Opinions like this are somewhat rare nowadays. Virtually a relic of a bygone era. Though I'm glad to see 'em make at least the occasional comeback.
You would see in the old days various ways in which courts would make doctrinal shifts, both large and small. Large ones like Marbury v. Madison and incorporation via the Fourteenth Amendment. Smaller ones like Shelley v. Kraemer, the right to appointed counsel and Miranda. There was a well-established legal regime but it was found wanting in various degrees, so the courts changed it. In ways that were not doctrinally easy to establish, but which nonetheless worked -- and that (typically) obtained subsequent popular and legal approval.
So too here, I think. Or at least it's a step in the right direction.
The question is when you get a right to counsel -- an attorney "appointed for you if you cannot afford one" (to use the typical television Miranda warnings). The longstanding rule that's typically applied is that you get an attorney after you're criminally charged. After all, that's typically when you need one, so it makes sense.
But there are problems at the margin, including but not limited to those underlying the present case. Here, the United States informs the defendant that he's the "target" of a federal grand jury investigation and that they're definitely going to indict him, but also lets him know they're potentially willing to make a deal -- and invites him to come on in and negotiate.
The defendant doesn't have his own lawyer, and also can't afford one. But he's no idiot. He knows he definitely needs an attorney if he's going to try to negotiate a plea deal. So he asks the court to appoint one for him.
The question presented is this: Does the defendant have a right to an attorney? Or can the government legitimately say: "Look, we're willing to discuss a plea deal, but if you don't have a lawyer and can't afford one, tough; you're either going to have to do it yourself or get criminally charged. Nobody is entitled to a court-appointed lawyer until we actually decide to file charges, so if we hold off, no lawyer for you."
Hmmmm.
On the one hand, it seems fundamentally unfair to give rich people the superior ability to avoid an indictment and effectively negotiate a pre-charge plea deal while leaving poor people out in the cold. But, hey, it's also a nice bright-line rule to say that you only get a lawyer after you're actually charged. A bright-line rule that also tends to have a fair amount of historical doctrinal support. Including but not limited to circuit precedent.
So what to do?
Judge Berzon writes a concurrence that essentially says "I think we're bound by circuit precedent on this issue, but in an appropriate case, I'd totally vote to take the matter en banc and hold that there's a pre-indictment right to counsel in cases similar to the present one. It's just that this particular case does not qualify." Chief Judge Thomas writes a concurrence that says: "I actually don't think that circuit precedent forecloses a right to counsel in cases like this one, so we don't even need to take the issue en banc, but I do agree with you that the present case doesn't merit relief anyway." And Judge Schroeder joins the per curiam opinion that says what everyone on the panel agrees: that the defendant here, who did get a court-appointed attorney during plea negotiations -- but who then rejected the proposed pre-indictment plea deal and went to trial (and ultimately obtained a worse result therein) -- didn't establish any prejudice from the events at issue in his case.
So we all agree on what happens to the defendant here (Mr. Olson). The larger issue regarding pre-indictment right to counsel remains undecided, but with a couple of judges making clear that they think that -- one way or another -- there should indeed be a right to counsel in settings like those here; e.g., where the government invites pre-indictment plea negotiations. Judges Thomas and Berzon simply disagree on the means through which this result should be accomplished; i.e., through en banc review or otherwise.
Not only do I think that the concurrences make good points (and good law), but they also embody a fancy Marbury-like practical quality. As you undoubtedly recall from law school, in that case, Chief Justice Marshall famously established judicial review while simultaneously holding that it could not provide Marbury with the relief he sought. So there was no relief granted for the individual litigant at issue -- somewhat mitigating what might have been a political backlash to the underlying principle of judicial review -- but the court nonetheless established the broader doctrine for use in future cases.
So too here, albeit in a slightly different way. Mr. Olson gets no relief. But district courts are now told that there are at least two votes on the Ninth Circuit -- and likely plenty more -- for the right to counsel in certain pre-charge settings. As well as the principled reasons supporting such a right. Even the mere existence of those concurrences is likely to have an effect, notwithstanding the undeniable reality that neither of 'em constitutes controlling precedent. District courts in the future are, I suspect, likely to be much more solicitous to requests for pre-indictment appointment of counsel in settings like these as a result of the two concurrences -- if only because no one wants to be reversed in some future case in the event a district court denies a request for counsel. Similarly, since the defendant here gets no relief, it's extraordinarily unlikely that the government seeks (or that the Supreme Court would grant) certiorari over the present opinion, since, after all, the government won.
Yet it'll still have the practical effect of getting counsel to a variety of defendants in various pre-indictment settings. Even though "precedent" won't compel it.
A neat little trick.
Sure, nothing stops a district court from saying "Well, I don't agree that there's such a right, so I'm not appointing any pre-charge attorneys; go ahead and reverse me if you can." But the concurrences still advance the ball both intellectually and practically.
Which is cool.
