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03/25/2018

Jonathan Adler on Sixth Circuit Originalism in Turner v. United States
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler notes a recent decision of the Sixth Circuit, Turner v. United States (holding that under controlling Supreme Court precedent, the Sixth Amendment right to counsel does not apply prior to indictment).  Judge John Bush (newly appointed by President Trump) -- joined by Judge Raymond Kethledge (on the President's list of potential Supreme Court nominees) -- concurred, writing in part:

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.

...

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). 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.