at the initial hearing.

Justice Souter went on to note the narrowness of the Court’s decision, emphasizing that although it had held that Rothgery’s right to counsel attached upon the initial hearing, the Court did not “decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and ha[d] no occasion to consider what standards should apply in deciding this.” While the Court decided the attachment issue, which it termed to be “an easy one,” it declined to set out the scope of the right to counsel once it has attached.

Justice Alito, joined by Chief Justice Roberts and Justice Scalia, wrote separately concurring and emphasizing the narrowness of the decision. Alito agreed that Rothgery’s right to counsel attached after the initial hearing, but emphasized that, in his view, “‘attachment’ signified nothing more than the beginning of the defendant’s prosecution. It does not mark the beginning of a substantive entitlement to counsel.” The question of whether Rothgery’s substantive right was violated by the County’s failure to appoint counsel following the hearing was not presented to the Court and therefore not answered.

Although Alito declined to address whether Rothgery’s right was violated, he did elaborate on his understanding of the substantive guarantees of the right. According to Alito, the right entitles a defendant to counsel “only as necessary to guarantee the defendant effective assistance at trial.” This guarantee entails a right to counsel at some critical stages prior to trial, but it does not entitle a defendant generally to counsel once the right has attached. Given that, according to Alito, a probable cause hearing does not constitute such a critical stage, Alito’s approach seems to imply that he believes Rothgery’s right to counsel was not violated by the County’s failure to appoint.

Justice Thomas, the lone dissenter, argued that under the original meaning of the Sixth Amendment, a “criminal prosecution” could not begin without the involvement of a prosecutor, and thus Rothgery’s right did not attach after the initial hearing. Relying heavily on Blackstone and early Supreme Court decisions, Thomas detailed the original meaning of “criminal prosecution” as used in the Sixth Amendment and argued that it did not encompass Rothgery’s initial hearing. Thomas wrote that the Court’s 1972 decision in Kirby v. Illinois supports this understanding of the Sixth Amendment right and that neither Brewer nor Jackson changed that understanding because in both cases the issue of attachment was secondary and therefore not fully considered by the Court. Finally, Thomas argued that the majority’s holding “untethered” the attachment test from the interests protected by the right to counsel – the defendant’s interest in a fair trial.

Chief Justice Roberts, joined by Justice Scalia, also concurred, writing separately to register his agreement with the majority that Jackson and Brewer control, despite believing Justice Thomas’s arguments to be “compelling.” The Chief Justice also emphasized the narrowness of the Court’s holding.