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WASHINGTON � The rights of one man who wanted a lawyer and didn’t get one, and of another man who didn’t want a lawyer but was forced to take one, converge in the U.S. Supreme Court this month in two cases probing the scope of the right to counsel. Walter Rothgery of Texas and Ahmad Edwards of Indiana have little in common today except an abiding belief that their Sixth Amendment rights were violated when they were at critical points in the criminal justice system. Rothgery is a free man today after belatedly, in his view, getting an appointed lawyer who then easily showed he was not guilty of the charges lodged against him. Edwards is serving a 30-year prison term, his request to represent himself having been denied and his appointed lawyer, in his view, having failed to present the defense he sought. “The Sixth Amendment right to counsel has been treated by the Supreme Court with a bit more care and as having value, more so than a number of the other criminal procedural rights,” said criminal law scholar Joshua Dressler of Ohio State University Michael E. Moritz College of Law. “While one may automatically assume the Supreme Court will come down on the side of the government in Fourth Amendment and Miranda cases, it’s a little less obvious they will do so when you come to the right to counsel,” added Dressler, who signed a law professors’ amicus brief supporting Rothgery. “In a number of other areas, they have shown a willingness to assert that right with power.” Rothgery’s case, to be argued on March 17, asks a rather straightforward question about when the right to counsel attaches. Does the right attach at an arrested person’s initial appearance before a magistrate to hear the charges and to face bail or jail, or, as the lower federal appellate court held, only when the government has committed itself to prosecute? Rothgery v. Gillespie County, Tex., No. 07-440. Edwards’ case, which will be heard on March 26, is more complex, according to scholars and litigators, because it deals with the Sixth Amendment’s implied right of self-representation. That right often may seem in tension with the right to a fair trial, particularly when, as here, there are issues of the defendant’s mental competency. Indiana asks: May states adopt a higher standard for measuring competency to represent oneself at trial than for measuring competency to stand trial? Indiana v. Edwards, No. 07-208. Reflecting the difficult question in the Edwards case, the National Association of Criminal Defense Lawyers (NACDL) has filed an amicus brief supporting neither party. And, another historically strong supporter of criminal defendants’ rights � the American Bar Association (ABA) � has filed a brief supporting the state. “When was the last time you saw an ABA brief supporting the prosecution?” asked Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento, Calif., which generally sides with the prosecution and has filed a brief also supporting Indiana. “The marginally competent defendants are a real problem.” Seeking a lawyer After his arrest in July 2002 in Gillespie County, Texas, for possession of a firearm by a felon, Rothgery was brought before a magistrate for an initial appearance in which he was informed of the charges and bail was set. Rothgery, according to his high court counsel, had repeatedly requested an attorney during the six months he was out on bond, but the county, following the practice in Texas not to provide counsel until after an indictment, rejected those requests. A lawyer was appointed after a grand jury indicted him in January. That lawyer obtained proof of Rothgery’s innocence and the charge was dismissed. In Rothgery’s subsequent suit against the county for violating his right to counsel, the 5th U.S. Circuit Court of Appeals looked to Kirby v. Illinois, 406 U.S. 682 (1972), which held that the right to counsel attaches when “adversary judicial proceedings have been initiated” against a person. It is only then, according to Kirby, that the government has committed itself to prosecute. The appellate court said there was no “prosecutorial knowledge or involvement” in Rothgery’s arrest when he initially appeared before the magistrate, only after his indictment. The 5th Circuit’s “prosecution involvement” rule is not the test applied by the Supreme Court and other federal courts, said Andrea Marsh, head of the Texas Fair Defense Project and co-counsel in the high court for Rothgery with Seth Waxman, partner in Wilmer Cutler Pickering Hale and Dorr’s Washington office. Waxman will argue the case. In applying the Kirby test, the Supreme Court, according to Marsh and Waxman, held in Brewer v. Williams, 430 U.S. 387 (1977), and reaffirmed in Michigan v. Jackson, 475 U.S. 625 (1986), that an initial post-arrest “arraignment,” at which the defendant is informed of the accusation against him and committed to custody, “signals ‘the initiation of adversary judicial proceedings.’ “ Texas ‘out of step’ The Texas practice of waiting until indictment to provide counsel is out of step with the rest of the states, according to a survey by Ian Heath Gershengorn, partner in the Washington office of Chicago-based Jenner & Block, who authored an amicus brief for the NACDL in support of Rothgery. Forty-five states and the federal government provide counsel before, at, or just after first arraignment. “It’s clear if counsel had been provided earlier, Rothgery would have been able to avoid jail time and being out on bail with that accusation on his head,” said Gershengorn. “It’s also emblematic more broadly of the need for counsel at that stage. So often getting to the crime scene and talking with witnesses early are critical to being able to provide an effective defense.” But Gillespie County, represented by Gregory Coleman, partner in Austin, Texas’ Yetter & Warden, contends the initial appearance before a magistrate � known as “magistration” � was neither the formal initiation of adversarial judicial proceedings nor a critical stage of proceedings. The county and its supporters � 18 states and Puerto Rico, in an amicus brief authored by Texas Solicitor General R. Ted Cruz � argue that magistration is not arraignment because of its administrative nature, lack of adversarial questioning (or even a prosecutorial adversary), and the absence of a plea or any other inquiry that could prejudice any subsequent trial. Rothgery and his supporters, argues Coleman, are trying to push attachment of the right to counsel “back to a presentation of warnings that follows every arrest in Texas.” Rejecting a lawyer Ahmad Edwards was arrested in July 1999 when, after resisting apprehension by a security guard for shoplifting shoes, he drew and fired a gun, injuring an onlooker. During the next five years, courts found him not competent to stand trial and ordered treatment for his psychosis until 2004, when he was found competent. At trial and at a later retrial, Edwards sought to represent himself. Although the trial court found his waiver of his right to counsel to be timely, knowing and voluntary � as required by Supreme Court decisions � it rejected his requests. The court concluded that his long history of delusions, schizophrenia, communications problems and related problems made him incapable of self-representation. Edwards was then tried with court-appointed counsel, convicted and sentenced to 30 years. The Indiana Supreme Court reversed Edwards’ convictions. While expressing sympathy for the trial judge’s reasoning and the state’s arguments, the court said that the U.S. Supreme Court had held in two cases that the standard for competency to represent oneself can be nothing more than competency to stand trial. Faretta v. California, 422 U.S. 806 (1975); Godinez v. Moran, 509 U.S. 389 (1993). In the high court, Indiana Solicitor General Thomas Fisher argues that the Sixth Amendment right to self-representation is not absolute. Faretta and its progeny, he argues, allow courts to counterbalance the demand for self-representation with the need to preserve a fair trial. For example, Fisher notes, courts may impose counsel on disruptive defendants, and standby counsel on any defendant who seeks self-representation. Indiana, he said, proposes a “clear communication rule” in self-representation demands. “A trial court may deny a criminal defendant the right to represent himself at trial where the defendant cannot communicate coherently with the court or a jury,” he said. If this court finds this proposed rule inconsistent with Faretta, Fisher argues, the court should consider overruling Faretta, because “as the dissenting opinions of Chief Justice Burger and Justice Blackmun in Faretta make clear, a right to self representation is without solid textual, structural, or historical foundation.” Supporting Indiana, the Criminal Justice Foundation’s Scheidegger said, “States should have some leeway [in these types of cases] and not have to walk a tightrope where a little tilt in either direction tips you over the edge.” Under the current rule, he said, appellate courts can find reversible error whichever way a judge rules. States here are not seeking to regulate the Sixth Amendment right, but to extinguish it for a particular class of people, said Edwards’ high court counsel, Mark T. Stancil of Washington’s Robbins, Russell, Englert, Orseck, Untereiner & Sauber. If the prospect of prosecuting an impaired defendant, he said, offends a state’s sense of fairness, it can raise its standard for competency to stand trial. Faretta made clear that the Sixth Amendment protects the defendant’s choice to proceed pro se. The states, he said, want the high court to give them the choice of imposing a higher standard, of deciding which defendants can exercise the right and which cannot, even when a defendant has the capacity to make the decision. “There is so much greater potential for strategic manipulation when states can make that choice,” said Stancil. “At the end of the day, we think the Sixth Amendment is about defendants’ rights. Whether it makes it harder or easier for the state to prosecute cases is beyond the point.” The NACDL, in support of neither party, asks the court to step back from its rule that the standard for competency to stand trial is the same for competency to self-represent, and instead return to the common law standard. “If someone has counsel, the question should be whether that person can assist counsel,” said Kevin Martin of Boston’s Goodwin Procter. “But if there is no counsel, ask if the defendant is competent to go forward on his own. If someone is not competent to represent himself, you no longer have to ask, ‘Can we force counsel on him?’ because he doesn’t go to trial in the first place.” It is a “very complicated” issue, added Martin, noting that the competency standard is almost a half-century old “and we still struggle with it.”

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