Senator Eliot Shapleigh - El Paso, Texas

The case before the Supreme Court involves a man named Walter Rothgery, who had moved with his wife to Fredericksburg in 2002 to manage a mobile home park. The job did not work out, but before he could find a new job, Rothgery was arrested for being a felon in possession of a firearm, a third-degree felony. (photo courtesy www.supremecourtus.gov)

The U.S. Supreme Court seems to regard Texas' criminal justice system as a source of comic relief in recent years.

They have regularly taken time to tell us such things as that we can't execute mentally incompetent people, or use racial criteria to determine which felons should be eligible for the death penalty.

Monday the high court will again hear arguments regarding how we treat accused criminals in the Lone Star State. This time the focus isn't on death row, but on an earlier stage of the justice system.

The question is: When are we required to give lawyers to poor people?

You might have thought it was when we take away their freedom and bring them before a judge. Silly you.

But you live here

Actually, you would be right if you lived in 43 states or the District of Columbia, according to a study by the National Association of Criminal Defense Lawyers. But you live in Texas.

The case before the Supreme Court involves a man named Walter Rothgery, who had moved with his wife to Fredericksburg in 2002 to manage a mobile home park. The job did not work out, but before he could find a new job, Rothgery was arrested for being a felon in possession of a firearm, a third-degree felony.

Police had run a background check and discovered a California record listing Rothgery as a felon. Rothgery was brought before a magistrate, who accepted a police affidavit regarding the alleged crime.

He was jailed briefly while his wife depleted their savings to pay a bondsman a $500 fee to secure the $5,000 bond the magistrate had set.

Six months in limbo

Meanwhile, Rothgery says, he made a written application for an appointed lawyer. The application was not found, but the courts have accepted that he filed the request.

To be released on bond is not to be totally freed. Rothgery's attorneys say that for the next six months he could not get a job because of the felony charge, and he couldn't leave the state to find work because conditions of the bond forbade it.

Six months after the arrest, a grand jury indicted Rothgery, who again asked for an appointed attorney. His bond was tripled. Because he was unable to make bond, he was incarcerated.

It took five days in jail before a judge finally appointed an attorney for Rothgery. It took the attorney only a few days to obtain documents proving what Rothgery had been telling the police and anyone else who would listen for months: He was not and never had been a convicted felon.

He had been arrested years earlier in California on a drug charge, but as with many first offenders had been allowed to take part in a pre-trial diversion program.

He successfully completed the program, and the charges were dropped. His listing as a felon was an error.

Rothgery's expenses and troubles and the expenses and troubles of Gillespie County would have been avoided had he been appointed an attorney at the beginning.

The legal dispute turns on the definition of a vague term found in both Supreme Court decisions and in state law. It says accused persons must be provided to the indigent at the first "adversary judicial proceeding."

The state of Texas argues and the New Orleans federal court of appeals agreed that this means an accused person isn't guaranteed a lawyer until the government lawyer starts working against him, although neither explains how an indigent person would know, at least until he was indicted.

The appeals court quoted its own 1978 decision saying "the relevant time is when 'the government has committed itself to prosecute' and 'a defendant finds himself faced with the prosecutorial forces of organized society.' "

Rothgery's lawyers at the Austin-based Texas Fair Defense Project cite several Supreme Court cases to argue that the right to a lawyer starts at the first court appearance.

The project's Andrea Marsh, who has handled this case, notes that having a lawyer early on is important for finding witnesses and other evidence, as well as presenting facts and arguments to prosecutors before charges are filed.

In a friend-of-the-court brief George Dix, a University of Texas School of Law expert on criminal procedure, makes a simple point.

An appearance before a magistrate is clearly a "judicial proceeding," and if it results in his jailing it is clearly adversary to the accused — even if no prosecuting attorney is involved.

Houston state Sen. Rodney Ellis authored the state "Fair Defense Act" that includes the reference to an "adversary judicial proceeding."

"My intent as the author was that you get a lawyer when you go to jail," he said.

As for the proceeding that sends you to jail, he said, "It would be truly tortured logic that in any way presents that as conciliatory."