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 the right hadn't attached yet). After Rothgery, such defendants have a Sixth Amendment right to counsel, and because interviews with the police are a critical stage, an officer seeking to interview such a defendant must obtain a Sixth Amendment waiver. But back to the main story about the appointment of counsel. Two pieces of legislation are pending before the General Assembly that would have magistrates appoint counsel. (I mentioned one briefly in the post that you can view here.) H848 would allow all magistrates to appoint counsel, but based on the General Assembly's website, H848 doesn't seem to be progressing. The other bill is S514, which allows a magistrate to appoint counsel only if he or she (1) is an attorney and (2) is authorized to appoint counsel by his or her chief district court judge. It seems to be rolling right along. My understanding is that neither bill was intended as a response to Rothgery. They were simply meant to lift some of the weight off the shoulder of district court judges. Still, some of the discussion about the bills has focussed on whether they would obviate potential Rothgery problems, like the concern mentioned above about districts that don't offer prompt first appearances to all defendants. My view is that S514, as written, probably doesn't remove that concern. My guess is that less than 20% of North Carolina magistrates are lawyers, maybe closer to 10%. So even if every magistrate who is a lawyer were authorized to appoint counsel, it wouldn't ensure that all defendants had counsel appointed within a few days of initial appearance -- because most initial appearances would still be conducted by nonlawyer magistrates -- and a number of districts would still have procedures in place that could be challenged under Rothgery. (To be perfectly clear, I'm not arguing that such challenges would be successful; that's the subject of another post, and the majority and the concurrence in Rothgery appear to have very different views about that.) I'm interested in hearing from readers about a lot of related issues: what do you think of allowing magistrates to appoint counsel? If you support the idea, do you think that there's good reason to limit that to magistrates who are lawyers? More broadly, have Rothgery issues come up in your districts? If you have thoughts about any of this, please post a comment.
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