County Case Due Before Supreme Court Monday

Mar 12, 2008 - 17:25:15 CDT.

Oral arguments are scheduled Monday before the U.S. Supreme Court for a case in which Gillespie County is named as a defendant in a civil suit.

The case -- Rothgery v. Gillespie County, Texas (07-440) -- was accepted by the high court on Dec. 3 and will be heard in an effort to clarify when a suspect taken into custody by police has a right to a lawyer.

Reportedly, the right-to-counsel case stems from the arrest in July 2002 of Walter Allen Rothgery, a Gillespie County resident, for the alleged unlawful possession of a firearm by a felon.

Law enforcement officers reportedly brought Rothgery before a magistrate who informed him of the charge and found the case against him was supported by probable cause.

Reportedly, Rothgery was released on bond but was later re-arrested and served three weeks in jail after a grand jury indicted him.

However, once a lawyer had been appointed for him, the charges were dropped because the felony allegation against him turned out to have been an error, reportedly because charges against him in California had been dismissed.

Rothgery subsequently sued Gillespie County in a civil rights lawsuit, alleging that he was unconstitutionally denied a lawyer when he was first magistrated.

However, San Antonio attorney Charles Frigerio, who is representing Gillespie County in the case, contends that Rothgery waived his right to counsel when he was first magistrated.

Representing Gillespie County Monday along with Frigerio will be Austin attorney Gregory S. Coleman.

The State of Texas, joined by the Texas Association of Counties, 17 other states and Puerto Rico, have filed a brief amicus curiae supporting Gillespie County’s position in the case.

Regardless of whether or not the right to counsel was waived at the time Rothgery was magistrated, the county is contending in the suit that the right to counsel does not attach until an individual has actually been indicted.

On Feb. 2, 2006, Rothgery lost in a trial before U.S. District Judge Lee Yeakel of the Western District of Texas.

Later, on June 29, 2007, he lost again before the 5th Circuit Court of Appeals in Austin.

In essence, both sides in the case agree that a defendant has the right to an attorney when adversarial judicial proceedings have been initiated -- they just don’t agree when that occurs in Texas.

According to a Dec. 7 article in the publication Texas Lawyer, Andrea Marsh, of the Texas Fair Defense Project who is serving as co-counsel for Rothgery in the case, contends that the right to counsel should attach once a defendant is magistrated.

However, Frigerio disagrees, saying that the right to counsel does not attach in Texas to a magistrate hearing if “prosecutors were not involved in the arrest or court appearance. The defendant only needs an attorney when he has to first meet the forces of the state.”