Legal help too slow, high court says

HOUSTON The high court ruled 8-1 in the case of Walter Rothgery. In 2004, three weeks after he arrived from Arizona to take a job managing an RV park in Gillespie County, Rothgery was arrested for carrying a gun as a convicted felon. No lawyer was provided at his first court hearing.

The arrest, based on bad information in a computer database, left Rothgery unable to get a full-time job. And by the time he was indicted six months later, he was broke, unable to afford a lawyer, had his bond tripled and was jailed in a county lockup 100 miles from his home.

A sympathetic warden helped him find an attorney to obtain documentation showing Rothgery had no felony record, allowing him to be released. The weapons charge then was dropped.

Rothgery, however, sued Gillespie County for violating his constitutional right to counsel. When a federal court and the 5th U.S. Circuit Court of Appeals rejected his suit, his attorneys took the case to the Supreme Court. The ruling Monday sends his suit back to the lower courts.

"Texas really is part of America now," Rothgery, 57, said Monday from Llano, where he works in an equipment rental store. "I am fairly pleased. I was trying to keep an even keel. It got harder as we got to the end of June.

"Now I can let it loose. Before I was trying to hold back and try not get my hopes too high."

Rothgery's lawyers argued Texas should provide a defense lawyer for indigent clients once they've made a first appearance before a magistrate, even if no prosecutor was present. If Rothgery had a lawyer, the lawyer could have proven he had no felony conviction and he wouldn't have been arrested or jailed, they said.

"I think the court recognized the law exactly the way we say it is," Andrea Marsh, executive director of the Texas Fair Defense Project, which filed the initial suit.

Under Texas law, the first court appearance is not a stage in the legal process where someone arrested is subjected to a formal charge, indictment, information or arraignment. The 5th Circuit said because no prosecutor was involved at that point, Sixth Amendment protections did not apply.

The Supreme Court, asked to rule on when the constitutional right to a lawyer kicks in, disagreed.

"We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: 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," Justice David Souter wrote in the majority opinion.

Justice Clarence Thomas was the lone dissenter.

Marsh said Rothgery clearly was accused of a crime when he was arrested and became part of the criminal legal system when he posted bond following that arrest.

"The Texas statute says defendants released on bond have a right to counsel at the initiation of adversarial judicial proceedings," she said. "The Supreme Court case directly addresses the reason that local officials have been relying on to delay appointment of counsel for Texas defendants.

"The court opinion today says that happened at the time of magistration. No question that's when Mr. Nothgery should have gotten a lawyer."

Charles Frigerio, a San Antonio lawyer handling the case for Gillespie County, said the high court's ruling "at least now squarely qualified when the start of adversary judicial proceedings commences.

"At the very least, it shows all 50 states one specific rule. And that's the first time the court has even done that in this area of the Sixth Amendment. So we at least have a clearer map of where we need to go."

Frigerio, however, said the ruling isn't likely to aid Rothgery's suit against the county because there was no showing it was the county's "custom and policy" that violated Rothgery's constitutional rights.

"He was released from prison," Frigerio said.

He also noted the court wasn't asked, and didn't suggest, a time frame for appointment of counsel.

"It was a very narrow question they took up," Frigerio said. "So I don't think it will really affect the outcome of Gillespie County's being determined to have a summary judgment in this case."

When the suit returns to the lower court, "I think ultimately Gillespie County will prevail," he said.

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