Six years agoago, Walteralter Rothgerothgery waswas just a man who worked as the manager of an RV park in Fredericksburg.

He was fired from his job and returned to his office the next day allegedly carrying a pistol, handcuffs, mace, bullets and a knife. Police arrested Rothgery for unlawful possession of a firearm after a background check indicated that he had been convicted of a felony — possessing a controlled substance — in California.

Today, Walter Rothgery may be the next Clarence Gideon or Calvin Jerold Burdine, responsible for the further evolution of Texas’ indigent defense system. (Gideon was a poor Floridian arrested for breaking and entering and stealing $5 and a couple beers; he had no money to pay for an attorney. The Supreme Court decision in his case, Gideon v. Wainwright is credited with giving indigent defendants the right to a court-appointed attorney. Burdine’s case, in which a court-appointed attorney fell asleep during a capital murder case, helped lead to the creation of the Texas Fair Defense Act.)

It all depends on how the U.S. Supreme Court justices rule in his case, Rothgery v. Gillespie County. Rothgery charges that Gillespie County, while following Texas statute, hindered his constitutional right to a court-appointed attorney due to the county’s policy of not assigning bonded defendants court-appointed attorneys until indictment.

Gillespie County, in turn, argued that Rothgery, released on bond, didn’t have a constitutional right to an attorney at the time, since the state had not yet made a decision to prosecute. The separation of powers between branches of government means that arrest doesn’t always imply prosecution.

If Rothgery prevails, counties may be required to appoint attorneys to all indigent defendants released on bond, before the state chooses whether to prosecute.

Jim Bethke, the executive director of the Texas Task Force on Indigent Defense, said he expects the case to have a significant impact on indigent defense and criminal justice procedures. A Supreme Court decision in favor of Rothgery would likely heighten the importance of indigent screening and create more incentive for counties to implement direct filing systems or other procedures that involve prosecutorial input during or immediately following arrest.

“The court will have to rule on those requests for court-appointed counsel much earlier in the process,” said Bethke, whose personal interest in the case caused him to fly to Washington., D.C., to hear the oral arguments. “The incentive will not only be for the courts, but for law enforcement and for prosecutors as well.”

The case could have a negative financial impact on counties. Defendants who are arrested but released while a prosecutor or grand jury decide whether to indict would be assigned lawyers if Rothgery wins. In the current system, some of those defendants would not need a lawyer, since their case would be dismissed.

Bethke said he believes financial fears may be overblown, so long as counties implement proactive solutions.

“I don’t think it’ll have a significant impact cost-wise. Procedures will have to be changed,” Bethke said. “If we operate under the assumption that people who are currently eligible for court-appointed counsel get court-appointed counsel, it shouldn’t make any difference if counsel is appointed shortly after magistration or upon indictment.”

After presenting oral arguments on the issue in March, both sides are awaiting a decision, though it’s difficult to speculate how the justices will decide.

“Rothgery is basically asking the Court to create a new line as to when the Sixth Amendment right to counsel attaches,” said Alan Curry, an assistant district attorney from Harris County who submitted an amicus brief on the case on behalf of the Texas Association of Counties and the Texas County and District Attorneys Association.

“Every arrested defendant is going to have a right to counsel,” he added. “Every time a defendant is questioned, he always has a Fifth Amendment right to counsel … to provide that (Sixth Amendment) type of constitutional right to counsel would be too early in the process.”

However the Supreme Court decides, counties must be prepared. “As soon as the opinion is issued, it becomes the law of the land,” Bethke said, adding that the Task Force will put together a working group of key stakeholders in order to provide a uniform message to all jurisdictions.

The Case In Briefs

Rothgery’s case began in 2002. Within 48 hours of his arrest in Gillespie County, Rothgery met with a magistrate twice. The meetings with the magistrate took place through a little glass window, in which the magistrate handed Rothgery several forms, including one that informed him he had been accused of unlawful possession of a firearm but that charges had not yet been filed. The form also notified him of his rights and set his bond at $5,000. During the second meeting, Rothgery signed a form that temporarily waived his right to an appointed attorney, and he posted bond several hours later.

According to Rothgery’s attorneys, once he was out on bond, he made daily requests for a court-appointed attorney, though Gillespie County has no record of those requests.

illespie County’s attorneys argue that Rothgery wasn’t entitled to a lawyer following his bond release since there was no “critical event” forthcoming that would necessitate a lawyer. Prosecutors had not chosen to indict him on any charges. Rothgery, while believing that the California felony charges against him had been dropped, never made a formal request for an examining trial, which would have been a pre-indictment critical event requiring an attorney.

Six months passed before Rothgery was indicted and charged with felony possession of a firearm. He was rearrested on a Saturday, and met with a magistrate on a Sunday, when he again requested a court-appointed attorney. His bond was increased, and he couldn’t afford to pay because he had been unemployed since his firing six months prior.

That Monday was a holiday. Because Gillespie County is a small county, it had 72 hours after Rothgery’s request to appoint an attorney, according to Texas statute. He was assigned counsel that Thursday.

The court-appointed attorney began working on Rothgery’s case about a week later. The attorney was able to prove that Rothgery’s felony charge in California had indeed been dropped after completion of a diversionary program. The records check performed during his arrested had resulted in an error. The case was dismissed.

Rothgery sued the county for monetary compensation, arguing that if he had received a lawyer upon his initial arrest, he never would have been rearrested and wouldn’t have had to deal with the liberty restrictions incurred when someone is out on bond. The district court dismissed the case. It was appealed to the Fifth Circuit Court, which sided with the county on the grounds that a court-appointed attorney is not necessary until a prosecutor begins adversarial proceedings, or until the state officially decides to charge a person with a crime. The Gillespie County district attorney’s office had not been aware of Rothgery’s case during his initial magistration.

Rothgery’s lawyers again appealed. The U.S. Supreme Court heard oral arguments in the case on March 17.

In a brief submitted to the Supreme Court, Rothgery’s team of attorneys, including Andrea Marsh and Harry Williams from the Texas Fair Defense Project and Washington, D.C.-based counsel Danielle Spinelli, argued that according to Supreme Court precedent, the “Sixth Amendment (fair trial) right to appointed counsel attaches upon the commencement of adversary judicial proceedings,” which “commence when a defendant appears before a judge who informs him of the accusation against him and commits him to custody.”

Rothgery’s initial magistration fits that description, they believe.

“Rothgery was brought before a magistrate, who informed Rothgery that he was accused of the criminal offense of unlawful possession of a firearm by a felon, informed him of his statutory and constitutional rights and required that he post bail or remain in jail to ensure that he appeared to answer that accusation,” Rothgery’s brief stated.

Rothgery’s attorneys also argued that requiring a prosecutor’s involvement in a case before allowing a defendant access to a court-appointed attorney would “prolong and complicate criminal proceedings.” A defendant would have to make an inquiry to the court, and the level of prosecutorial knowledge or involvement required to trigger defense counsel would still be unclear. The rule “would create a perverse incentive for prosecutors to delay their involvement in criminal proceedings.”

To find related Supreme Court precedent, Rothgery’s attorneys had to take out bits and pieces from a variety of cases dating back to the 1972 Kirby v. Illinois decision. There, justices had determined that defendants have a Sixth Amendment right to have an attorney present at adversarial critical stages prior to indictment. Other cases address the right to an attorney during post-indictment critical phases and interrogations.

Gillespie County’s precedent-related argument rests more squarely on the shoulders of a later Supreme Court decision, Gerstein v. Pugh, which dealt with a defendant’s Fourth Amendment right to a hearing of probable cause referring to his or her detention, and determined that that probable cause hearing is not adversarial in nature and does not require a defense attorney.

“No theory has ever recognized the theory Rothgery asserts, that there is a Sixth Amendment right to continuous representation by counsel, unconnected with any identifiable event constituting a critical stage, from just after the time of arrest,” begins the brief filed on behalf of Gillespie County.

The brief continues: “There were only two possible events that Rothgery could claim as a critical proceeding that might entitle him to appointed counsel. Regarding the first, the initial appearance after his arrest, Gerstein makes clear that counsel was not required and, in any event, (Rothgery) expressly declined the assistance of counsel. At the second, the appearance after his indictment, he requested and was appointed counsel. There was no event of proceeding anytime between his first and second appearance for which the Constitution required appointment of counsel to Rothgery.”

The brief also says that “Rothgery’s appearance was nonadversarial, nonevidentiary, nonprosecutorial and held no potential to unfairly prejudice Rothgery’s eventual defense to any charge that might ultimately be filed against him.”

Oral Arguments

Based on the questions and concerns voiced by Supreme Court justices during the oral arguments, the unofficial consensus is that Court will be split 5-4 or 6-3 in its decision, with Chief Justice John Roberts and Justice Samuel Alito siding with Gillespie County, and Justices Ruth Bader Ginsberg, David Souter and John Paul Stephens siding with Rothgery. Justices Stephen Breyer and Anthony Kennedy seem to be swing votes but are likely more sympathetic to Rothgery’s case; Justice Antonin Scalia is likely to side with the county but may swing the other way. Justice Clarence Thomas did not speak during the arguments but is expected to decide with the county. “(The justices) went in different directions,” Gillespie County Attorney Gregory Coleman said after giving oral arguments in the case.

“There were a couple of justices who certainly … didn’t like the idea that constitutionally a person could stay in jail for some amount of time without a right to counsel. But we explained that in Texas, Texas statute does not allow that.” During the oral arguments, Rothgery’s attorney, Danielle Spinelli, argued that previous Supreme Court decisions — Brewer v. Williams and Michigan v. Jackson — have held that an initial appearance before a magistrate marks the commencement of a criminal prosecution under the Sixth Amendment. “At that point, Rothgery acquired specific rights under Texas law as the accused in a felony case, including … the right to contest the accusation against him prior to indictment in an examining trial before the magistrate.”

But Chief Justice Roberts argued that it could not be an adversarial proceeding since no charges had been filed and no prosecutor was present.

Spinelli said the Court’s past decisions indicated that it didn’t matter whether a meeting was adversarial or not.

“There is a clear distinction set forth in this Court’s opinion in Jackson between the question (of) whether a particular proceeding initiates a criminal prosecution and whether that proceeding itself is adversarial in the sense that it requires the presence of defense counsel. … this Court’s cases have not held that prosecutorial involvement
is a relevant factor,” Spinelli argued.
“We don’t believe that should make any difference because the effect on the defendant of this proceeding is precisely the same, whether or not a prosecutor is involved,” she added. “Either way he’s faced with a need to negotiate criminal law in order to contest the charges against him.”
Justice Alito’s questioning mostly pertained to the difficulty of establishing a set time in the court process prior to indictment at which attachment occurred.
Spinelli said she did not contend that the meeting with the magistrate
was adversarial, just that it marked the beginning of a prosecution,
since Rothgery was required by the magistrate to appear in court again to answer the charges. She was not contending that Rothgery should have had a right to counsel at the magistration, but that the right to counsel attaches at the end of magistration, or whenever the magistrate informs a defendant of the accusation. She added that she did not believe appointment has to take place immediately
upon attachment, but within a reasonable amount of time.
Justices Scalia and Souter both expressed concern over whether a person can be held in jail without being charged with a crime.
Justice Scalia suggested that the county had been wrong to require bail and jail time if charges had not yet been filed by a prosecutor.
“Texas made one of two possible constitutional violations,” Scalia
said. “Either it was unconstitutional for Texas to require him to make bail, or it was unconstitutional for Texas not to provide him with an attorney. Why should we find that the latter was the problem
rather than the former?”
Spinelli said requiring bail was just one factor that should have given her client the right to a court-appointed attorney.
“If he had not been required to make bail or make any other binding promise to appear … then we would be lacking that piece of evidence that he had been accused,” Spinelli argued. “There still would remain other evidence under Texas law that he was, in fact, an accused at that time.”
“I think it’s a very strong point in your favor that he was required to make bail, because I don’t think you can hold somebody without charging him,” Scalia said. “Maybe Texas was wrong about that … it shouldn’t have required bail. Maybe that was what was unconstitutional.”
Gillespie County’s attorney Gregory Coleman began by arguing that magistration and jail time do not begin a criminal prosecution under the Sixth Amendment.
“It’s universal practice that when one is arrested without a warrant,
it is normally because a police officer sees an individual in the commission of a crime,” Coleman said.” “It’s not uncommon to go and to arrest that person to cease the crime that is taking place and perhaps to prevent other crimes from taking place.”

Justice Souter asked Coleman why Rothgery was held after magistration,
or why he had been made to post bond if no charges had been filed against him.

Coleman responded by saying the issue had to do with the Fourth Amendment, which prevents illegal search and seizures and unfair detention, and not the Sixth Amendment, which is concerned with the right to a fair and speedy trial. The justices seemed to disagree and believe that the two amendments are more closely linked.

“I want to know whether your position is that an individual may be brought by a police officer before a magistrate, charged with no crime, required to post bail and if he doesn’t post bail, be held for three weeks without charge,” Justice Souter asked.

While Coleman concluded that that scenario could not happen in Texas, he agreed that if it did, it may be a violation of the Fourth Amendment, not the Sixth Amendment.
Breyer, Kennedy and Scalia all voiced concern over the practicality
of requiring counties to appoint attorneys to anyone arrested for a crime, whether the state plans to prosecute them or not.

Justice Breyer posed an example of what would happen if many people were arrested at once, either for rioting or protesting or another
matter, and all were taken to jail, then some given the option of posting and forfeiting their bonds while others, the ring leaders, were indicted.

“If we simply said there is a right to counsel, but it doesn’t attach until there’s a significant state of the prosecution which then follows … why wouldn’t that solve your problem?” Scalia asked. “The mere fact that you’ve been brought to the courthouse and made bail and let go does not require 500 counsel to be provided. … Only when there is some later proceeding, which is an essential part of the prosecution,
must you have counsel.

“If I think that counsel has to be appointed right away for Justice Breyer’s 500 demonstrators, I’m going to give a different answer,” Scalia added. “But if I know that counsel doesn’t have to be appointed
until the prosecution proceeds to some significant phase where an attorney would be really helpful, then I can be quite more sympathetic to your argument.”

Spinelli said the significant phase would then be when defendants must make a decision on whether to request an examining trial, which happens between the first magistration and indictment.

“Do you know any other case in which we’ve held that it’s a critical
stage of the proceeding where nothing has happened but something
could have happened if the defendant had asked for it?” Scalia asked.

Spinelli referenced Estelle v. Smith, in which court members ruled that defense counsel is required not only to prepare for critical stages,
but also to help defendants decide whether to undergo them.

“This Court has repeatedly stated that one of the core purposes of the right to counsel is to ensure that the defendant understands and is able to invoke all his rights,” Spinelli said, adding that her client lost his ability to demonstrate his innocence prior to his indictment because he did not understand his rights.
Coleman said Rothgery was locked up based on an officer’s affidavit
of probable cause, which was given to the magistrate. He also said that had Rothgery asked for counsel to be present while his bail was being set, he would have been assigned counsel, but not because
of the Sixth Amendment. However, because Rothgery did not ask for counsel at that point and waived his right to an examining trial, there was no other critical phase that arose in which Rothgery needed a lawyer.

“Why would the situation be different simply because Texas law doesn’t require the examining trial, but gives the defendant the option
of demanding one?” Justice Alito asked.

“Because there is no prejudice to your fair trial rights from not choosing to have an examining trial,” Coleman responded, adding that examining trials are rare in Texas because prosecutors will often speed up indictments if clients ask for a preliminary trial. “It’s not something that prejudices your fair trial rights if no examining trial actually takes place.”
The Justices are expected to make their decision in the case by June, though it could be sooner.

Counties discover benefits of implementing
efficiency-related court procedures
Counties will soon have to react to the Supreme Court decision
in a case regarding when the right to appointed counsel attaches.
The potential impacts of that decision vary widely, but Jim Bethke, the executive director of the Task Force of Indigent Defense, is already
considering the possible outcomes, and the best courses of action to take should those outcomes occur.
“I don’t think there is going to be anything bigger that goes down through the pipes in the next few years,” Bethke said.
The outcome that would necessitate the most changes in county
and district courtroom procedures is if the justices decide that bonded defendants are entitled to a court-appointed attorney upon their first magistration, immediately after they have posted bond but before a prosecutor has decided to indict.
In that scenario, counties could be forced to appoint attorneys to cases that could never result in charges being filed. Those additional attorneys would generate more lawyers fees, further straining county budgets..
Bethke said he sees several possible solutions that could help keep costs down.
A county could implement an indigency verification process, especially
for defendants who were able to post bond.
A county could create a public defender office or regional public defender office so that attorneys fees are not generated on a client by client basis.
District attorneys can work with their sheriff’s department to implement
a procedure that would allow for prosecutorial input during
or immediately following an arrest. That would ensure that more arrestees are prosecuted and that attorneys are not assigned to cases that won’t be prosecuted.
Going further, a county could implement a direct filing procedure throughout its court system that allows law enforcement, clerks, prosecutors, courts and other related departments to quickly share information.
All of these solutions have been practiced in certain counties for years. Previously or currently, there just wasn’t enough financial benefits
to override the costs of implementing the programs in many counties. However, take the current cost-savings associated with such programs — lowered jail costs, less time spent transporting arrestees
to jail for book-in, etc. — and then tack on indigent defense attorney fees, and the solutions may suddenly be more cost-effective.

It’s about communication and flow

If the Supreme Court makes a decision that requires counties to appoint defense attorneys following magistration, counties will most likely have to adjust their court processes or see higher court-appointed attorneys fees.

Of course, implementing changes to court processes will also have financial consequences, though the solutions can be adjusted according to the county’s needs. The most important goal will be to increase communication between law enforcement and prosecutors, and to increase the efficiency of the entire court system.
Harris County has for years used a “direct electronic filing” system
in order to increase the efficiency of its courtroom and improve the flow of case-related information between all the involved departments.
Its system shares information between law enforcement, jail personnel, the county and district courts, the magistrates, the county clerk, pre-trial services and the public.
The direct filing system used by Harris County is basically an expensive
software system that digitally shares information between departments, but not all systems have to be as technologically advanced.
The Task Force defines direct filing systems as “a case management strategy to automate the flow of information for the screening and filing of criminal cases directly from law enforcement to the prosecutors
to the court system.”

The El Paso County District Attorney’s office utilizes just a small part of the Harris County system, in which law enforcement officers submit written offense reports directly to the prosecutor’s office before
the end of each shift, allowing for prompt case review.

While creating a direct filing system, especially a digital one, may require upgrades to the county’s computer systems or additional hardware, Bethke said counties have come up with creative ways to have the benefits of such a procedure on the cheap.

“This is just about facilitating a more integrated criminal justice system,” he said. “If each system is completely disparate, there would be some additional costs so that information can be shared electronically.

The biggest challenge is ultimately you’ve got to get the prosecutors, the courts, law enforcement all agreeing to change the way in which they’ve been doing business for a very long time.”

The purpose of improving the flow of information is to ultimately allow for quicker and earlier criminal justice decisions. What crime will a person be charged with, if any? Is this a misdemeanor case, or felony? What type of punishment would be suitable for a particular defendant?

Prosecutors may be worried about having to rush to judgment or possibly making a decision to release a person who then goes on to commit another crime. Deputies may want to make an arrest regardless of whether a person will face charges or not; getting a person off the street for a night may be necessary for protecting the public’s safety.
Procedures can be flexible. The point isn’t to rush to judgment or to take away deputies’ authority to make an arrest, but to create a system where information is reviewed as it arrives.

“The purpose of it is to have a meaningful early review of the police
report that allows the prosecutor to make a decision that same day as to whether to accept charges,” Bethke said.
The earlier a prosecutor can decide whether a case should be dismissed,
the less time and money is devoted to that case by other departments.

According to a “direct electronic filing” study published by the Task Force about 19 percent of El Paso’s cases are rejected by the prosecutor before an arrest is complete, meaning that law enforcement
officers don’t have to spend time transporting those people to jail, or booking them in jail, and the county does not have to pay for their food, care and board once they are in jail. Clerks don’t have to worry about paperwork and the magistrate never has to spend time discussing probable cause or setting bail. In addition, 15 percent of El Paso’s integrated cases are disposed of within three days — compared to cases filed using a more traditional system, where it took an average of 18 days just for prosecutors to receive case information.

Similarly, in Harris County, prosecutors estimated that they reject about 10 percent of cases early, and that 25 percent of the cases are disposed of within three days.
Some counties have implemented direct electronic filing procedures
in order to curb jail overcrowding problems.

About two years ago, Williamson County District Attorney John Bradley decided it was time for his office to change the way cases flowed from the jail into the criminal justice system.

At the time, he said deputies and police officers would make an arrest, put a person in jail, write up his or her report and then send the report over by hand to either the county or district attorney’s office. The person who was arrested would visit the magistrate and either post bond — causing the case to sit on the back burner until the grand jury met, which happened once every three months — or they would be sent back to jail and await “someone’s decision to do something,” Bradley said.

“There wasn’t any push to collect that information, review it, screen it and make a decision to push forward or not until it was time to present it to the grand jury,” Bradley said. “That could be months.”

The county was facing a jail overcrowding crisis, and had plans to expand its lockup capacity.

Bradley’s office now dedicates one of its 11 prosecutors every morning to inmate intake. A prosecutor will visit the magistrate’s office every morning, Monday through Friday, and look over paper
work for the defendants arrested during the previous day. The prosecutor will review the case and determine a charge, then file the charge directly with the district clerk. The defendant can then agree to waive his right to a grand jury and accept the charges filed by the prosecutor; the case is then randomly assigned to one of the county’s three criminal courts. That happens in about one-third of the district
court’s cases. Those cases are quick to resolve, since a defendant only has to agree to a punishment.

If the defendant does not waive his right to a grand jury examination,
the case proceeds as it would have otherwise, and the grand jury will either indict or not. If the prosecutor decides not to file a formal charge, the magistrate releases the defendant without bond.

“We found that direct filing diverted enough cases to the point where not only did we not need to build that extra floor of the jail, we also dropped the jail population down by 100 people,” Bradley said, adding that the process can also be used to help prosecutors divert mentally ill inmates from jail.

But at first, Bradley said, there had been resistance to the changes being made.

“All of those cases that had been sitting in my office that had not yet gone before the grand jury had to be immediately filed into the system. There was a dump of about 300 to 400 cases,” he said. While workload temporarily increased, caseloads are now down, since prosecutors decide to dismiss or reassign the status of a significant
number of cases.

Some counties, instead of or together with direct filing, have started
24-hour prosecutor hotlines, in which deputies make an arrest, then call the hotline number to confer with the prosecutor about the details of the case. The prosecutor then goes over the information with the deputies, explaining what information would be needed in order to press charges.
Bethke said that in counties where such processes have been implemented,
about one in five cases never make it to the county jail. That case never has to enter the court system, the deputies don’t have to take time to transfer a defendant to the jail and the jail space is used by defendants who will be charged with a crime.

“There is no waste of time or effort,” Bethke said.

In smaller counties, the hotline can be on-call; attorneys are given a cell phone on a rotating basis, and answer from the comfort of their own homes, or defendants are arrested and prosecutors meet with deputies about the facts of the case the following morning.

Montgomery County is large enough that the prosecutor’s office was able to implement an off-hour intake center within the county jail. Prosecutors take turns staffing the office, answering phones and fielding questions from law enforcement officers out in the field.

“We thought it was a great idea, not just for us, but for law enforcement
as well,” said David Bluestein, the county’s first assistant district attorney. “We are getting a much quicker look at what has actually transpired, as opposed to having to wait days or weeks for the offense report to come in.”

The intake center has helped better utilize law enforcement officers’
time, since some jurisdictions are a three-hour trip away from the county’s jail. Not having to make the trip from the field to the jail after an arrest means saved gas; less wear and tear on cars and not having to devote time and resources to booking, magistration, bonding or indigent defense appointments.
“This was ultimately something that was beneficial for the people in the county, for law enforcement in the county and for the good of everybody that comes into the county,” Bluestein said.