>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.
> though it is a bit like solving the equal access to education problem by banning all private colleges -- more than a little absurd.
While one can definitely argue against this view, it's far from absurd: the basic argument is that the availability of private college/lawyers/your-favourite-resource favours the rich and powerful, and that you can only get actual equal access for all to education/trial-defense/something-else if you force the rich and powerful to have an equal playing field with everyone else (at which point they will then use their power to ensure a decent/good level of the service for everyone, including themselves).
Two fairly different, and likely overly generalised and simplified, examples of this view:
- the British left-wing view of private (known as "public" in Britain, to confuse us all) schools (vs state schools): they allow the rich&powerful to get away with underfunding/neglecting the state school system, as it doesn't actually affect them, their family or their friends' family
- the Swiss view of public schools - paraphrasable as "Swiss private schools are for foreigners" - which more or less implies that using (or a society needing) a private school is a moral failing ;) (ie the rich&powerful will help fix the public schools rather than send their children to the private one)
The Norwegian view of private schools was long that only those rich to send their kids to Swiss private schools (or similar) would use them...
Since the rise of the labour movement, sending your kids to private schools has been largely seen as either a moral failing like in Switzerland, or an admission that your kid is so dumb that you need to buy them a diploma from somewhere else. For a very long time there were hardly any in Norway at all.
To take your example one step further: This same argument is part of the reason why in Norway there are heavy restrictions on private healthcare providers offering necessary services to the public - the public healthcare system has a near monopoly on this. Private providers can provide elective surgeries etc. like breast implants and other cosmetic surgery that is not (usually) covered by the public healthcare, but are mostly prevented from offering services covered by the public healthcare system.
Here the argument goes further: It will ensure everyone has an incentive to ensure the public healthcare is good enough. But it also will ensure that private actors are not substantially draining the public system of resources, such as e.g. doctors that are substantially subsidized by the public education system in the first place.
Basically going private is seen as immoral queue-jumping that will indirectly deprive more needing patients of treatment by reducing the available resources.
> known as "public" in Britain, to confuse us all
It's worse. Not all private schools are public schools. It is first and foremost used about some of the oldest, most exclusive private schools, but "public" here comes from being open to the (paying) public irrespective of e.g. religion or occupation or where you live contrary to e.g. private schools run by religious groups and similar.
Wow! What a depraved view they have. I wonder if they would still think it was moral to limit their children to a 3rd world education because it's only fair that education (level) be equal for everyone?
Human progress is made by those who are exceptional. It is only through the efforts of exceptional people that everyone else's lives are improved. Imagine if Faraday and Einstein were forced to not publish, and even destroy their papers because it wasn't "fair" that they had discovered something that other people hadn't.
Is this view of "fairness" fair at all? Should we break the legs of a natural runner, so they can only run as fast as the average person? Should we damage the brains of the gifted so they are equal with everyone else? Rather, shouldn't people have the freedom to excel as far as they can?
The intellectually gifted should be encouraged to excel as far as they can, because their work and discoveries will cause tremendous improvements to the human condition. It would be more fair for there to be special schools for the gifted, so they are not slowed down by the lowest common denominator.
Imagine that you had the intellect to cure cancer, or make solar power more economical than fossil fuels. Now imagine that you are denied from accomplishing these things because it isn't "fair" for you to earn more money than others. Guess what? It takes tons of money to do research and development. The only reason Elon Musk is making the major improvements for humanity that he is, is because he was able to use his intellect to earn lots of money so he could do even better things.
What would become of humanity if we decided to hinder everyone to the same skill and wealth levels? What would become of progress?
If the country is so far in the shitter, that they can't pay for good schools for everyone, then allowing only the comparatively mega-rich to pay for mediocre education, while everyone gets nothing won't solve the problem and might even exacerbate it farther.
About 50% of people have an IQ of over 100. That makes them smarter than average. But of course, how smart you are doesn't correlate with how rich your parents are, which has a much bigger impact on your future. In that light, won't it be most fair to test people on their intelligence, then have the state seize everyone's assets once per year and redistribute it proportionally on that?
Just as I think you can't allow money to solely guide outcomes, you also can't allow intelligence to solely guide.
It's a fact that I'm somewhere on the right side of the intelligence curve. If I just laid about and waited for the state to funnel me vast sums of other people's money, society is worse off than in a world where I need to create something of value in order to be paid.
Taking away the incentive to create value (by annually confiscating the rewards) leads to a terrible outcome, and I believe a more terrible outcome than today. I agree that money has too much influence today, but that adjustments should be made methodically and carefully to prevent massive unintended consequences.
I'd argue that Swiss public schools being so "good" is a function of social homogeneity and income equality, than it is one of forcing rich kids to attend public schools.
The obvious counter example is the US, where public schooling is sectioned off by neighborhood and rich kids still attend school together because they can afford to live in their respective neighborhoods. Even worse, the US spends more money per child on public teaching, and still has some dreadfully bad public schools due to various inefficiencies.
In short, I think your assessment is backwards private college/lawyers/your-favourite-resource don't favor the rich, instead the rich build private college/lawyers/your-favourite-resource to favor themselves (or their children).
>>The obvious counter example is the US, where public schooling is sectioned off by neighborhood and rich kids still attend school together because they can afford to live in their respective neighborhoods.
This happens in the UK too. People who are unwilling to send their children to private school will instead move to a more expensive house because it is in the catchment area of a good school. This is morally equivalent to using extra money to sending your child to a private school.
Near us (South London) the price difference between a 2-3 bedroom house in particularly good catchment area vs. an average one is at least 100,000 pounds, sometimes more...
Which makes it very clear that it's priced based on private school costs, given that the private schools near here costs ~10k/year (huge variations, but that's roughly it for 2-3 of the most popular ones)...
I've had the argument with my ex. over my sons school too. I had halfway given in and agreed to send him private, but we ended up sending him to the local school two doors down from me instead of 40-60 minutes travel to the nearest suitable private school, thankfully. But we'll be having that argument again over secondary school, I'm sure.
The point isn't the rich kids, it's the parents. When all or very nearly all the children attend the same school, the capable, resourceful parents experience that school and care about it. (Simplified, but you see the point.)
Total tangent but the public/private school thing is one of history.
When there were no schools at all, wealthy English would have "private" tutors at home. Then schools became popular - one would go to a school with other rich children, which was "public" compared to home tutoring. When state funded schools arrived, they needed to distinguish between the phrase "public" school and "state funded" school.
In the USA, the concept of a "public" school was the norm by then, so they never bothered using "public" to distinguish them, so when state funded schools arrived private and public became the other way round.
So simply put, the USA was already a socialist paradise by the time they came to name their schools
> So simply put, the USA was already a socialist paradise by the time they came to name their schools
Amusingly Marx in the Critique of the Gotha Programme, used the (then) US system of regulation of schools without running them as an example of a system preferable to state run schools (I realize you mentioned "state funded" as opposed to "state run", but in most state funded systems too it tends to be the state that sets the curriculum in particular and exercise far more control than outlined in the quote below):
'"Elementary education by the state" is altogether objectionable. Defining by a general law the expenditures on the elementary schools, the qualifications of the teaching staff, the branches of instruction, etc., and, as is done in the United States, supervising the fulfillment of these legal specifications by state inspectors, is a very different thing from appointing the state as the educator of the people! Government and church should rather be equally excluded from any influence on the school. Particularly, indeed, in the Prusso-German Empire (and one should not take refuge in the rotten subterfuge that one is speaking of a "state of the future"; we have seen how matters stand in this respect) the state has need, on the contrary, of a very stern education by the people.'
EDIT: Note that he does not argue against public/local government influence on the schools, but it is a red thread (..) in Marx' writings that he was strongly critical of state influence vs. local, direct control.
>>that you can only get actual equal access for all to education/trial-defense/something-else if you force the rich and powerful to have an equal playing field with everyone else
This sort of precedent would only hurt the indigent or impoverished. Wealthy people have wealthy friends who will pay for their legal defense. Financing will be offered to the wealthy, allowing them to maintain access to disproportionate resources in their defense. The poor, not having access to social networks of wealthy friends or family will be screwed. It's bad enough having to get time off of work or find child-care for the poor and working-classes, now they won't have access to their meagre resources?
I wish society would do a better job of considering the ramifications of what is supposedly being accomplished by the adoption or pursuit of policies. "Equal playing field" is nice in theory but it took me a few seconds to realize that the wealthy would still be able to marshall considerable resources just like they already do, except that the poor won't.
> the basic argument is that the availability of private college/lawyers/your-favourite-resource favours the rich and powerful, and that you can only get actual equal access for all to education/trial-defense/something-else if you force the rich and powerful to have an equal playing field with everyone else (at which point they will then use their power to ensure a decent/good level of the service for everyone, including themselves).
I don't get it. Can you actually argue in court that because a particular outcome would be "unequal" in terms of access, that the services in question shouldn't be available to anybody? As far as I know, that's never been a viable argument. You have to satisfy a much stronger criteria for this sort of thing, that it's an actual public ill. Inequality, as far as I know, has never, by itself been sufficient to prove that.
The basic argument is superficially appealing, but it's far from clear that it's true. Critiques of failing institutions have more force when there exists a credible threat to walk away. See e.g. "Exit, Voice, and Loyalty"
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?
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.
Did you read the article? They're not fighting the freezing of the $45m of alleged proceeds of fraud, only the $15m of unrelated assets. The government argument is that those would be payable as a fine upon convicting so they don't want that money transferred out of the country.
Even you are calling that fictitious entity a "thief" rather than an "alleged thief." But it's just a character in a story, not a real person, nor does it represent anyone.
It's normal to make that part of a story to see how the law would play out in various cases. The point of that has nothing to do with guilt or innocence, it's to point out that the outcome of the desired ruling is simply to reward people for spending stolen money. This is a perfectly normal thing that is often used when discussing laws. [1]
This is different from saying that about the actual people being accused. This context is important. Otherwise one is failing to separate reality and fantasy.
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.
That's a separate argument for a more robust and effective public defender's office. This is arguing that there's a right to obtain a counsel of choice, which is an argument that the justices said they have already rejected in oral argument [1]. The petitioner in this case is being represented by Howard Srebnick: http://www.royblack.com/attorneys/Howard/Srebnick/ and not a public defender.
Get legal insurance. I don't know if this is available in the US, but over here in the Netherlands it's really affordable for about $150-200 a year, including things regarding your home and car. I've had this for years without using it, but it's worth the money. This year I had to use it for the first time and the service is quite good up til now.
Indeed. When only the rich and wealthy can afford legal services and everyone else is forced to plea-bargain to things they didnt even do in order to avoid the threat of decades behind bars ... something has gone wrong.
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.
Another interesting example is Stuart Gulliver, CEO of HSBC when they were fined 5 weeks of income for laundering money for Mexican and Columbian drug cartels. HSBC lawyers persuaded prosecutors "not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system." Gulliver was not tried for any crime after helping launder money for literal mass-murdering drug lords in a country where people are jailed for possession of marijuana. Given the dynamics of the situation, it's troubling that he was able to do that.
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.
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.
I was looking around for a quote along these lines, but I think you've just expressed it quite well: "Removing the ability of the rich to do so won't magically give that ability to the poor."
It is quite easy to retard the success (or fill in the blank with legal defense, assets, education, IQ) of a group or individual. However bringing that success (or whatever) to another group is an entirely different sort of challenge, a very difficult one. There are rarely shortcuts and the most commonly suggested solutions often involve infringing on the rights of others. People don't realize this and in the quest of solving social problems with government intervention they end up creating even larger ones. Like you said, it results in pandering to the lowest common denominator. You see this very visibly with policies like "No Child Left Behind", but this sentiment tends to run rampant in leftist schools of thought.
It's not a question of desert. If rich people can't defend themselves with all their money and resources, how can poor people without money or resources possibly hope to stand a chance?
> 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.
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.
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.
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.
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?
While true, this argument falls flat when you realize the limitations. If I made millions legally, then why in the world would I decide to start making all subsequent money illegally? Wouldn't it be much better to just keep milking my legal cash cow?
The government doesn't seem to be limiting their purview to just the money that was supposedly illicitly gained. They're freezing all moneys that could conceivable by subject to a fine. It's not just the $5000, but everything. That's extremely problematic from a rights standpoint.
> They're freezing all moneys that could conceivable by subject to a fine. It's not just the $5000, but everything. That's extremely problematic from a rights standpoint.
From what I read, it's only freezing what's necessary to pay them back. That's not a public defender defending him in the oral arguments. So this is only problematic as far as your Sixth Amendment right to counsel goes as long as you allow the public defenders to be ineffective and expect people to be able to get better lawyers with more money, leaving those with less money less able to defend their legal rights.
Now it's fair to say that the government seizing money in other contexts, like civil asset forfeiture, is problematic. It's just not something this case is about.
> charges of operating a complicated scheme that allegedly defrauded Medicare of upwards of $40 million.
> federal government moved to freeze not only her “tainted” assets, meaning those assets that can be arguably traced back to the alleged underlying crime; but the federal government also moved to freeze Luis’ undisputedly legitimate assets, which amount to some $15 million that cannot be connected in any way to any alleged criminal activity.
> Luis v. United States raises significant questions about both the scope of the Sixth Amendment and the reach of federal asset forfeiture law.
> According to the federal government, because all of Luis’ assets could be subject to forfeiture if she is ultimately convicted, federal prosecutors should not be stopped from freezing all of her “forfeitable” assets before she goes on trial.
Yes, we are. The thing is that they've got to freeze $40M+ which probably is everything after what he spent.
The reason for this is that money is fungible. I can choose to spend from stolen assets or my original assets. Thus, it makes no sense to think of some as "tainted" and other funds as "untainted" which is something you will also see the justices question in oral argument. There's no sense in rewarding someone for spending the stolen money first, which is the only thing the rule being proposed would accomplish.
That's the same reason they've repeatedly rejected the idea, as also is mentioned repeatedly in oral argument by both the liberal (Kagan) and conservative members of the Supreme Court.
Certainly if she is convicted, then they can take her for everything. But she hasn't been convicted yet, she's just been charged. They're not 'rewarding' her for spending stolen money first, because in the case of a conviction they're going to take her everything and throw her in jail to boot.
And it's not necessarily true that assets, even monetary ones, are fungible and that you can spend from either pool at whim. My father has to separate his business and personal bank accounts for tax reasons. Criminals have to launder money, this was illustrated to hilarious effect in Breaking Bad. When you're dealing with large amounts of money, people pay more attention.
They're not "taking" the money, they're preventing her from spending it--freezing sufficient assets to pay them back. In this case, she apparently does still have enough to pay a high-priced attorney.
It would reward people for spending stolen money first if only the stolen money itself could be frozen, rather than simply allowing them to freeze the amount stolen, whatever accounts they might have to freeze to do so. That's the simple, logical consequence of separating the accused person's funds in the way that's being requested by petitioner. You spend stolen money and your regular assets can't be frozen, but if you spend your own money, the stolen money can't be. That simply rewards one for spending the stolen money and not their existing assets by privileging the others from being frozen.
Thus many of the justices, from Kagan to Alito, question how petitioner's request makes any sense.
Finally, although I realize you never said it was, due to the Breaking Bad reference, I feel compelled to continue to point out that this case does not involve drugs. Instead, it involves allegations that "bribes and kickbacks were paid to prospective patients who agreed to sign up for home health care they did not need or never received" in a scheme to defraud Medicare.
The law has a substitution rule that lets them freeze sufficient funds to recover the amount taken by fraud. Prior precedent allows this. Petitioner claims a violation of their Sixth Amendment rights.
It's hard for me to see why someone with a very expensive attorney can even make this case. Just how expensive an attorney does one need before their Sixth Amendment right is satisfied?
> In this case, she apparently does still have enough to pay a high-priced attorney.
Having representation is not the same as being able to pay for a defense. That's just the start.
> Just how expensive an attorney does one need before their Sixth Amendment right is satisfied?
Like you said, this case doesn't involve drugs, it's not petty crime. It's not a simple matter to ascertain guilt based on the facts, because the facts aren't simple. You need expert witnesses, paralegals to comb through the evidence, defending yourself in court against a white-collar crime charge is not something you can do adequately without a war chest.
Unless the government is proposing that they pay for her defense, then they're basically railroading her by not allowing her to fund it herself. The government is going to bring all its unlimited guns to bear on making her look guilty and she won't be able to make her case adequately. It's not a simple matter of looking at a videotape.
> Unless the government is proposing that they pay for her defense
Yes, they will provide public defenders if someone cannot afford representation.
That's why I've pointed out several times that the better argument here would be for a stronger public defender's office, rather than having a two-tier justice system where the rich (or those who stole a lot of money...) can buy better treatment.
Your sense of justice is ill-placed. The court system is a machine deliberately engineered to destroy lives. It offers no real justice, only political scapegoating. Stripping away the ability of individuals to fight the system in the name of rectifying inequality is a net loss to all of us.
And a defense is provided by one's representation.
> The court system is a machine deliberately engineered to destroy lives.
It could stand improvements, but feel free to live in a country without one if you truly feel that way.
> Stripping away the ability of individuals to fight the system in the name of rectifying inequality is a net loss to all of us.
Only in the short-term. Long term, do you not think that those with influence would rectify that if it would affect their ability to buy their way out? I'm a bit worried to see such a strong, negative reaction to equality.
First, for this to even remotely have a chance, it must mean that every wealthy defendant must have their asset frozen, which isn't under consideration (or going to happen, and I think it is for the best that it wouldn't).
And even if it would - wealthy defendants are likely to have "attorney fund pacts" - I'll fund your lawyer if your assets are frozen, if you'll fund mine. Or some more general "asset freeze lawyer insurance" practice will arise.
The problem is that the wealthy in the US do not believe that they play by the same rules, nor do they believe they should play by the same rules.
In the UK, lawyers have for a long time earned on average substantially below the average salary, and that is driven up by the top end London firms (where partners can earn millions).
The reality is that in many countries most lawyers don't earn very much, because they're not top end litigators or counsel to large companies, but spend most of their time writing "low value" documents or letters for clients with little money.
This doesn't seemed to have caused the supply of people wanting to study law to dry up.
I don't understand why people continue to go into law in the numbers they do. Everything I've seen over the last few years indicates the number of law jobs being created/opening up due to retirement is far lower than the number of people passing the bar every year. Considering how much it costs to go through law school, it seems like an insane gamble unless you already have ins at a significant law firm.
See my other comment regarding the UK, where serving lawyers actually earn less than the national average. So yes, it's a bit puzzling. On the other hand, a law degree is a bit of a "I don't know what I'm going to do but this will at least give me a firm backing" type of degree.
You can take a law degree and go into any number of professions such as jobs in the police, human resources, journalism, areas of finance, all kinds of compliance roles and oversight or strategic positions in-house in companies etc. Basically you can treat being a qualified lawyer as having proven that you're able to work hard, learn fast and pay excellent attention to detail, which is often just as valuable or more as domain specific skills.
E.g. my ex recently went from one of the Magic Circle firms as a 2 year post qualification lawyer (UK system for solicitors - for barristers (litigators) it's slightly different - == 3 year law degree, 2 years training contract and passing the legal practice course; the latter can be done as part of/during training, especially if you get a contract with a top firm) to a director-level human resources position at a major bank on the basis of being a qualified solicitor with some lower level HR experience years ago, before her degree. Her legal training is by far the most relevant to the role vs. HR experience, given all the regulatory/compliance issues and general legal issues an investment banks HR department has to deal with.
But certainly, going into law to work in a law-firm is far from lucrative for most people.
(not that the overall cost is much lower in the UK,though: the law degree is a first degree, and costs the same as any typical first degree, and if you get a training contract the training is paid and many firms will then cover the cost of the legal practice course as well; even if you don't get a training contract before your LPC, it's possible to do the LPC for about GBP 5k I think)
how does lawyers becoming public defenders help anything?
We don't have a shortage of PD lawyers, we have a shortage of funding to pay them to serve clients.
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?
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.
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.
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.
I'm not asking lawyers to do anything, I'm saying law firms who do criminal defense will not simply cease existing if this happens, which is what you're implying.
I can only assume you're trolling, or an incredibly obsequious shill for federal power.
The only time an attorney will defend you without both a retainer and on-time payments is when your particular case is high enough profile to make pro-bono work worth it in terms of publicity. Your odds of this circumstance are less than one percent.
Federal prosecutors have extremely high conviction( or rather, plea )rates because they live and breathe by the extraordinarily asymmetrical power wielded over their victims. That you defend this asymmetry is sickening.
Ironically, with this case making the WaPo, she will likely find easy pro-bono work now. That vast majority of us? Probably not.
Currently? Yes. If this case gets decided such that non-criminal assets can be frozen? No.
I'm explaining that law firms won't simply cease to exist if this case gets decided a certain way, which is what folks here seem to be implying. It's not an insurmountable hurdle.
Bill collection will adjust if it has to. Are you suggesting it won't?
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.
[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."
It strikes me that the problem with Justice Alito's analogy is that it presumes guilt. One could retell the story this way: two brothers each received $5000 from a rich uncle on the same day, and also made $5000 selling old vinyl records that turned out to be highly collectible. Then they go and spend $5000 partying. The government comes along and accuses them of attaining the second $5000 through illicit means and freezes their remaining money on the presumption of guilt. Defendants then cannot hire the counsel they desire, lose their case and go to jail. But it wasn't drugs they sold, it was vinyl.
I'm not sure that my story would end up changing legal minds, but failing to consider it as a possibility is unpardonable.
The point Alito is making is that if the prosecutor can't get assets frozen, then it encourages guilty parties to spend all their assets prior to judgement.
He is not assuming guilt in this case. He is making the case for why not allowing freezing unrelated assets is a massively bad incentive which it is in the interest of justice to have counter-measures against.
If one believe countermeasures is necessary, it becomes a tradeoff between the necessity of such countermeasures vs. the negative impact they have on the innocent.
The bar for that is clearly quite high given that courts e.g. regularly will hold people without bail, or set huge bail amounts as countermeasures against having people run off.
In this case it is "only money", so it's not surprising that they court would consider it acceptable in general to freeze funds pending judgement compared to depriving someone of their freedom.
> Defendants then cannot hire the counsel they desire, lose their case and go to jail.
If the public defender system is not a good enough safeguard for justice, then that is an argument worth making, but the issue then is not the defendants ability to pick counsel, but that a substantial proportion of all defendants are forced to rely on a system that may be insufficient.
If you could convince the court that the public defender system is totally inadequate, that would be a strong case for unfreezing enough assets to get adequate representation, but still not necessarily enough to make the case for unfreezing enough for the counsel you might prefer (to take the extreme example: if you're guilty and could hire anyone what's to stop you from finding a suitable friend or relative who is a lawyer, and pay them every cent you own to defend you, as a means of moving the money out of reach?)
If you're on trial, there's some significant chance that you're guilty. That's not the same as presuming you're guilty, but it means that you should probably not be allowed to use questionable assets, lest it turns out that you are guilty and the person the crime is perpetrated against is due restitution. I believe there should be some basic limitations on that power, but it makes sense for it to exist in some form. It seems that in this case, the argument is that even if a defendant's assets are frozen, the Court should be required to unfreeze the portion necessary to pay for defense.
There are several negative consequences that arise out of being prosecuted for a crime. I don't think we can say that just because there are some constraints placed on defendants, they've been presumed guilty. If they were presumed guilty, they'd be immediately sentenced and forced to retroactively disprove the claims post-facto.
They're not saying he's presumed guilty, they're just trying out various scenarios to illustrate the effects of the laws.
And if you go that route, then it's not at all fair that some people can hire expensive lawyers and others cannot to improve their chances. If someone defrauds Medicare for millions, why should they get an expensive lawyer for that when other people cannot afford them?
If everyone was forced to use public defenders, the powerful would use their influence to make sure that it provided effective, independent defense. Even so, it's not like getting an expensive lawyer somehow gets you off and a public defender guarantees you'll be found guilty.
But it does not seem reasonable that we should adopt rules to increase the unfairness by doing everything possible to remove any incentive to improve the public defender's office and doing our utmost to ensure that the poor are forever trapped with ineffective counsel.
Just for the record, this guy has a very expensive lawyer, not a public defender.
"They're not saying he's presumed guilty, they're just trying out various scenarios to illustrate the effects of the laws."
Yes, but the important point is that the courts can only act with what they know at the time, not how some eventual case will come out.
If you expect the court to act under the "well sure, he's presumed innocent, but we have to cover the case where he's guilty too" theory, then we're expecting the courts to somehow figure out all of the possible combinations of actions in the future that might affect the money.
So let's take Alito's argument. We arrest a couple of brothers in suspicion of bank robbery. At the same time the bar owner opens a civil case for damages done to his bar during their party. Their criminal lawyer, getting a feeling he might not be paid (which sounds like a pretty good feeling to have) files a civil suit for his money.
Now we're having to ask the court to make a decision today about monies to maybe be spent or not sometime next year. This is ludicrous.
Yes, the money might be able to get away. But you've arrested the person, and that's all you get. Aside from the due process problems here, it's quite disturbing to see the government seemingly much more interested in the money than the crime. Something's wrong there.
They're not here to decide his fate or his case, though that may happen incidentally. They're here to settle a legal question that was posed to them in the petition for a writ of certiorari.
It's not their job to try his case, nor will they. Unless the entire case hinges on this question (it doesn't), they don't decide his case. So they might unfreeze his assets while he faces fraud charges, but we're not looking at them deciding his guilt or innocence here.
They're trying to decide what the best precedent to set is, which is why they have to consider every possible scenario. So yes, they really do have to consider scenarios with guilty people. It really wouldn't make sense to have them blind themselves to how the precedent will play out in the future. Surely you do not believe this will never be applied to people guilty of fraud? They do consider doubt in such stories, but only when it's important. So they might do that if they were pondering the scope of reasonable doubt, but it wouldn't make sense here.
This case may involve him but it's not about him. It's only about the Sixth Amendment question posed. They're not concerned about all that other stuff because they're not deciding his guilt or innocence.
> Yes, the money might be able to get away. But you've arrested the person, and that's all you get.
The Supreme Court and prior cases disagree with you.
> Aside from the due process problems here, it's quite disturbing to see the government seemingly much more interested in the money than the crime. Something's wrong there.
Yes, but that something is your understanding of what they're doing and why.
Due process is your Fifth Amendment right. Nowhere does this case allege a violation of that right. This is not at all the same as a Sixth Amendment right to counsel being argued here. Moreover, he is in fact already defended by counsel of choice, specifically this one: http://www.royblack.com/attorneys/Howard/Srebnick/
This makes the hypothetical infringement of the Sixth Amendment rights rather oblique--was he really denied his right to counsel when the very expensive lawyer he chose is arguing before the highest court in this country?
" but we're not looking at them deciding his guilt or innocence here"
Yes, I got that. My point is that positing the various ways the case plays out with whether the person is guilty or innocent is outside the scope of the question. Alito's avenue of analysis was misguided. It doesn't matter whether they're guilty or innocent because we're asking what the government should do with the funds before we know the result of the case
And I understand the point of appeals courts. I'm making an argument based on a plain, layman's understanding of how the system should work. I have no doubt that for those inside the system, it all makes some kind of weird sense. "Hey, we took all of your money, but look! The paperwork has been done correctly!"
I also understand that the Supreme Court disagrees with me. Probably isn't the first time, nor will it be the last. Those guys are a hell of a lot smarter than I am. My best argument is that at some point it makes sense legally but yet you lose consent of the governed. Taking somebody's money so they can't afford a lawyer -- along with a half-dozen or so other bone-headed decisions over the last decade or two -- begin to cross that line. Somebody should speak up. That "speaking up" is not a legal argument; it is a political one.
Sometimes the law is an ass.
Thank you for the instruction on the split between the Fifth and Sixth Amendment issues. Lots of detail to consider here.
I'd like to point out that I'm not "in the system" as it were. I'm not a lawyer, I just happen to have studied a bit of legal procedure in college and the Supreme Court in particular. Thus, I know the process and why one normally petitions them for a writ of certiorari simply because the Supreme Court has original jurisdiction over only some obscure types of cases and thus does not hear most cases. See also: https://www.law.cornell.edu/wex/certiorari
> we're asking what the government should do with the funds before we know the result of the case
The converse is that we have two innocent people who have money frozen. One can pay for a lawyer, the other cannot.
If you find this is a Sixth Amendment violation, then isn't the Public Defenders office itself a violation? If that's the case, why are they not arguing that we cure that? The answer is that it wouldn't help them: they are able to afford a rather expensive lawyer. It's true that a full defense is expensive, but they're just causing themselves harm with an expensive Supreme Court appeal rather than saving the funds for the main defense. There are quite a few weird expenses involved there, not the least of which is the special booklets prepared for each justice and several other parties which have a large number of very exacting rules. Also, of note, is the fact that one can petition the Supreme Court 'in forma pauperis' and the Supremes will in fact pick up the tab for all that if you actually can't pay. They have accepted pro se applicants who were then provided representation for all the expensive formalities and such.
I think there is a good point that it's not at all fair that some people can get their own lawyer while others cannot. It would be better if that was fair for everyone, rather than rich people paying for better treatment.
Alas, that's not at all what petitioner is asking for. They're only interested in a rule that would help themselves here and that would encourage people who defrauded or robbed others to spend the stolen money first. So I steal all of your money and use it to pay for an expensive lawyer to get away with it, while poor but innocent people would have to rely on a state-appointed lawyer.
If someone defrauds medicare for millions, then they do not deserve, in a moral sense, expensive counsel or any help at all, because they are guilty. But a person can be accused of defrauding medicare for millions without having actually done so. And in that case, yes, they deserve to be free to hire an expensive lawyer.
Why? Because the prosecutor set against them is an expensive prosecutor and is going to give the case more of his attention.
If you have been charged with a minor offense that carries small penalties, you will be charged by a prosecutor that is lower on the career ladder and cares less about your particular case; they will put less effort into it. But if you have been changed with a big crime that carries large penalties, that is going to be prosecuted by a better lawyer. A public defender might well be adequate to defend against a minor charge but be wholly inadequate against a major charge where the prosecution is very highly motivated and incentivized to win.
And since we do not know if the charged party is guilty or not, they ought to be presumed innocent and not restricted from hiring counsel of their choice and means.
In Alito's case there is at least an argument that the stolen assets were equal to or greater than the amount to be frozen.
But I thought in Kaley the frozen assets were some large multiple of any number claimed to be stolen, and that this practice of seizing everything was common.
Did this kind of distinction come up in the oral argument?
Isn't that how it works with non-money property though? Suppose the brothers each inherit a yacht from their uncle, and each steal a yacht, and each host a party at a golf club, giving the owner a yacht in exchange - brother A the one he stole, brother B the one he inherited. The owner of the stolen yachts comes calling. Brother A gets to keep his remaining yacht until the golf club owner (who forfeits the stolen one) wins a civil suit against him. Brother B loses his immediately.
> 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.
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.
That's not the question here—those $20 bills would still be "tainted". Moreover, the bar to demonstrate that they are tainted is reasonably low, significantly easier than getting a conviction. In this case, though, the persecution agrees that the assets are unrelated. As far as the courts are concerned, that's an established fact.
It's more like if you steal some apples, perhaps eat some of them and then the government freezes your bananas which you got through completely legitimate means unrelated to your (alleged) crime.
In the larger scope they are related if they can be converted back to cash. I imagine if assets are family photos or other maybe important items which have no value. But if they have monetary value I can see govt's position in freezing access to them.
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.
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.
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.
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.
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.
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
Most public defenders offices are so oversubscribed and underfunded that they can't really provide good representation for the majority of their clients.
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.
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.
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".
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.
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?
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.
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.
<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>
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.
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.
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
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.
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.
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.