You have the right to an attorney, just not right now

Grits reminds me about this wire story from a couple of days ago regarding a case now before the Supreme Court about when the right to an attorney first applies.

Three weeks after Walter Rothgery arrived from Arizona to manage an RV park in the Texas Hill Country, the work offer evaporated. He lost not only his job but the place at the park where he and his wife were to live.

Then things got ugly.

The next day, Rothgery was arrested for carrying a gun as a convicted felon, based on a background check that erroneously showed a felony drug conviction in California. His wife used their last $500 to post bail. No lawyer was provided at his initial hearing.

"I grew up kind of being an idealist American" said Rothgery, 57, and a former West Point cadet. "I never thought something like this could happen to me."

Now he will argue before the Supreme Court on Monday that Texas should provide a defense lawyer for indigent clients once they've made a first appearance before a magistrate. Had Rothgery had one, the erroneous report of a previous conviction would have been disproven, eliminating the reason he was arrested in the first place.

Rothgery waived his right to have a lawyer at that first jailhouse court appearance, but said he did only for that appearance so bond could be set and he could be released.

Rothgery spent the next six months in legal limbo: unable to get a full-time job because of the report of a conviction hanging over him and unable to afford a lawyer. He was indicted, re-arrested, had his bail tripled and moved to a county jail more than 100 miles from his home.

A sympathetic warden there helped him find a lawyer, who obtained documentation proving he had no felony record.

Three weeks later, Rothgery was released again on bail, and Gillespie County prosecutors ultimately dropped the charge. He was a free man.

"I guess everybody who gets arrested says they're innocent," Rothgery said. "Sometimes they are."

Rothgery's case caught the attention of Andrea Marsh, a rookie civil liberties lawyer who filed the first lawsuit of her career on his behalf against the county in 2004 alleging his Sixth Amendment right to an attorney was violated.

If a lawyer had been appointed, the mistake underlying his arrest would have been discovered and he wouldn't have been subjected to bond for a lengthy period and wrongfully jailed, she argued.

"I always thought once you ask for a lawyer you get a lawyer," Rothgery said.

Not necessarily so, according to Texas legal procedures upheld by a federal judge who summarily dismissed Rothgery's case. The 5th U.S. Circuit Court of Appeals upheld that decision.

The Supreme Court was to hear arguments Monday in Rothgery's suit, with his attorneys insisting the procedure followed by Gillespie County allows defendants to be jailed for long periods without any access to counsel, a situation inconsistent with Sixth Amendment protections.

Can you imagine sitting in jail for three weeks because you didn't have a lawyer who could point out the simple fact that you shouldn't have been arrested in the first place? It's appalling. If nothing else, remember William Rothgery's name the next time you hear someone say we need more jail space in Harris County to hold all those people who can't make bail while they're waiting for their trials. How many tax dollars were spent to keep this poor guy behind bars?

Grits discusses the prosecutors' reactions to this lawsuit:

On the prosecutors' association user forum in December, one of their lobbyists, Shannon Edmonds, lamented that if SCOTUS restricts the ability to hold defendants in jail without appointing a lawyer, it may result in "fewer valid confessions." Moreover, he said, if SCOTUS requires appointment of counsel earlier in the process, "counties will squeal about the costs, leading to a statewide push for the creation of more local public defender offices."

More public defender offices, if you ask me, would be a good outcome from this case, if Edmonds' prediction holds true. If Rothgery wins, depending on the contents of the opinion, counties can "squeal" all they want but they still have to pay.

As for fewer confessions, though, let's interrogate this assertion for a second. Why would more people confess under the current system? Because they don't have a lawyer's advice! That certainly won't be an argument SCOTUS accepts (I would hope) for delaying appointment of an attorney. The other reason failing to appoint a lawyer would boost confessions is when the defendant sitting in jail and that's the quickest option to get out - particularly on lower level charges where probation or a short jail sentence is the most likely outcome. But "lock 'em up without a lawyer till they confess" isn't what the American justice system should be about, is it?

I love that they claim to be concerned about costs here. Which do you think would have been cheaper: Paying an attorney to get the charges against William Rothgery dropped immediately, or paying to house and feed him for three weeks? Seems like a no-brainer to me.

Grits also has a summary of the oral arguments, which thankfully make it look like Rothgery will prevail. I've seen some pretty weak defenses before, but Gillespie County looks especially pathetic here. Check it out, and check out some of the related commentary links he found; these two from Orin Kerr are particularly interesting.

Posted by Charles Kuffner on March 19, 2008 to Crime and Punishment