In an 8-1 decision, the U.S. Supreme Court ruled Monday against Gillespie County in a civil suit brought by Walter Allen Rothgery, 57, formerly of Fredericksburg and now of Llano, stating that a defendant’s right to counsel begins when he is first brought before a magistrate judge -- not when he is actually indicted, as the county had contended.

The case -- Rothgery v. Gillespie County, Texas -- is now remanded back to the 5th Circuit Court of Appeals in Austin for further proceedings.

It was the 5th Circuit Court which earlier on June 29, 2007, had ruled against Rothgery on appeal of a previous trial decision by U.S. District Judge Lee Yeakel of the Western District of Texas.

“We’re pretty disappointed as are all the other counties in the State of Texas,” Gillespie County Judge Mark Stroeher said yesterday afternoon of the decision which, in the opinions of some observers, could ultimately have far-reaching implications.

Monday’s majority decision -- written by Justice David Souter -- came three months after the high court heard oral arguments in the case which had been counted on by some to help clarify when a suspect taken into custody by police has a right to a lawyer.

“Our holding is narrow,” said Justice Souter in writing the majority opinion. “We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”

Souter’s opinion added that, because the Fifth Circuit came to a different conclusion on this threshold issue, its judgement is vacated and the case is remanded for further proceedings consistent with the Supreme Court’s decision.

According to Gregory S. Coleman, Austin attorney who represented Gillespie County before the Supreme Court, Monday’s ruling was based on the narrow question of whether Rothgery’s Sixth Amendment rights attached at the time of his initial magistration.

However, Coleman stated in an e-mail letter sent Monday to Stroeher, the ruling did not reach the question whether those rights were actually violated by the county’s timing in appointing an attorney for him.

Rothgery’s appeal before the high court stemmed from an incident here in July 2002 when police arrested him as a felon in possession of a firearm after relying on what turned out to be erroneous information that he had a previous felony conviction in California.

According to a syllabus issued Monday morning by the high court, police brought Rothgery before a magistrate judge as required by law for a so-called “Article 15.17 hearing”. At that time, the Fourth Amendment probable-cause determination was made; bail was set, and Rothgery was formally apprised of the accusation against him. After the hearing, the magistrate judge committed Rothgery to jail before he was released after posting a surety bond.

At the time, Rothgery had no money for a lawyer and reportedly made several unheeded oral and written requests for appointed counsel.

(Gillespie County officials have, however, maintained all along that, upon being first magistrated, Rothgery waived his right to an attorney, although they say he later changed his mind about having a lawyer represent him after he was released on bail.)

In any case, Rothgery was subsequently indicted and re-arrested; his bail was increased, and he was jailed when he could not post bail. Subsequently, he was assigned a lawyer who assembled the paperwork that prompted the indictment’s dismissal.

It was at that point that Rothgery brought civil action against the County of Gillespie, claiming that, if it had provided him with a lawyer within a reasonable time after the 15.17 hearing, he would not have been indicted, re-arrested or jailed.

In his case, Rothgery has asserted that the county’s unwritten policy of denying appointed counsel to indigent defendants out on bond until an indictment is entered violates his Sixth Amendment right to counsel.

However, the district court granted Gillespie County summary judgement -- and the Fifth Court affirmed -- considering itself bound by circuit precedent to the effect that the right to counsel did not attach at the Article 15.17 hearing because the relevant prosecutors were not aware of or involved in Rothgery’s arrest or appearance at that hearing.

Along with Monday’s majority opinion written by Souter and joined by seven other justices, a separate concurring opinion was written by Justice Samuel Alito Jr. and joined by Chief Justice John Roberts and Justice Anthony Scalia.

In that concurrence, the narrowness of the question answered by the court’s majority was emphasized. It was also noted that it remains to be decided whether the circumstances of Rothgery’s magistration required appointment of counsel.

Voting as part of the majority along with Souter, Alito, Scalia and Roberts were Justices John Paul Stevens, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer. Justice Clarence Thomas was the lone dissenter.

“Naturally we are disappointed by the Court’s decision,” Coleman said in his letter to Stroeher. “However, we believe the majority opinion, together with Justice Alito’s concurrence, points a clear path to victory on remand to the Fifth Circuit.”

He explained that, while the high court’s opinion holds that Rothgery’s right to counsel attached at his initial magistration, “it leaves open the question of when Rothgery actually had a right to have counsel appointed.”

Coleman added that it suggests that Rothgery would have the right to appointment of counsel only in enough time to allow counsel time to prepare to adequately represent him at a “critical stage” of the prosecution.

“Applying this critical-stage analysis, we have a strong argument that Mr. Rothgery’s rights were not violated, given his waiver of his rights at his initial magistration, the absence of any subsequent pre-indictment proceedings, and the county’s prompt appointment of counsel following the post-indictment magistration,” Coleman said.

He concluded by noting that he believes the Fifth Circuit Court “will be receptive to those arguments on remand and can be convinced to uphold the district court’s summary judgement on the grounds that the lack of appointment either did not violate Mr. Rothgery’s rights or did not cause cognizable prejudice to his rights.”