When Does the Right to Counsel Attach?: Tomorrow the Supreme Court will be holding oral argument in Rothgery v. Gillespie County (briefs here), a very interesting case on when an indigent criminal defendant gets a constitutional right to have an attorney appointed to represent him.

  Rothgery was arrested, held overnight, given a probable cause hearing, and then released on bail while the government decided whether to bring formal charges. Months later, he was indicted and given counsel; his lawyer got the charges dismissed because it turned out that Rothgery wasn't in fact a "felon" for purposes of a felon in possession law.

  Rothgery then brought a civil suit arguing that his constitutional rights had been violated when he was not provided counsel at the earlier stage. The Court has never clearly stated exactly when the constitutional right to counsel attaches in this sort of setting, mostly because Sixth Amendment cases typically arise in the context of a motion to suppress the defendant's statements and the defendant almost never makes statements at these early proceedings.

  I've just started reading the briefs, so I don't yet know where I come out. More soon, I hope.

Two Thoughts on Rothgery: Having read more of the briefs in Rothgery v. Gillespie County, the Sixth Amendment right-to-counsel case I blogged about below, I have two quick thoughts.

  First, it seems to me that the case is made much more difficult by the diversity of state practices. Every state system has a different procedure for bringing charges against suspects, and states often use common terminology in different ways. (The best example of the latter being the word "arraignment," which different states use in different ways.) Given that, it's often hard to know what to make of the Court's Sixth Amendment precedents; those precedents often do not explain clearly what exactly the state procedure involved. Similarly, it's hard to know exactly what to make of the Texas "magistration" hearing at issue in this case. The lower court did not have a hearing on the proceeding's significance.

  The Supreme Court might get around this by trying to define the Sixth Amendment right by reference to something else the Constitution requires, such as the Gerstein v. Pugh probable cause hearing required after arrests under the Fourth Amendment. But otherwise it may be hard for the Court to come down with a simple rule. In light of that, I wonder if the Court will end up sending the case back for more development on the nature of the Texas "magistration" hearing Rothgery received; that may make a difference, and I understand the record to be unclear on the precise nature of the proceeding.

  A second thought on Rothgery really isn't about the case itself, but rather constitutional methodology surrounding it: Am I right that no one is an originalist when it comes to the right to counsel? If I understand the history of the right to counsel, it was originally understood to mean that defense attorneys are permitted if a defendant had hired one, not that the government would provide one for him. The common law practice in the 16th and 17th centuries had banned defense attorneys in criminal cases; defendants were not permitted to use them, as it was feared that the defense attorneys would distract the jury and get in the way. If I recall my history correctly, Parliament had established a right for an attorney to appear and argue on a defendant's behalf in the late 17th century in treason cases, and that had gradually spread in the 18th century to other criminal cases. The first Congress did not provide a lawyer for defendants beyond capital cases, further suggesting that the Constitutional right to counsel was originally understood to mean only a right to have an attorney appear on a defendant's behalf if the defendant had hired the attorney on his own. See, e.g., W. Beaney, The Right to Counsel in American Courts (1955).

  I'm curious: Do self-described originalists think that we should go back to this interpretation? I looked around just a bit, but I couldn't find much on originalist interpretations of the right to counsel.