rothgery v. gillespie county: what does it mean

1. Rothgery v. Gillespie County: What Does It Mean? Andrea Marsh, Executive Director Texas Fair Defense Project 2008 Indigent Defense Workshop Texas Task Force on Indigent Defense October 23, 2008

2. Texas Fair Defense Project (TFDP) Mission TFDP works to improve the fairness and accuracy of the criminal justice system in Texas, with a primary focus on improving access to counsel and the quality of representation provided to poor people accused of crime.

3. TFDP’s Work TFDP defends the rights of indigent criminal defendants through litigation, education, and advocacy.

4. Rothgery v. Gillespie County128 S. Ct. 2578Decided June 23, 2008

5. Walter Rothgery

6. Questions Answered by the Supreme Court in Rothgery Does an Article 15.17 hearing (magistration) in Texas mark the initiation of adversary judicial proceedings, “with the consequent state obligation to appoint counsel within a reasonable time after a request for assistance is made”?

7. “[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.” (128 S. Ct. at 2592)

8. Questions Answered by the Supreme Court in Rothgery Does the right to counsel attach at the Article 15.17 hearing even if a prosecutor is not aware of or involved in its conduct?

9. Questions Answered by the Supreme Court in Rothgery But isn’t an indictment required in order to commence adversary judicial proceedings and cause the right to counsel to attach?

10. Why Do Defendants Need Lawyers After Their Art. 15.17 Hearing? “[A] defendant subject to accusation after initial appearance is headed for trial and needs to get a lawyer working, whether to attempt to avoid trial or to be ready with a defense when the trial date arrives.” (Rothgery, 128 S. Ct. at 2590)

11. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .

12. Under Federal Constitutional Law? “[C]ounsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” (Rothgery, 128 S. Ct. at 2591) Defendants are entitled to counsel to help them prepare for critical-stage proceedings, and to decide whether to undergo optional/voluntary critical-stage proceedings. (Estelle v. Smith, 451 U.S. 454, 471 (1981))

13. Example of Critical-Stage Proceedings Interrogations after the Art. 15.17 Hearing Line-Ups after the Art. 15.17 Hearing Examining Trials Psychiatric Exams Plea Negotiations Arraignment Pre-Trial Hearings Trial

14. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .

15. Under the Texas Code of Criminal Procedure? If the Defendant is in Custody: “[I]f an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, [the appointing authority] shall appoint counsel as soon as possible,” but not later than 1 to 3 working days (depending on county size) after the appointing authority receives the defendant’s request for counsel. (Texas Code of Criminal Procedure art. 1.051(c))

16. Questions Answered by the Supreme Court in Rothgery Does an Article 15.17 hearing (magistration) in Texas mark the initiation of adversary judicial proceedings?

17. How Quickly Must A Defendant Be Given A Lawyer After the Article 15.17 Hearing . . .

18. Under the Texas Code of Criminal Procedure? If the Defendant is Released on Bond: “Notwithstanding any other provision of this section, if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.” (Texas Code of Criminal Procedure art. 1.051(j))

20. What Can Happen If These Best Practices Aren’t Followed:Michigan v. Jackson “In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained -- and the Sixth Amendment violated -- because the defendants had ‘requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations.’ We agree with that holding.” (Michigan v. Jackson, 475 U.S. 625, 626 (1986))

21. Michigan v. Jackson “Sixth Amendment principles require that we impute the State's knowledge from one state actor to another. For the Sixth Amendment concerns the confrontation between the State and the individual. One set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court).” (Michigan v. Jackson, 475 U.S. at 634)

22. Michigan v. Jackson “Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis.” (Michigan v. Jackson, 475 U.S. at 635)