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Monday, June 23, 2008
Rothgery was arrested without a warrant and booked into jail on suspicion he was a felon in possession of a gun. Apparently unknown to the arresting officer, there was no underlying felony because that earlier charge had been dismissed after the defendant completed a diversionary program. The arresting officer filed with the magistrate an affidavit supporting probable cause (based on his misinformation about the prior felony). Rothgery inquired of the magistrate about appointed counsel, and he was told that if he wanted counsel his bail and probable cause hearings would be delayed until counsel could be appointed; or, in the alternative, he could waive counsel for these hearings and the hearings would go forward. Given those options, Rothgery waived counsel temporarily. The magistrate found probable cause and held Rothgery. Later, he was released on bond. A grand jury indicted him for the felon-in-possession charge. Post-indictment, a lawyer was appointed, investigated the nonexistent prior conviction, and was able to have the erroneous charges dismissed. Rothgery filed a § 1983 action, alleging he was denied appointed counsel pre-indictment, but the Fifth Circuit held that he was not entitled to counsel at that stage because adversary criminal proceedings were not commenced by the officer’s filing of an affidavit of probable cause, especially in a proceeding at which no prosecutor was present. Earlier Supreme Court decisions held that the Sixth Amendment right to counsel attaches when "adversary judicial proceedings have been initiated." Kirby v. Illinois, 406 U.S. 682, 688 (1972) and when a defendant is arrested, "arraigned on [an arrest] warrant before a judge," and "committed by the court to confinement," "[t]here can be no doubt … that judicial proceedings ha[ve] been initiated." Brewer v. Williams, 430 U.S. 387, 399 (1977). Here, the Supreme court reversed, holding that the Sixth Amendment right to counsel attaches at the initial appearance before the magistrate judge where a subject learns the charges against him and is subject to a potential loss of liberty, even if the proceeding is so preliminary that the prosecutor is unaware of it and uninvolved in it. Writing for the majority, Justice Souter reasoned: "[U]nder the federal standard, an accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused’s liberty to facilitate the prosecution. From that point on, the defendant is ‘faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’ that define his capacity and control his actual ability to defend himself against a formal accusation that he is a criminal. 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." Chief Justice Roberts, and Justices Alito and Scalia concurred; Justice Thomas dissented.