No Sixth Amendment Right to Counsel before Indictment

A defendant has no right to counsel under the Sixth Amendment before formal charges are levied against him or her, even when plea bargaining and other procedural actions are happening

Turner v. United States, 2017 BL 45346, 6th Cir., No. 15-6060, 2/15/17.

The Sixth Circuit ruled that a federal defendant does not have the right to counsel under the Sixth Amendment until charges are officially levied against the defendant. The issue arose because a defendant was being charged by both the state and federal governments for crimes from the same incident. The defendant retained defense counsel for his state criminal proceedings, but was unable to have counsel appointed for the federal proceedings until he was  officially indicted. During the state proceedings and before a federal indictment, the state-appointed defense attorney gave the defendant advice that later proved detrimental to the defendant’s federal case. In the federal appeal based on the claim of ineffective assistance of counsel, the defendant argued that the state appointed counsel provided bad legal advice regarding a plea bargain before the defendant was indicted. The Sixth Circuit, however, rejected the appeal, finding that the right to counsel did not attach at the time of the bad advice, precluding the ineffective assistance of counsel claim brought in the appeal. Even though the federal prosecutors communicated with the defendant before his indictment, the defendant did not have a right to counsel.

https://www.bloomberglaw.com/public/desktop/document/Turner_v_United_States_No_156060_2017_BL_45346_6th_Cir_Feb_15_201?1487783061

Delay in Sharing Plea Deal with Defendant is Ineffective Assistance

A lawyer provides sub-par assistance to a defendant by delaying the conveyance of a plea deal offered by the prosecution to the defendant 

Helmedach v. Comm'r of Corr., 2016 BL 308045, Conn. App. Ct., No. AC 38026, 9/27/16.

The Connecticut Appellate Court ruled that a defense attorney that delayed the conveyance of information related to a plea deal to the defendant provided constitutionally subpar assistance.  During trial, the defense attorney received information of a plea deal but withheld it from the defendant until after the defendant testified, almost two days after the attorney received news of the offer. The court rejected the argument that the defense attorney acted within reason because the deal was conveyed “promptly,” which was the applicable standard. The court, however, held that a deal does not need to be communicated immediately, but as soon as “reasonably practicable.” Even though the prosecutor was willing to hold open the offer until the defendant testified, this did not excuse the delayed communication. The court relied heavily on Missouri v. Frye, 132 S. Ct. 1399, which incorporated language from rules promulgated by the American Bar Association requiring lawyers to “promptly inform the[ir] client” of important matters in their case.

https://www.bloomberglaw.com/public/desktop/document/Helmedach_v_Commr_of_Corr_No_AC_38380_2016_BL_308045_Conn_App_Ct_?1476465017

Atkins Claim Not Precluded By Previous Non-Atkins Claim

Capital prisoners may file an additional habeas corpus petitions to assert an Atkins argument of intellectual disability, even if the previous non-Atkins claim relied on the petitioner's disability.

 

In re Chase, 2015 BL 351660, 5th Cir., 15-60452, 10/26/15

   The U.S. Court of Appeals for the Fifth Circuit held that a capital prisoner may file a successive habeas corpus petition to assert a claim that he is intellectually disabled and ineligible for execution under Atkins v. Virginia. The court indicated that, even though his first petition claimed counsel was ineffective for failing to assert his intellectual disability to cast doubt on his confession and as mitigating evidence at sentencing, the previous claim was not an Atkins claim.
 
    The court indicated that this case was within the Atkins requirements that the claim not be presented in an prior application. The court ruled that a claim under Atkins is not the same as a pre-Atkins claim, even if that claim also relied on the petitioner's intellectual disability.

http://www.bloomberglaw.com/public/desktop/document/In_re_RICKY_R_CHASE_Movant_No_1560452_2015_BL_351660_5th_Cir_Oct_?1449508854