Civil Asset Forfeiture: Because Trials Are Easier Without Pesky Lawyers
Nov. 6, 2015 (Mimesis Law) — People in the United States like the idea of a fair trial. Picture Atticus Finch making a dramatic closing statement pleading for a defendant’s freedom. A fair and wise jury of the defendant’s peers deliberating long into the night. A stern but considerate judge pondering all kinds of important information before sending him to prison for life. But at least it was fair. The Constitution was honored and the participants can congratulate themselves on another day upholding the honor and integrity of the world’s finest legal system.
When a defendant ends up in federal court, the trial looks a little different. The government does not play fair. The jury doesn’t really care, as long as they get another criminal off of the street. The judge adds up a bunch of numbers based on a mathematical formula from the U.S. Sentencing Commission and sends a guilty man away for an arbitrary number of months that add up to more years than anyone could hope to survive.
But, hey, you had Atticus Finch. You worked hard, you saved your money. Grandma cashed in her retirement savings. The church held a fundraiser. And you hired the best lawyer in town for your trial, so there’s that.
Maybe. Maybe not.
Next week, the Supreme Court of the United States will hear argument in a case to determine if the government can get rid of that pesky hotshot defense lawyer. In Luis v. United States, Sila Luis is arguing that she should be able to use her own money to hire her own lawyer to defend her against a criminal charge. The government argues we should dispense with all this silly due process and get down to business. The business of forfeiting all of your money and putting you in jail forever. No defense attorney necessary. Or at least not the one you want. And not the lawyer you could have afforded if the government hadn’t taken all your money before any trial was even scheduled.
Luis was charged in a Florida federal court with Medicare fraud. She was the owner of a home health care company that primarily billed the federal government for its patients. According to prosecutors, $45 million of that billing was either unnecessary or the result of kickbacks.
That was what the FBI agent testified to. Or at least that was what he repeated in court. The case records make it unclear whether the agent had any real independent knowledge of the case. But he had nine anonymous cooperating witnesses. They were admitted criminals and getting a deal from the government. And they weren’t actually at the hearing. The agent just repeated what they said.
That does not sound like a lot of evidence to convict someone. Then again, it’s federal court. Tough luck. There is over a 90% chance someone who enters the federal criminal system will be found guilty. But Luis has not actually been convicted. There has been no criminal trial.
United States District Judge Paul Huck did not actually find Luis guilty. He just found probable cause that Luis was involved in fraud and might eventually owe the government all that money. So he let the government freeze it. Despite the fact the prosecutors stipulated at a hearing the money they wanted to freeze did not come from any fraudulent activity. Despite the fact she wanted to use the money to hire lawyers to defend her against the $45 million fraud case the United States government was leveling at her.
The federal government will be arguing next week that as long as they can make the minimal showing that they are going to convict Luis and throw her under the jail, they should be able to seize all her money. Not after the trial. Now. Before any trial. And you cannot use that money to hire a lawyer for that trial.
The term “slippery slope” is annoying and overused. But it might be appropriate here if not for the fact we have clearly slid all the way to the bottom of the slope.
Civil forfeiture has recently gotten a lot of attention. Prosecutors can take property on the mere suspicion it may have been used in a crime. It’s pretty obvious to the police and prosecutors that the only people left using cash are drug dealers. So they go ahead and seize the cash. If it might be drug money, it’s theirs anyway. Or at least not yours.
Last year, in Kaley v. United States, the Supreme Court allowed the government’s seizure of a defendant’s money before trial when the money was linked to the crime. As long as the grand jury finds probable cause, the government controls that money too. Long before there is actually a trial on the charges.
And now we reach the end of the slope. The money is yours. You legally obtained it. It’s not related to any criminal activity. The theory is that while the money frozen may be completely lawful, it constitutes the “substitute proceeds” of the crime, meaning that they may not be able to find any actual proceeds, so they can take whatever they can get their hands on. Even though it was lawfully earned and it’s yours.
But the feds know they are going to beat you in court so it’s really theirs. So what if you want to use the money to hire a lawyer who understands how to defend a massive health care fraud case? You are going to lose anyway, so why waste the government’s money on a fancy lawyer when we can spend the taxpayer’s money on the next appointed lawyer on the list?
The argument next week has frightening implications for the criminal justice system. If the government can prevent an accused citizen from hiring a lawyer, they hold all of the cards in a prosecution and even get to pick which cards a defendant can play with.
Luis’s brief says “the private criminal defense bar provides a significant check on the power of the prosecution and the judge.” The government has found a simple way to remove that check. And after next week’s argument, we will see if the Supreme Court intends to be the government’s accomplice in this abuse of prosecutorial power.