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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