Legal help too slow in Texas arrest, high court says

Associated Press Writer

A man whose life was turned upside-down by a wrongful arrest and weeks in jail should have been given access to a lawyer sooner so he could have shown the arrest was erroneous, the U.S. Supreme Court decided Monday.

The high court ruled 8-1 in favor of Walter Rothgery. In 2004, three weeks after he arrived from Arizona to take a job managing an RV park in Gillespie County, Rothgery was arrested for carrying a gun as a convicted felon. No lawyer was provided at his first court hearing and his wife used their last $500 for bail.

The arrest was based on a mistake in a computer database that showed he was a felon, which left him unable to find a full-time job. By the time he was indicted six months later, he was broke, his bond had tripled and he was sent back to a county jail 100 miles from his home.

A sympathetic warden helped Rothgery find an attorney to obtain documentation showing he had no felony record. He was released and the weapons charge finally was dropped.

Rothgery sued Gillespie County for violating his constitutional right to counsel. When a federal court and the 5th U.S. Circuit Court of Appeals rejected the case, his attorneys went to the Supreme Court. The ruling Monday returns his lawsuit to the lower courts.

"Texas really is part of America now," Rothgery, 57, told The Associated Press on Monday from Llano, where he works in an equipment rental store. "I am fairly pleased. I was trying to keep an even keel. It got harder as we got to the end of June.

"Now I can let it loose. Before I was trying to hold back and try not get my hopes too high."

Rothgery's lawyers argued Texas should provide a defense lawyer for indigent clients once they've made a first appearance before a magistrate, even if no prosecutor was present.

"I think the court recognized the law exactly the way we say it is," said Andrea Marsh, executive director of the Texas Fair Defense Project, which filed the initial lawsuit.

Under Texas law, the first court appearance is not a stage in the legal process where someone arrested is subjected to a formal charge, indictment, information or arraignment. The 5th Circuit said because no prosecutor was involved at that point, Sixth Amendment protections did not apply.

The Supreme Court, asked to rule on when the constitutional right to a lawyer kicks in, disagreed.

"We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel," Justice David Souter wrote in the majority opinion.

Justice Clarence Thomas was the lone dissenter.

The court's ruling is relatively narrow. Souter's opinion noted that most jurisdictions provide defense counsel quickly, but in Alabama, Colorado, Kansas, Oklahoma, South Carolina, Texas and Virginia, "the practice is not free of ambiguity."

Charles Frigerio, a San Antonio lawyer handling the case for Gillespie County, said the high court's ruling clarifies when the start of adversary judicial proceedings commences.

"At the very least, it shows all 50 states one specific rule. And that's the first time the court has even done that in this area of the Sixth Amendment," he said.

Frigerio, however, said the ruling isn't likely to aid Rothgery's lawsuit against the county because there was no showing it was the county's "custom and policy" that violated Rothgery's constitutional rights.

"He was released from prison," Frigerio said.

He also noted the court wasn't asked, and didn't suggest, a time frame for appointment of counsel.

When the lawsuit returns to the lower court, "I think ultimately Gillespie County will prevail," he said.

Legal help too slow in Texas arrest, high court says - Yahoo! News

Copyright 2008 The Associated Press.