Lawyers. You can’t live with them, but you can’t live without them after the commencement of a criminal prosecution.* So the en banc Sixth Circuit, in its intermediate wisdom, has provided a roadmap to circumvent the Sixth Amendment right to counsel. Jonathan Adler at Volokh Conspiracy explains.

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.

And it’s clear, under current precedent, that the court arrived at the only answer possible. Judge John Bush concurring:

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).

The initiation of criminal proceedings creates a bright line test, clear and easily applied, even if respected occasionally in the breach. And for most of our history, it was an adequate test, as the normal course of criminal prosecution was arrest, charge, arraignment to follow. There was always the problem of people talking between seizure and charge, but that’s why the Supremes invented Miranda. But times change.

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.

Judge Bush raises a curious twist, originalism for the purpose of strengthening constitutional rights. It’s not the first time this has happened (think Justice Scalia in Crawford on the confrontation clause), but it doesn’t happen often.

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.

The bright-line test to apply Sixth Amendment right-to-counsel is a later device of the Court, predicated on the regularity of existing practice. To the extent it makes sense, it’s not because the Constitution said so, but because that was the way prosecutions typically happened, lending themselves to an easy rule.

There are a number of variations used today, and used with increasing regularity, that put the cart before the horse. Some stem from massive conspiracy prosecutions, where unindicted loose-end co-conspirators are touched outside the normal process and brought into a global plea. There are defendants who get the dreaded phone call from the United States Attorney who either can’t (because they lack the wherewithal) or won’t (because they’re too cheap or want to make sure the charges are “serious” before spending money) invoke their right to counsel and actually get a lawyer to defend them.

And there are plenty of other variations on this theme, where no criminal prosecution has been officially commenced, but they’ve got someone in their crosshairs and give them the “opportunity” to cop a plea before anything official begins.

For represented defendants, this isn’t a terrible thing. The negotiations are done by counsel and the processing and plea is done with the minimum of muss. But those who aren’t represented are entirely incapable of dealing with the situation, assessing the situation, the significance of the charges, the defenses available, the merits of the plea. Worse, these are often exploding pleas, meaning use it or lose it. If the plea is rejected, they will never get another chance for such a sweet deal.

In Turner’s case, he was under state indictment and had an attorney when he learned that feds wanted a piece of him as well. His state lawyer said he conveyed the 15-year federal plea offer, which Turner disputes, costing him an additional ten years after federal indictment. It’s a mucky fact pattern for this issue. Nonetheless, the en banc Sixth Circuit took it on and affirmed the denial of his § 2255 motion.

Should the right to counsel attach at the point where a plea offer is made, even if it comes before indictment? Much as the Supreme Court’s bright-line test says no, the use of pre-indictment pleas provides an alternate path that could serve to significantly undermine the right to counsel and keep those nasty criminal defense lawyers from gumming up the works.

It hardly seems like much of a stretch to fashion a rule that the right to counsel attaches upon the offer of a plea of guilty to a criminal charge, even if prosecution has not officially commenced. The Sixth Amendment demands no such contingency, and circumventing the current test, particularly in a case like Turner’s where there is no fear of flight when he’s alerted to federal prosecutorial interest, is easy and cuts the lawyer out of the deal.

If prosecutors are going to change the rules of the game by offering pleas before indictment, then the attachment of right-to-counsel needs to keep pace. The Constitution enumerates the right to counsel, and gaming the system shouldn’t be an acceptable means for prosecutors to circumvent it.

*With the caveat of those jurisdictions that simply fail to provide lawyers for the indigent, who somehow managed to never attract the attention of passionate advocates or the Department of Justice’s Civil Rights Division, who were too busy worry about outlier causes to concern themselves with the mass of humanity, more than 55 years after Gideon, who were still un- or under-represented. But I digress.