No. 15-6060 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOHN R. TURNER Petitioner-Appellant v. UNITED STATES OF AMERICA Respondent-Appellee BRIEF OF THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE SUPPORTING APPELLANT S PETITION FOR REHEARING EN BANC ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE Steven J. Mulroy Associate Dean & Professor of Law Cecil C. Humphreys School of Law University of Memphis 1 N. Front Street Memphis TN 28117 Phone: (901) 678-4494 Stephen Ross Johnson NACDL Amicus Committee Sixth Circuit Vice-Chair Ritchie, Dillard, Davies & Johnson, P.C. 606 W. Main Street, Suite 300 Knoxville, TN 37902 Phone: (865) 637-0661 Counsel for Amicus Curiae
Corporate Disclosure Statement Pursuant to Sixth Circuit Rule 26.1, Amicus Curiae the National Association of Criminal Defense Lawyers makes the following disclosures: 1. Amicus is not a subsidiary or affiliate of a publicly-owned corporation. 2. There is no publicly-owned corporation with a financial interest in the outcome. i
Table of Contents Page Corporate Disclosure Statement... i Table of Contents... ii Table of Authorities... iii Interest of Amici Curiae... 1 Summary of the Argument... 2 Argument... 4 I. Prior Sixth Circuit Rulings... 4 II. Supreme Court Precedent... 5 III. The Better Rule... 8 IV. Sixth Amendment Text... 9 V. Practical Implications of the Government s Bright-Line Rule... 10 Conclusion... 11 Certificate of Compliance with Rule 32(a)... 12 Certificate of Service... 12 ii
Table of Authorities Page Cases: Kirby v. Illinois, 406 U.S. 682 (1972)... 5, 6, 8, 9 Maine v. Moulton, 474 U.S. 159 (1985)... 6 McNeil v. Wisconsin, 501 U.S. 171 (1991)... 6 Missouri v. Frye, 566 U.S. 134 (2012)... 5, 7 Moran v. Burbine, 475 U.S. 412 (1986)... 5, 6, 8, 9 Texas v. Cobb, 532 U.S. 162 (2001)... 6 Turner v. United States, No. 15-6060 (6 th Cir. Feb. 15, 2017)... 2, 6, 9, 11 United States v. Ash, 413 U.S. 300 (1973)... 7, 8 United States v. Gouveia, 467 U.S. 180 (1984)... 5, 6, 8, 9 United States v. Hammad, 858 F.2d 834 (2d Cir. 1988)... 10 United States v. Moody, 206 F.3d 609 (6 th Cir. 2000)... 2, 3, 4, 5, 10 iii
United States v. Wade, 388 U.S. 218 (1967)... 8 Statutes: U.S. CONST. amend VI... 9 Other Authorities: Gary Fields & Jon R. Emshwiller, Federal Guilty Pleas Soar as Bargains Trump Trials WALL ST. J., Sept. 24, 2014... 10 Steven J. Mulroy, The Bright Line s Dark Side Pre-Charge Attachment of the 6 th Amendment Right to Counsel, 92 WASH L. REV. (2017)... 8-9, 10 United States Sixth Circuit Court of Appeals Rule 26.1... i iv
INTEREST OF AMICI CURIAE The National Association of Criminal Defense Lawyers ( NACDL ) is a nonprofit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice and due process for those accused of crime or misconduct. It has a nationwide membership of approximately 10,000 direct members. NACDL s members include private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges. NACDL files numerous amicus briefs each year in the U.S. Supreme Court, this Court, and other courts, seeking to provide amicus assistance in cases that present issues of broad importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a whole. NACDL regularly files amicus briefs on the Sixth Amendment right to counsel, arguing that ensuring criminal defendants have access to legal assistance is a linchpin of a free society. NACDL filed 10 such briefs in 2016. 1 NACDL has an interest in this case because it will affect the number of criminal defendants entitled to effective assistance of counsel in the increasingly common situation of pre-charge plea negotiations. 1 Available online at https://www.nacdl.org/amicus/2016. 1
Summary of the Argument In this case, the federal prosecutor engaged in pre-indictment plea negotiations with defense counsel; defense counsel allegedly failed to properly communicate the nature of the plea offer to his client which, if true, would fall below the minimum standard of care of effective assistance of counsel; and the client was prejudiced as a result, to the tune of 10 additional years on his sentence. Turner v. United States, No. 15-6060 (6 th Cir. Feb. 15, 2017) (Opinion pp. 2-3). Yet the defendant was denied relief on his ineffective assistance of counsel claim, or even an evidentiary hearing on this claim, for the sole reason that the relevant ineffective assistance occurred prior to indictment on the federal charge. (Opinion pp. 3-4) This case thus presents a pure question of law: whether, absent an appearance before a magistrate, the Sixth Amendment right to counsel can ever attach prior to a formal charge. This question becomes ever more salient as pre-indictment plea negotiations become more common. Two panels of this Circuit have now complained of the injustice of a brightline rule denying Sixth Amendment right to counsel protection pre-indictment. The panel in United States v. Moody, 206 F.3d 609, 614-615 (6 th Cir. 2000), felt bound by Supreme Court precedent; and the panel in the instant case felt bound by Moody. (Opinion pp. 9-10) 2
But Supreme Court precedent, properly understood in light of the text and purpose of the Sixth Amendment right to counsel, does not compel the Moody approach. Indeed, it suggests the different approach that the right is triggered whenever a prosecutor gets involved in substantive discussions of the case with defendant, either directly or through counsel. For this reason, this Court should grant en banc review, so that the Court may reconsider the panel decision and join the other Circuits which have ruled that, under the proper circumstances, the Sixth Amendment right to counsel can attach prior to formal charge particularly where, as here, the prosecutor initiates pre-indictment plea negotiations. 3
ARGUMENT I. Prior Sixth Circuit Rulings In Moody, a pre-indictment plea negotiation case, the court read Supreme Court case law as establishing a bright-line rule against pre-charge attachment of the right to counsel; made clear that it disagreed with such a rule; and reluctantly concluded that it is beyond our reach to modify this rule, even in this case where the facts so clearly demonstrate that the rights protected by the Sixth Amendment are endangered. 206 F.3d at 615. The court noted that the prosecutor s involvement in pre-indictment plea negotiations raises the specter of the unwary defendant agreeing to surrender his right to a trial in exchange for an unfair sentence without the assurance of legal assistance to protect him. Id. Thus, the rule it was enforcing was a mere formality that exalt[s] form over substance and requires that we disregard the cold reality that faces a suspect in pre-indictment plea negotiations. 2 The panel opinion in the instant case deferred to Moody, noting that one Sixth Circuit panel could not overrule the decision of a prior panel. (Opinion pp. 9-10) The unanimous panel in this case went out of its way to emphasize the injustice of a rigid bright-line rule. Whether they occur before or after the filing of formal charges, the panel reasoned, plea negotiations are adversarial by nature, and 2 Id. at 615 16. A concurring opinion echoed the majority s dissatisfaction with what it construed to be a rigidly inflexible, unrealistic Supreme Court rule. Id. at 617 18 (Wiseman, J., concurring). 4
present defendants with the complex web of federal sentencing guidelines which can confuse even those who work with them often. Id. II. Supreme Court Precedent Moody presumed that Supreme Court precedent mandated the bright-line rule. But the Supreme Court opinions in question Kirby v. Illinois, 3 United States v. Gouveia, 4 and Moran v. Burbine 5 issued decades before the Court s relatively recent acknowledgment that ineffective assistance claims could apply to the failure to accept a plea bargain. 6 Those decisions did not consider pre-charge plea negotiations. Nor has the Court ever since had occasion to consider pre-charge plea negotiations. The oft-quoted language from these decisions supposedly supporting the bright-line rule is the famous statement that the Sixth Amendment right to counsel attaches at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Kirby, 406 U.S. at 689; Gouveia, 467 U.S. at 188 (quoting Kirby, 406 U.S. at 689); Cf. Moran, 475 U.S. at 431 (citing Gouveia, 467 U.S. at 189). 3 406 U.S. 682 (1972). 4 467 U.S. 180 (1984). 5 475 U.S. 412 (1986). 6 See Missouri v. Frye, 566 U.S. 134 (2012). 5
But the same Supreme Court opinions tell us that the Sixth Amendment right to counsel applies when: the government has committed itself to prosecute, and... the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. Kirby, 406 U.S. at 689 (emphasis added); Gouveia, 467 U.S. at 189 (citing Kirby, 406 U.S. at 689); Moran, 475 U.S. at 432 (citing Gouveia, 467 U.S. at 189); McNeil, 501 U.S. at 177-78 (citing Gouveia, 467 U.S. at 189); Moulton, 474 U.S. at 170 (citing Gouveia, 467 U.S. at 189). Cf. Cobb, 532 U.S. at 167-68. The criteria of (1) solidification of adverse positions, with the corresponding need to guide the defendant through (2) the intricacies of substantive and procedural criminal law, explains the Court s statement regarding formal charge... or arraignment. Kirby, 406 U.S. at 689; Gouveia, 467 U.S. at 189 (citing Kirby, 406 U.S. at 689); Moran, 475 U.S. at 432 (citing Gouveia, 467 U.S. at 189). Formal charge and appearance before a judge are certainly situations which meet those two criteria. But as 2 panels of this Circuit, and 4-6 other Circuits 7 have acknowledged, other situations can meet these criteria as well. 7 Four Circuits have unambiguously rejected a bright-line rule against precharge attachment of the Sixth Amendment right to counsel. Two others have so ruled in the specific context of successive prosecutions by different sovereigns. See Petition For Rehearing En Banc, Turner v. United States, No. 15-6060 (6 th Cir. Mar. 2, 2017), at 7-11 (discussing cases in other circuits). 6
The above criteria should not be disregarded, but rather reconciled with the Court s language regarding formal charge... or arraignment. The way to reconcile the opinions language is to realize that the Court was providing examples of those events which satisfied the criteria, but that the list was not exhaustive. Now that the Court has acknowledged that plea negotiations are among the critical phases of the process protected by the Sixth Amendment, Frye, 566 U.S. at 141, we can acknowledge that pre-charge plea negotiations also meet these criteria, and should be added to the list. This conclusion becomes even clearer when we examine the Court s statement of the underlying purpose of the Sixth Amendment right to counsel. In Gouveia, the Court said that the core purpose 8 of the Sixth Amendment right to counsel, in the specific context of determining when the right attaches, is assuring aid at trial and at critical pretrial proceedings when the accused is confronted with the intricacies of criminal law or with the expert advocacy of the public prosecutor, or both. Id. at 181 (emphasis added). Crucially, the Court has stated that the right to counsel exists to protect the accused during trial-type confrontations with the prosecutor. Id. at 190 (emphasis added). When the accused is confronted by the procedural system, or by his expert adversary, such confrontation might well settle 8 467 U.S. at 189 (citing United States v. Ash, 413 U.S. 300, 309 (1973)). 7
the accused s fate and render the trial itself a mere formality. Id. (citing Ash, 413 U.S. at 310; United States v. Wade, 388 U.S. 218, 224 (1967)). This language certainly seems to apply to plea negotiations, whether pre- or post-indictment. III. The Better Rule The above Court discussion of the Sixth Amendment right to counsel s purpose suggests the better rule. In the older cases setting out the language regarding formal charge or a defendant s appearance before a judge, the Court dealt with interactions between the defendant and law enforcement. Kirby, 406 U.S. at 684-85; Gouveia, 467 U.S. at 182-83; Moran, 475 U.S. at 416-18. The prosecutor was not directly involved. In those situations, there is arguable utility in using the formality of an indictment or information as a dividing line between investigation and prosecution. The analysis changes, however, when the prosecution gets directly involved, as with plea negotiations. There, the defendant clearly is engaged in confrontations with the prosecutor and needs assistance in dealing with that prosecutor s expert advocacy. Thus, in addition to a formal charge or a defendant s appearance before a judge, the right should apply whenever the prosecutor engages in substantive discussions of the case with the defendant (other than as a witness), either directly or through counsel. See Steven J. Mulroy, The Bright Line s Dark Zone: Pre- Charge Attachment of the 6th Amendment Right to Counsel, 92 WASH. L. REV. 8
(2017) (forthcoming) (available electronically at http://dx.doi.org/10.2139/ssrn.2821179 or on the Sixth Circuit Public Docket Sheet, Turner v. United States, No. 15-6060 (6th Cir. Sept. 6, 2016), ECF No. 28) (cited below at Opinion p. 7, and advocating such a rule). This rule avoids the arbitrariness and injustice described above, and better furthers the underlying purposes of the right as articulated by the Supreme Court. Id. But it still retains the clarity and ease of application of a bright-line rule. Id. IV. Sixth Amendment Text This formulation adheres more closely to the text of the Sixth Amendment itself than the Government s arbitrary bright line. In pertinent part, the Amendment states that In all criminal prosecutions, the Accused shall have the right to... the assistance of counsel. U.S. CONST. amend. VI. It was the use of the words prosecution and accused that helped motivate the Court in Kirby and Gouveia to first write the language regarding formal charge... or arraignment. Kirby, 406 U.S. at 689 (emphasis added); Gouveia, 467 U.S. at 189 (citing Kirby, 406 U.S. at 689); Moran, 475 U.S. at 432 (citing Gouveia, 467 U.S. at 189). Prior to an indictment or information, if only law enforcement is pressing for an admission, lineup, or even plea bargain, it is harder to speak of a criminal prosecution under the Amendment s text, and hence also harder to speak of an accused. Once a prosecutor has decided to prosecute, and is far enough along to engage in plea 9
negotiations, it makes sense to consider this a criminal prosecution, and the defendant an accused. V. Practical Implications of the Government s Bright-Line Rule Underscoring this concern is the overwhelming importance of plea bargaining in our criminal justice system. The number of cases concluded by plea agreements have increased in recent years, rising from 84% in 1990 to 97% in 2011. 9 Indeed, pre-indictment plea bargaining has become more common in recent years, particularly with the increasing use of joint federal-state task forces with subsequent state and federal prosecutions (as occurred in Mr. Turner s case). See Opinion p. 9 ("Defendants face an increasing number of federal-state prosecutions that blur the lines of demarcation on exactly when charges are filed for purposes of the Sixth Amendment right to counsel"); Mulroy, The Bright Line s Dark Side, supra, at notes 25-26 and accompanying text. Under the Government s bright-line rule, the prosecutor could game the system by delaying formal charge until after initial plea inquiries have been made. See United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988) (making this same point); Moody, 206 F.3d at 615 (noting that prosecutor s delay deprived defendant of ineffective assistance of counsel protections). Similarly, as the panel below emphasized, the prosecutor in the instant case 9 Gary Fields & Jon R. Emshwiller, Federal Guilty Pleas Soar as Bargains Trump Trials, WALL ST. J., Sept. 24, 2012, at A1. 10
specifically made the plea offer expire at the filing of the federal indictment, ensuring that defendant would have no ineffective assistance of counsel claim (if the Government s bright-line rule applies). Thus, Turner could never challenge his attorney s effectiveness because the negotiations had to take place prior to the filing of formal charges or the offer would be withdrawn. (Opinion p. 8). Conclusion For the reasons stated above, this Court should grant the petition for en banc review. It should then join the several other Circuits in ruling that, at least in some circumstances, like pre-indictment plea negotiations, the Sixth Amendment right to counsel can attach prior to formal charge or appearance before a magistrate. Specifically, this Court should adopt the prosecutor s involvement rule articulated above, and grant relief to Mr. Turner. Respectfully submitted, /s/ Steven J. Mulroy Associate Dean & Professor of Law Cecil C. Humphreys School of Law University of Memphis 1 N. Front St. Memphis, TN 38117 Phone: 901-678-4494 11
Certificate of Compliance with Rule 32(a) Pursuant to Fed. R. App. P. 32(a)(7)(C), I hereby certify that this brief complies with the type-volume limitation. I have checked the number of words in the applicable portions of this brief using Microsoft Word, and the report indicates that the countable portions of this brief under Rule 32(a)(7) contain 2,317 words in Times New Roman, 14-pt font. /s/ Stephen Ross Johnson Stephen Ross Johnson Counsel for Amicus Curiae Certificate of Service I certify that on this 7th day of March 2017, I emailed this Brief of National Association of Criminal Defense Lawyers as Amici Curiae Supporting Appellant s Petition for Rehearing En Banc to Beverly Harris of the Clerk of the United States Court of Appeals for the Sixth Circuit. After she effects electronic filing, the Court s ECF system will automatically generate and send by e-mail a Notice of Docket Activity to all registered attorneys currently participating in this case, constituting service on those attorneys. /s/ Stephen Ross Johnson Counsel for Amicus Curiae 12