Rothgery v. Gillespie County, TX


Does an arrested person's Sixth Amendment right to counsel attach at a hearing before a magistrate judge, although no formal charges have been filed against the arrestee and no prosecutor was involved in the arrest or hearing?

Oral argument: 
March 17, 2008

On July 15, 2002, Walter Allen Rothgery was arrested without warrant and appeared before a local magistrate as required by Texas law. Following his release on bond, Rothgery made several written requests for appointed counsel to Gillespie County officials, but county officials failed to appoint defense counsel until after a grand jury indicted Rothgery six months later. Rothgery sued Gillespie County under 42 U.S.C. § 1983, claiming that the County's failure to grant his request until after indictment violated his Sixth Amendment right to counsel. Rothgery contended that his initial appearance before the magistrate constituted the commencement of "adversary judicial proceedings," which triggers an accused person's Sixth Amendment right to appointed counsel under U.S. Supreme Court precedent. Gillespie County supports the Fifth Circuit's holding that Rothgery's right to counsel did not attach until after Rothgery's indictment because, until that time, the state had not committed itself to prosecute Rothgery. The decision in this case will determine when the right to counsel vests, and will impact the administration of criminal proceedings and law enforcement.

Questions as Framed for the Court by the Parties 

The Sixth Amendment right to counsel attaches when "adversary judicial proceedings have been initiated." Kirby v. Illinois, 406 U.S. 682, 688 (1972). This Court has held that 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).

In this case, petitioner was arrested and brought before a magistrate judge who informed petitioner of the accusation against him, found probable cause that he had committed the offense based on a police officer's sworn affidavit, and committed him to jail pending trial or the posting of bail. The question presented is whether the Fifth Circuit correctly held-in a decision that conflicts with those of other federal courts of appeals and state courts of last resort-that adversary judicial proceedings nevertheless had not commenced, and petitioner's Sixth Amendment rights had not attached, because no prosecutor was involved in petitioner's arrest or appearance before the magistrate.


On July 15, 2002, police officers from the Fredericksburg, Texas Police Department arrested Walter Allen Rothgery for unlawful possession of a firearm by a felon, a third-degree felony under Texas law. See Tex. Penal Code § 46.04; Brief for Petitioner at 4. The warrantless arrest was based on a criminal background check indicating that Rothgery had previously been convicted of a felony in California. Rothgery v. Gillespie County, Tex., 491 F.3d 293, 294 (5th Cir. 2007). However, unknown to the arresting officers, Rothgery had already obtained dismissal of the California felony charge by completing a diversion program. See id. After his arrest, Rothgery purportedly made a written request for the appointment of counsel. Brief for Petitioner at 4.

The next morning, Rothgery appeared before a local magistrate, as required by Texas law. See Tex. Code Crim. Proc. art. 15.17; Brief for Petitioner at 4. The magistrate reviewed the police affidavit describing the factual basis for Rothgery's arrest and concluded that the police had probable cause. Brief for Petitioner at 5. The magistrate then informed Rothgery about the accusation against him and about his rights under the Texas Code of Criminal Procedure, including his "right to request the appointment of counsel." Tex. Code Crim. Proc. art. 15.17(a); Brief for Petitioner at 5. Although Rothgery again requested attorney assistance, he waived his right to have an attorney present at the hearing so that the magistrate could set bail. Brief for Petitioner at 5-6; Rothgery, 491 F.3d at 295. The magistrate set bail at $5,000 and Rothgery was released on bond later that day. See Brief for Petitioner at 6.

Subsequent to his release, Rothgery learned that county officials could not locate his July 15 request for appointed counsel. See Brief for Petitioner at 7. Rothgery submitted a new written request for counsel appointment, but the officials never forwarded it to the state district court overseeing Rothgery's case. See Respondent's Brief in Opposition to Petition for Writ of Certiorari at 3. On January 17, 2003, a grand jury indicted Rothgery. See Brief for Petitioner at 7. Appearing again before the magistrate, Rothgery unsuccessfully renewed his request for appointed counsel. See id. On January 23, after spending several days in jail and again requesting attorney assistance, Rothgery finally obtained a court-appointed attorney. See id. Rothgery's appointed attorney promptly acquired California records indicating that Rothgery had not been convicted of a felony. Id. On April 30, 2003, the state district judge dismissed the charges against Rothgery. See Rothgery, 491 F.3d at 295.

In July 2004, Rothgery sued Gillespie County under 42 U.S.C. § 1983, claiming that the County's failure to appoint counsel until after indictment violated his Sixth Amendment right to counsel. See Brief for Petitioner at 8. The U.S. District Court for the Western District of Texas granted summary judgment for the County, reasoning that Rothgery's initial appearance before the magistrate was not an adversary judicial proceeding sufficient to trigger the Sixth Amendment right to counsel. See Rothgery v. Gillespie County, Tex., 413 F. Supp. 2d 806, 817 (W.D. Tex. 2006)(quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). The U.S. Court of Appeals for the Fifth Circuit affirmed, holding that the filing of the probable cause affidavit did not commence adversary judicial proceedings because it did not commit the state to prosecute Rothgery. Rothgery, 491 F.3d at 300-01. On December 3, 2007, the U.S. Supreme Court granted certiorari. Rothgery, 491 F.3d 293, cert. granted, 76 USLW 3189 (U.S. Dec. 3, 2007) (No. 07-440).


Sixth Amendment Right to Assistance of Counsel

At issue in this case is the stage in the Texas criminal process that triggers an accused person's constitutional right to court-appointed counsel. The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant "the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. This guarantee stems from the principle that an attorney's assistance is vital in providing every defendant a fair trial, regardless of a defendant's ability to pay for legal representation. See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). In Kirby v. Illinois, 406 U.S. 682 (1972),the U.S. Supreme Court held that the right to counsel attaches when "adversary judicial proceedings" commence. Kirby,406 U.S. at 688-89. Under Court precedent, the right to counsel indisputably vests once a criminal defendant has been arrested, arraigned before a judge, and committed to confinement in jail. See Brewer v. Williams, 430 U.S. 387, 399 (1977). However, an arrest alone does not trigger the right to counsel. See U.S. v. Gouveia, 467 U.S. 180, 190 (1984).

In determining whether "adversary judicial proceedings" have commenced, federal courts look to the relevant state law. See Moore v. Illinois, 434 U.S. 220, 228 (1977). Presently, the first stage in the Texas criminal process at which adversary judicial proceedings may commence remains unsettled, thus requiring a case-by-case evaluation of the pertinent circumstances. SeeRothgery v. Gillespie County, Tex., 491 F.3d 293, 300 (5th Cir. 2007).Under Texas law, a person arrested without a warrant must make a "preliminary initial appearance" before a magistrate within 48 hours after the arrest. Tex. Code Crim. Proc. art. 14.06(a). At this appearance, the magistrate is required to inform the arrestee of the accusation against the arrestee and the arrestee's statutory rights, including the right to request the appointment of counsel. See id. art. 15.17(a).The magistrate shall set bail if so permitted by law. See id. If the arrestee is unable to pay the specified bail, the magistrate commits the arrestee to jail. See id. art. 17.27.

Event Triggering Rothgery's Sixth Amendment Right

Rothgery asserts that adversary judicial proceedings commenced and triggered his Sixth Amendment right to counsel once he made his initial appearance before the magistrate judge. See Brief for Petitioner at 27. According to Rothgery, this appearance was functionally equivalent to the types of appearances the Supreme Court has previously held to signify the initiation of adversary judicial proceedings. See Michigan v. Jackson, 475 U.S. 625, 629 (1986); Brewer v. Williams, 430 U.S. 387, 399 (1977); Brief for Petitioner at 27. In Jackson and Brewer, the defendants appeared before judicial officers who informed them of the accusation against them and committed them to confinement. See Jackson, 475 U.S. at 629; Brewer, 430 U.S. at 399. Like the arraignments in Jackson and Brewer, the argument goes, Rothgery's initial magistrate appearance triggered his right to counsel because it transformed his status from that of "suspect" to "accused." Brief for Petitioner at 29. Rothgery contends that, regardless of the integration of the probable-cause determination into the initial appearance, his appearance before the magistrate served to designate him as an accused. See id. at 31. As such, Rothgery subsequently needed the assistance of counsel in evaluating his statutory rights and in proving his innocence. See id. at 29.

By comparison, Gillespie County argues that the right to counsel attached no earlier than Rothgery's indictment. See Brief for Respondent at 1. According to the County, Rothgery's initial appearance before the magistrate did not mark the commencement of adversary judicial proceedings because formal criminal charges had not yet been filed. See id. at 19. Furthermore, the appearance was insufficient to trigger Rothgery's right to counsel because, under the Kirby analysis, the state had not committed itself to prosecute Rothgery, nor was it in an adverse position to him. SeeKirby, 406 U.S. at 689; id. at 22-23.Finally,the County notes that, even if Rothgery's Sixth Amendment right attached at the initial appearance, he proceeded to waive this right for purposes of that appearance, and no intervening critical stage in the prosecution entitling Rothgery to appointed counsel occurred until after indictment. See Brief for Respondent at 44.

The County furthermore agrees with the Fifth Circuit's finding that Rothgery's magistrate appearance insufficient to constitute an adversary judicial proceeding in light of Fifth Circuit precedent in McGee v. Estelle, 625 F.2d 1206 (5th Cir. 1980). See Rothgery, 491 F.3d at 294. Under McGee, an accused person's right to counsel does not attach in Texas at the "preliminary initial appearance" if prosecutors are not aware of or involved in the arrest and appearance. See McGee,625 F.2d at 1208-09. According to the Fifth Circuit, absent prosecutorial awareness, the police officer's filing of the probable-cause affidavit was investigatory rather than prosecutorial in nature. See Rothgery, 491 F.3d at 300-01.

Consistency of Fifth Circuit's Decision with Supreme Court Precedent

Rothgery claims that the Fifth Circuit's decision-deeming prosecutorial awareness or involvement as the touchstone in triggering the right to counsel-is irreconcilable with the Supreme Court's Sixth Amendment precedent. See Brief for Petitioner at 31-32. According to Rothgery, prosecutorial involvement is not an essential prerequisite to the initiation of adversary judicial proceedings. See id. at 37. Neither Jackson nor Brewer indicated that prosecutorial involvement was a factor in the Court's findings that adversary judicial proceedings had begun. See id. at 33. Furthermore, Rothgery contends that the Fifth Circuit misconstrued Kirby by reading its statement that adversary judicial proceedings are launched when "the government has committed itself to prosecute" to require the participation of a prosecutor. Kirby, 406 U.S. at 689; see id. at 37. Rothgery posits that, in practice, a judge represents the same sovereign authority of the state confronting the accused. See id. at 38.

Gillespie County asserts that the Fifth Circuit properly followed the Court's precedent by holding that adversary judicial proceedings commence not upon an administrative appearance involving statutory warnings, but rather when the state commits itself to prosecute. See Brief for Respondent at 45. The County likens Rothgery's pre-indictment period to that of the federal inmates in Gouveia, whose period of administrative detention without appointed counsel was held not to have initiated adversary judicial proceedings. See Respondent's Brief In Opposition to Petition for Writ of Certiorari at 7-8. Likewise, the County rejects Rothgery's analogy to Jackson and Brewer on two grounds. See Brief for Respondent at 33. First, Jackson involved an arraignment, a Michigan procedure that differs from Texas's initial appearance requirement in granting the defendant the right to answer the charges. See id. at 36-37. Second, the County claims that Brewer does not support Rothgery's argument because the attachment of that defendant's right to counsel was not at issue and because that defendant, unlike Rothgery, was arraigned. See id. at 33-34.

Propriety of Fifth Circuit's Prosecutorial Involvement Test

Finally, Rothgery attacks the Fifth Circuit's approach as unworkable and unfair in practice. See Brief for Petitioner at 38-39. First, the highly fact-based question of prosecutors' awareness or involvement prior to an initial appearance would introduce additional evidentiary complexity into routine criminal proceedings that a defendant, still lacking the right to counsel, could not fairly be expected to handle on his own. See id. at 39-40. The resulting complexity runs counter to the Court's stated preference for clear rules of criminal procedure. See id. at 41. Next, the prosecutorial involvement test interferes with the workings of a prosecutor's office by threatening to reveal privileged communications between prosecutors and other law enforcement, and by creating perverse incentives for prosecutors to delay their involvement in order to avoid accountability to the public for unjustified detentions. See id. at 40. Finally, Rothgery maintains, the Fifth Circuit's approach could cause special hardship to indigent defendants, who may, absent the ability to prove prosecutorial involvement, find themselves forced to remain in jail and unable to prove their innocence until their indictment due to lack of legal representation. See id. at 42.

Gillespie County responds that the Fifth Circuit's ruling is a proper application of the Sixth Amendment to Texas's criminal procedure system and accords with the fundamental purposes of the right to appointed counsel. See Brief for Respondent at 10. According to the County, an arrested person's liberty interest against unwarranted confinement is already protected by the Fourth Amendment's guarantee against "unreasonable searches and seizures," the Sixth Amendment's promise of a speedy trial, and by state statutes providing the right to counsel to persons in state custody. Id. at 48-50. Finally, the County claims that Rothgery's construction of the right to counsel would extend the scope of the right in ways that would impose heavy burdens on the courts in handling additional claims from unindicted suspects held in custody, chill law enforcement investigative efforts, introduce unnecessary complexity into the criminal process, and force substantial additional costs on local governments who appoint counsel. See id. at 53-55.


Under Kirby v. Illinois, 406 U.S. 682 (1972), the initiation of "adversary judicial proceedings" triggers the Sixth Amendment's guarantee of a right to counsel. 406 U.S. at 688. In Burgess v. Gillespie County, TX, the U.S. Supreme Court will determine at what stage in the pre-trial criminal process "adversary judicial proceedings" commence for purposes of activating the right to counsel. The outcome of this case will clarify the scope of Sixth Amendment liberties of criminal defendants and may circumscribe the ability of police officers and attorneys to perform their jobs effectively.


Agreeing with the Fifth Circuit, Gillespie County argues that the right to counsel is triggered only when prosecutors become involved in a criminal proceeding, usually after indictment. See Brief for Respondent at 10; Rothgery, 491 F.3d at 297. The County contends that the Fifth Circuit's ruling is consistent with U.S. Supreme Court precedent holding that adversarial proceedings do not begin until formal charges are filed. See id. By comparison, Rothgery argues for a pre-indictment right to counsel. Brief for Petitioner at 12-13. Rothgery cites Kirby and its progeny as mandating a determination of whether adversary proceedings have been initiated, not by whose involvement. See id.

Impact on Sixth Amendment Rights of Defendants

Rothgery claims that if the Supreme Court finds that the right to counsel does not attach until after indictment, it invites delay and abuse in criminal proceedings. Brief for Petitioner at 39-40. By having to inquire into prosecutorial involvement, courts deciding on counsel-appointment motions will be faced with contested evidentiary proceedings even before the trial has begun. Id. at 39-41. Delay would cause defendants to languish in jail without the guidance of counsel, unable to establish innocence even on baseless arrests. Brief of Twenty-Four Professors of Law in Support of Petitioner ("Law Professors' Brief") at 20. Scholars argue that this outcome would undermine the Sixth Amendment's purpose, which is not merely to provide legal counsel, but to protect individual rights from unlawful restraint by the government. Id. at 14.

The American Bar Association claims that denying prompt access to legal services unfairly discriminates against indigent defendants. Brief of the American Bar Association in Support of Petitioner ("ABA Brief") at 3-4. Approximately eighty percent of state felony defendants use court-appointed lawyers. Law Professors' Brief at 12. Such defendants largely lack basic literacy skills or a high school education, let alone an understanding of the basic working of the legal system. Id. at 11-12. Prompt counsel assistance enables indigent defendants to secure pretrial releases, preserve evidence, and obtain dismissal of meritless charges. ABA Brief at 3.

Impact on Effective Police Enforcement

Adopting a pre-indictment trigger could potentially stifle police investigations. Under Miranda v. Arizona, 384 U.S. 436 (1966), a person must be informed immediately upon arrest of his rights to remain silent and to consult with an attorney before interrogation, in order to protect himself from self-incrimination. Rebecca Arce, Reinforcing Miranda: Restricting Interrogation After A Request for Counsel, 48 Bkn. L. Rev. 593, 597-8 (1982). However, the police can still elicit incriminating testimony from the suspect if their tactics fall short of compulsion or direct questioning through interrogation. Id. at 617. However, once the right to counsel under the Sixth Amendment attaches, any police action, even subtle compulsion, without a showing of waiver, is inadmissible, no matter how incriminating the evidence. Id. at 616-617. By having an early attachment of the right to counsel under the Sixth Amendment, law enforcement may face difficulty gathering incriminating evidence through non-compulsory means. As the right to counsel expands, the circumstances under which police can obtain information, whether through interrogation or simply by overhearing a suspect, decrease for fear of inadvertent violation of constitutional rights. Brief for Respondent at 54.

Impact on Effective Attorney Advocacy

The National Association of Criminal Defense Lawyers ("NACDL") argues that a post-indictment trigger hinders counsel's ability to effectively represent a defendant. Brief of National Association of Criminal Defense Lawyers in Support of Petitioner ("NACDL Brief") at 17. The movement of witnesses, the natural fading of memories, and the loss of evidence over time would all severely limit defense counsel's ability to investigate a criminal case. Id. at 17-19. In addition, the NACDL insists, if counsel is not appointment until indictment, counsel will be flatly unable to evaluate the mental or physical state of the defendant immediately following the crime. Id. at 20. The defense record will be less accurate if not made promptly, potentially impairing vital evidence for insanity or self-defense arguments. Id. at 20-21.

Impact on Judicial Efficiency

The NADCL also argues that early counsel appointment will facilitate efficient judicial administration, enabling courts to promptly dismiss meritless cases such as Rothgery's case. See NACDL Brief at 24. Gillespie County responds that a pre-indictment right to counsel will introduce judicial inefficiencies through additional denial-of-counsel claims and may create perverse incentives for indigent defendants to use the right to counsel to delay the filing of formal charges. Brief for Respondent at 53-54. Costs imposed on local governments by providing counsel pre-indictment would be largely wasted because most indigent defendants will be unable to dismiss their cases before indictment regardless of attorney assistance. Id. at 55.


In this case, the U.S. Supreme Court will clarify when an arrested person's right to counsel attaches. In resolving this issue, the Court must balance an accused person's liberty interests with law enforcement officials' interest in retaining effective investigatory techniques. Upholding the Fifth Circuit would maintain a bright-line standard concerning the right to counsel and permit a wide scope of permissible police investigatory tactics. However, this standard could easily be abused and undermine the very rights that the Sixth Amendment was intended to protect. Regardless of outcome, this case will have a profound impact on the efficiency and costs of administering criminal adjudicatory proceedings.

Written by: William Grimshaw & Stephem Markus

Edited by: Ferve Ozturk

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