Vol. 3, No. 2 | October 2008

When the 6th Amendment Right to Counsel Attaches

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu  

[Note:  Unless indicated otherwise, materials in quotation marks are quotes from the opinion of the court deciding the case under discussion.  Also, unless indicated otherwise, a case discussed below was decided by the United States Supreme Court.  Descriptions below of the facts of a case often quote verbatim (or at least draw heavily) from the opinion’s description of the facts or from the summary of the case provided by one of the legal reporters, such as Lexis-Nexis or www.findlaw.com]

Rothgery v. Gillespie County (U.S. Supreme Court, 6-23-08)

Facts:  Rothgery was not appointed counsel until 6 days after his indictment, which came 6 months after his arrest in Texas for being a felon in possession of a firearm.  His attorney obtained records from California, where Texas officials thought he had been convicted of a felony, that verified that Rothgery was not a convicted felon.  Rothgery filed a Section 1983 lawsuit, complaining that the failure to provide him counsel after his initial appearance before a magistrate violated his Sixth Amendment right to counsel.

Issue:  Previous Supreme Court case law indicates that the Sixth Amendment right to counsel attaches when judicial proceedings have begun against a suspect by means of preliminary hearing, indictment, information, arraignment, or formal charging.  This case law also talks, however, about the government committing itself to prosecution.  The lower courts in this case found that prosecutors did not get involved until Rothgery was indicted and so judicial proceedings did not begin until then.

Held:  7-2.  The right to counsel attached when the defendant appeared at a proceeding where he was informed of the charges against him and his liberty was subject to restriction (in other words, a bail/no bail decision was made).  This holding has implications for when a lawyer must be present at a lineup or show-up identification (counsel must be present after the 6th Amendment right to counsel has attached).  It also has implications for when the Massiah/Brewer rule comes into play.  That rule prohibits the police from deliberately eliciting incriminating information from an accused after the 6th Amendment right to counsel has attached in the absence of counsel unless the accused waives counsel or initiates the discussion about the case.

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.