News Release ~ 06/23/2008

 Supreme Court: Bail Hearing Triggers Right To Lawyer; Unasked, Federal Appeals Court Wrongfully Increased Defendant’s Sentence

Washington, DC­ (June 23, 2008) -- The U.S. Supreme Court handed down two clear victories for justice and due process today, deciding that persons accused of a crime have the right to a lawyer at their initial hearing when faced with the possibility of being held on bond, and in another decision, the right not to have an appeals court increase a defendant’s sentence absent an appeal by the prosecution.

The National Association of Criminal Defense Lawyers filed amicus curiae (“friend of the court”) briefs in both cases.

In Rothgery v. Gillespie County, Texas, No. 07-440, in an opinion by Justice David Souter, the Court held 8 to 1 that a criminal defendant’s initial appearance before a magistrate or judge, where he learns the charges against him and faces pretrial detention, is an “adversarial” proceeding triggering the Sixth Amendment’s right to counsel. When a person is faced with a loss of liberty in a judicial proceeding, the Court said, it makes no difference whether a prosecutor participates in the proceeding.

Walter Rothgery, who had no prior record, was mistakenly arrested as being a felon in possession of a firearm. A police officer filed a sworn complaint, and a magistrate set Rothgery’s bail at $5,000. He was not appointed a lawyer and was sent to jail. After Rothgery finally raised his bail bond, he could not afford to hire an attorney. Subsequently, he was indicted and rearrested, and the court raised his bail. He made several oral and written requests that counsel be appointed to represent him, which were ignored. He was finally assigned a lawyer some six months after his initial arrest and appearance, who discovered that Rothgery had never been convicted of a felony and convinced the prosecutor to dismiss the case.

Rothgery sued Gillespie County in federal court, claiming that the county violated his civil rights by jailing him without providing him a defense lawyer as required by the Sixth Amendment. The federal judge dismissed the lawsuit, and the U.S. Court of Appeals for the Fifth Circuit affirmed.

The National Association of Criminal Defense Lawyers filed a brief supporting Walter Rothgery, which the Court, in an opinion by Justice David Souter, cited favorably in the majority opinion, as evidence that Texas’ rules as to when the right to counsel attaches were out of line, behind the times, and at odds with the overwhelming majority of states:

We are advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel “before, at, or just after initial appearance.” App. to Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a; see id., at 1a–7a (listing jurisdictions)[.]

Rothgery, slip opinion at 11 (footnote omitted).

Ian Heath Gershengorn, of the Washington, D.C., office of Jenner & Block LLP, authored NACDL’s amicus brief. 

In the second case decided today, Greenlaw v. United States, No. 07-330, the Court held 6 to 3 that a federal appeals court does not have the power to order an increase in a defendant’s sentence, even if the sentencing judge made a mistake, absent an appeal or cross-appeal by the government.

In that case, defendant Michael Greenlaw was convicted of numerous drug and firearms offenses and was sentenced to 442 months in federal prison, and he appealed his sentence as unreasonably long. The government did not cross-appeal, but the Eighth Circuit Court of Appeals determined on its own that the law required Greenlaw be sentenced to an additional mandatory 15 years.

The Supreme Court, in a decision by Justice Ruth Bader Ginsburg, reversed. At common law, a court may not overturn a judgment of a court below, in order to benefit a non-appealing party. “Thus a defendant who appeals but faces no cross-appeal can proceed anticipating that the appellate court will not enlarge his sentence,” the majority explained. Conversely, “if the Government files a cross-appeal, the defendant will have fair warning, well in advance of briefing and argument, that pursuit of his appeal exposes him to the risk of a higher sentence. Given early warning, he can tailor his arguments to take account of that risk.”

NACDL argued in its brief that Congress’ requirement that the Solicitor General approve the government’s sentencing appeals reflects a policy judgment regarding prosecutorial discretion that should not be disturbed by the courts, and the government’s decision to forego a sentencing challenge is an affirmative act of the government’s discretion.

NACDL’s brief was submitted by Jonathan D. Hacker of the Supreme Court and Appellate Advocacy Clinic of Harvard Law School.

Both briefs are available to the public on NACDL’s Amicus Curiae Web Page at

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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