AuthorLovely, Sierra

The Sixth Amendment to the Constitution guarantees certain protections to defendants during critical stages of criminal proceedings. (1) These protections, however, do not extend to the defendant until the prosecution has commenced. (2) In Turner v. United States, (3) the United States Court of Appeals for the Sixth Circuit, sitting en banc, considered whether the Sixth Amendment right to counsel extended to preindictment plea negotiations. (4) The court held that the Sixth Amendment right to counsel extends to a criminal defendant only once judicial proceedings have commenced, and thus, does not encompass preindictment plea negotiations. (5)

In 2007, John Turner robbed four Tennessee businesses at gunpoint. (6) He was arrested for these crimes by a Memphis police officer who also served as a member of a joint federal-state task force. (7) With respect to the state charges, Turner was indicted on multiple counts of aggravated robbery, and he hired an attorney to represent him on these charges, which included representation during the plea negotiations with the state prosecutors. (8) During the state proceedings, it became clear that the United States Attorney's Office planned to bring federal charges, including those related to robbery and firearm possession, against Turner as part of the federal-state task force. (9) The Assistant United States Attorney ("AUSA") offered Turner's attorney a plea of fifteen years. (10) The AUSA stipulated, however, that the offer "would expire if and when a federal grand jury indicted Turner." (11) It is disputed, but not of consequence to the issue at hand, whether Turner refused the plea deal once it was offered or if he was even presented with the deal at all. (12) The grand jury in the Western District of Tennessee indicted Turner in 2008. (13) Turner subsequently hired a new attorney who helped him negotiate a plea deal of twenty-five years imprisonment. (14)

In 2012, Turner filed a "motion alleging that his original attorney rendered constitutionally ineffective assistance during [his] federal plea negotiations." (15) The district court denied his motion, holding that Turner's Sixth Amendment right to counsel had not yet attached during his preindictment federal plea negotiations; thus, he had no standing to bring a claim for ineffective assistance of counsel. (16) On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the lower court's decision. (17) Turner filed a petition for rehearing en banc, which the court granted. (18) The court reaffirmed the ruling and held that the Sixth Amendment right to counsel attaches only at or after the initiation of judicial criminal proceedings. (19) The right does not attach at any point before the initiation of adversarial judicial criminal proceedings, and therefore the Sixth Amendment right to counsel does not extend to preindictment plea negotiations. (20)

The Sixth Amendment, in the interest of protecting the most vulnerable peoples in the criminal justice system, broadly declares that "the accused" are entitled to "the Assistance of Counsel for his defence [sic]" in "all criminal prosecutions." (21) These cases often come up through the courts under a claim of ineffective assistance of counsel, but there can be no ineffective assistance of counsel if the right to counsel has yet to attach to the proceedings. (22) In applying that right to various scenarios likely unimaginable by the Constitution's drafters, the Supreme Court has sought to define key terms and form rules for when and in what instances the right to counsel does and does not attach. (23) This right has been afforded to the criminally accused going as far back as the eighteenth century. (24)

The Supreme Court's attachment rule is guided mostly by the "plain language of the [Sixth] Amendment" and identifies the key phases in a proceeding when the right to counsel attaches. (25) This is "only at or after the time that adversary judicial proceedings have been initiated against" someone, which includes a "formal charge, preliminary hearing, indictment, information, or arraignment." (26) In Gouveia, however, the Court warned that there may be some circumstances in which the right to counsel may attach prior to the formal initiation of judicial proceedings. (27) In response, the right to counsel has expanded from its initial limitation of only applying at trial to applying in certain pretrial "trial-like confrontation[s]." (28) This is because the dangers that initially gave birth to the right to counsel were found equally strong and deserving of protection in other critical stages such as post-indictment interrogations, post-indictment lineups, and the entry of guilty pleas. (29) Courts have speculated as to whether this list is inclusive or exhaustive. (30) In deciding whether to include pretrial proceedings under the Sixth Amendment's umbrella, case law recommends an examination of any pretrial confrontation to determine whether the right to counsel is required in order to preserve the defendant's rights. (31)

Recently, the Supreme Court again extended the Sixth Amendment to encompass another critical stage of the prosecution: plea negotiations. (32) But, in Kirby v. Illinois, the Supreme Court held that the Sixth Amendment did not extend to preindictment identification even though the same post-indictment lineup is treated as a critical stage requiring such protections. (33) The Sixth Circuit follows the bright-line rule defined in Kirby and holds that the Sixth Amendment right to counsel does not attach until the "initiation of judicial criminal proceedings" and so the preindictment plea offer is not deserving of constitutional protection. (34) Many courts at all levels have hinted and urged for an expansion of the right to counsel. (35)

In Turner v. United States, the Sixth Circuit applied the precedent and upheld the Supreme Court's established bright-line rule that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations. (36) The court reasoned that while plea negotiations are critical stages of prosecution, they are still subject to the attachment rule. (37) The court rejected attempts to soften the line between the "critical stage question" and the "attachment question" concluding that these inquiries must be kept distinct. (38) These separate questions, while both important in determining whether an accused is entitled to counsel, are the reason that some post-indictment proceedings deserve protection and that same proceeding, occurring preindictment, is not entitled to protection. (39)

The court held steadfast in their application that the Sixth Amendment "attaches only at or after ... adversary judicial proceedings have been initiated." (40) The court refused to expand the scope of the right to counsel as some lower courts and other circuits have suggested. (41)

There are a number of alternative rule formulations that would better serve those accused in preindictment scenarios that are similar to the rule formulations that give defendants protection in post-indictment proceedings. (42) Additionally, there are valid concerns that the current bright-line rule lends itself to "prosecutorial manipulation." (43) Prosecutors may be tempted to delay issuing a formal indictment with the intent that the unprotected, unadvised accused will quickly accept a plea deal. (44) To remedy this, when determining a critical stage, the court should consider whether: (1) the government made its intent to prosecute known "either formally or through informal means, such as grand jury investigation, plea bargaining, or pre-charge discussions with the suspect or with defense counsel," (2) formal charges would have followed if discussions broke down between the parties, and (3) "it is a temporal fortuity that the case falls outside the traditional ... critical stage." (45) In Turner, the prosecution intended to move forward with formal charges as evidenced by the plea offer and the associated expiration date. (46) Suggesting the case may not go forward because the grand jury had not indicted the accused--as was the case in Turner--merely because the grand jury was not yet presented with the case offers the defendant a warped sense of security, exemplifying why counsel is necessary in complicated proceedings such as these. (47) There is blatant prosecutorial manipulation present when these tactics are used to coerce an accused into accepting a plea offer. (48)

Another proposed rule suggests the right to counsel pivots either on the involvement of law enforcement or on the defendant's direct interaction with prosecutors regarding substantive aspects of his or her case. (49) Undeniably, the plea offer was a substantive aspect of Turner's case; in fact, it was his whole case. (50) Additionally, the court presumes the right to counsel applies where a "proceeding carries a risk of substantial potential prejudice." (51) Plea offers are a powerful tool of the justice system and their use should still be encouraged but in a manner the Constitution envisioned, which is what these proposed rules seek to achieve. (52)

A workable solution would allow the attachment question and is the critical stage question to be asked in an interchangeable order. (53) As it operates now, the question of whether an aspect of the prosecution is a critical stage follows, somewhat naturally, after the determination that the Sixth Amendment attached to the prosecution. (54) But, this order advanced the improper notion that a defendant would not face a critical stage of the prosecution prior to traditional attachment. (55) If courts instead adopt the idea that there may be instances when a critical stage can occur before a "formal charge, preliminary hearing, indictment, information, or arraignment," defendants will be...

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