Texas Justice Redux

Here is some more recent "Texas Justice" from the Fifth Circuit. Read that together with this from UK judges remarking on efforts to install an federal style sentencing "grid" system across the pond. Wow, Professor Berman, good work. If you thought judges should curb excesses of the legislature that have proven to be very, very foolish you'd be wrong respecting the Fifth.

And then, updating the topic there is this from Grits, who is devoted to the topic, on something as mundane as a data entry error that caused SCOTUS to have to weigh in. That would be the Rothgery decision (the opinion is at the link) from the current Supreme Court term. Here is analysis from Grits:

What's the significance? In the past, a defendant was not entitled to counsel at their bail hearing unless they couldn't make bond or bail was denied. In that case they had counsel appointed fairly quickly. But in the case where a defendant makes bond but also requests a lawyer, Texas courts previously held the defendant could not get a court appointed lawyer until they were indicted, leaving indigent defendants for weeks in limbo with no legal adviser. Now SCOTUS has said courts must appoint counsel for indigent defendants at their bail hearing.

That's how most other states do it; Texas had just been skimping by not appointing counsel earlier. According to the opinion, "The Court is 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. To the extent the remaining 7 States have been denying appointed counsel at that time, they are a distinct minority."

PREVIOUS POST ON TOPIC:
Here is my earlier verbose-but-important post on Rothgery.

Rothgery Argument in Supreme Court

a policy of denying appointed counsel to arrestees released from jail on bond and by failing to adequately train and monitor those involved in the appointment-of-counsel process.

This is at the core of Rothgery v. Gillespie County, (scotusblogwiki) to be argued today in the Supreme Court. My prediction is that plaintiff Rothgery wins, case returns to the District Court for further proceedings.

Curious that the question arises in the context of a civil rights action. But he's already won his criminal case and is now seeking redemption, damages, for the violation. Loss of income, etc., for having to sit in jail in order to get a lawyer appointed, among other things. He is just one of the lucky ones who was actually innocent and won. Until we find a way to make counties and states pay for violations and policies that result in violations it seems clear to me that said violations will continue.

No wonder the County is fighting so hard to maintain their own, clearly wrong, policy.

The case has special significance for me because I was one of those in another county in Texas who was denied appointed counsel because I had made bond. I was also not even aware of the examining trial process to probe the existence of probable cause until today, when I read about it in the Fifth Circuit's opinion.

Even though he'd been arrested, brought before a magistrate, and read Miranda rights, according to the Fifth Circuit Panel,

the summary judgment evidence fails to establish that adversary judicial proceedings had been initiated against Rothgery during his magistrate appearance.

Here is my question, getting technical, if as the court says the affidavit was filed only to establish pc for arrest and not to initiate charges, if the hearing was not an "arraignment" which concededly triggers the right to counsel, why would Rothgery need to be held on bail? Why would he need a Miranda warning? Didn't Mirandization trigger the right to counsel all by itself?

And isn't getting pc for arrest the initial step in filing charges? Should we presume that arrests do not initiate adversary proceedings? Until when do they not initiate them. Until a prosecutor decides not to prosecute. Does that make sense? Not to me. So, in the court's opinion here, "investigation" is not an adversary proceeding. That almost makes sense until you see the circumstances in which the investigation was being conducted, and by whom. Until Rothgery's own lawyer got involved nobody thought to check the bona fides of the California "conviction." That's an investigation?

I must be too dumb to understand the reasoning behind the opinion. In fact, I confess, I see only conclusory statements and little reasoning.

UPDATE: Transcript of oral argument is here.
Thanks as always to Scotusblog.
FURTHER UPDATE: I notice that Bill Long, here, agrees with my assessment, although he blogged on it earlier I only noticed this now in reviewing who else has been blogging on it. Not many so far. Simple Justice on it here. Grits here (the comments are interesting). Orin Kerr here. I guess I was aware of the "examining trial" but by another name, preliminary hearing.