[Natsu]

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_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/

[agarden]

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.

[vidarh]

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?)

[cookiecaper]

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.

[Natsu]

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.

[DanielBMarkham]

"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.

[Natsu]

That's not what they're doing or why.

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?

[DanielBMarkham]

" 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.

[Natsu]

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.

[agarden]

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.

[nullc]

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?

[lmm]

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.

[Natsu]

There's a substitution rule that's discussed in oral argument, but it's a bit complex.