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Does Right to Counsel Begin Before Indictment?

A defendant on trial in a criminal proceeding is entitled to an attorney for his defense. In the event that a defendant cannot afford an attorney, the court will appoint one. This tenet of U.S. criminal law is widely known and has been a basic principle of criminal procedure since the country was founded. The Supreme Court is now considering in Turner v. United States when exactly the right to counsel actually begins. For example, is a defendant entitled to court-appointed counsel before he is formally indicted for a crime?

A Defendant's Right to Counsel Under the Sixth Amendment

Pursuant to the Sixth Amendment, "In all criminal prosecutions, the accused shall enjoy the right...to have...[the] Assistance of Counsel for his defense." It is well-settled that a defendant's constitutional right to counsel means that he is entitled to effective counsel.

An Ineffective Assistance of Counsel Claim on Appeal

Right to Counsel

Right to Counsel

A defendant may file a claim that he had ineffective assistance of counsel pursuant to 28 U.S.C. § 2255. However, if the claim is based on a defendant's attorney's actions at a point during the representation during which the defendant was not entitled to an attorney, then it cannot be pursued. In other words, if the defendant claims that his counsel was ineffective at a point when he was not constitutionally guaranteed an attorney, then he has no claim at all.

When a Defendant has the Right to Counsel

According to the Supreme Court decision in Rothgery v. Gillespie Cty., a defendant's Sixth Amendment right to counsel attaches when "a prosecution is commenced," which can only occur at or after "the initiation of adversary judicial criminal proceedings." Once the defendant's Sixth Amendment right to counsel kicks in, the defendant remains entitled to effective assistance of counsel through all "critical stages" of the criminal proceedings, which was affirmed by the Supreme Court in Missouri v. Frye. About six years ago, the Supreme Court in Lafler v. Cooper expanded a defendant's right to counsel by ruling that plea negotiations are part of the "critical stage" of a criminal proceeding. In fact, the Supreme Court referred to plea negotiations as a "central" part of the administration of criminal justice.

The Background on Turner v. United States

In Turner v. United States, the defendant was charged with the robbery at gunpoint of four businesses and was arrested by Tennessee state police. He hired an attorney in the state criminal case. The attorney was informed that there would be federal proceedings against his client and was told that a plea offer was on the table up until any federal indictment of the defendant. The defendant claims that his attorney did not actually relay the plea offer.

After he was indicted by a federal grand jury, the defendant fired his attorney and hired a new one. He negotiated a plea deal at that point, but he ended up agreeing to 10 additional years of prison time than what he was offered in the original deal. The defendant appealed his sentence from the district court to the Sixth Circuit Court of Appeals based on an argument that his original lawyer was ineffective in failing to inform him of the original and more favorable plea offer. The Sixth Circuit upheld the conviction and sentence because it reasoned that the defendant did not actually have a right to counsel under the Sixth Amendment at the plea negotiation stage prior to indictment.

The Supreme Court will now decide whether the defendant's Sixth Amendment right to counsel attached at the time that the government offered a plea deal prior to the defendant's federal indictment. The original language of the Sixth Amendment appears to be broader than Supreme Court decisions that have limited its application to after the formal start of criminal proceedings. We will now wait and see if the presentment of an exploding plea offer by the government is sufficient to trigger a defendant's right to counsel before a formal indictment.

Exercising a Defendant's Right to Counsel

No matter the outcome of the Supreme Court's upcoming decision in Turner v. United States, anyone who is the subject of a criminal investigation should consult with a competent attorney as early on in the process as possible. Speaking to the government without retaining an attorney first can have serious consequences on the prosecution and potential criminal proceedings. If you changed counsel at a certain point during your criminal case because of issues with a prior attorney's representation, it is possible that you may have an ineffective assistance of counsel claim.

About Brandon Sample

Brandon Sample is an attorney, author, and criminal justice reform activist. Brandon’s law practice is focused on federal criminal defense, federal appeals, federal post-conviction relief, federal civil rights litigation, federal administrative law, and the Freedom of Information Act (FOIA).

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