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Indigent defendants released from custody in Texas can get court-appointed attorneys much sooner than in the past under a June 23 ruling by the U.S. Supreme Court. In an 8-1 decision in Rothgery v. Gillespie County, the Supreme Court ruled that a defendant’s Sixth Amendment right to counsel attaches at his first appearance before a magistrate, whether or not the prosecutor is also on hand. The ruling in Rothgery dealt with a Texas “magistration” procedure under which a defendant goes before a magistrate judge, has bail set and can be imprisoned — all without the involvement of a prosecutor or the appointment of defense counsel. Wesley Shackelford, special counsel for the Texas Task Force on Indigent Defense, says the Supreme Court’s ruling in Rothgery defines when “adversarial judicial proceedings” are initiated under Texas law — an issue Shackelford says has not been totally clear since the Texas Legislature passed the Fair Defense Act in 2001. Shannon Edmonds, the Texas District and County Attorneys Association’s governmental affairs director, says the Legislature crafted a compromise in the 2001 legislation to provide that if an indigent defendant was released prior to having an attorney appointed, the appointment of counsel “is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.” The Legislature included that language in Texas Code of Criminal Procedure Article 1.051(j), he says. “Now the Supreme Court has trumped that compromise or overturned it,” Edmonds says. Andrea Marsh, executive director of the Texas Fair Defense Project and one of the attorneys who represents Walter Rothgery, says she doesn’t view the language in Article 1.051(j) as a compromise. But Marsh says many people have interpreted the language of that statute to mean that indigent defendants who bonded out of jail did not need lawyers appointed as quickly as other defendants. As Shackelford points out, “That’s been the interpretation in most jurisdictions.” Marsh says the Rothgery ruling now makes it clear that the timeline for appointing counsel is the same for indigent defendants who are released as for those who remain in jail. Under Code of Criminal Procedure Article 1.051(c), an indigent defendant in a county with a population of 250,000 or more is entitled to have an attorney appointed by the end of the first working day after he or she requests the appointment of counsel. An indigent defendant in a smaller county is entitled to have an attorney appointed not later than the end of the third working day after requesting an attorney. Narrow Holding The prompt appointment of an attorney could have ended Rothgery’s legal problems much sooner. Based on an erroneous California police report, Rothgery had been arrested in Fredericksburg as a felon with a firearm. He was jailed for a period, but posted bail. It was not until six months after his initial appearance before a judge that counsel was appointed — at which point the lawyer documented the erroneous report that Rothgery had a conviction in California and got the indictment against him dismissed. In 2004, Rothgery sued Gillespie County for damages in a 42 U.S.C. §1983 action filed in the U.S. District Court for the Western District of Texas in Austin. In 2006, U.S. District Judge Lee Yeakel granted the county’s motion for summary judgment, based on the argument that Rothgery did not have a constitutional right to counsel until he was indicted. After the 5th U.S. Circuit Court of Appeals affirmed Yeakel’s decision in 2007, Rothgery petitioned the U.S. Supreme Court for a writ of certiorari. Justice David Souter, writing for the Supreme Court majority, said that when a state’s commitment to prosecute is strong enough to prompt arraignment and imprisonment of an individual, “by that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it.” [See the court's opinion.] The decision may have limited impact outside Texas because 43 states, plus the federal and D.C. governments, already appoint counsel for indigent defendants before or just after the initial appearance before a judge. And even in the remaining states — Texas, Alabama, Colorado, Kansas, Oklahoma, South Carolina and Virginia — procedures in many cases conform to the court’s view of the Sixth Amendment right. In addition, Souter stressed that “our holding is narrow” and does not decide whether the triggering of the right to counsel means the state must appoint counsel right away. “We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights,” wrote Souter. In his concurrence, Justice Samuel Alito Jr. stressed that he joined the majority on the assumption that this decision does not require immediate appointment of counsel when the right to counsel attaches. Alito said the appointment of counsel is required “only as necessary to guarantee the defendant effective assistance at trial.” Chief Justice John Roberts Jr. and Justice Antonin Scalia joined Alito’s concurrence. Justice Clarence Thomas dissented, arguing that the majority ignored the original meaning of the Sixth Amendment. Counties and Costs Edmonds says that while the Supreme Court did not reach the question of when counsel must be appointed for an indigent defendant, Texas law addresses that issue. Now under the ruling, regardless of whether a defendant is in jail or out on bond, a court must appoint counsel for that defendant within one to three days after he or she requests an appointment, Edmonds says. Elna Christopher, spokeswoman for the Texas Association of Counties, says her organization does not yet know the ruling’s fiscal ramifications. “The Indigent Defense Act is an unfunded mandate; this adds to it,” Christopher says. But Marsh says she doubts the opinion will result in a significant increase in the amount of money counties spend on indigent defense. Marsh says many counties pay a flat fee to attorneys who represent indigents in criminal matters, and the attorneys will receive the same fee regardless of whether a court appoints them sooner or later. In a statement released by Marsh, Rothgery, who now lives in Plano, is quoted saying, “I’m ecstatic. This is how I thought the system was supposed to work. It’s just a shame that I had to go this far to get Texas to do what it’s supposed to.” Gregory Coleman, who argued the case for Gillespie County before the high court, says Rothgery “won on the issue of when the right attaches, but I don’t see any way for him to win” in his quest for money damages. Coleman, a partner in and head of the appellate practice at Yetter, Warden & Coleman in Austin, says the decision was “narrow as narrow can be,” leaving it up to the 5th Circuit to decide whether to dismiss Rothgery’s civil rights complaint. With the majority emphasizing that it was not passing judgment on whether the six-month delay in appointing counsel was too long, Coleman predicts the county will succeed in dismissing the complaint. With regard to Gillespie County’s liability, Marsh says, “We will have to litigate that another day.”

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