Last term, the United States Supreme Court decided Rothgery v. Gillespie County, available here. As most folks likely know, before Rothgery, North Carolina law held that a defendant's Sixth Amendment right to counsel "attached" when the defendant had his first appearance before a district court judge. After Rothgery, it's clear that the right attaches at the defendant's initial appearance before a magistrate. Since the initial appearance almost certainly isn't a "critical stage," though, Rothgery doesn't require that a lawyer be made available to the defendant before or during the initial appearance. Most defendants, in most districts, have lawyers appointed at a first appearance that takes place within a day or two of the initial appearance, and that's very likely OK under Rothgery. However, misdemeanor defendants and out-of-custody felony defendants have no statutory right to a prompt first appearance, see G.S. 15A-601, and some districts do not provide such defendants with first appearances within a few days of arrest. Whether those districts are Rothgery-compliant isn't clear yet. The Rothgery opinion requires that "counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself," but doesn't define a "reasonable time." As an aside, one effect of Rothgery has been to change the rules for officers who wanted to interview out-of-custody defendants after the initial appearance but before the first appearance. Previously, such defendants had neither a Fifth Amendment/Miranda right to counsel (because they weren't in custody) nor a Sixth Amendment right to counsel (because [...]
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