Everyone Deserves Representation, but the Question is When?

By: Kris Vicencio

Representing some of the most infamous defendants throughout the history of the United States has often been a thankless, but necessary job.  Examples range from President John Adams who represented the British soldiers on trial for committing the Boston Massacre in 1770[1], to Jose Baez who represented Casey Anthony when she was accused of killing her daughter in 2011.[2]  These attorneys often become associated with these notorious individuals in American culture, but fight passionately in a criminal justice system that needs strong advocacy from both sides, prosecution and defense.

In the latest line of infamous defendants comes Ahmad Khan Rahami, accused of setting off bombs in Manhattan, New York’s Chelsea neighborhood, and in Seaside Park, New Jersey on September 17, 2016.[3]  Thirty-one people were injured, but thankfully there were no fatalities.[4]  After Rahami was located and arrested after a brief shootout with police in Linden, New Jersey, he was transported to a local hospital under custody of state officials with multiple gunshot wounds.[5]  While Rahami was in the hospital, a federal defender filed a letter with the court on September 22, 2016, requesting to be appointed as representation for Rahami.[6]

Federal prosecutors opposed the request, and the Honorable Mark Falk of the United States District Court for the District of New Jersey denied the federal defender’s application to represent Rahami at that time.[7]  At the time of the request, Judge Falk reasoned that because Rahami had not yet been arrested by federal agents, a federal indictment had not been filed, and Rahami had not requested an attorney, the right to counsel had not yet been triggered.[8]  The New Jersey chapter of the American Civil Liberties Union (“ACLU”) has since stepped in to represent Rahami until either a federal public defender or private criminal defense counsel has been obtained.[9]  That has not stopped their criticism of Jude Falk’s ruling.[10]  A senior staff attorney from the New Jersey ACLU has suggested that if this were not a terrorism case, a court appointed attorney would have already been provided to Rahami.[11]

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”[12]  Our justice system was designed as an adversarial process, so defense counsel is needed to vigorously oppose prosecution and keep the system balanced.  But when is the appropriate time for that right to attach?  Did Judge Falk err in his decision and deny Rahami his constitutional right? Was a door unnecessarily opened for a potential future defense appeal?

There are not enough facts available regarding exactly who held Rahami in custody while at the hospital, this argument focuses on when the right to counsel attaches.  The Supreme Court in Rothgery v. Gillespie County held that the assistance of counsel in criminal proceedings does not attach until “a prosecution is commenced.”[13]  The court reiterated that the standard for the commencement of prosecution is when the government has committed itself to prosecute through a formal charge, preliminary hearing, indictment, information, or arraignment.[14] Additionally within the order denying Rahami a public defender,[15] Judge Falk relied on United States v. Santiago which held that the Sixth Amendment right to counsel was not triggered solely by the filing of a criminal complaint.[16]

Unfortunately for Rahami’s advocates, case law simply does not support the argument that Rahami was denied a constitutional right to counsel.  Despite many headlines in late-September that read along the lines of “criminal charges filed,” when Judge Falk denied the public defender’s request to represent Rahami, only a criminal complaint had been field at the federal level.[17]  The Third Circuit has clearly held that barring something more substantial, a criminal complaint alone will not trigger the right to counsel in a criminal proceeding.[18]  The Supreme Court requires the government to commit to prosecuting Rahami, and the criminal complaint does not meet that bar either.[19]

Despite Rahami’s status as an alleged terrorist, which of course leads to resistance from the public to granting him a defense attorney, Rahami deserves adequate representation under the United States Constitution.[20]  It is a central tenant of our criminal justice system to have adversarial proceedings and denying him counsel is unconstitutional.  Although he is entitled to a defense attorney (and he or his family can always obtain private counsel), it simply is too early for the court to assign a federal public defender to represent him.


[1] John Adams and the Boston Massacre Trial of 1770, The Law Library of Congress, https://www.loc.gov/law/help/rare-books/john_adams.php (last visited October 10, 2016).

[2] Gretchen Gavett, Casey Anthony Trial Lawyers Speak Out About the Case’s Controversial Forensics, Frontline, (Apr. 17, 2012) http://www.pbs.org/wgbh/frontline/article/casey-anthony-trial-lawyers-speak-out-about-the-cases-controversial-forensics/.

[3] Karen Workman, Eli Rosenberg & Christopher Mele, Chelsea Bombing: What We Know and Don’t Know, N.Y. Times, (Sept. 18, 2016) http://www.nytimes.com/2016/09/19/nyregion/chelsea-explosion-what-we-know-and-dont-know.html.

[4] Id.

[5] Marc Santora, William Rashbaum, Al Baker & Adam Goldman, Ahmad Khan Rahami is Arrested in Manhattan and New Jersey Bombings, N.Y. Times, (Sept. 19, 2016) http://www.nytimes.com/2016/09/20/nyregion/nyc-nj-explosions-ahmad-khan-rahami.html.

[6] Coughlin Letter to Judge Falk, United States v. Rahami, (D.N.J. 2016) (No. 16-3594), 2016 LEXIS 130147.

[7] United States v. Rahami, No. 16-3594, 2016 LEXIS 130147 (D.N.J. Sep. 23, 2016).

[8] Id.

[9] ACLU Notice of Appearance, United States v. Rahami, (D.N.J. 2016) (No. 16-3594), 2016 LEXIS 130147.

[10] Id.

[11] S.P. Sullivan, ACLU Takes Up Accused N.J. Bomber Ahmad Khan Rahami’s Case, NJ Advance Media (Sept 26, 2016)http://www.nj.com/news/index.ssf/2016/09/aclu_takes_up_accused_nj_bomber_ahmad_khan_rahamis.html.

[12] U.S. Const. amend. VI.

[13] Rothergery v. Gillespie County, 554 U.S. 191, 198 (2008) (citing McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).

[14] See Id. at 199; Kirby v. Illinois, 406 U.S. 682, 689 (1972).

[15] Supra note 7.

[16] See United States v. Santiago, 180 Fed. Appx. 337, 339 (3rd Cir. 2006).

[17] Complaint, United States v. Rahami, (D.N.J. 2016) (No. 16-3594), 2016 LEXIS 130147.

[18] Kirby, 406 U.S. at 689.

[19] See Rothgery, 554 U.S. at 198; Id.

[20] Jennifer Jacobs & Sahil Kapur, Trump Calls for ‘Harsh Punishment’ for Ahmad Khan Rahami, BloombergPolitics (September 19, 2016) http://www.bloomberg.com/politics/articles/2016-09-19/trump-calls-for-harsh-punishment-for-ahmad-khan-rahami.