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

from the the-Sixth-Amendment-gets-a-helpful-nudge dept

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, this decision is one the Supreme Court shouldn't even have had to reach.

On Wednesday, the Supreme Court did a thing that my every instinct tells me that the Supreme Court shouldn't have to do. But apparently, the United States, a country with a Bill of Rights that you can buy at the gift shoppe on your way out, needed clarification on the subject of whether or not you can pauperize a criminal defendant as a way of making sure this person's Sixth Amendment right to counsel is a sad and tattered joke.

The dissenting opinions seem to believe a sad and tattered joke is better than the alternative: criminal defendants blowing through "guilty money" while socking away the legit stuff in order to mount a better defense in the future. The dissent envisions a world where the government wins every case, so it makes no difference whether it seizes the money pre- or post-conviction, just so long as no one accused of anything avails themselves of the best defense possible.

Filed Under: asset forfeiture, sila luis, sixth amendment, supreme court

Criminal Defendants Sue State Of Utah For Blowing Off The Sixth Amendment

from the the-best-lawyers-$0-can-buy dept

So much for those "inalienable rights." The Sixth Amendment -- among other things -- guarantees representation for criminal defendants. This guarantee has been declared null and void in two states: Utah and Pennsylvania.

The problem isn't that these states aren't willing to comply with both the Sixth Amendment and the Supreme Court's Gideon v. Wainwright decision. It's just that they're not going to spend any of their money doing it. In these states, funding for indigent defense is left up to local governments, with no additional support coming from the state level.

This causes problems for smaller locales, which often don't have the revenue to fully fund the legal defenders the accused are (supposedly) entitled to. But it's not just a matter of funding. It's also a matter of priorities. The state of Utah is currently being sued because of its unwillingness to ensure public defenders are properly funded. There's money available, but lawmakers have shown an unending willingness to only fund half of the criminal justice equation.

Utah is one of only two states nationwide that provide no state funding for indigent defense. It ranks 48th in the nation in per capita funding of indigent defense, according to the complaint.

Nor has the state set standards for contracted indigent defenders, or ensured that counties provide "constitutionally adequate" legal representation, the men say. Utah counties design and administer their own indigent defense programs.

Washington County uses fixed-price contracts to pay local attorneys for indigent defense, and budgeted $760,688 for indigent defense in this year. The county budgeted $2.8 million for prosecution this year, and the state has budgeted $18.6 million for criminal prosecution, and not a dime for defense.

The lawsuit points out that the lack of funding has hampered both of their cases. For one of the two defendants bringing the suit, the lack of funding resulted in his public defender's contract not being renewed, basically leaving him without capable representation.

At the time this lawsuit was filed, Plaintiffs were being represented by public defenders. During that representation, Washington County did not renew the public defender contract for Mr. Paulus’ public defender which makes it impossible for him to continue to his currently scheduled trial date.

Mr. Paulus faces 25 years to life in the Utah State Prison if he is convicted of his crimes. Mr. Paulus had a previous public defender, Ed Flint, who had obtained a private investigator interview a number of witnesses, but Mr. Flint had not retained any expert witnesses because of the contract issues with the Defendants as it relates to the public defender system in Washington County. As of the date of the filing of this action, Aric Cramer, who had two contracts and subcontracted with Ed Flint, did not have these two contacts renewed. Mr. Cramer would also subcontract with Ariel Taylor. On information and belief, one of those contacts are still unfilled.

On information and belief, attorney Ariel Taylor has been awarded one of those two vacant contacts. However, Mr. Taylor has no knowledge or involvement in the Mr. Paulus’ case prior to the non-renewal of Mr. Flint and Mr. Cramer’s contracts.

And it's not just that defendants are in danger of losing lawyers familiar with their cases if contracts aren't renewed. Years of underfunding and neglect by local governance has led to an ad hoc public defense network which does little to ensure defendants receive competent assistance.

Defendants exercise no supervision over the county indigent defense programs. They have also failed to establish, require, or enforce any practice standards or gridlines for the portions of noncapital indigent defendants receive constitutionally adequate representation.

National standards pertaining to the administration and provision of indigent defense programs have been in existence for decades . State and local entities across the country have adopted many of these practices standards. Washington County has refused to do so.

The lawsuit is aiming for class status, which would draw in many other criminal defendants -- either imprisoned or still awaiting trial.

The numbers cited in the suit aren't anomalous. The complaint that defenders' offices are underfunded can be heard all over the nation. It's just that two states have further tipped the scales in favor of prosecutors by passing all costs on to local governments. And when there's a limited amount of money to spend, it plays better with voters to hand it to the law enforcement side, rather than a system that helps "guilty" people "escape" punishment. Yes, I'm aware our justice system is predicated on the presumption of innocence, but that's the ideal, not the prevailing perception.

A system that is routinely a travesty at best is a complete debacle in Utah, quite possibly to the point of being unconstitutional. But that's the way the accused are treated. The system prefers plea bargains to trials and convictions to exonerations by a large margin -- something that can be immediately confirmed by taking a glance at government balance sheets.

At best, this case will force the state to start funding indigent defense. But much more needs to be done before the system can be considered equitable.

Filed Under: public defender, sixth amendment, utah

Supreme Court Examines The Sixth Amendment Ramifications Of Pre-Conviction Asset Seizures

from the and-the-prognosis-for-this-'right'-isn't-exactly-good dept

The Supreme Court is taking a swing at the Sixth Amendment and it looks like it may be worse off by the time the court's finished with it.

At the center of the case is Sila Luis, who was indicted in 2012 of defrauding Medicare to the tune of $45 million. She has yet to be convicted of any crime, but the case has moved all the way to the Supreme Court because of pre-trial actions by the US government.

Apparently, the millions of dollars Luis allegedly siphoned from Medicare is long gone. So, the government has seized her lawfully-acquired assets ahead of the trial in order to guarantee it can collect fines and damages should it secure a conviction.

The problem is obvious: with all of her assets frozen, Luis cannot seek the best representation she can afford. She can only avail herself of legal representation willing to work for free or in hopes of her assets being released to her if she's acquitted.

This is a problem for anyone who's had their assets seized by the government. Challenging a forfeiture is difficult enough without the added hurdle of financing it with restricted means. The government, of course, doesn't see any problem with seizing funds before obtaining a conviction. (Convictions in asset forfeiture cases are somewhat of a rarity, and in almost every state, the lack of a conviction is no impediment to seizing whatever property the government speculates could be tied to illegal activity.)

In asset forfeiture, it's the property that's considered "guilty." In this particular case, the government doesn't even dispute the legitimacy of the funds it's taken from Luis. Instead, it claims it has the right to seize funds ahead of a conviction as a sort of down payment on expected fines and damages.

The oral arguments in front of the Supreme Court don't bode well for people in Luis's position. This summation of the justices' responses to her legal rep comes from Amy Howe of the renowned SCOTUSblog.

Justices of all ideological stripes appeared unconvinced. Justice Elena Kagan told Srebnick that there is a “powerful intuition” to his argument, but “it seems that the distinction you’re making is one the Court explicitly rejected in” its 1989 ruling. Your case, she continued, “doesn’t seem to present any different circumstances.” Roberts was also skeptical, telling Srebnick that, “if you can freeze tainted assets without running afoul of the Sixth Amendment, I don’t understand why you can’t freeze untainted assets.”

Justice Samuel Alito seemed to agree. He asserted that, “as a matter of economics and common sense,” “money is fungible.” He described a hypothetical in which twin brothers rob a bank and steal $10,000, which they divide between the two of them. They also each receive $5,000 as a birthday present from a rich uncle. The first twin spends all of his money from the robbery but saves the birthday money, while the second one spends all of his birthday money but saves the money from the robbery. Under Luis’s position, Alito emphasized, the first brother could use his money to hire a lawyer, but the second one couldn’t. “What sense does that make?” Alito asked. Justice Anthony Kennedy chimed in, telling Srebnick: “The law that you want this Court to say is ‘spend the bank robbery money first.’”

The Court's fear appears to be that if they agree with Luis's argument, criminals will make sure they divest themselves of their ill-gotten gains before being arraigned. While this might be the case, the Court perhaps gives too much credit to the innate wiliness of criminals. Our nation's prisons are full. Some of that can be traced to overzealous prosecution, the Drug War and a billion pages of obscure federal regulation. But some of that is due to the fact that many criminals are opportunists and, as such, are not particularly good at the whole "delayed gratification" thing.

But that's really neither here nor there. The key to the defense's argument is that the Sixth Amendment supposedly grants Americans the right to the "assistance of counsel." This would include availing themselves of the best representation they can afford. The government stacks the deck by stripping certain defendants of their wealth before pursuing a conviction. But as the justices see it, the alternative is to let criminals spend "bad" money first and work toward beating the rap with their "good" money.

The justices didn't completely side with the government, however. Justice Breyer, in particular, felt the government's angle was just as questionable as Luis's interpretation.

Now let's try it with the facts here. If a defendant has some money, which maybe he will have to pay in a fine, what we'll do is we'll take all his money away before he's been convicted beyond a reasonable doubt. Okay. That's the difference in the propositions.

And I'm saying it's pretty hard for me to think in a country which says that before he's convicted, you have to release him on bail except in unusual circumstances, that nonetheless, you can take all his money away so he can't hire a lawyer.

The government countered Breyer's point by arguing that the specifics of this alleged crime led to a lawful seizure under clearly-defined statutes passed by Congress. Justice Kennedy, however, points out the specifics aren't really all that specific.

But what is it that confines your rationale to a specific area? It seems to me that if the government prevails in this case, every State in the union, every locality could say that in the event of assault and battery, malicious ­ mischief, drunk ­­-- an accident caused by drunk driving, any crime involving a bodily injury, that the government is entitled to restrain disposition of assets that might be used for medical care, for pain and suffering. And this would, in effect, prevent the private bar from --­­ from practicing law unless it did so on a contingent basis.

As the justices remind the government -- and as is pointed out by the defense -- the 1989 Supreme Court decision referenced constantly through the oral arguments (US v. Monsanto [not that one]) clearly specified that the government could seize tainted funds pre-trial. No such permission was given for untainted funds.

While the government has admitted the funds it's seized are untainted, it also argues they are "fungible." The government says it's difficult to separate clean money from dirty money, and even if it could, leaving untainted assets laying around would just encourage defendants to stick it to The Man by loading up on high-priced lawyers.

After all, Justice Breyer, this is basically a zero-­sum game. Either there will be money available at the end of the case for the victims or the money will have been spent on lawyers.

The Supreme Court, at this point, seems unwilling to call an end to pre-conviction seizures -- even of untainted funds. It apparently realizes the downside of siding with the government: the abuse of pre-trial asset seizures that could result in less-than-effective representation for accused parties. But it appears more inclined to allow the government to deal from the bottom of the deck on occasion, rather than accept the possibility that a few accused criminals may use this Sixth Amendment "loophole" to dodge fines and damages resulting from convictions.

While the Supreme Court has made a few nods towards the Fourth Amendment in recent months, it still has shown quite a bit of deference to the law enforcement point of view. The wins of Riley (warrants for cell phone searches) and Rodriguez (no prolongment of traffic stops for fishing expeditions) must be balanced against Heien (cops can use any "reasonable" justification for a traffic stop, even nonexistent laws) and Mullenix v. Luna (immunity in officer-involved-shooting upheld). Beneath the challenges to the government's arguments, there's a distinct undercurrent that hints at the Supreme Court's willingness to let one innocent person be deprived of their right to counsel, rather than let thousands of criminals use "guilty" money to "purchase" their innocence.

Filed Under: asset seizure, pre-conviction asset seizure, sila luis, sixth amendment, supreme court

Locked Out Of The Sixth Amendment By Proprietary Forensic Software

from the unconfrontable-witnesses dept

There are all sorts of proprietary code out there, unavailable for inspection and perfectly capable of sending people to prison, as Slate's Rebecca Wexler reports.

Defendant Martell Chubbs currently faces murder charges for a 1977 cold case in which the only evidence against him is a DNA match by a proprietary computer program. Chubbs, who ran a small home-repair business at the time of his arrest, asked to inspect the software’s source code in order to challenge the accuracy of its results. Chubbs sought to determine whether the code properly implements established scientific procedures for DNA matching and if it operates the way its manufacturer claims. But the manufacturer argued that the defense attorney might steal or duplicate the code and cause the company to lose money. The court denied Chubbs’ request, leaving him free to examine the state’s expert witness but not the tool that the witness relied on.

That's a starkly mercenary stance to take. The "trade secret privilege" invoked here basically states that the company's potential loss of income outweighs a person's potential loss of freedom. It also asks for a level of trust it hasn't earned: that the software is as close to infallible as it needs to be. Cross-examination is next to useless when the software itself can't be examined.

Worse, this closed-off software operates in a field where nearly every previous form of "indisputable" evidence has proven to be severely flawed.

Studies have disputed the scientific validity of pattern matching in bite marks, arson, hair and fiber, shaken baby syndrome diagnoses, ballistics, dog-scent lineups, blood spatter evidence, and fingerprint matching. Massachusetts is struggling to handle the fallout from a crime laboratory technician’s forgery of results that tainted evidence in tens of thousands of criminal cases. And the Innocence Project reports that bad forensic science contributed to the wrongful convictions of 47 percent of exonerees.

Everything tied to securing convictions seems to suffer from pervasive flaws compounded by confirmation bias. For four decades, the DOJ presented hair analysis as an unique identifier on par with fingerprints or DNA when it wasn't. A 2014 Inspector General's report found the FBI still hadn't gotten around to correcting forensic lab issues it had pointed out nearly 20 years earlier. This contributed to two decades of "experts" providing testimony that greatly overstated the results of hair analysis. All of this happened in the FBI's closed system, a place outsiders aren't allowed to examine firsthand.

That's the IRL version. The software version is just as suspect. Computers aren't infallible and the people running them definitely aren't. If the software cannot be inspected, the statements of expert witnesses should be considered highly dubious. After all, most expert witnesses representing the government have a vested interest in portraying forensic evidence as bulletproof. Without access to forensic software code, no one will ever be able to prove them wrong.

If a piece of software has the ability to deprive a member of the public of their freedom, its code should be open for inspection by the defense. "Trade secrets" should not take precedence over the public's right to defend themselves in court. Even in the highly unlikely event that Chubb's defense team would have copied the code and destroyed the company's future profits, it would still have the ability to seek redress through the court system. After all, that's the line the government uses when it argues for expanded "good faith exceptions" or warrantless searches and seizures: "Hey, if we screw up, you can always sue."

The judicial system is a remedy for wrongs, both criminal and civil. What it shouldn't be is a protective haven where ridiculous assertions like those made here are used to prevent an accused person from learning more about the evidence being used to convict them.

Filed Under: accuser, code, devices, forensics, lawsuits, sixth amendment, software