When Does the Right to Counsel Attach?

Maria Castro, Associate Member, University of Cincinnati Law Review

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”[1] The circuit courts are split regarding when the right to counsel attaches.[2] The Fifth, Ninth, Tenth, Eleventh, and D.C. Circuits have enforced a bright-line rule.[3] The bright-line rule provides that the right to counsel attaches only after formal charges have been filed.[4] The First, Third, Fourth, and Seventh Circuits have rejected the bright-line rule but have not definitively held that the right to counsel attaches at pre-indictment negotiations.[5] In Turner v. United States, the Sixth Circuit expressed concerns regarding the impact of the bright-line rule.[6] However, the Sixth Circuit ultimately followed precedent and enforced the rule.[7] In October 2017, the Sixth Circuit decided to reconsider Turner and reheard the case en banc. The Sixth Circuit should overturn its precedent and find that the right to counsel attaches during pre-indictment plea negotiations because the average defendant is not equipped to adequately negotiate a fair plea deal without the assistance of counsel.

The Bright-Line Rule and Pre-Indictment Plea Bargaining

The bright-line rule provides that the right to counsel attaches only when: (1) the prosecutor brings formal charges, either in the form of indictment or information; or (2) after an appearance before a judge, such as arraignment or first appearance.[8] The bright-line rule was created in United States v. Gouveia.[9] In Gouveia, the Supreme Court acknowledged that the Sixth Amendment right to counsel “attaches at the initiation of adversary judicial criminal proceedings.”[10] The Court in Gouveia recognized that the core purpose of the right to counsel is to “assure aid at trial, ‘when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor.’”[11] In addition, the Court recognized that the average defendant does not have the professional legal skill needed to protect himself or herself against the experienced prosecutor.[12] The Court found that:

“Although we have extended an accused’s right to counsel to certain ‘critical’ pretrial proceedings[13] . . . we have done so recognizing that at those proceedings, ‘the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or by both’[14] . . . in a situation where the results of the confrontation ‘might well settle the accused’s fate and reduce the trial itself to a mere formality.’”[15]

Accordingly, the purpose of the Sixth Amendment right to counsel is to protect the defendant during critical confrontations with the prosecution.

Scholars estimate that about ninety to ninety-five percent of cases are resolved through plea-bargaining.[16] Pre-indictment plea negotiations, also known as “charge bargaining,” occur when the prosecution and the defendant negotiate about the specific charges to which the defendant will plead guilty.[17] In 2012, the Supreme Court in Lafler and Frye held that plea negotiations are “critical stages” that give rise to the Sixth Amendment right to counsel.[18] However, Lafler and Frye addressed plea negotiations that occur after indictment, and left open the question of whether the right to counsel attaches to pre-indictment plea negotiations.[19]

Turner v. United States

Despite its concerts regarding the impact of the bright-line rule, the Sixth Circuit enforced the rule in Turner v. United States. In Turner, the defendant robbed four businesses at gunpoint and was arrested by officers working on a joint federal-state anticrime task force.[20] The defendant was charged with aggravated robbery under Tennessee state law and retained counsel to represent him.[21] While the state proceedings were pending, the U.S. Attorney General and the defendant’s attorney from the state proceeding discussed settlement regarding the defendant’s upcoming federal charges.[22] The Assistant Attorney General told the defendant’s lawyer that they would offer 15 years on the condition that the defendant accept the offer before the federal indictment was returned.[23] However, the defendant did not accept the plea offer before the federal indictment was returned.[24] Subsequently, the defendant fired his attorney and retained new counsel.[25] After the federal indictment was returned, the Assistant Attorney General offered a twenty-five year sentence.[26] The defendant accepted the deal and pleaded guilty to all four counts, waiving his right to appeal.[27] Consequently, the defendant filed a motion to vacate or set aside the federal conviction based on ineffective assistance of counsel during plea negotiations concerning the federal charges.[28] The Sixth Circuit held that the defendant did not have a Sixth Amendment right to counsel regarding plea negotiations prior to the filing of formal charges and therefore could not argue that his counsel was constitutionally ineffective.[29] In April 2017, the Sixth Circuit vacated the Turner opinion and voted to rehear the case en banc.[30]

The Sixth Circuit Should Overturn Precedent

The Sixth Amendment right to counsel should be extended to pre-indictment plea negotiations. Plea-bargaining is a critical stage in the criminal justice system. Cases are frequently resolved through plea-bargaining. Plea-bargaining that results in a guilty plea “conserves the financial expense of a trial, allows for defendants to admit their wrongdoing to victims and the public, and, most important to the defendant, can provide more favorable sentencing outcomes than after a conviction at trial.”[31] However, the average defendant does not have the ability to negotiate a fair plea deal with the prosecutor.[32] The dangers that are present during post-indictment plea negotiations are also present during pre-indictment plea negotiations. Therefore, the bright-line that separates post-indictment negotiations from pre-indictment negotiations is an arbitrary line.

Regardless of when plea negotiations take place, the plea negotiation process is adversarial and the average defendant is not prepared to navigate the process on his or her own. Modern criminal proceedings rely heavily on plea-bargaining.[33] Denying a defendant’s right to counsel during plea-negotiations could result in a prosecutor taking advantage of a defendant or a defense counsel providing unprofessional service, and yet the defendant would have no ability to bring a claim for ineffective assistance of counsel since the defendant has no right to counsel during pre-indictment negotiations.[34] During pre-indictment plea negotiations, the “government has committed itself to prosecute” and “the adverse positions of government and defendant have solidified.”[35] During pre-indictment plea negotiations, the defendant faces a confrontation with the prosecutor that could “settle the accused’s fate.”[36]

Conclusion

The Sixth Circuit should overturn precedent and hold that the Sixth Amendment right to counsel attaches during pre-indictment plea negotiations. The average defendant is not in the position to adequately negotiate his or her own plea deal without the assistance of counsel. The purpose of the Sixth Amendment right to counsel is to protect the defendant during critical confrontations with the prosecution. The Supreme Court has found that post-indictment plea-negotiations trigger the right to counsel because plea negotiations are a critical stage during criminal proceedings. The bright-line separating post-indictment plea negotiations from pre-indictment plea negotiations is an arbitrary line because the dangers that are present in post-indictment plea negotiations are also present in pre-indictment plea negotiations.

[1] U.S. Const. Amend. 6.

[2] Steven J. Mulroy, “The Bright Line’s Dark Zone: Pre–Charge Attachment of the 6th Amendment Right to Counsel,” 92 Wash. L. Rev. –––– (2017) (forthcoming) (available electronically at http://dx.doi.org/10.2139/ssrn.2821179.

[3] United States v. Heinz, 983 F.2d 609, 612-13 (5th Cir. 1993); United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000); United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1117 (10th Cir. 1998); United States v. Waldon, 363 F.3d 1103, 1112 n. 3 (11th Cir. 2004); United States v. Sutton, 801 F.2d 1346, 1365-66 (D.C. Cir. 1986).

[4] Turner v. United States, 848 F.3d 767, 770 (6th Cir.2017), reh’g en banc granted, opinion vacated, 865 F.3d 338 (6th Cir.2017).

[5] Roberts v. State, 48 F.3d 1287, 1290 (1st Cir. 1995); Matteo v. Superintendent SCI Albion, 171 F.3d 877, 892-893 (3d Cir. en banc 1999); United States v. Burgess, 141 F.3d 1160 (4th Cir. 1998), 1998 WL 141157 at *2 (per curiam); United States v. Larkin, 978 F.2d 964, 969 (7th Cir 1992).

[6] Turner, 848 F.3d at 773.

[7] Id.

[8] Steven J. Mulroy, “The Bright Line’s Dark Zone: Pre–Charge Attachment of the 6th Amendment Right to Counsel,” 92 Wash. L. Rev. –––– (2017) (forthcoming) (available electronically at http://dx.doi.org/10.2139/ssrn.2821179).

[9] 467 U.S. 180 (following the plurality opinion in Kirby v. Illinois, 406 U.S. 682, 689–90, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)).

[10] 467 U.S. at 189.

[11] Id. at 188-189 (quoting United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619 (1973)).

[12] Id. at 189 (quoting Johnson v. Zerbst, 304 U.S. 458, 462–463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938)).

[13] United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (a post-indictment lineup was a critical stage of prosecution at which the defendant was as much entitled to aid of counsel as at trial).

[14] United States v. Ash, 413 U.S., 300, 310, 93 S.Ct., 2568, 2574.

[15] Wade, 388 U.S., at 224, 87 S.Ct., at 1930.

[16] Devers, Plea and Charge Bargaining: Research Summary. Bureau of Justice Assistance, U.S. Department of Justice (2011) (available electronically at https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf).

[17] Boss & Angarella, Negotiating Federal Plea Agreements Post-Booker: Same as it Ever Was? Criminal Justice (2008) (available electronically at https://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_cjmag_21_2_negotiatingfederalplea.authcheckdam.pdf).

[18] Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379, (2012).

[19] Breslow, Signs of Life in the Supreme Court’s Uncharted Territory: Why the Right to Effective Assistance of Counsel Should Attach to Pre-Indictment Plea Bargaining, Fed. Law. 34 (2015).

[20] 848 F.3d at 768.

[21] Id.

[22] Id.

[23] Id. at 769.

[24] Id.

[25] Id.

[26] Turner, 848 F.3d at 769.

[27] Id.

[28] Id. at 768.

[29] Id.

[30] Turner v. United States, 865 F.3d 338 (6th Cir.2017).

[31] Breslow, Signs of Life in the Supreme Court’s Uncharted Territory: Why the Right to Effective Assistance of Counsel Should Attach to Pre-Indictment Plea Bargaining, Fed. Law. 34, 39 (2015).

[32] Id.

[33] Turner, 848 F.3d at 773.

[34] Mulroy, The Bright Line’s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel, 92 Wash. L. Rev. 213 (2017).

[35] Gouveia, 467 U.S. at 189.

[36] Id. at 190.

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