En banc Sixth Circuit rejects, with some dubitante, effort to extend Sixth Amendment right to counsel to preindictment plea negotiations
The Sixth Circuit this morning made my pile of weekend reading a bit longer and a bit more interesting by handing down an extended en banc ruling in Turner v. United States, No. 15-6060 (6th Cir. March 23, 2018) (available here), I which a lot of judges have lots to say about the reach of the Sixth Amendment right to counsel. The opinion for the Court explains the issue and the reason the result is 10-4 in favor of the government:
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. See United States v. Moody, 206 F.3d 609, 614– 15 (6th Cir. 2000) (citing United States v. Sikora, 635 F.2d 1175 (6th Cir. 1980)). 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.” Id. at 614 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)); see also United States v. Gouveia, 467 U.S. 180, 188 (1984). The district court followed this rule, and we AFFIRM.
Notably, recent Trump appointee Judge Bush has a lengthy concurring opinion under the heading "DUBITANTE" which starts this way:
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.
And the dissent authored by Judge Branch gets started this way:
The majority opinion declares itself bound by “four decades of circuit precedent holding that the Sixth Amendment right to counsel does not extend to preindictment plea negotiations,” reciting as its basis for this rule language from the 1972 Supreme Court case, Kirby v. Illinois, 406 U.S. 682, 689 (1972). This reasoning misses the point of the case before us in several important ways. By elevating general language to a static rule, it disregards the Supreme Court’s development across time of the law governing Sixth Amendment claims, particularly the Court’s practical recognition of the changing criminal justice system and its responsive jurisprudence extending the right to counsel to events before trial. This reasoning also ignores the purpose of an en banc court — to determine whether existing circuit caselaw has failed to correctly understand or apply legal principles or Supreme Court precedent. Finally and as ably explicated by Judge Bush’s historical analysis, relying on a rigid, mechanical approach closes the door to the apparent understanding of our Founders, including the authors of the Sixth Amendment, that Turner would have been recognized as an “accused.”
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