Fight ‘Em ‘Til We Can’t

Picking up on my offhand comment in the last post that the SCOTUS recently said the right to counsel begins at initial appearance: The decision came down in June in Rothgery v. Gillespie County. I haven’t yet been ambitious enough to read the full decision, but according to the lengthy summary from SCOTUSblog, all that case said is that the right to counsel attaches at initial appearance. What that means, e.g., how quickly after initial appearance a person must have access to counsel and for what types of hearings or purposes, remains unclear. However, it appears the case does not say that a person has a right to have an attorney present at initial appearance. That sounds like bullshit to me, but there you have it. Your right “attaches” there; what “attaches” means in practice remains open to interpretation, apparently.

Here’s what the test should be: Are you in jail? If so, you have a right to an attorney at any and all appearances before a judge and at any and all interactions with law enforcement (other than jail staff; that would be unworkable). Of course, you can waive that right, and many people do, but that’s a nice bright line. If you’re not in jail but have been ticketed or given a notice to appear, you should be informed of your right to counsel along w/the citation/notice and given instructions for contacting the public defender for advice prior to initial appearance. This could be handled nicely by making sure there a public defender was present at all initial appearances, but I won’t be holding my breath for that one.