The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Sixth Amendment to the U.S. Constitution provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." Yesterday, in Turner v. United States, the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, considered whether this right applies prior to criminal indictment. By a vote of 12-4, the Sixth Circuit concluded the answer is "no"—at least under current precedent.
Writing for ten of the court's sixteen judges, Judge Alice Batchelder concluded binding Supreme Court precedent provides that the right does not attach prior to indictment. Her opinion begins:
Appellant John Turner asks us to overrule nearly four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations. . . . We decline to do so. Our rule—copied word for word from the Supreme Court's rule—is that the Sixth Amendment right to counsel attaches only "at or after the initiation of judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." The district court followed this rule, and we AFFIRM.
One of the Sixth Circuit's newest members, Judge John Bush, joined Batchelder's majority, but also wrote a separate opinion "concurring dubitante" suggesting the Supreme Court should reconsider this question. His opinion, which was joined by Judge Ray Kethledge, begins:
History sometimes reveals more import to words than they at first seem to have. And faithful adherence to the Constitution and its Amendments requires us to examine their terms as they were commonly understood when the text was adopted and ratified, rather than applying meaning derived years later that may weaken constitutional rights. This case calls for such an examination.
The Sixth Amendment states in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence." We must decide whether a criminal suspect, having received from a federal prosecutor an offer to enter into a plea agreement that requires pre-indictment acceptance, is an "accused" in a "criminal prosecution" and therefore entitled to a constitutional right to counsel.
We know that it is settled that the substantive right to counsel includes the right to communication of a favorable plea offer: the Supreme Court made that clear in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012). So no one disputes that defendant-appellant John Turner's right of "assistance of counsel for his defence" includes his counsel's communicating the offer, assuming the right has attached. Our task, therefore, is to decide only whether that substantive right did attach to Turner upon or before the federal prosecutor's presentment of the plea offer—that is, whether Turner was then an "accused" in a "criminal prosecution."
The majority is correct that we are bound to affirm because of Supreme Court precedents holding that the Sixth Amendment right to counsel attaches only "at or after the initiation of criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Moody, 206 F.3d 609, 614 (6th Cir. 2000). But the original understanding of the Sixth Amendment gave larger meaning to the words "accused" and "criminal prosecution" than do these precedents, and for that reason, I write separately. As discussed below, the greater weight of the Founding-era evidence appears to support the propositions that Turner was an "accused" even though he had not yet been indicted federally, and that the communication of an exploding plea-agreement offer by a federal prosecutor that would, if accepted, all but end Turner's criminal litigation, was part of a "criminal prosecution" as those terms were used in the Sixth Amendment. In light of this history of the original meaning of the Sixth Amendment text, the Supreme Court might wish to reconsider its right-to-counsel jurisprudence.
Judges Eric Clay and Helene White also wrote separate opinions concurring in the judgment arguing that prevailing Supreme Court precedent is wrong, but nonetheless controlled the outsome in Turner.
Judge Jane Stranch dissented, joined by Judges Cole, Moore, and Donald, arguing that existing Sixth Amendment jurisprudence allows for a more fact-specific analysis and the conclustion that the defendant's right to counsel did attach pre-indictment, at least in this case.