11 ms·

The Supreme Court could soon deliver a blow to the Sixth Amendment

181 points by wcbeard10 11y ago

DrStalker 11y ago
You're allowed to ignore the sixth amendment when the target is a poor brown skinned foreigner, you can't do that to rich white Americans!
- deleted 11y ago
  [deleted]
gnoway 11y ago
Is this just an assertion that no money == no counsel, or is there some other attack on the 6th amendment here? I think the notion that 'clean' assets can be frozen pre-trial is unfair, but as long as a public defender is actually available, that would seem to satisfy the amendment.
- lambda 11y ago
  > actually available Define "actually available" Most public defenders offices are so oversubscribed and underfunded that they can't really provide good representation for the majority of their clients.
  - _delirium 11y ago
    That sounds like a different argument: that the current public-defender system operates so poorly that the result violates the 6th amendment by failing to provide effective counsel. But the proper remedy there would be to issue an injunction ordering the system to be improved, not to unfreeze certain defendants' assets, since the latter would leave the 6th amendment violation uncured in the case of defendants who don't have assets in the first place. The current case seems to be arguing something different: that freezing defendant's assets that they could use to pay for counsel is a 6th amendment violation even assuming an effective public-defender system. That requires a separate right, something like: the right to pay for the best defense you can afford. Afaict, this is at the Supreme Court because they've never ruled either way on whether the 6th amendment includes such a right; the previous cases have focused on the minimum threshold for what constitutes effective assistance of counsel.
  - bayesianhorse 11y ago
    It doesn't say anywhere that a public defender has to be effective.
    - eximius 11y ago
      On the one hand, it'd be absurd if it did. On the other, it would often come in handy.
    - jdminhbg 11y ago
      The text of the amendment doesn't say so explicitly, but Ineffective Assistance of Counsel is grounds for overturning convictions: https://en.wikipedia.org/wiki/Ineffective_assistance_of_counsel https://en.wikipedia.org/wiki/Ineffective_assistance_of_coun... (Note that the standard requires both that your counsel was ineffective, and that his/her ineffectiveness caused your conviction)
  - jkestner 11y ago
    Generally against asset forfeiture, but if they're going to do it, maybe using it only to fund public defenders for all would balance out the incentive for the government to seize the money in the first place.
  - gnoway 11y ago
    That is why I qualified it w/ 'actually'. I'm aware of what's going on.
- dmethvin 11y ago
  So the same government that is spending money to prosecute you gets to determine how much money they will spend on a public defender for you? We've covered this ground before: https://news.ycombinator.com/item?id=10177778 https://news.ycombinator.com/item?id=10177778
- fpgeek 11y ago
  Yes, the theoretical availability of public defenders satisfies the literal text of the amendment. That being said, effectively banning most private counsel (except those working for free or possibly on contingency) and, in practice, forcing most defendants to rely on a government-employed counsel means locking up the spirit and throwing away the key.
  - _delirium 11y ago
    Isn't the spirit of the amendment that everyone should have a good defense? The spirit of the amendment, to me, doesn't really seem to be "you can have as good a defense as you can afford", but more like, "you have the right to a good defense", period. Put differently, if a public defender isn't good enough to satisfy the spirit of the 6th amendment when someone who has money is on trial, then it should also not be good enough for the spirit of the 6th amendment when someone who doesn't have money is on trial. I could possibly see the spirit of the amendment better served if everyone were defended via the same public-defender system, regardless of income level. That would provide equal access to justice, and also provide middle-class and wealthy people an incentive to make sure it's actually properly funded, since it's the system that would defend them, not only poor people. I'm not sure if that's a better or worse interpretation of the letter of the constitution, though.
    - deleted 11y ago
      [deleted]
    - vidarh 11y ago
      In Norway, there is no dedicated public defender system. Instead what happens is that the bar association negotiates rates with the government, and most lawfirms will take cases paid for by the government. There are still limitations. E.g. someone going private could hire a team to spend whatever time necessary while someone being defended under the public system will get one lawyer subject to billing limitations. And people relying on the public system does not get to pick and choose. But at least you have a good shot at getting someone good, that is not overloaded with cases. As an example, I was sued by the government for refusing to accept formalities around my refusal to accept conscription (a small number of people go to jail in Norway for it every now and again for 3 months or so, and they keep making the accepted reasons to get out of it more lenient to make people just pick one of the accepted reasons rather than make a point; for my part it was very much to make a point, though I didn't end up in jail in the end), and my government appointed defence lawyer was one of the top lawyers in the country, who had argued cases in front of the Supreme Court multiple times, and who had conscription related cases as a special interest. It's quite tragicomic to me that left-wing Norway has privatized the public defender system exactly to provide more equal access, while the US hold on to a socialized system that practically guarantees unequal access to justice.
clavalle 11y ago
>the court will decide whether the government can freeze all of a defendant’s assets before trial, even those the government itself concedes aren’t tainted by any connection to criminality, thus effectively preventing that defendant from paying for his own defense. The shadow issue of our time is equal access to the legal system. It will be interesting to see how this changes the dynamic of the court system if the Supreme Court really decides that defendants cannot hire their own counsel though it is a bit like solving the equal access to education problem by banning all private colleges -- more than a little absurd.
- themartorana 11y ago
  Isn't it oddly adversarial to say that on the one hand, the government can cripple your ability to mount a private defense, but on the other your defense will come from that same prosecuting and asset-freezing government? Haven't we time and again seen industry more willing to protect its benefactor?
  - abfan1127 11y ago
    however, the person is considered innocent until proven guilty, therefore those assets shouldn't be seized until such proof.
    - eximius 11y ago
      Tell that to victims of civil forfeiture who are never even charged.
    - themartorana 11y ago
      Yes, thank you. I came back here to edit my previous comment to ask whether or not asset forfeiture is anything but the presumption of guilt. I get the argument about assets being contested and therefore should be frozen, but they're being frozen by the prosecuting party, and therefore isn't so unbiased.
    - Natsu 11y ago
      Two problems: the asserts are only frozen in this case. This is a fraud case, not a drug case, and they've not been subjected to civil asset forfeiture, so this doesn't touch on that. The other is that if they can never freeze the assets, someone can simply spend or transfer all of their money after stealing it. If a thief has $5,000 and they steal $5,000, they can spend the stolen money and then claim the $5,000 they originally had is untouchable because they only spent stolen money.
deleted 11y ago
[deleted]
bayesianhorse 11y ago
Maybe the public defender system may benefit, because when even wealthy or middle-class defendants can't pay for their lawyers, more lawyers are forced to either become public defenders or work on similar arguments, making financial means of defendants less of a factor in choosing their clients.
- adventured 11y ago
  What benefit is a stronger public defender if your government can steal your property without any requirement of proof of guilt? That automatically destroys the property rights system, the knock-on effects will be truly massive. And then it leaves you without any means for defense other than to put your fate in the hands of the government. Orwell would certainly approve. I'm baffled that some people here are arguing that this could turn out to be a good thing, and are applauding giving the government this kind of terrifying power. I can't believe it's not immediately grasped how it'll then be used to take 27 other steps, no different than how programs like the Patriot Act have been, and every other vast over-reach of power has been throughout recorded history. This is the perfect setup to a totalitarian state. We were already too far down that road, if they kill the sixth amendment then kiss the remaining liberty goodbye, it'll all be rapidly eroded via the government using its power to (comically easily) control public defenders. We've already gotten to see how these systems work, with a century of failed fascist and communist regimes.
  - Natsu 11y ago
    This isn't about civil asset forfeiture or drugs at all. I can sympathize with requiring that you be found guilty of something before taking all your stuff, but this isn't even about that. And even if it were, a public defender's office that could take on that kind of case to help you get your money back when you're innocent would help stop abuse of it. What this case is actually about is someone who allegedly defrauded Medicare. The state froze their assets so they could get back the stolen money after trial (it's frozen, not forfeit, so they have to find him guilty). His lawyer (who is not a public defender, incidentally) argues that he had a lot of assets before the alleged fraud. But the response to that is that is that it's not really fair to let someone defraud Medicare and then declare their assets not subject to a freeze because they've spent all the stolen money. All that really does is incentivize thieves to spend the stolen money first and what good does that rule do? If you have $5,000, steal another $5,000, and then spend $5,000, why can't the state freeze your $5,000 whether you spent the stolen or non-stolen money? Is it really fair to let you hire a high-price lawyer that others could only dream of when the bulk of your funds come from fraud? Why does it matter which money they spent first? You can find all this and more in the transcript of the oral argument: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-419_h3ci.pdf http://www.supremecourt.gov/oral_arguments/argument_transcri...
deleted 11y ago
[deleted]
- jhall1468 11y ago
  You can call it that, however this is not asset forfeiture, it's asset freezing (which is vastly different). Furthermore, there is a four point test that judges use to determine if a freezing order is valid. It very rarely impacts anyone aside from perpetrators of fraud. It is nothing like you claim, because if the government loses their case the assets are unfrozen. They can't use them, nor do they have actual access to them, until the case ends in a guilty verdict.
  - geggam 11y ago
    If you cannot access your assets because someone has frozen them essentially this is the same thing as forfeiting them. Especially when the use of the assets can be used to prove your innocence... Assuming someone is guilty of a crime and taking their assets is theft.
Natsu 11y ago
The Supreme Court only answers the questions posed to them, not the merits of the underlying case, so the article's surprise that they're not addressing anything else is a strange to hear from a lawyer. It's also surprising to hear this as a "blow" to the Sixth Amendment, as the justices seem to believe they've rejected exactly this logic before in Monsanto. [1] One good thing is that the article hlepfully linked to a transcript of the hearing, a good journalistic practice too often ignored. [2] In the quotes below I've elided sections for clarity, as marked, primarily to remove where they repeated words or such while speaking. The case involves Sixth Amendment [3] claims regarding asset forfeiture where Petitioner allegedly defrauded Medicare. The Deputy Solicitor General supports freezing this money so that it doesn't become unavailable to pay back the amount allegedly defrauded. Petitioner wants to use it to fund their legal defense. They retained the services of Howard Srebnick, Esq. for this oral argument. [4] The argument in favor of the seizure is roughly this: JUSTICE ALITO: [Two twin] brothers rob a bank. They get $10,000. They split it up, $5,000 each. And on that very same day, it happens to be their birthday, and their rich uncle comes and gives each of them $5,000 as a birthday present. So they go out to party, and one of them and they both spend $5,000 partying. One of them spends the money from the bank robbery. The other one spends the money that was given to them by their rich uncle. And your position is that the one who spent the money from the socalled "tainted assets," the money from the bank robbery, is entitled to use the remaining $5,000 to hire an attorney, but the other one is out of luck? MR. SREBNICK: Yes [...] JUSTICE KENNEDY: So [...] you want this Court to say spend the bank robbery money first. The argument against is roughly this: MR. SREBNICK: Justice Ginsburg, from a constitutional perspective, I don't think that that's necessarily correct because the courts can give injunctive power to restrain assets, even assets currently belonging to the defendant. Our objection is when such an injunction interferes with the constitutionally protected right to retain counsel of choice. And so while the statute could constitutionally allow, provided that there is adequate hearings, et cetera, the restraint of even a defendant's owned assets, lawfully owned assets, that principle can't extend to assets the subset of assets she needs to use counsel of choice. [1] JUSTICE KAGAN: Mr. Srebnick, this goes back, I think, to the Chief Justice's first question. It seems that the distinction that you're making is one that the Court explicitly rejected in Monsanto. [2] http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-419_h3ci.pdf http://www.supremecourt.gov/oral_arguments/argument_transcri... [3] "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." [4] http://www.royblack.com/attorneys/Howard/Srebnick/ http://www.royblack.com/attorneys/Howard/Srebnick/
rdtsc 11y ago
> Their argument dealt only with the Sixth Amendment — that while the government can seize untainted assets before trial, it must allow a defendant access to enough of his untainted assets to pay for his own defense. However, in this case it seems to me the defendant is guilty of defrauding the govt. to the tune of $40M. The possible outcome of the trial would be forcing them to pay back + penalties perhaps. Had this been a trial about something else (murder for ex.) govt might not have fought much to freeze the assets. EDIT: The problem is of course with the word assets. Are we talking about physical assets? Probalby not. Otherwise say they stole 5 apples from the govt and they also happen to have 10 bananas of their own. Govt comes and take away the apples and bananas. So one can say ok these apples are stolen, only get those back, but should not take the bananas. Now imagine the assets is money (as it probably is in this case). Can a thief steal a bag with $100 bills, change them all to $20 bills and then tell teh govt, don't take my $20 bills, these are not the assets I stole. I only stole $100 bills but those are gone now. It doesn't work that way of course.
- zanny 11y ago
  Innocent until proven guilty must apply. And it is preposterous to tell a presumed innocent they cannot use their money to defend themselves in court. If they spend that money and then lose, they are still responsible for the reimbursement. If its not money they will ever make in their lifetime, you can just garnish their income forever. It is magnitudes less injust for those whose money was stolen to never get the full amount back (as long as the responsible is compelled to give all their excess in compensation) than possibly finding the innocent guilty because they could not defend themselves. But this is symptomatic of the fundamental issue in criminal justice that you need significant wealth to defend yourself. That in and of itself is the greatest injustice here, but making it harder on citizens to defend themselves cannot be the answer.
- roel_v 11y ago
  "EDIT: The problem is of course with the word assets. Are we talking about physical assets? Probalby not." We probably are, otherwise after defrauding Medicare the first thing you should do is buy houses to 'park' your money.
- 11y ago
rayiner 11y ago
Playing up the "equal access to justice" angle here is shortsighted. Rich people have historically served as an important counterweight to government. When the government prosecutes them, it raises special interests, beyond the abstract interest in justice implicated whenever the government prosecutes someone. After all, it was the new-money commercial interests that lead the revolutions that gave us many of our modern democracies, including here in the U.S. And history is littered with examples of rich, powerful people being prosecuted precisely because of the threat they pose by virtue of their means. An interesting example is Joseph Nacchio. While he was probably guilty of what he was accused of doing, at least he was declared guilty after putting up the best defense money could buy. Given the dynamics of the situation, it would've been troubling if he hadn't been able to do that.
- gohrt 11y ago
  Why don't poor people deserve to be a counterweight to government?
  - j42 11y ago
    Because it has never been a question of who is deserving of what... The poor have no leverage, and realistically, no one is going to give that to them. We're not talking about an idealistic re-working of civic values, but the natural tension that already exists between private interests and the public sector. One need only look to antitrust law to see why letting any single locus of control grow unchecked can wreak havoc on a market/economy -- I think we should appreciate the few checks & balances we have left, lest this notion of naive idealistic equality allows them to slip away unchallenged.
  - simonh 11y ago
    They do, but if they don't have that ability now then that's the problem we should be addressing. Removing the ability of the rich to do so won't magically give that ability to the poor. If anyone here wants to argue that because the poor can't effectively fight government then nobody should be allowed to 'because otherwise it isn't fair', then please go ahead. But that's the logic of plucking out everyone's right eye because one person suffered an eye injury. If your idea of fairness is reducing everyone to the lowest common denominator, I want no part of it.
hliyan 11y ago
As someone from a third world country with a 'poor' human rights track record, US prosecutor conduct baffles even me. At least in this part of the world you expect to get screwed over by incompetence or corruption, and not the "system".
- Laaw 11y ago
  That's most likely because you only hear about the extraordinary. The ordinary cases are just that, ordinary, and justice gets served with little fuss.
  - hliyan 11y ago
    You're probably right. Plus I wasn't exactly fair in comparing a population of 300 million to one of 20 million. But where I come from 'going by the book' usually results in the guilty going free, not the innocent getting screwed. IANAL, but I wonder whether this is due to some difference between US law and Roman-Dutch/British law?
    - austenallred 11y ago
      Yes, that's right. What you hear about are the extreme edge cases of society - the places where things fall through the cracks. As a whole the US Justice system is incredibly effective. That being said, in a population of 300 million edge cases start to add up, and they are significant problems we should figure out how to fix.
      - fraserharris 11y ago
        The function of the Supreme Court is to decide edge cases. Anything they hear is either a question of overlapping laws and/or an area without significant precedents.
        austenallred 11y ago
        Very, very little makes it to the Supreme Court
Laaw 11y ago
Can't you just pay your defense attorney after the trial, guilty or not, whenever your assets are unfrozen? Assets frozen during trial that aren't linked to any criminal activity can't be permanently confiscated, so your defense attorney can just settle up your bill at the end of the trial, when the assets are unfrozen. Maybe that's not how it works now, but if this happens, then defense firms will have to do their billing this way. Not ideal and I don't see the point, but how is this a big deal?
- roel_v 11y ago
  What lawyer will take on such a case, when it's unsure if you'll ever get paid, and if you do, it's years after the actual work is done? The first thing you do after you've hired a lawyer is pay his advance. No small firm can shoulder having to front cases that can drag on for years. It's not like you can tell your staff 'yeah we'll pay you in a few years'. And when the client is found guilty, the prosecutor will confiscate much of it. Good luck getting paid then.
  - Laaw 11y ago
    It's not unsure (like I said, assets unrelated to the crime can't ultimately be kept), and what else are they going to do? You can't seriously suggest all criminal defense attorneys are just going to give up on their professions. The only thing extra you'd need as a criminal defense attorney is additional capital to start up your firm, and only for actual criminal case work. They have plenty of money, enough to wait for some time for a payday. It's actually super common to wait years for payment in tons of industries, including law.
    - roel_v 11y ago
      The vast majority of criminals have assets lower than their total penalties / damages payable. You're basically asking lawyers to hope that their clients will have enough money left after they have paid their damages? And you're saying defense lawyers will do that because... what... otherwise they'd have to find clients in other fields of law? "It's actually super common to wait years for payment in tons of industries, including law." 8| No it's not, except in law for cases on contingency basis. Which only make sense in cases where there might be a huge settlement or punitive damages. There are very few companies that can even afford to wait for their money for years. "They have plenty of money, enough to wait for some time for a payday." I'm not sure if you're just trolling here? You seem to have a conception of the economics of running small law offices (which is what the vast majority of criminal defense lawyers are) that is massively detached from reality.
venomsnake 11y ago
Couldn't this be hacked by "law trouble" insurance. You get policy of up to X, in case you have your assets frozen and need legal council. The current situation is strange. I can see why the Supreme Court would not want to open another can of worms. The problem comes from government being able to freeze all assets without guilt. Everything else is band aid on gangrene.
- gohrt 11y ago
  Govt could sieze your insurance payout.
  - venomsnake 11y ago
    By that logic govt could prevent you from utilizing your health insurance. Not sure if anyone could even think in that direction.
Kinnard 11y ago
They're about to kick out one of the legs of this Republic.
teekert 11y ago
Scanning for 10 seconds, no sign of what the sixth amendment is, no way of judging significance, moving on. For those as annoyed: https://www.law.cornell.edu/constitution/sixth_amendment https://www.law.cornell.edu/constitution/sixth_amendment
- ghayes 11y ago
  > to have the Assistance of Counsel for his defense. The author of the article believes this Supreme Court case weighs whether or not the government can willfully deprive an accused of the ability to pay for counsel by freezing untainted assets.
mirimir 11y ago
Well, W was at least honest enough to admit that the Constitution is "just a goddamned piece of paper" ;)
annnnd 11y ago
<IANAL> The defense strategy doesn't make sense to me... Could this case be used to just this end? To shake Sixth Amendement and lay some ground work for terrorism case in future? Could it be that this is arranged between defendent and state attorney? </IANAL>
shawnee_ 11y ago
This particular policy is aimed at people accused of bank fraud, insider trading and other high-finance crimes. There is indeed an entire group of self-proclaimed professionals that uses asset-shifting tactics to (1) avoid detection by systems that seek to detect fraud (2) operate a number of legally "separate" but owned by the same group of people / businesses operating in the same sphere Small transactions among these entities might not raise a flag on their own, but given the sum of them all, it can definitely help point an arrow to larger schemes for market manipulation. Freezing the liquidity of these complex legal structures for a temporary period of time ... tracing the still-liquid "drip" (because the analogy is too good to not use) back to the source does seem to be a logical way to suss out the scum. If you've ever invested in a growth company for "long", only to have your investment diluted and eventually delisted by one of these private enterprises, this reform should make you very happy. [Edit] For example .... http://sirf-online.org/2013/03/11/paper-world-of-brookfield-asset-management/ http://sirf-online.org/2013/03/11/paper-world-of-brookfield-...
jeffdavis 11y ago
Couldn't asset freezing be more like "spending review" where the court approves certain spending for certain purposes? I don't see any reason why ordinary spending on lawyers, rent, food, etc. should be prohibited before conviction. For civil cases it might be different. If there are specific contested assets, it might make sense to freeze those.
mucker 11y ago
So: - We've had religious erosions to the First - Continued assault against the Second - The Third appears to be safe - Fourth is largely gone with Forfeiture - Fifth mostly safe - Sixth now under attack - Seventh also attacked by Forfeiture - This ruling also takes a passing swipe at the Eighth if it goes through - The Ninth and Tenth were finally destroyed by the Health Care Act
- JoeAltmaier 11y ago
  Destroyed? Hyperbole. You had to have insurance to drive a car already - did that destroy it? Yes the balance of rights of individuals in an every-more-entangled economic and social world is shifting. And we'll have to do more to adjust to social media, the speed of the internet, cheap pervasive surveillance by anybody (drones, minicams etc) of anybody, and so on.
  - Tactic 11y ago
    I have no desire to pull the conversation off track but comparing auto insurance requirements to the affordable care act is apples and oranges. You don't have to own a car. (and in fact fewer and fewer people do) You also don't have to have auto insurance to own or drive a vehicle, just to drive it on public thoroughfares. Which, believe it or not, is not everyone's use case.
hwstar 11y ago
If the government gets to carried away with this, then jury nullification https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification will come into play.

181 points by wcbeard10 11y ago

You're allowed to ignore the sixth amendment when the target is a poor brown skinned foreigner, you can't do that to rich white Americans!

deleted 11y ago
[deleted]

gnoway 11y ago

Is this just an assertion that no money == no counsel, or is there some other attack on the 6th amendment here? I think the notion that 'clean' assets can be frozen pre-trial is unfair, but as long as a public defender is actually available, that would seem to satisfy the amendment.

lambda 11y ago
> actually available Define "actually available" Most public defenders offices are so oversubscribed and underfunded that they can't really provide good representation for the majority of their clients.
- _delirium 11y ago
  That sounds like a different argument: that the current public-defender system operates so poorly that the result violates the 6th amendment by failing to provide effective counsel. But the proper remedy there would be to issue an injunction ordering the system to be improved, not to unfreeze certain defendants' assets, since the latter would leave the 6th amendment violation uncured in the case of defendants who don't have assets in the first place. The current case seems to be arguing something different: that freezing defendant's assets that they could use to pay for counsel is a 6th amendment violation even assuming an effective public-defender system. That requires a separate right, something like: the right to pay for the best defense you can afford. Afaict, this is at the Supreme Court because they've never ruled either way on whether the 6th amendment includes such a right; the previous cases have focused on the minimum threshold for what constitutes effective assistance of counsel.
- bayesianhorse 11y ago
  It doesn't say anywhere that a public defender has to be effective.
  - eximius 11y ago
    On the one hand, it'd be absurd if it did. On the other, it would often come in handy.
  - jdminhbg 11y ago
    The text of the amendment doesn't say so explicitly, but Ineffective Assistance of Counsel is grounds for overturning convictions: https://en.wikipedia.org/wiki/Ineffective_assistance_of_counsel https://en.wikipedia.org/wiki/Ineffective_assistance_of_coun... (Note that the standard requires both that your counsel was ineffective, and that his/her ineffectiveness caused your conviction)
- jkestner 11y ago
  Generally against asset forfeiture, but if they're going to do it, maybe using it only to fund public defenders for all would balance out the incentive for the government to seize the money in the first place.
- gnoway 11y ago
  That is why I qualified it w/ 'actually'. I'm aware of what's going on.
dmethvin 11y ago
So the same government that is spending money to prosecute you gets to determine how much money they will spend on a public defender for you? We've covered this ground before: https://news.ycombinator.com/item?id=10177778 https://news.ycombinator.com/item?id=10177778
fpgeek 11y ago
Yes, the theoretical availability of public defenders satisfies the literal text of the amendment. That being said, effectively banning most private counsel (except those working for free or possibly on contingency) and, in practice, forcing most defendants to rely on a government-employed counsel means locking up the spirit and throwing away the key.
- _delirium 11y ago
  Isn't the spirit of the amendment that everyone should have a good defense? The spirit of the amendment, to me, doesn't really seem to be "you can have as good a defense as you can afford", but more like, "you have the right to a good defense", period. Put differently, if a public defender isn't good enough to satisfy the spirit of the 6th amendment when someone who has money is on trial, then it should also not be good enough for the spirit of the 6th amendment when someone who doesn't have money is on trial. I could possibly see the spirit of the amendment better served if everyone were defended via the same public-defender system, regardless of income level. That would provide equal access to justice, and also provide middle-class and wealthy people an incentive to make sure it's actually properly funded, since it's the system that would defend them, not only poor people. I'm not sure if that's a better or worse interpretation of the letter of the constitution, though.
  - deleted 11y ago
    [deleted]
  - vidarh 11y ago
    In Norway, there is no dedicated public defender system. Instead what happens is that the bar association negotiates rates with the government, and most lawfirms will take cases paid for by the government. There are still limitations. E.g. someone going private could hire a team to spend whatever time necessary while someone being defended under the public system will get one lawyer subject to billing limitations. And people relying on the public system does not get to pick and choose. But at least you have a good shot at getting someone good, that is not overloaded with cases. As an example, I was sued by the government for refusing to accept formalities around my refusal to accept conscription (a small number of people go to jail in Norway for it every now and again for 3 months or so, and they keep making the accepted reasons to get out of it more lenient to make people just pick one of the accepted reasons rather than make a point; for my part it was very much to make a point, though I didn't end up in jail in the end), and my government appointed defence lawyer was one of the top lawyers in the country, who had argued cases in front of the Supreme Court multiple times, and who had conscription related cases as a special interest. It's quite tragicomic to me that left-wing Norway has privatized the public defender system exactly to provide more equal access, while the US hold on to a socialized system that practically guarantees unequal access to justice.

clavalle 11y ago

>the court will decide whether the government can freeze all of a defendant’s assets before trial, even those the government itself concedes aren’t tainted by any connection to criminality, thus effectively preventing that defendant from paying for his own defense. The shadow issue of our time is equal access to the legal system. It will be interesting to see how this changes the dynamic of the court system if the Supreme Court really decides that defendants cannot hire their own counsel though it is a bit like solving the equal access to education problem by banning all private colleges -- more than a little absurd.

themartorana 11y ago
Isn't it oddly adversarial to say that on the one hand, the government can cripple your ability to mount a private defense, but on the other your defense will come from that same prosecuting and asset-freezing government? Haven't we time and again seen industry more willing to protect its benefactor?
- abfan1127 11y ago
  however, the person is considered innocent until proven guilty, therefore those assets shouldn't be seized until such proof.
  - eximius 11y ago
    Tell that to victims of civil forfeiture who are never even charged.
  - themartorana 11y ago
    Yes, thank you. I came back here to edit my previous comment to ask whether or not asset forfeiture is anything but the presumption of guilt. I get the argument about assets being contested and therefore should be frozen, but they're being frozen by the prosecuting party, and therefore isn't so unbiased.
  - Natsu 11y ago
    Two problems: the asserts are only frozen in this case. This is a fraud case, not a drug case, and they've not been subjected to civil asset forfeiture, so this doesn't touch on that. The other is that if they can never freeze the assets, someone can simply spend or transfer all of their money after stealing it. If a thief has $5,000 and they steal $5,000, they can spend the stolen money and then claim the $5,000 they originally had is untouchable because they only spent stolen money.

deleted 11y ago

[deleted]

bayesianhorse 11y ago

Maybe the public defender system may benefit, because when even wealthy or middle-class defendants can't pay for their lawyers, more lawyers are forced to either become public defenders or work on similar arguments, making financial means of defendants less of a factor in choosing their clients.

adventured 11y ago
What benefit is a stronger public defender if your government can steal your property without any requirement of proof of guilt? That automatically destroys the property rights system, the knock-on effects will be truly massive. And then it leaves you without any means for defense other than to put your fate in the hands of the government. Orwell would certainly approve. I'm baffled that some people here are arguing that this could turn out to be a good thing, and are applauding giving the government this kind of terrifying power. I can't believe it's not immediately grasped how it'll then be used to take 27 other steps, no different than how programs like the Patriot Act have been, and every other vast over-reach of power has been throughout recorded history. This is the perfect setup to a totalitarian state. We were already too far down that road, if they kill the sixth amendment then kiss the remaining liberty goodbye, it'll all be rapidly eroded via the government using its power to (comically easily) control public defenders. We've already gotten to see how these systems work, with a century of failed fascist and communist regimes.
- Natsu 11y ago
  This isn't about civil asset forfeiture or drugs at all. I can sympathize with requiring that you be found guilty of something before taking all your stuff, but this isn't even about that. And even if it were, a public defender's office that could take on that kind of case to help you get your money back when you're innocent would help stop abuse of it. What this case is actually about is someone who allegedly defrauded Medicare. The state froze their assets so they could get back the stolen money after trial (it's frozen, not forfeit, so they have to find him guilty). His lawyer (who is not a public defender, incidentally) argues that he had a lot of assets before the alleged fraud. But the response to that is that is that it's not really fair to let someone defraud Medicare and then declare their assets not subject to a freeze because they've spent all the stolen money. All that really does is incentivize thieves to spend the stolen money first and what good does that rule do? If you have $5,000, steal another $5,000, and then spend $5,000, why can't the state freeze your $5,000 whether you spent the stolen or non-stolen money? Is it really fair to let you hire a high-price lawyer that others could only dream of when the bulk of your funds come from fraud? Why does it matter which money they spent first? You can find all this and more in the transcript of the oral argument: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-419_h3ci.pdf http://www.supremecourt.gov/oral_arguments/argument_transcri...

deleted 11y ago

[deleted]

jhall1468 11y ago
You can call it that, however this is not asset forfeiture, it's asset freezing (which is vastly different). Furthermore, there is a four point test that judges use to determine if a freezing order is valid. It very rarely impacts anyone aside from perpetrators of fraud. It is nothing like you claim, because if the government loses their case the assets are unfrozen. They can't use them, nor do they have actual access to them, until the case ends in a guilty verdict.
- geggam 11y ago
  If you cannot access your assets because someone has frozen them essentially this is the same thing as forfeiting them. Especially when the use of the assets can be used to prove your innocence... Assuming someone is guilty of a crime and taking their assets is theft.

Natsu 11y ago

The Supreme Court only answers the questions posed to them, not the merits of the underlying case, so the article's surprise that they're not addressing anything else is a strange to hear from a lawyer. It's also surprising to hear this as a "blow" to the Sixth Amendment, as the justices seem to believe they've rejected exactly this logic before in Monsanto. [1] One good thing is that the article hlepfully linked to a transcript of the hearing, a good journalistic practice too often ignored. [2] In the quotes below I've elided sections for clarity, as marked, primarily to remove where they repeated words or such while speaking. The case involves Sixth Amendment [3] claims regarding asset forfeiture where Petitioner allegedly defrauded Medicare. The Deputy Solicitor General supports freezing this money so that it doesn't become unavailable to pay back the amount allegedly defrauded. Petitioner wants to use it to fund their legal defense. They retained the services of Howard Srebnick, Esq. for this oral argument. [4] The argument in favor of the seizure is roughly this: JUSTICE ALITO: [Two twin] brothers rob a bank. They get $10,000. They split it up, $5,000 each. And on that very same day, it happens to be their birthday, and their rich uncle comes and gives each of them $5,000 as a birthday present. So they go out to party, and one of them and they both spend $5,000 partying. One of them spends the money from the bank robbery. The other one spends the money that was given to them by their rich uncle. And your position is that the one who spent the money from the socalled "tainted assets," the money from the bank robbery, is entitled to use the remaining $5,000 to hire an attorney, but the other one is out of luck? MR. SREBNICK: Yes [...] JUSTICE KENNEDY: So [...] you want this Court to say spend the bank robbery money first. The argument against is roughly this: MR. SREBNICK: Justice Ginsburg, from a constitutional perspective, I don't think that that's necessarily correct because the courts can give injunctive power to restrain assets, even assets currently belonging to the defendant. Our objection is when such an injunction interferes with the constitutionally protected right to retain counsel of choice. And so while the statute could constitutionally allow, provided that there is adequate hearings, et cetera, the restraint of even a defendant's owned assets, lawfully owned assets, that principle can't extend to assets the subset of assets she needs to use counsel of choice. [1] JUSTICE KAGAN: Mr. Srebnick, this goes back, I think, to the Chief Justice's first question. It seems that the distinction that you're making is one that the Court explicitly rejected in Monsanto. [2] http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-419_h3ci.pdf http://www.supremecourt.gov/oral_arguments/argument_transcri... [3] "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." [4] http://www.royblack.com/attorneys/Howard/Srebnick/ http://www.royblack.com/attorneys/Howard/Srebnick/

rdtsc 11y ago

> Their argument dealt only with the Sixth Amendment — that while the government can seize untainted assets before trial, it must allow a defendant access to enough of his untainted assets to pay for his own defense. However, in this case it seems to me the defendant is guilty of defrauding the govt. to the tune of $40M. The possible outcome of the trial would be forcing them to pay back + penalties perhaps. Had this been a trial about something else (murder for ex.) govt might not have fought much to freeze the assets. EDIT: The problem is of course with the word assets. Are we talking about physical assets? Probalby not. Otherwise say they stole 5 apples from the govt and they also happen to have 10 bananas of their own. Govt comes and take away the apples and bananas. So one can say ok these apples are stolen, only get those back, but should not take the bananas. Now imagine the assets is money (as it probably is in this case). Can a thief steal a bag with $100 bills, change them all to $20 bills and then tell teh govt, don't take my $20 bills, these are not the assets I stole. I only stole $100 bills but those are gone now. It doesn't work that way of course.

zanny 11y ago
Innocent until proven guilty must apply. And it is preposterous to tell a presumed innocent they cannot use their money to defend themselves in court. If they spend that money and then lose, they are still responsible for the reimbursement. If its not money they will ever make in their lifetime, you can just garnish their income forever. It is magnitudes less injust for those whose money was stolen to never get the full amount back (as long as the responsible is compelled to give all their excess in compensation) than possibly finding the innocent guilty because they could not defend themselves. But this is symptomatic of the fundamental issue in criminal justice that you need significant wealth to defend yourself. That in and of itself is the greatest injustice here, but making it harder on citizens to defend themselves cannot be the answer.
roel_v 11y ago
"EDIT: The problem is of course with the word assets. Are we talking about physical assets? Probalby not." We probably are, otherwise after defrauding Medicare the first thing you should do is buy houses to 'park' your money.
11y ago

rayiner 11y ago

Playing up the "equal access to justice" angle here is shortsighted. Rich people have historically served as an important counterweight to government. When the government prosecutes them, it raises special interests, beyond the abstract interest in justice implicated whenever the government prosecutes someone. After all, it was the new-money commercial interests that lead the revolutions that gave us many of our modern democracies, including here in the U.S. And history is littered with examples of rich, powerful people being prosecuted precisely because of the threat they pose by virtue of their means. An interesting example is Joseph Nacchio. While he was probably guilty of what he was accused of doing, at least he was declared guilty after putting up the best defense money could buy. Given the dynamics of the situation, it would've been troubling if he hadn't been able to do that.

gohrt 11y ago
Why don't poor people deserve to be a counterweight to government?
- j42 11y ago
  Because it has never been a question of who is deserving of what... The poor have no leverage, and realistically, no one is going to give that to them. We're not talking about an idealistic re-working of civic values, but the natural tension that already exists between private interests and the public sector. One need only look to antitrust law to see why letting any single locus of control grow unchecked can wreak havoc on a market/economy -- I think we should appreciate the few checks & balances we have left, lest this notion of naive idealistic equality allows them to slip away unchallenged.
- simonh 11y ago
  They do, but if they don't have that ability now then that's the problem we should be addressing. Removing the ability of the rich to do so won't magically give that ability to the poor. If anyone here wants to argue that because the poor can't effectively fight government then nobody should be allowed to 'because otherwise it isn't fair', then please go ahead. But that's the logic of plucking out everyone's right eye because one person suffered an eye injury. If your idea of fairness is reducing everyone to the lowest common denominator, I want no part of it.

hliyan 11y ago

As someone from a third world country with a 'poor' human rights track record, US prosecutor conduct baffles even me. At least in this part of the world you expect to get screwed over by incompetence or corruption, and not the "system".

Laaw 11y ago
That's most likely because you only hear about the extraordinary. The ordinary cases are just that, ordinary, and justice gets served with little fuss.
- hliyan 11y ago
  You're probably right. Plus I wasn't exactly fair in comparing a population of 300 million to one of 20 million. But where I come from 'going by the book' usually results in the guilty going free, not the innocent getting screwed. IANAL, but I wonder whether this is due to some difference between US law and Roman-Dutch/British law?
  - austenallred 11y ago
    Yes, that's right. What you hear about are the extreme edge cases of society - the places where things fall through the cracks. As a whole the US Justice system is incredibly effective. That being said, in a population of 300 million edge cases start to add up, and they are significant problems we should figure out how to fix.
    - fraserharris 11y ago
      The function of the Supreme Court is to decide edge cases. Anything they hear is either a question of overlapping laws and/or an area without significant precedents.
      - austenallred 11y ago
        Very, very little makes it to the Supreme Court

Laaw 11y ago

Can't you just pay your defense attorney after the trial, guilty or not, whenever your assets are unfrozen? Assets frozen during trial that aren't linked to any criminal activity can't be permanently confiscated, so your defense attorney can just settle up your bill at the end of the trial, when the assets are unfrozen. Maybe that's not how it works now, but if this happens, then defense firms will have to do their billing this way. Not ideal and I don't see the point, but how is this a big deal?

roel_v 11y ago
What lawyer will take on such a case, when it's unsure if you'll ever get paid, and if you do, it's years after the actual work is done? The first thing you do after you've hired a lawyer is pay his advance. No small firm can shoulder having to front cases that can drag on for years. It's not like you can tell your staff 'yeah we'll pay you in a few years'. And when the client is found guilty, the prosecutor will confiscate much of it. Good luck getting paid then.
- Laaw 11y ago
  It's not unsure (like I said, assets unrelated to the crime can't ultimately be kept), and what else are they going to do? You can't seriously suggest all criminal defense attorneys are just going to give up on their professions. The only thing extra you'd need as a criminal defense attorney is additional capital to start up your firm, and only for actual criminal case work. They have plenty of money, enough to wait for some time for a payday. It's actually super common to wait years for payment in tons of industries, including law.
  - roel_v 11y ago
    The vast majority of criminals have assets lower than their total penalties / damages payable. You're basically asking lawyers to hope that their clients will have enough money left after they have paid their damages? And you're saying defense lawyers will do that because... what... otherwise they'd have to find clients in other fields of law? "It's actually super common to wait years for payment in tons of industries, including law." 8| No it's not, except in law for cases on contingency basis. Which only make sense in cases where there might be a huge settlement or punitive damages. There are very few companies that can even afford to wait for their money for years. "They have plenty of money, enough to wait for some time for a payday." I'm not sure if you're just trolling here? You seem to have a conception of the economics of running small law offices (which is what the vast majority of criminal defense lawyers are) that is massively detached from reality.

venomsnake 11y ago

Couldn't this be hacked by "law trouble" insurance. You get policy of up to X, in case you have your assets frozen and need legal council. The current situation is strange. I can see why the Supreme Court would not want to open another can of worms. The problem comes from government being able to freeze all assets without guilt. Everything else is band aid on gangrene.

gohrt 11y ago
Govt could sieze your insurance payout.
- venomsnake 11y ago
  By that logic govt could prevent you from utilizing your health insurance. Not sure if anyone could even think in that direction.

Kinnard 11y ago

They're about to kick out one of the legs of this Republic.

teekert 11y ago

Scanning for 10 seconds, no sign of what the sixth amendment is, no way of judging significance, moving on. For those as annoyed: https://www.law.cornell.edu/constitution/sixth_amendment https://www.law.cornell.edu/constitution/sixth_amendment

ghayes 11y ago
> to have the Assistance of Counsel for his defense. The author of the article believes this Supreme Court case weighs whether or not the government can willfully deprive an accused of the ability to pay for counsel by freezing untainted assets.

mirimir 11y ago

Well, W was at least honest enough to admit that the Constitution is "just a goddamned piece of paper" ;)

annnnd 11y ago

<IANAL> The defense strategy doesn't make sense to me... Could this case be used to just this end? To shake Sixth Amendement and lay some ground work for terrorism case in future? Could it be that this is arranged between defendent and state attorney? </IANAL>

shawnee_ 11y ago

This particular policy is aimed at people accused of bank fraud, insider trading and other high-finance crimes. There is indeed an entire group of self-proclaimed professionals that uses asset-shifting tactics to (1) avoid detection by systems that seek to detect fraud (2) operate a number of legally "separate" but owned by the same group of people / businesses operating in the same sphere Small transactions among these entities might not raise a flag on their own, but given the sum of them all, it can definitely help point an arrow to larger schemes for market manipulation. Freezing the liquidity of these complex legal structures for a temporary period of time ... tracing the still-liquid "drip" (because the analogy is too good to not use) back to the source does seem to be a logical way to suss out the scum. If you've ever invested in a growth company for "long", only to have your investment diluted and eventually delisted by one of these private enterprises, this reform should make you very happy. [Edit] For example .... http://sirf-online.org/2013/03/11/paper-world-of-brookfield-asset-management/ http://sirf-online.org/2013/03/11/paper-world-of-brookfield-...

jeffdavis 11y ago

Couldn't asset freezing be more like "spending review" where the court approves certain spending for certain purposes? I don't see any reason why ordinary spending on lawyers, rent, food, etc. should be prohibited before conviction. For civil cases it might be different. If there are specific contested assets, it might make sense to freeze those.

mucker 11y ago

So: - We've had religious erosions to the First - Continued assault against the Second - The Third appears to be safe - Fourth is largely gone with Forfeiture - Fifth mostly safe - Sixth now under attack - Seventh also attacked by Forfeiture - This ruling also takes a passing swipe at the Eighth if it goes through - The Ninth and Tenth were finally destroyed by the Health Care Act

JoeAltmaier 11y ago
Destroyed? Hyperbole. You had to have insurance to drive a car already - did that destroy it? Yes the balance of rights of individuals in an every-more-entangled economic and social world is shifting. And we'll have to do more to adjust to social media, the speed of the internet, cheap pervasive surveillance by anybody (drones, minicams etc) of anybody, and so on.
- Tactic 11y ago
  I have no desire to pull the conversation off track but comparing auto insurance requirements to the affordable care act is apples and oranges. You don't have to own a car. (and in fact fewer and fewer people do) You also don't have to have auto insurance to own or drive a vehicle, just to drive it on public thoroughfares. Which, believe it or not, is not everyone's use case.

hwstar 11y ago

If the government gets to carried away with this, then jury nullification https://en.wikipedia.org/wiki/Jury_nullification https://en.wikipedia.org/wiki/Jury_nullification will come into play.