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From Powell to Present: Defining the Right to Counsel Beyond Rothgery

By Amy M. Cohen. Full Text.

Every morning in jails across America, new arrestees are woken up and ushered into a courtroom to be heard on their re- lease. Some might be coming down from a high, dealing with the consequences of binge drinking, or distressed about what this arrest might mean for their future. No matter the condition in which these defendants arrive to court, many will be forced to represent themselves and plead their own case for release without ever having spoken to an attorney. This leaves the defendant at risk of being detained pretrial, incriminating themselves in the courtroom, or even pleading guilty on the spot to avoid more jail time. Unfortunately, the initial appearance is not the only time a defendant may be placed in this position. Any time a hearing is not deemed “critical” by the courts, a defendant may find them- selves alone in a courtroom opposite a prosecutor and a judge, without legal representation of their own. And nearly no jurisdiction offers defendants a remedy if that uncounseled hearing seriously harms their case.

The Sixth Amendment guarantees certain fundamental rights that are at the heart of the American criminal justice system: the right to a speedy and public trial, the right to an impartial jury of your peers, the right to know the accusations against you, the right to confrontation, the right to compulsory process, and the right to assistance of counsel. Thanks to Miranda, the right to assistance of counsel may be the most widely known of these guarantees, but most do not know what that right actually entails. When the Supreme Court handed down their 2008 deci- sion in Rothgery v. Gillespie County, many commentators saw it as finally clarifying the right to counsel. However, this supposed clarity has left lower courts divided on whether the initial appear- ance in court, as well as other post-attachment proceedings, qualify under the Sixth Amendment’s right to counsel guarantee.

This Note examines the post-Rothgery right to counsel and the issues with continued confusion in the lower courts about what the right entails. Ultimately, the Note argues for a new rule: that every hearing in front of an officer of the court qualifies as a “critical stage” of the proceedings requiring appointed counsel. This bright-line rule provides a simple solution for the decades-old problem of trying to figure out which hearings require counsel, and which do not. It also offers sufficient protection for defendants in jurisdictions that do not currently guarantee the right through the courts. Having representation at that initial appearance can affect every other aspect of how a case proceeds, and thus no defendant should be compelled to stand up in a courtroom without an attorney by their side.