Rothgery v. Gillespie County

PETITIONER:Walter A. Rothgery
RESPONDENT:Gillespie County, Texas
LOCATION:Earthquake Park

DOCKET NO.: 07-440
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 554 US 191 (2008)
GRANTED: Dec 03, 2007
ARGUED: Mar 17, 2008
DECIDED: Jun 23, 2008

Danielle Spinelli – on behalf of the Petitioner
Gregory S. Coleman – on behalf of the Respondent

Facts of the case

Walter Rothgery was arrested in Texas as a felon in possession of a firearm. Rothgery was taken before a judge for processing and, upon learning that seeking legal assistance would delay the proceedings, waived his Sixth Amendment right to counsel. No prosecutor was present at this hearing. Rothgery posted bail and was released, but was rearrested after a grand jury indictment several months later hiked his bail to a sum he could not afford. Throughout this entire period Rothgery continued to pursue legal counsel and only obtained such counsel approximately one week after the grand jury indictment. Rothgery’s attorney produced evidence that Rothgery was in fact not a felon and he was released from custody. Rothgery brought suit against Gillespie County, TX for violating his civil rights by not appointing counsel as required under the Sixth Amendment.

Both the district court and the Fifth Circuit rejected his claim, the Fifth Circuit stating that Rothgery’s Sixth Amendment rights were not implicated because no prosecutor was present at the initial hearing. In his petition for certiorari, Rothgery argued that both federal and state case law indicate that the Sixth Amendment right to counsel applies to any hearing where a defendant is advised of his rights and the charges against him, regardless of whether or not a prosecutor is present.


Did the Fifth Circuit err in holding that Rothgery’s right to counsel under the Sixth Amendment was not implicated when he was denied counsel at the time of his initial hearing for being a felon in possession of a firearm but the hearing was conducted without the involvement of a prosecutor?

Media for Rothgery v. Gillespie County

Audio Transcription for Oral Argument – March 17, 2008 in Rothgery v. Gillespie County

Audio Transcription for Opinion Announcement – June 23, 2008 in Rothgery v. Gillespie County

John G. Roberts, Jr.:

Justice Souter has our opinion this morning in case, 07-440, Rothgery versus Gillespie County, Texas.

David H. Souter:

This case comes to us on a writ of certiorari at the Fifth Circuit.

Based on an erroneous record, Texas police officers arrested the petitioner, Walter Rothgery as a felon in possession of a firearm and so, promptly brought him before a magistrate judges required by Texas law.

In Texas, this initial appearance combines the Fourth Amendment’s required probable cause determination with the setting of bail.

It is the point at which the arrestee is told of the accusation against him.

Rothgery had no money for a lawyer and made several requests for appointed counsel, but the county did not appoint a lawyer until after Rothgery had been indicted, rearrested and jailed, all of which occurred six months after the first hearing.

When a lawyer was finally assigned, he promptly assembled paperwork confirming that Rothgery had never been convicted of a felony and the indictment was dismissed.

Rothgery then brought this Section 1983 suit against the county arguing that it should have appointed him a lawyer within a reasonable time following the first hearing.

Its failure to do so, he claims, violated his Sixth Amendment right to counsel.

The Fifth Circuit disagreed on the ground that the right to counsel does not apply outside of criminal prosecutions and Rothgery’s right had not attached at the first hearing because no prosecutor had been aware of or involved in that proceeding.

We granted certiorari to review the threshold attachment question.

In an opinion filed with the Clerk of the Court today, we vacate and remand as the Court of Appeals correctly observed the Sixth Amendment right to counsel does not attach until a prosecution has begun.

We have pegged commencement of a prosecution to the initiation of adversary judicial proceedings and the issue is whether Texas’ first hearing marks that point with the consequent state obligation to appoint counsel within a reasonable time once a request for assistance is made.

When the Court of Appeals said no, because no prosecutor was aware of the first hearing or involved in it, the Court effectively focused not on the start of adversarial judicial proceedings but on the activities and knowledge of a particular state officer who was presumably otherwise occupied and this was the error.

In Michigan v. Jackson and Brewer v. Williams, we held that adversary judicial proceedings begin and the right to counsel thus attaches at the initial appearance before a judicial officer at which the defendant is told of the accusation against him and bail is set.

In Texas, the first hearing is in an initial appearance in Jackson and Brewer control.

Neither the Court of Appeals in its opinion nor the county in its briefing to us has offered an acceptable basis for distinguishing those decisions.

We accordingly vacate the Fifth Circuit’s judgment and remand for further proceedings.

The Chief Justice has filed a concurring opinion in which Justice Scalia joins and Justice Alito has filed a concurring opinion in which the Chief Justice and Justice Scalia joined.

Justice Thomas has filed a dissenting opinion.