Supreme Court Says Government Can't Take Your Money And Lock You Out Of Your Choice In Representation

This decision was handed down by the Supreme Court more than a week ago, but it's worth reporting. Late last year, the Court decided to take a look at an issue related to asset forfeiture and the implications it has for the Sixth Amendment. In this case, the defendant, Sila Luis, argued that the government's seizure of her assets -- pre-conviction -- denied her the right to defend herself fully against its charges. She could still use an attorney, but it would have to be one appointed to her or one willing to work for deferred compensation (in the hopes that assets would eventually be returned). The problem here isn't a small one. The government has the power to seize assets pre-conviction using nothing more than a grand jury's indictment as the basis. This is done to provide some sort of assurance that the accused can compensate those wronged (as well as pay any fines, fees, etc. associated with the conviction) when the trial is concluded. But this assumes the government will win its case, even before it heads to trial. And, by freezing/seizing funds, the government can increase the chances of a decision in its favor by limiting the defendant's choice of representation. The government doesn't mind playing with a stacked deck and it justifies this hobbling of defendants by pointing out that earned cash is almost impossible to separate from cash acquired through criminal means. It's correct, of course, but it makes this assertion before a verdict has been reached -- presuming both the defendant and their money to be guilty. The government -- along with the dissenting justices -- argue that allowing defendants to pay for representation out of funds on hand will only encourage criminals to spend ill-gotten gains faster in hopes of denying sought retribution while availing itself of the most expensive defense lawyers they can afford. While there undoubtedly is a chance something like that will happen, the alternative -- seriously diminishing defendants' representation options -- is pretty much a violation of their Sixth Amendment rights. The Supreme Court -- in a 5-3 decision -- noted that the seizure of untainted assets is a violation of Sixth Amendment rights when it prevents defendants from seeking the best possible representation. It's somewhat of a limited win, as it relies on the specifics of this case, where seized assets were deemed by the government to be "untainted." That didn't stop it from seizing them, though, as it was holding them for expected future repatriation when Luis was found guilty. That it did so before even going to trial is where the problem lies.

[T]he nature of the competing interests argues against this kind of court order. On the one side we find, as we have previously explained, a Sixth Amendment right to assistance of counsel that is a fundamental constituent of due process of law. And that right includes “the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” The order at issue in this case would seriously undermine that constitutional right. On the other side we find interests that include the Government’s contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the victims’ interest in securing restitution (notably, from funds belonging to the defendant, not the victims). While these interests are important, to deny the Government the order it requests will not inevitably undermine them, for, at least sometimes, the defendant may possess other assets—say, “tainted” property—that might be used for forfeitures and restitution.. Nor do the interests in obtaining payment of a criminal forfeiture or restitution order enjoy constitutional protection. Rather, despite their importance, compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system.

It seems to be a very obvious conclusion. As legal blog Grand Jury Target points out, the point at which the assets are seized is far in advance of the guilty verdict the government believes it will obtain.

There is a very real and very important difference between seizing assets that are tainted and assets that are not tainted when the seizure happens before trial: At that point, the government has proven nothing. It has merely run the false “gauntlet” of a grand jury. Before a fact-finder has heard the case, the defendant should have every opportunity to hire her counsel of choice to defend against the indictment.

As Charles Pierce noted at Esquire,