554 U.S. 191, 207 (2008)
Walter Rothgery was arrested on July 15, 2002, by Texas police officers who relied on an erroneous record indicating he had a prior felony conviction.1 The officers lacked a warrant and promptly brought Rothgery before a magistrate judge for an article 15.17 hearing as required by state law.2
At the hearing the magistrate reviewed a sworn affidavit of probable cause charging Rothgery with unlawful possession of a firearm by a felon, determined that probable cause existed, informed Rothgery of the accusation, set bail at $5,000, and committed him to jail. Rothgery posted a surety bond and was released, with the bond documenting that he stood charged with the felony offense and conditioning release on his appearance for subsequent proceedings related to the charge.
Rothgery had no money for a lawyer and made several oral and written requests for appointed counsel that went unheeded.3 The following January a Texas grand jury indicted Rothgery for unlawful possession of a firearm by a felon, resulting in his rearrest the next day and an order increasing bail to $15,000.4 When he could not post the increased bail Rothgery was jailed and remained there for three weeks.5
On January 23, 2003, six months after the article 15.17 hearing, Rothgery was assigned a lawyer who promptly obtained a bail reduction and assembled paperwork confirming that Rothgery had never been convicted of a felony.6 Counsel relayed this information to the district attorney, who filed a motion to dismiss the indictment that was granted.7
Rothgery then brought a suit under 42 U.S.C. §1983 against Gillespie County claiming that the county's unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered caused him to be indicted, rearrested, and jailed.8 The District Court granted summary judgment to the County, and the Court of Appeals for the Fifth Circuit affirmed based on circuit precedent holding that the right to counsel did not attach at the article 15.17 hearing because the relevant prosecutors were not aware of or involved in Rothgery's arrest or appearance.9 The Supreme Court granted certiorari to resolve whether the Sixth Amendment right to counsel attaches at the initial appearance before a judicial officer.10
Whether the Sixth Amendment right to counsel attaches at a criminal defendant's initial appearance before a magistrate judge where the defendant learns the charge against him and his liberty is subject to restriction?11
The Sixth Amendment right to counsel attaches at the initiation of adversary judicial criminal proceedings, which the Court has identified as occurring at formal charge, preliminary hearing, indictment, information, or arraignment, with the initial appearance before a judicial officer serving as the point of attachment when the defendant learns of the accusation and faces restrictions on liberty.12
Yes. Rothgery's article 15.17 hearing before the magistrate judge marked the initiation of adversary judicial proceedings because the magistrate reviewed the sworn affidavit, determined probable cause, informed Rothgery of the formal accusation, set bail, and committed him to jail.13
On July 15, 2002, Texas police officers arrested Walter Rothgery without a warrant after an erroneous criminal background check indicated a prior felony conviction, prompting the officers to bring him promptly before a magistrate judge for an article 15.17 hearing as required by state law.14
At that hearing the magistrate reviewed a sworn affidavit of probable cause charging Rothgery with unlawful possession of a firearm by a felon, determined that probable cause existed, informed Rothgery of the accusation against him, set bail at five thousand dollars, and committed him to jail until he posted a surety bond that documented the pending felony charge and conditioned his release on future court appearances.
Rothgery, lacking funds for counsel, made repeated oral and written requests for appointed representation that went unheeded, and six months later a grand jury indicted him, leading to rearrest, an increase in bail to fifteen thousand dollars, and three weeks of additional incarceration when he could not post the new amount.15
On January 23, 2003, Rothgery finally received appointed counsel who secured a bail reduction, assembled records proving the absence of any prior felony conviction, and prompted the district attorney to dismiss the indictment.16
Rothgery then filed suit under 42 U.S.C. §1983 against Gillespie County alleging that the county's policy of withholding appointed counsel until indictment caused his prolonged pretrial detention and the unnecessary prosecution.17
The district court granted summary judgment to the county, and the Fifth Circuit affirmed on the ground that circuit precedent required prosecutorial involvement before attachment could occur.18
The Supreme Court granted certiorari to resolve the attachment question.19
Applying the rule to these facts confirms that attachment occurred at the initial appearance because the proceeding informed Rothgery of the charge and subjected his liberty to judicial restriction, regardless of the absence of a prosecutor.20
The Sixth Amendment right to counsel attached at Rothgery's initial appearance before the magistrate judge.21
Related opinions on this issue
Justice Thomas dissented on the ground that the Sixth Amendment right attaches only upon the filing of formal charges such as an indictment, presentment, or information that commences a criminal prosecution under the original meaning of the text.22
He concluded that Rothgery's article 15.17 hearing involved only a preliminary probable-cause affidavit rather than any formal charging document that would initiate adversary proceedings.23
Justice Thomas examined Blackstone's definition of prosecution as the formal accusation by indictment or information and found that the initial appearance fell short of that standard.24
He further reasoned that the Court's precedents did not compel attachment at such a preliminary stage because no prosecutor had committed the state to prosecution.25
Whether attachment of the right to counsel at the initial appearance requires that a prosecutor be aware of or involved in the initial proceeding?26
Attachment of the Sixth Amendment right to counsel at the initial appearance is determined by a federal standard focused on whether the government has committed itself to prosecution through a formal judicial proceeding, and it does not turn on whether a prosecutor was aware of or involved in that proceeding.27
No. The Fifth Circuit's requirement of prosecutorial awareness or involvement finds no support in the governing precedents and would render the attachment rule unworkable by inviting endless factual inquiries into communications between police and prosecutors.28
The established facts demonstrate that no prosecutor participated in or knew of Rothgery's article 15.17 hearing, yet the proceeding still triggered attachment because the magistrate's actions on the sworn complaint formally committed the state to prosecution by informing Rothgery of the charge and restricting his liberty.
This federal standard remains unaffected by state-law allocations of authority among officials, and the county's policy of delaying appointment until indictment therefore violated the bright-line rule that counsel must be provided within a reasonable time after attachment to safeguard later critical stages.
Attachment at the initial appearance does not require that a prosecutor be aware of or involved in the proceeding.29
Related opinions on this issue
Joined by Justice Scalia
Chief Justice Roberts concurred in the judgment on the basis that Brewer v. Williams and Michigan v. Jackson controlled the outcome.30
He noted that Justice Thomas's analysis of the attachment question was compelling but that those precedents had not been shown to warrant reconsideration.31
Chief Justice Roberts emphasized that a sufficient case had not been made for revisiting the controlling decisions.32
He also joined Justice Alito's concurrence distinguishing attachment from the substantive entitlement to counsel at particular stages.33
Joined by Chief Justice Roberts And Justice Scalia
Justice Alito concurred to clarify that attachment merely marks the commencement of a criminal prosecution and does not automatically entitle the defendant to the immediate assistance of appointed counsel.34
He explained that counsel must be appointed only as necessary to ensure effective assistance at trial and at any critical stages that follow attachment.35
Justice Alito stressed that the temporal scope of the right is defined by the words in all criminal prosecutions while the substantive guarantee flows from assistance of counsel for his defence.36
He concluded that Texas counties need only appoint counsel as far in advance of trial and critical stages as necessary to guarantee effective assistance.37