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Rothgery v. Gillespie County


Officers made a warrantless arrest of the defendant on a charge of felon in possession of a firearm, relying upon erroneous information that he had been previously convicted of a felony. They promptly brought the accused before a magistrate judge, where a probable cause determination was made, bail set, and formal notice of the charges given. No prosecutor was involved in or aware of the charges or proceeding. The defendant was conditionally released on posting a surety bond. Since he could not afford an attorney, he made multiple requests for one to be appointed, all to no avail. Six months later, he was indicted for the same offense, rearrested, and jailed on $15,000 bail. Being indigent and unable to post bail, he remained jailed for three months. After the county did appointed the defendant counsel, he quickly won a bail reduction, securing his release. He assembled documentation of the lack of a prior felony conviction, and had the charges dismissed. He then sued under §1983 for violation of his Sixth Amendment right to counsel.


Whether the Sixth Amendment right to counsel always attaches at an accused’s initial appearance.


Yes. An initial appearance automatically triggers the defendant’s Sixth Amendment right to counsel.


Even without a prosecutor’s knowledge of, involvement in, or commitment to a charge against an accused, the first appearance of an accused on charges before a judge triggers the Sixth Amendment right to the assistance of counsel. This is true even when the proceeding is not formally labeled an “initial appearance.” An accusation filed with a judicial officer is sufficiently formal, and bringing a defendant before a court for initial appearance signals a sufficient commitment to prosecute. Therefore, “[a] criminal defendant’s initial appearance before a judicial officer, where he learns of the charges against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger the Sixth Amendment right to counsel.”


554 U.S. 191, 128 S. Ct. 2578 (2008)

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