Right To Counsel Inapplicable to Preindictment Plea Negotiations En Banc Sixth Circuit Holds

John Turner went on a robbery spree in Memphis. He was apprehended and indicted by a Tennessee grand jury on multiple counts of aggravated robbery. He retained a lawyer, who engaged in plea negotiations with state prosecutors. The federal government got involved, and an AUSA informed Turner’s lawyer that his office intended to indict Turner and charge him with robbery and firearms charges carrying for the firearms charges alone a mandatory minimum sentence of 82 years. However, the AUSA made a plea offer with a 15 year federal sentence that would resolve all charges, state and federal, the offer to expire upon Turner’s indictment by a federal grand jury.

Before the en banc Sixth Circuit in Turner v. United States were the following questions: (1) Did Turner have a Sixth Amendment right to counsel to advise him in these preindictment plea negotiations with the United States?; and, (2) Did it make a difference that Turner already faced a state indictment and charges based on the same conduct that underlay the federal plea?

The Court held that Supreme Court precedent, Kirby v.Illinois, 406 U.S. 682 (1972) and United States v. Gouveia, 467 U.S. 180(1984), established a “crystal clear” demarcation for the right to counsel to attach “only at or after the time that adversary judicial proceedings have been initiated against him” and that the “Supreme Court has repeatedly rejected attempts by criminal defendants to extend the Sixth Amendment right to counsel to preindictment proceedings[.]” So Turner had no Sixth Amendment right to counsel with respect to the plea negotiations with the United States government.

The Court also held that Turner’s state indictment made no difference, because the state and federal charges were not the “same offense,” even if based on the same conduct and having the same essential elements. This ruling was derived from the “dual sovereignty doctrine” which the court concluded was followed by a majority of circuits. The dual sovereignty doctrine dictates that two distinct offenses are committed when conduct violates simultaneously both state and federal law.

Judge Bush concurring in dubitante utilized a “what did the average Joe (or Josephine) from the Founding era understand” approach to the terms “accused” and “criminal prosecution,” that offered a persuasive historical analysis and would seem a good blueprint for the Supreme Court to rule that the Sixth Amendment right to counsel applies to preindictment plea negotiations. First, dictionaries from the late 18th century indicate that “accused” had then a general, common meaning “that was broader than ‘indicted.’” Second and similarly, “prosecution” had a general, common meaning broader “than referring only to the post-indictment critical stages of a judicial criminal action.” In addition, that the Fifth Amendment applies in “all criminal cases” and Article III refers to “cases and controversies” would suggest that a “criminal prosecution” could “begin before a ‘criminal case’ commenced.” Finally, Chief Justice Marshall, sitting then in a trial court, had ruled that former Vice-President Aaron Burr had a Sixth Amendment right to compulsory process prior to being indicted when brought up on treason charges. 

A petition for certiorari will presumably follow; the Sixth Circuit undertook here great effort to highlight for the Supreme Court its need to further examine its Sixth Amendment jurisprudence. 

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