Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel

Boston College Law Review, Jun 2018

On February 15, 2017, the U.S. Court of Appeals for the Sixth Circuit affirmed that the Sixth Amendment right to counsel does not attach to pre-charge plea negotiations. In so doing, the Sixth Circuit upheld a bright-line rule that the right to counsel does not attach until formal charges have been filed. Two months later, on April 13, 2017, the Sixth Circuit vacated its opinion and granted a rehearing en banc. This Comment argues that pre-charge plea negotiations should be considered a critical stage for the purposes of the Sixth Amendment, and thus defendants should have a Sixth Amendment right to counsel at these points in the legal process.

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Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel

Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel Alexis Berglund 0 1 2 0 Thi s Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 1 Alexis Berglund, Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel , 59 B.C.L. Rev. E. Supp. 188, 2018 2 Boston College Law School Part of the Constitutional Law Commons; and the Criminal Procedure Commons - 1 See U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 684–85 (1984) (recognizing the Sixth Amendment right to counsel). 2 Missouri v. Frye, 566 U.S. 134, 140 (2012)(the right to the effective assistance of counsel applies at all critical stages of criminal proceeding;ss)ee Kirby v. Illinois, 406 U.S. 682, 689 (1972) (finding that critical stages includfeormal charges, preliminary hearings, indictments, information, or arraignments). An information is when a defendant is charged without a grand jury indictment. Information, LAW.COM, http://dictionary.law.com/Default.aspx?selected=953 [https:// perma.cc/U7F2-33M8]. 3 See Kirby, 406 U.S. at 688 (finding that the Sixth Amendment right to counsel attaches at or after the initiation of “adversary judicial proceedings”). 4 See, e.g., United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000) (holding that without being “the subject of a formal charge, preliminary hearing, indictment, information or arraignment,” the Sixth Amendment does not apply, including when a defendant, who has not been formally accused, is a target of a grand jury investigation); Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir. 1995) (recognizing that the right to counsel could conceivably attach prior to formal charges, indictment, or arraignment in extremely limited circumstances when the government crosses the line from fac-tfinder to adversary); United States v. Heinz, 983 F.2d 609, 612 (5th Cir. 1993) (finding that “the Sixth Amendment right to counsel does not attach until or after the time formal tice, this bright-line rule effectively means that the right to counsel does not attach until after formal charges have been filed.5 In 2017, the U.S. Court of Appeals for the Sixth Circuit in Turner v. United States (Turner I) followed circuit precedent in applying this bright-line rule to conclude that the defendant lacked a valid claim for the ineffective assistance of counseel- b cause he did not have the righto counsel during pre-charge plea negotiations.6 Shortly after the Sixth Circuit decided Turner I, the court vacated its opinion and granted a rehearingen banc, indicating that the Sixth Circuit might reconsider the facts of Turner I and align its reasoning with the other Circuits that interpret Supreme Court precedent to allow for t-he indictment attachment of the Sixth Amendment right to cou7nTsehli.s Comment argues that pre-charge plea negotiations analogous to those that occurred in Turner I are a critical stage where the Sixth Amendment right to counsel should attach.8 Part I of this Comment provides the factual and procedural background for Turner I.9 Part II considers the differing opinions about when the Sixth Amendment right to counsel attache,s with some circuits adhering to a bright-line rule and othercircuits carving out excpetions.10 Part III argues that the Sixth Amendment right to counsel should attach during pre-charge plea-bargaining because it is a critical stage for purposes of the Sixth Amendment. 11 pre I. FACTUAL AND PROCEDURAL HISTORY OF TURNER V. UNITED STATES Section A of this Part will establish the relevant factual background of Turner I.12 Section B of this Part will provide Turner I’s procedural history.13 A. Factual Background On October 3, 2007, John Turner robbed four businesses at gunpoint in Memphis, Tennessee and was later arrested by a state officer working on a federal-state anticrime task force.14 Turner retained attorney Mark McDaniel for the state proceedings and was indcited under Tennessee law for four counts of aggravated robbery.15 These state charges were resolved through a plea agreement in March 2009.16 At some point during the summer of 2008, while McDaniel was still representing Turner on the state charges, a distrcit attorney informed McDaniel that theU.S. Attorney’s Office intended to bring federal charges, arising from the same incidecnes, against Turner.17 Assistant United States Attorney (“AUSA”) Tony Arvin told McDaniel that he would offer Turner a plea deal of fifteen years on the federal charges,so long as Turner accepted the offer before the federal indictment we-as r turned.18 McDaniel contended that he presented the federal plea deal to Turner in a timely manner, but Turner rejected it.19 Turner subsequently discharged McDaniel and hired new representation2.0 A new AUSA was also assigned to Turner’s case.21 The best plea deal Turner’s new attorney could negotiate with the new AUSA was a twenty-five-year sentence for the federal charges.22 Turner accepted the deal and pled guilty to the federal charges in the U.S. District Court for the Western District of Tennessee23. As a condition of the plea agreement, Turner waived his right to a direct appeal.24 B. Procedural History In 2012, Turner filed a motio nto vacate or set asidehis conviction based on a claim that his attorney for the state proceedings, MarkMcDaniel, provided ineffective assistance of counsel duringthe federal plea negotiations.25 The government argued that counsel could not be ineffectivebecause Turner had no rightto counsel during the plea negotiations that occurred prior to the filing offormal charges.26 The district court agreed and denied Turner’s motion without ruling on the merits, holding that the right to counsel had not attached during the fedeprarel-charge plea negotiations.27 The U.S. Court of Appeals for the Sixth Circuit upheld the district court’s decision, as required by circuit preceden2t8. Two months later, the Sixth Circuit vacated the decision and granted a rehearing en banc.29 Turner I has since been restored to the docket as a pending appeal.30 22 Id. Turner pled guilty to four counts of robbery affecting commerce in violation of the Hobbs Act and one count of using and carrying a firearm in furtherance of a violent crime.Id. 23 Id. II. LEGAL FRAMEWORK FOR WHEN THE SIXTH AMENDMENT RIGHT TO COUNSEL ATTACHES The Sixth Amendment affords the accused the right to the assistance of counsel for his or her defense in all criminal prosecutions3.1 The assistance of counsel is a safeguard that the U.S. Supreme Court has deemed necessary to ensure the fundamental rights of life and liberty, and is so vital in the daversarial trial system that without it justice cannot be don3e2.Because the skills and knowledge of an attorney are necessary to ensure a fair trial and just results, the right to counsel is only satisfied when the assistance of counsel is effective.33 The point at which a defendant is entitled to the effective assistance of counsel depends on whether the Sixth Amendment right to counsel has attached at a given stage of the criminal proceeding.34 Section A of this Part details the bright-line rule, which has been used to determine whether a defendant’s right to counsel has attached.35 Section B of this Part discusses how circuit courts have interpreted and applied this bri-glhinte rule.36 Section C of this Part addresses the right to counsel specifically as it pertains to plea negotiations.37 A. The Bright-Line Rule for the Right to Counsel The Supreme Court has held that the Sixth Amendment right to counsel only attaches at “critical” stages of criminal proceedings that occur “at or after the time that adversary judicial proceedingshave been initiated.”38 A stage is considered critical when the government has committed itself to 2018] prosecute, thereby establishing its adverse position against the defendant, and the defendant is faced with the“intricacies of criminal law”.39 The Supreme Court has interpreted the Sixth Amendment right to counsel to not attach until after formal charges have been filed.40 This method for determining when the right to counsel attaches is often referred to by courts sacnhdolars as a bright-line rule.41 Supreme Court justices, circuit courts,and scholars have failed, however, to reach a consensusregarding at what stages the Sixth Amendment right to counsel attaches.42 It is currently ambiguous whether the right to counsel can attach prior to the filing of formalcharges.43 Although the Supreme Court has consistently held that the right to counsel does not attach until the initiation of daversarial judicial proceedings, the Court in 1964 in Escobedo v. Illinois recognized the right to counsel for defendants pre-indictment but post-arrest.44 39 Kirby, 406 U.S. at 689–90; see Moran v. Burbine, 475 U.S. 412, 432(1986) (finding that only when the government establishes an accusatory and adversarial position against the defendant does the defendant need assistance from someone with knowledge of the complexities of the law). 40 See Moran, 475 U.S. at 431 (interpreting Supreme Court case law to affirmthat the Sixth Amendment right to counsel does not attach until after the filing of formal charges). 41 See Turner I, 848 F.3d at 770–71; Steven J. Mulroy,The Bright Line’s Dark Side: PreCharge Attachment of the Sixth Amendment Right to Counsel, 92 WASH. L. REV. 213, 215 (2017) (noting that the brigh-tline rule for the Sixth Amendment right to counsel is traceable Utonited States v. Gouveia, 467 U.S. 180 (1984), and compels either a formal charge or an appearance before a judge to trigger the right). 42 Compare United States v. Hayes, 231 F.3d 663, 676(9th Cir. 2000) (holding that the defendant did not have a Sixth Amendment right to counsel during a prein-dictment deposition becuase he was not formally charged at the timew),ith Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 892–93 (3d Cir. 1999) (holding that the defendant had a Sixth Amendment right to counsel during prec-harge conversations, reasoning that theright to counsel is not necessarily predicated on a formal charge but rather on when the defendant is confronted by a judicial adversary). See Mulroy, supra note 41, at 216–17 (noting that currently five circuit courts, including the D.C. Circuit, abide by the brigh-tline rule and four circuits have rejected the rule in some for m.) The court in Brewer v. Williams stated, “[w]hatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments meansat least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated againshtim—‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignme’n”t.430 U.S. 387, 398 (1977) (quoting Kirby, 406 U.S. at 689) (emphasis added). According to Justice Stevens in his Gouveia concurrence, this statement does not foreclose the possibility that the right to counsel may under certain circumstances attach prior to the initiation of judicial proceedings. 467 U.S. at 193 (Stevens, J., concurring). Justice Stevens was convinced that theGouveia majority adopted a broader rule than was obligated by precedentin finding that the right to counsel attachesonly at or after the initiation of criminal proceedings.Id. Justice Stevens did not join the opinion of the Court in part because he did not believe that this broad interpretation was justified by prior cases. Id. 43 See Turner I, 848 F.3d at 770–71. 44 See Escobedo v. Illinois, 378 U.S. 478, 490–91 (1964). But see Moran, 475 U.S. at 429–30 (reasoning that Escobedo’s Sixth Amendment analysis was not only dictum, but it also supported an understanding that theMoran court considered it to be in conflict with theU.S. Supreme Court). In Escobedo, the Court held that the Sixth Amendment right to counsel attaches preindictment, but post-arrest, during interrogations. See 378 U.S. at 490–91. The Court determined Lower courts have also raised concerns about the implications of the brightline rule, including instances when the accused must navigate the adversarial judicial system before formal charges are filed.45 In fact, circuit courts are split as to whether the right to counsel can attach pirned-ictment.46 Some circuits, including the U.S. Court of Appeals for the Sixth Circuit, follow the bright-line rule.47 Other circuits have moved away from upholding this rigid test.48 How courts approach this issue can have serious consequences, considering a defendant’s right to trial can be at stake during-cphraerge stages, and absent counsel the average defendant is not readily able to na vigate the process on his or her own.49 that this point in time was a critical stage where the assistance of counsel is vital, as evidenced by the many confessions that are obtained by law enforcement during this periSoede. id. at 488. Considering the interrogation stage is one that law enforcement uses to obtain confessions, it is critical that the accused is provided counselS.ee id. Escobedo has since been interpreted by the U.S. Supreme Court to be a Fifth Amendment case, despite its multiple references to the Sixth Amendment. See Moran, 475 U.S. at 429–30; Mulroy, supra note 41, at 225. Its criticism of the rigidity of the pre-or post-formal charge distinction, however, is nonetheless relevant. See Mulroy, supra note 41, at 225–26. Numerous cases have since reaffirmed that the Sixth Amendment right to counsel does not attach until after the initiation of judicial proceedingsS.ee Gouveia, 467 U.S. at 188; Estelle v. Smith, 451 U.S. 454, 469–470 (1981); Moore v. Illinois, 434 U.S. 220, 2262–7 (1977); Brewer, 430 U.S. at 398–99. 45 See Turner I, 848 F.3d at 773 (the bright-line rule does not allow for the“realities of present-day prosecutions and their heavy reliance on plea bargaining”;) United States v. Moody, 206 F.3d 609, 614 (6th Cir. 2000) (uphldoing the bright-line rule even though“the facts so clearly demonstrate that the rights protected by the Sixth Amendment are endangeredw”hen a suspect was denied counsel during pre-indictment plea negotiations). 46 Turner I, 848 F.3d at 771. Compare Kennedy v. United States, 756 F.3d 492, 493 (6th Cir. 2014) (holding that the defendant did not have a right to counsel during pre-indictment plea negotiations, thereby affirming that the Sixth Amendment right to counsel does not attach until formal charges have been filed), with Roberts v. Maine, 48 F.3d 1287, 1290–91 (1st Cir. 1995) (interpreting Supreme Court jurisprudence to allow for limited exceptions to the bri-glhinte rule, such as when the government has shifted from investigator to accuser). 47 See, e.g., Moody, 206 F.3d at 614 (holding that the Sixth Amendment right to counsel does not attach until after the filing of formal charges). Similarly, the U.CSo.urt of Appeals for the Fifth Circuit held that“the Sixth Amendment right to counsel does not attach uilntor after the time formal adversary judicial proceedings havebeen initiated.” United States v. Heinz, 983 F.2d 609, 612 (5th Cir. 1993). Further, the United States Court of Appeals for the Ninth Circuit held that a defendant was not protected by the Sixth Amendment when he was a target of a grand jury investigation, without having been arrested, because he was no“tthe subject of a formal charge, preliminary hearing, indictment, information or arraignment”. Hayes, 231 F.3d at 675.See generally Mulroy, supra note 41. 48 See Roberts, 48 F.3d at 1291 (recognizing that the right to counsel could conceivably attach prior to formal charges, indictment, or arraignment in extremely limited circumstances when the government crosses the line from fact-finder to adversary); Chrisco v. Shafran, 507 F.Supp. 1312, 1319 (D. Del. 1981) (concludingthat there are scenarios when the Sixth Amendment right to counsel can attach prior to the filing of formal charges, including plea negotiations thdaetmonstrate the government is committed to prosecution, establishing the governmen’ts adversary position). 49 See Turner I, 848 F.3d at 773 (finding that the average defendant is ill-equipped to navigate the complexities of the plea process and sentencing guidelines on his or her owPanm);ela R. B. Circuit Court Support for the Attachment of the Sixth Amendment Right to Counsel Prior to Formal Charges Four circuit courts, as well as multiple district courts, break from the bright-line rule and suggest that the Sixth Amendment right to counsel may exist prior to the filing of formal charges.50 The U.S. Court of Appeals for the Seventh Circuit has acknowledged the opportunity for the Sixth Amendment right to counsel to attach pre-charge.51 In 1992, in United States v. Larkin, the Seventh Circuit addressed the question of whether a defendant has a right to counsel during a pre-indictment lineup.52 The Larkin court determined that in light of U.S. Supreme Court precedent there was a presumption that the right to counsel does not attach at p-riendictment line-ups; that presumption, however, could be rebutted if the government had crossed the line from fact-finder to adversary. 53 Similarly, in 1995 the U.S. Court of Appeals for the First Circuit in Roberts v. Maine recognized that the right to counsel could conceivably attach prior to formal charges when the government crosses the line from fact-finder to adversary5.4 The First Circuit acknowledged that there are very limited circumstances where this line is crossed, but the mere fact that the court left open the possibility is an indicator that although a brig-hltine rule has traditionally been used, exceptions exis5t5. Therefore, if the government has taken an adversarial position, the Sixth Amendment right to counsel could conceivably attach prior to formal charges.56 Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 NW. U. L. REV. 1635, 1666 (2003) (arguing that it is unlikely that individuals who enter into prceh-arge negotiations without counsel understand the risks of providing certain information during conversations nor are uncounseled individuals likely to understand the federal sentencing system or what protections to ask for);Minix, supra note 24, at 556 (noting that whendefendants enter a guilty plea, they surrender their constitutional right to trial by jury); James SM. ontana & John A.Galotto, Right to Counsel: Courts Adhere to Brigh-tLine Limits, 16 CRIM. JUST., Summer 2011, at 4, 12 (arguing that the federal sentencing guidelines incentivize pre-indictment plea bargaining). 50 See infra notes 51–63 and accompanying text; see also Mulroy, supra note 41 (providing a general overview of case law thatsupports attaching the Sixth Amendment right to counsel prior to the filing of formal charges). 51 United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992). 52 Id. 53 Id. The right to counsel only attaches when the government is seeking to gain incriminating evidence, and not when information is being gathered in a“nonadversarial atmosphere.” See United States ex rel. Hall v. Lane, 804 F.2d 79, 8–283 (7th Cir. 1986) (quoting DeAngelo v. Wnaiwright, 781 F.2d 1516, 1520 (11th Cir. 1986)). 54 See Roberts, 48 F.3d at 1290–91 (holding that a defendant who was not allowed to call his attorney before a pre-charge blood/alcohol test did not have a Sixth Amendment right to counsel because the government was not committed to prosecuting him at that time). 55 See id. 56 See id. (recognizing the possibility that a defendant could have a pre-charge right to counsel if the government has shifted from investigator to accuse;r)Larkin, 978 F.2d at 969(reasoning that a defendant who was denied counsel during a prei-ndictment lineup could rebut the presump The U.S. Court of Appeals for the Fourth Circuit also interpretsu-S preme Court precedent to not necessarily require a formal charge before the Sixth Amendment right to counsel attache57s. Rather, in 1998 in United States v. Burgess, the Fourth Circuit interpretedthe Supreme Court’s 1977 decision in Moore v. Illinois not to require an indictment to indicate the initiation of criminal proceedings, but rather held that the right to counselt-a taches at the point that the government is committed to prosecution.58 Comparably, the U.S. Court of Appeals for the Third Circuit held that the right to counsel may attach at stages that occur prior to the filing of formal charges.59 In the Third Circuit, the critical triggeringpoint for the Sixth Amendment right to counsel is the moment that a defendant is “faced with the prosecutorial forces of organized society, and[is] immersed in the intricacies of substantive and procedural criminal law.”60 In 1999, in Matteo v. Superintendent, SCI Albion, the defendant was brought into custody without a formal indictment or thefiling of an information6.1 The Matteo court found that in this scenario the right to counsel had attached when the defendant was arrested because he was confronted by the “organizeed- r sources of an ongoing police investigation,” even though he hnaodt yet been formally charged.62 Collectively, the reasoning of these fouCrircuits establishes support for the Sixth Amendment right to counsel prior to formal charges at points when the accused is faced with the intricacies of crinimal law, when the government has taken up an adversarial position, and/or when the govne-r ment has committed itself to prosecution.63 tion of no right to counsel by showing that the government took on an adversarial position at that point). 57 See United States v. Burgess, No. 96-4505, 1998 U.S. App. LEXIS 6515, at *3–4 (4th Cir. Mar. 30, 1998) (holding that a defendant was not entitled to counsel during a po-satrrest but preindictment lineup where he was identified as a bank robbery suspect). 58 See id. (reasoning that Supreme Court precedent does not require an indictment to indicate when criminal proceedings havebeen initiated but rather the right to counsel attaches when the government has solidified its adversarial position)s;ee also Moore, 434 U.S. at 228 (reasoning that it is an incorrect interpretation ofKirby to find that the right to counsel only attaches after a defendant is indicted). 59 See Matteo, 171 F.3d at 892–93. 60 See id. (quoting Kirby, 406 U.S. at 689). In Matteo, the court held that the defendant was faced with adversarial prosecutorial forces, and his Sixth Amendment right to counsel attached, when his phone conversations were recorded while he was in prison as a result of an arrest warrant, even though an information had not yet been filed, nor did he have a preliminary hearing or arraignment. Id. at 893–94. 61 Id. at 893–94. 62 See id. at 893. 63 See supra notes 50–62 and accompanying text. C. The Sixth Amendment Right to Counsel and Plea Negotiations Whereas circuit courts differ as to whether there is a Sixth Amendment right to counsel during p-rceharge plea negotiations, theU.S. Supreme Court has held that the right to counsel extends to plea negotiations generally.64 For the purposes of the Sixth Amendment, the negotiation anc-d a ceptance of a plea deal is considered a critical stage.65 Plea negotiations are central to the criminal justice system, and the accused has a right to counsel during these critical stages.66 In fact, about ninety-five percent of all criminal convictions are the result of plea deals.67 Also, the criticality of plea negotiations is not entirely dependent on whether the negotiation takes place before or after a formal charge6.8 For example, in the Sixth Circuit, if the acceptance or rejection of a plea offer would affect whether a defendant would be prosecuted in federal court in addition to state cour,t then the defendant has the right to the effective assistance of counsel during those negotiations, even if they occur prior to the filing of federal charges.69 Multiple district courts across the country have also held that thet-a tachment of the Sixth Amendment right to counsel during plea negotiations can occur pre-charge.70 In Chrisco v. Shafran, the U.S. District Court for the 64 Lafler v. Cooper, 566 U.S. 156, 162 (2012) (reasoning that the accused has a Sixth Amendment right to counsel during critical pretrial stages, including ple-baargaining); Padilla v. Kentucky, 559 U.S. 356, 373 (2010)(stating that “the negotiation of a plea bargainis a critical phase . . . for purposes of the Sixth Amendment”). 65 See Lafler, 566 U.S. at 162; Padilla, 559 U.S. at 373. 66 See Frye, 566 U.S. at 143;Moody, 206 F.3d at 616 (Wiseman, J., concurring)“(plea bargaining is central to federal criminal law”). The Frye Court noted that defendants whose cases go to trial often receive longer sentences than those who enterinto a plea bargain because the longer sentences exist for the purposeof facilitating plea-bargains. 566 U.S. at 144. TheFrye Court also reaffirmed the sentiment that the American criminal justice system is“saystem of pleas, not a system of trials,” supporting the argument that the negotiation of a plea bargain is a critical stage for a defendant. See id. at 143. 67 DEP’T OF JUSTICE, NCJ226846, FELONY SENTENCES IN STATE COURTS, 2006– STATISTICAL TABLES 1 (2010) (finding that 94% of defendants sentenced in state courts pled guilty); Dep’t of Justice, Criminal Defendants Disposed of in U.S. DistrictCourts, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE (May 22, 2009) [hereinafterDOJ SOURCEBOOK], https://www.albany.edu/sourcebook/pdf/t5222009.pdf [https://perma.cc/S5PP-CMVQ] (finding that 97% of sentenced federal defendants pled guilty). 68 See United States v. Morris, 470 F.3d 596, 602–03 (6th Cir. 2006) (holding that an ineffective assistance of counsel claim is valid when a defendant was offered a plea deal in state court that included the dropping of federal charges, prior to the defendant having been formally charged with federal charges). 69 See id. (holding that the defendant was denied the effective assistance of counsel when he was required to make an immediate decision on a state plea deal, without his attorney present, the rejection of which would cause him to be referred to federal court pursuant to a joint statef-ederal taskforce). 70 See United States v. Wilson, 719 F.Supp. 2d 1260, 1267–68 (D. Or. 2010) (holding that a defendant has the right to counsel when he is offered a specific plea deal that would require him to forfeit his right to a trial pre-indictment); United States v. Busse, 814 F. Supp. 760, 764 (E.D. Wis. District of Delaware relied on Judge Wiseman’s often-cited United States v. Sikora dissent to support this position.71 Judge Wiseman, and subsequently the district court, reasoned that plea negotiations are evidence, in and of themselves, that the government is committed to prosecution, and that adversarial position can be established whether or not the accused is formally charged.72 The district court also cited the American Bar Association’s position that plea negotiations should be engaged in through defense counsel in order to support the court’s finding that counsel should be present during plea negotiations, including those that are entered into prior to the filing of formal charges.73 The U.S. District Court for the Eastern District of Wisconsin also recognized the ability for the right to counsel to attach during instances when pr-e charge plea negotiations are entered into by retained counse74l. Further, the U.S. District Court for the District of Oregon recognized a Sixth Amde-n ment right to counsel during p-rceharge plea negotiations when the government has established an adversarial position and shown that it is committed to prosecution.75 III. THE SIXTH AMENDMENT RIGHT TO COUNSEL SHOULD ATTACH DURING PRE-CHARGE PLEA NEGOTIATIONS The bright-line rule, as it is currently interpreted and applied, effectively disenfranchises defendants who are confronted by adversarial proceedings prior to formal charges, such as during pr-echarge plea negotiations.76 Scenarios like these often arise during joint federa-lstate taskforce prosecu1993) (finding that the defendant successfully asserted an ineffective assistance of counsel claim when the prosecutor engaged in prceh-arge plea negotiations with his attorne;y)Chrisco, 507 F. Supp. at 1319 (reasoning that the Sixth Amendment right to counsel can attach prior to the filing of formal charges, including to “plea negotiations which occur prior to the commencement of adversary judicial proceedings”). 71 Chrisco, 507 F. Supp. at 1319 (citing United States v. Sikora, 635 F.2d 1175, 1180 (6th Cir. 1980) (Wiseman, J., dissenting)). 72 Id. 73 Id. See ABA STANDARDS FOR CRIMINAL JUSTICE PLEAS OF GUILTY Standards 14-1.3(a), 14-3.1(a) (3d ed. 1999) (arguing that defendants should be given an opportunity to retain counsel before entering into a guilty plea and prosecuting attorneys are generally expected to engage in plea negotiations with defendant’s counsel). 74 See Busse, 814 F.Supp. at 763–64 (holding that the defendant had a Sixth Amendment right to counsel during pre-charge plea negotiations that were entered into with his attorney). 75 See Wilson, 719 F.Supp. 2d at 1267. The court found that the government sufficiently established its adversarial position and commitment to prosecution when it told the defendant he was going to be indicted and then presented him with a specific plea bargain that would have resulted in a prison sentence and surrendering his constitutional right to a trial. Id. 76 See Turner I, 848 F.3d 767, 773(6th Cir. 2017) (finding that plea negotiations are a substantial component of the criminal justice system and defendants are generall-yeqiulipped to handle the plea negotiation process on their own). tions, where plea negotiations can result in deals that involve both state and federal charges even though a defendant has only been chargedat either the state or federal level.77 This is the scenario that played out in Turner v. United States (Turner I).78 The criminal justice system relies heavily on plea negotiations, and U.S. Supreme Court precedent does not preclude the inclusion of pre-charge plea negotiations as critical stages for the purposes othfe Sixth Amendment right to counsel. 79 This Part will argue that the right to counsel extends to pr-echarge plea negotiations, and therefore, upon rehearing Turner I en banc, the U.S. Court of Appeals for the Sixth Circuit should find that the defendant’s right to counsel had attached during the federal pleaengotiations that occurred prior to the defendant being formallycharged in federal court.80 The plea negotiation process is adversarial, and regardless of whether it occurs before or after a defendant is charged, the accusedgenerally does not have the legal skill to handle the process on his or her own without the assistance of counsel.81 As such, many courts have recognized the brig-ht line rule for a defendant’s right to counsel is not in touch with the current realities of the criminal justice system’s heavy reliance - on bargaining.82 This rings especially true as pre-indictment plea-bargaining becomes more common with the increased use of joint fede-rsatalte task forces, which can result ininitial prosecution in either the state or federal court system prior to charges being broughitn the other.83 The bright-line rule effectively disefnranchises defendants who have not been formally charged, but who are nonetheless faced wiht what some district and circuit 77 See Mulroy, supra note 41, at 217 & n.28 (noting that the rise in joint federa-lstate taskforces has made pre-indictment plea negotiations common in scenarios when a defendant is charged in one court system but has not been prosecuted in the other);see, e.g., Turner I, 848 F.3d at 768–69 (noting that the defendant was charged in state court as a result of a joint fe-dsteartael anticrime taskforce and was later offered a plea deal for the federal charges prior to the filing of formal federal charges). 78 See Turner I, 848 F.3d at 768. 79 See United States v. Gouveia, 467 U.S. 180, 193 (1984) (Stevens, J., concurring). See generally Mulroy, supra note 41, at 219–28 (arguing that the proper understanding of Supreme Court precedent does not preclude the recognition of the attachment of the right to counsel prior to formal charges). 80 See infra notes 81–117 and accompanying text. 81 Turner I, 848 F.3d at 773 (finding that defendants cannot be expected to navigate the plea bargaining process on their own when the complexity of the federal sentencing guidelines can even confound attorneys). 82 See id. In Moody, the court concluded that it is obligated to follow precedent, whiceh- r quired the application of the brigh-tline rule. United States v.Moody, 206 F.3d 609, 614–15 (6th Cir. 2000). However, the court stated in dictum that it does not favor the bri-glhinte rule in part because the very existence of a plea deal (the government offering a specific sentence for a specfiic offense) in and of itself establishes the adverse position of the government, regardless of whehter a formal charge has been filed. See id. at 615–16. 83 See Mulroy, supra note 41, at 217 & n.28. p courts have appropriately described as adversarial prosecutorial forces.84 In scenarios such as the one encountered by the defendantin Turner I, it is an injustice to deny an individual counsel when the government enters into plea negotiations before filing formal charges.85 In response to this lack of a right to counsel at a stage considerebdy many in the legal field to becritical, the Sixth Circuit has urged the uSpreme Court to reconsider the brigh-tline test for the right to the assistance of counsel several times over the pastthirty-five years.86 It would not be far-fetched for the Supreme Court to do so either.87 The Supreme Court has previously held that the assistance of counsel is a guaranteed right when adversarial proceedings have begun against the accuse;dproceedings that will ultimately seal their fate8.8 Plea negotiations often lead to a plea deal, 84 See Turner I, 848 F.3d at 773;Moody, 206 F.3d at 61–516; Chrisco v. Shafran, 507 F. Supp. 1312, 1319 (D. Del. 1981(o)bserving that plea bargaining indicates the government’s commitment to prosecution, which combined with the importance of counsel during those negotiations can trigger the right to counsel because the negotiations indicate the adverse position of the government comparable to that of when formal charges are filed). InUnited States v. Wilson, the prosecutor engaged in pre-indictment negotiations with the defendant’s attorney and later testified that it would have been “unfair” to meet with the defendant without coun7s1e9l. F. Supp. 2d 1260, 1267 (D. Or. 2010). The court held that the defendant’s Sixth Amendment right to counsel had attached during the pre-indictment plea negotiation because it would be unjust for the vg-o ernment to later claim the defendant had no right to counsel after conducting plea negotiations that solidified the government’s adverse position. See id. 85 See Turner I, 848 F.3d at 773; Moody, 206 F.3d at 615–16; Wilson, 719 F. Supp. 2d at 1268 (finding that a determination that a defendant does not have the right to counsel during preindictment plea negotiations “may be more damaging than a denial of effective assistance at trial itself”). In United States v. Busse, the government claimed the defendant had no right to counsel when the prosecutor entered into pcreh-arge plea negotiations with defendant’s attorney8.14 F. Supp. 760, 763–64 (E.D. Wis. 1993). The court held that the defendant’s Sixth Amendment right to counsel did attach at the time of those negotiations, reasoning that because the government and defendant relied on the prosecutor’s representations it would be unjust to later allow the gvoernment claim that the negotiations were not adversarial judicial proceedingSse.e id.; Metzger, supra note 49, at 1699 n.228 (acknowledging that finding no right to counsel during pcrhea-rge plea bargaining seems unjust). 86 See Turner I, 848 F.3d at 773 (quoting United States v. Sikora, 635 F.2d 1175, 1182(6th Cir. 1980) (Wiseman, J., dissenting) (reiterating that“those persons who enter the plea bargaining process before formal charges have been filed should have the protection of the Sixth Adm- en ment” because they are “just as surely faced with the ‘prosecutorial forces of organized society’ as the defendant who has been formally introduced to the syste m”); Moody, 206 F.3d at 618 (Wiseman, J., concurring) (urging the Supreme Court to reconsider the bright-line rule). 87 See Lafler v. Cooper, 566 U.S.156, 177 (2012) (Scalia, J., dissenting) (acknowledging the right to counsel extends to any point where a defendan’ts ability to access a fair trial is hindered, regardless of whether it is a formal or informal stage); Mulroy, supra note 41, at 219–28 (arguing that Supreme Court precedent does not preclude the attachment of the right to counsel prior to the filing of a formal charge in certain circumstances). 88 See Gouveia, 467 U.S. at 187 (finding that defendants only have a right to counsealt“or after the initiation of adversary judicial proceeding”s); United States v. Wade, 388 U.S. 218, 224 (1967) (finding that proceedings that “may well settle the accused’s fate and reduce the trial itself to a mere formality” are critical stages for the purposes of the Sixth Amendmen.tT) he historical the result of whichwill also seal the accused’s fate8.9 The Supreme Court has held that the Sixth Amendment right to counsel attaches at points that a defendant is faced with an adversarial confrontation that can ultimately strip him of his liberties9.0 Thus, the Sixth Amendment right to counsel should attach during pre-charge plea negotiations, where a defendant is faced with an adversarial confrontation that can deprive him of his right to a trial.91 Courts have observed that adopting a position that deviates from the bright-line rule would be a move away from certainty and clarity by br-lu ring the lines of an otherwise steadfast rule.92 Nonetheless, when a rule consistently has implications antagonistic to justice and fairness, it is an appropriate time to reconsider whether that rule continues to be wor9k3able. Scholars have recently considered peaxnding the brigh-tline rule in e-r sponse to the unjust implications of its rigidity, arguing for included protecpurpose of the Sixth Amendment was to assure assistance at trial, which has been expanded to include certain critical pre-trial prosecutorial proceedings as the criminal justice system evolves. United States v. Ash, 413 U.S. 300, 309–10 (1973). The expansion of the historical interpretation of the right to counsel is thus possible when new contexts that could seal the accused’s fate arise. See id. at 317 (considering whether to expand the right to counsel to include witness photo idenitfication). 89 See Mulroy, supra note 41, at 222–23. 90 See Coleman v. Alabama, 399 U.S. 1, 7 (1970) (finding that the right to counsel is guaranteed when the absence of such counsel could inhibit the accused’s right to a fair trial)W;ade, 388 U.S. at 225 (finding that the Sixth Amendment right to counsel applies at points “where certain rights might be sacrificed or lost”);Sikora, 635 F.2d at 1181 (Wiseman, J., dissenting) (reasoning that plea bargains are critical stages because the fundamental right to a triiasl at stake); Wilson, 719 F. Supp. 2d at 1267. 91 See Coleman, 399 U.S. at 7 (finding that the determination of whether the right to counsel has attached requires an analysis of whether the defendant’s rights would be substantially pur-ej diced and if counsel would “help avoid that prejudice”);Wade, 388 U.S. at 226 (finding that if the accused’s right to a fair trial is at stake he or she has the right to counsel regardless of whether the prosecutorial stage is formal or informal)S;ikora, 635 F.2d at 1181 (Wiseman, J., dissenting); Wilson, 719 F. Supp. 2d at 1267; Mulroy, supra note 41, at 222–23 (noting that plea negotiations, whether pre or post indictment, may lead to a plea that would result in the accused’s forfeiture of his or her right to trial). 92 See United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000) (reasoning against adding pre-indictment proceedings to the brig-hltine rule, claiming it would no longer make the rule “clean and clear”). Steadfast rules enable the Supreme Court to promote uniformity and predicatbility among lower courts despite risks associated with inflexibility and potentially arbitrary outcomes. Michael Coenen, Rules Against Rulification, 124 YALE L.J. 644, 646 (2014). 93 See Ash, 413 U.S. at 310–11, 317 (finding that when the criminal justice system evolves the Sixth Amendment right to counsel can expand with itM); oody, 206 F.3d at 618(Wiseman, J., concurring) (urging the Supreme Court to reconsider when the Sixth Amendment right to counsel attaches, arguing defendants should be entitled to counsel when faced with “a complicated proecdural system and a more knowledgeable adversary” during prien-dictment plea bargaining); see, e.g., Montana & Galotto supra, note 49, at 11–12 (arguing that the bright-line rule for the right to counsel inadequately protects the accused in prien-dictment stages and thus the Supreme Court should consider “freeing” lower courts from its constraints). tions during certain pre-indictment stages.94 The inclusion of pre-charge plea negotiations would fit neatly into this category, upholding the valued ability for a defendant to retain counsel when faced with a judicial adversary.95 Many circuit and district courts have interpreted Supreme Court precedent to allow for the attachment of the right to counsel in certain instances prior to the filing of formal charges, including pre-indictment plea negotiations.96 Of the courts that have upheld a brig-hltine rule for the right to counsel, some have nevertheless acknowledged the pitfalls of doing so97. Justice Stevens in hisGouveia concurrence argued that niterpreting precedent as supporting a steadfast brig-hltine rule would be an unnecessarily broad interpretation.98 Justice Stevens argued that it was possible for the Sixth Amendment right to counsel to attach before the filing of formal charge9s9. Additionally, Judge Wiseman of the Sixth Circuit argued in hisUnited States v. Sikora dissent for an acknowledgement of pr-echarge Sixth Amendment rights, arguing that stages such as plea negotiations are critical because of what is at stake: the possibility of surrendering constitutional rights or liberties.100 The circuit court in Turner I has previously stated that the plea process is adversarial in nature and found fault in the circuit precedent that it was obliged to follow1.01 Turner I echoed United States v. Moody’s sentiments that the brigh-tline test in these instances is a “triumph of the letter over the spirit of the law,” because ofefring a plea deal is evidence of the government’s commitment to prosecution.102 94 See Mulroy, supra note 41, at 241 (arguing the right to counsel should attach when a prosecutor interacts with the accused directly or via counsel about the substance of his or her case); Brandon K. Breslow, Signs of Life in the Supreme Court’s Uncharted Territory: Why the Right to Effective Assistance of Counsel Should Attach to P-rInedictment Plea Bargaining, FED. LAW., Oct./Nov. 2015, at 34, 38–39 (arguing that the right to the effective assistance of counsel should attach to all plea negotiations, whether they occur pre or post indictment); Montana & Galotto supra, note 49, at 12 (arguing the right to counsel should attach at critical prien-dictment stages such as during federal plea bargaining). 95 See Mulroy, supra note 41, at 227–28, 241. Mulroy argued for an expansion of the brigh-t line rule to “include those instances in which a prosecutor has contact with a suspect about the substance of the case (other than as a witness), either directly or through cou”nsIedl. at 241. Mulroy articulates that plea-bargaining clearly falls within this proposed rule. Id. 96 See supra notes 50–63, 69–75. 97 See Turner I, 848 F.3d at 773 (refusing to overrule circuit precedent despite acknowledging that doing so would mean the accused may have to navigate the pr-eindictment plea negotiation process on their own); Moody 206 F.3d at 615–16 (raising concerns about the court’s precedential obilgation to follow the brigh-tline approach to the right to counsel because plea negotiations establish the adverse position of the government, regardless of whether they occur pre-indictment). 98 Gouveia, 467 U.S. at 193 (Stevens, J., concurring). 99 Id. 100 Sikora, 635 F.2d at 1181 (Wiseman, J., dissenting). 101 See Turner I, 848 F.3d at 773 (following circuit precedence despite recognizing the consequences of and inflexibility of a bright-line rule for when the right to counsel attaches). 102 Id. at 771. As a result of a plea bargain, the accused may surrender their constitutional right to a trial, and the deciding factor for whetherhe or she has the assistance of competent counsel should not be whetherplea negotiations occur before or after a formal charge.103 Relying on the presence or absence of formal charges as the deciding factor unfairly allows, and perhaps even incentivizes, the government to take the opportunity to circumvent constitutional protections.104 Adversarial plea negotiations that occur at times the government has shown its commitment to prosecution should be considered critical stages for the purposes of the Sixth Amendment, and as such, the right to counsel should attach, even if it is pre-charge.105 In Turner I, the court acknowledged the potential injustice of not recognizing a pre-charge right to counsel during plea negotiation1s06. There, the defendant was already facing conviction on state charges when he wafs- o fered a federal plea deal, prior to federal charges having been formally filed.107 Two different attorneys represented Turner during the negotiation process, and the fact that these two skilled professionals negotiated very df-i ferent deals shows that the skillset of the negotiator plays an important role in the plea-bargain process.108 If the defendant had no right to counsel at this stage, he could have faced those negotiations on his own10.9 The sentencing guidelines are complicated enough for a professional tonavigate; it is unreasonable to expect a person without legal training to navigate them alone.110 Additionally, the Sixth Circuit has continued to maintain for decades that finding no right to counsel in scenarios comparable toTurner I is unjust.111 The Turner I court even referred to plea negotiations as critical stages of the criminal process, regardless of whether formal charges have been filed.112 The court further articulated that the plea negotiation process is adversarial in nature, and the brigh-tline rule does not take into consideration the reality that the criminal justice system heavily relies o-nbarp-lea gaining.113 Without a right to counsel at these stages the burden is effectively placed on ill-equipped defendants to fend for themselves against prosecutors.114 Considering that ninety-seven percent of federal convictions are the result of a plea deal, it would be unjust to not afford counsel at a time that, in and of itself, reflects the government’s commitment to prosecut1i1o5n. Thus, the Sixth Circuit correctly vacated their opinion in Turner I, and the court en banc should rule that the Sixth Amendment right to counsel had attached during the plea negotiations that occurred prior to Turner being formally federally charged.116 The U.S. Supreme Court should also consider accepting certiorari on this particular matter, if applied for, to clarify that the right to counsel attaches during pre-charge plea negotiations.117 fendant being formally federally charged.United States v. Morris,470 F.3d 596, 603 (6th Cir. 2006). The Turner I court distinguished itself from Morris because the plea offered to the defendant in Morris was to determine which court the defendant would be prosecuted in, state or federal, compared to Turner I where the defendant was being prosecuted on state and federal chargesn-i dependent from one another. Turner I, 848 F.3d at 772. The Turner I court nonetheless recognized that this line of reasoning negatively impacts defendants who are facing charges in both federal and state courts, because without the assistance of counsel a defendant is forced to navigate the complex federal sentencing guidelines on his or her ownI.d. at 773. Also, federal-state prosecutions are increasingly more abundant making it more difficult to identify exactly when charges are formally filed for the purposes of the Sixth Amendment. Id. 111 See Turner I, 848 F.3d at 773; Mulroy, supra note 41, at 217 (noting that the Sixth Circuit has criticized the bright-line rule it is obliged to uphold). 112 Turner I, 848 F.3d at 773. 113 Id.; see Mulroy, supra note 41, at 234 (citing Turner I’s position that the bright-line rule is out of touch with the realities of the modern criminal justice system as an explanation for why many circuits have departed from the rule). 114 See Turner I, 848 F.3d at 773; Metzger, supra note 49, at 1666–68 (arguing that the brightline rule cannot guarantee fairness for individuals who engage in pre-charge plea negotiations, and that those who do so without counsel may unwittingly harm their case going forward when faced with a prosecutor who holds significantly more legal knowledge). 115 See Missouri v. Frye, 566 U.S. 134, 143(2012); Moody, 206 F.3d at 615–16; Sikora, 635 F.2d at 1181 (Wiseman, J., dissenting); DOJ SOURCEBOOK, supra note 67. 116 See supra notes 76–115 and accompanying text. 117 See Moody, 206 F.3d at 618 (Wiseman J., concurring)S.ee supra notes 76–113 and accompanying text. CONCLUSION The decision of theU.S. Court of Appeals for the Sixth Circuit toerhear Turner v. United Statescould result in the overruling of theCircuit’s precedential adherence to the bright-line rule and allow for the recognition that the Sixth Amendment right to counsel attaches to pre-charge plea negotiations. If so, it would be an example of a circuit court expressly recognziing a Sixth Amendment right to pre-charge counsel, and not just the posisbility of that right. Regardless of Turner’s final outcome, this is an issue that would be ripe for the U.S. Supreme Court to consider. It is in the interest of fairness and justice for both the Sixth Circuit and the Supreme Court to recognize the right to counsel during pre-charge plea negotiations. During these negotiations, a defendant is faced with the adversarial forces ohfet judicial system and, without counsel, would be left to navigate sentencing guidelines and adversarial confrontations without any prior relevant knowledge or skills. When an individual is faced with an adversarial foe(the government) looking to exchange a particular sentence for a certain offense, there is sufficient evidence to support the proposition that the government is committed to prosecution. To assert otherwise would be to say that the government spends its time and resources engaging in ple-abargain conversations with individuals whom it is not seriously considering prosecuting. Considering that ninety-seven percent of federal convictions are the result of plea negotiations, it is likely that the government engages in plea-bargaining because it is the most efficient method of obtaining convictions; and the accused should have the right to counsel during the process through which the gs-i nificant majority of defendants are convicted and ultimately forgo their constitutional right to a trial. ALEXIS BERGLUND 24 Id. A waiver of a right to appealbars a defendant from being able to appeal part of his or her conviction, often including his or her sentence . Leanna C. Minix,Examining Rule 11(b)(1)(n) Error: Guilty Pleas, Appellate Waiver, and Dominguez Benit,ez74 WASH . & LEE L. REV . 551 , 553 ( 2017 ). Although the use of appellate waivers in guilty pleas is increasingly more common, and all circuits have upheld waivers as constitutional, it is not without some hesitationS . ee id. at 566 ( noting that debates over the use of appellate waivers in guilty pleas include balancing issues of efficiency and fairness). A former U.S. federal judge argued that a defendant should not be able to use their right to appeal as a bargaining chip, citing concerns about the unequal power balance between defendants and prosecutors. Nancy Gertner,Having the Right to Appeal Is an Issue of Far-i ness , N.Y. Times (Feb. 4 , 2016 , 6 :36 PM),https://www.nytimes.com/roomfordebate/2012/08/19/doprosecutors-have -too-much-power/having-the-right-to-appeal-is-an-issue-of-fairness [https//:perma. cc/PP8Z-J2RM] . 25 Turner I , 848 F. 3d 769. Turner's motion to vacate or set aside his conviction was filed pursuant to 28 U .S.C. § 2255 . Id . at 768. Ineffective assistance of counsel claims are generally not raised on direct appeal but are properly raised on a motion to vacate under 28 U .S.C. 2 § 255 . See United States v. Maddox , 69 FA. pp'x 663 , 665 - 66 ( 6th Cir . 2003 ) (holding a defendant who waived his right to appeal properly asserted his ineffective assistance of counsel claim in a motion to vacate his sentence under 28 U .S.C. § 2255 ). 26 Turner I , 848 F.3d at 768. 27 Id. 28 Id. at 773. The district court relied onMoody to draw its conclusion inTurner I. Id. The Moody court upheld the bright-line test, holding that the Sixth Amendment right to counsel does not attach until after the filing of formal charges . Moody, 206 F.3d at 614. 29 Turner II , 865 F.3d at 338. 30 Id. at 339. 31 Strickland v. Washington, 466 U.S. 668 , 685 ( 1984 ). See generally Mary Fan, Adversarial Justice's Casualties: Defending Victim-Witness Protection , 55 B.C. L. REV . 775 , 794 ( 2014 ) (indicating that the right to counsel arose as a response to the historical imbalances of power between defendant and state ). 32 Gideon v. Wainwright , 372 U.S. 335 , 343 ( 1963 ). The role of counsel is so crucial that defendants accused of federal or state crimes have the right to appointed counsel if they are unable to afford to retain their own . Strickland , 466 U.S. at 685. 33 Strickland, 466 U.S. at 685-86. 34 See Missouri v. Frye , 566 U.S. 134 , 318 ( 2012 ) (finding that the right to counsel and the right to the effective assistance of counsel are intertwined)S;trickland, 466 U.S. at 686 (finding that “the right to counsel is the right to the effective assistance of couns”el(quoting McMann v . Richardson , 397 U.S. 759 , 771 n. 14 ( 1970 )); Turner I , 848 F.3d 767 , 773 ( 6th Cir . 2017 ) (holding that a defendant who did not have a Sixth Amendment right to counsel was not entitled to an eivdentiary hearing for his ineffective assistance of counsel claim). 35 See infra notes 38-49 and accompanying text. 36 See infra notes 50-63 and accompanying text. 37 See infra notes 64-75 and accompanying text. 38 Montejo v. Louisiana , 556 U.S. 778 , 786 ( 2009 ); Kirby v . Illinois , 406 U.S. 682 , 688 ( 1972 ). Critical stages can exist beyond the trial itself, and some may occur pre-tria .lSee, e.g., Argersinger v . Hamlin , 407 U.S. 25 , 34 ( 1972 ) (holding that counsel is needed for guilty pleas);Hamilton v . Alabama , 368 U.S. 52 , 54 - 55 ( 1961 ) (holding that an arraignment is a critical stage in state criminal proceedings, and the accused is entitled to counsel during arraignment). 103 See Lafler , 566 U.S. at 177 (Scalia, J., dissenting); Gouveia, 467 U.S. at 189; Moody, 206 F.3d at 618; Chrisco, 507 F. Supp . at 1319. 104 See Busse , 814 F. Supp . at 764; Wilson, 719 F. Supp . 2d at 1267 (holding that the government cannot claim that the defendant had no right to counsel even though the prosecutor did not think it would be fair to meet with the defendant without counsel) . If there is no right to counsel during pre-charge plea negotiations then hypothetically the prosecutor could hold off on charging the accused to prolong the period that he or she could legally be without counsSeel . e Gouveia , 467 U.S. at 191 ( acknowledging that it is a legitimate concern that the government may delay formal charges, and therefore the appointment of counsel, to develop its case against the accused, but asserting that such an incident would not implicate the right counsel ). 105 See Sikora , 635 F. 2d at 1180 (Wiseman , J. dissenting);Wilson, 719 F. Supp . 2d at 1267; Busse, 814 F. Supp . at 764; supra notes 76-104 and accompanying text. 106 See Turner I , 848 F.3d at 773. 107 Id. at 768-69. 108 See id . at 769. A variety of factors can influence the outcome of a plea negotiation, including the defense attorney's personal motivations, their ability to use a negotiation style that is compatible with their personality, the amount of effort the attorney is willing to expend, and even the defendant's attitude towards the charge . See generally Rodney J. Uphoff , The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach, 2 CLINICAL L . REV. 73 ( 1995 ). 109 See Turner I , 848 F.3d at 769. 110 See id . at 773; Moody 206 F. 3d at 616 (Wiseman , J., concurring) (observing the complexity of the sentencing guidelines). The defendant inTurner I cited United States v. Morris to argue that there is an exception to the brig-hltine rule for defendants who enter into plea negotiations when faced with both state and federal charges prior to formally being charged in federal court . Turner I, 848 F.3d at 772 . In Morris, the court found the right to counsel attached when a defendant was offered a plea deal in state court that included dropping federal charges , prior to the de-


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Alexis Berglund. Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel, Boston College Law Review, 2018,