Turner V. United States -- Amicus Brief in Support of Petitioner

Abstract

Categorical rules should never trump common sense, and rigidity should never trump reasonableness.

In Kirby v. Illinois, this Court held that the Sixth Amendment right to counsel applies to “critical stages” of a criminal prosecution that occur after an indictment is obtained (or formal charges filed). The plurality reasoned that it was only after an indictment is obtained (or formal charges filed) that the government “has committed itself to prosecute, [that] the adverse positions of government and defendant have solidified, [and that] the accused finds himself faced with the prosecutorial forces of organized society.” 406 U.S. 682, 689 (1972) (brackets added). In the over the four decades since Kirby was decided, however, times have changed – dramatically. But the rationale underlying Kirby has not, and any sensible interpretation of Kirby leads to the ineluctable conclusion that pre-indictment plea bargaining triggers the Sixth Amendment right to counsel.

Specifically, in the pre-indictment or pre-charge context, the right to counsel should apply where: (1) a state or federal prosecutor is involved; (2) the prosecutor contacts an individual who will be subject to state or federal charges; (3) the prosecutor informs the individual of the particular charges that will be brought; and (4) the prosecutor attempts to resolve the matter, such as through a plea offer, before seeking an indictment. Put differently, when the government initiates plea negotiations, it should not matter whether such negotiations occur before or after an indictment is obtained or charges are filed. To hold otherwise would require the Court to create a distinction that would have no meaningful difference – except to defendants who, in the context of pre-indictment plea negotiations, would be required to navigate the legal process alone.

Keywords: Turner v. United States, Plea Bargaining, Missouri v. Frye, Sixth Amendment, United States Supreme Court

JEL Classification: K14; K40; K42