No Right to Counsel Before Charges

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By Jessica DaSilva

Americans have no right to an attorney before formal charges are filed against them, according to a Feb. 15 ruling from the U.S. Court of Appeals for the Sixth Circuit ( Turner v. United States , 2017 BL 45346, 6th Cir., No. 15-6060, 2/15/17 ).

The case will most likely make its way to the U.S. Supreme Court in order to resolve a circuit split on the issue, said Andrew Ferguson, a criminal procedure professor at the University of the District of Columbia Law School.

The case arose out of a fairly common jurisdictional issue in which a defendant charged with both state and federal crimes only retains a lawyer for one of the cases, but must make decisions regarding pleas for both.

Defendant John Turner rejected a favorable plea bargain from the federal government before they officially filed charges against him. Once the charges were filed, he accepted a harsher plea deal.

Despite his attempt to argue ineffective assistance of counsel, the court held that the right to counsel isn’t triggered until official charges are filed.

“The unfairness of the bright-line rule is so apparent,” Ferguson told Bloomberg BNA. “Essentially a defendant has to make a decision about a plea before indictment. That’s not how the system is supposed to work and doesn’t work.”

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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