Mimesis Law
6 July 2020

Luis v. U.S, A Glimmer of Hope for the Right to Counsel?

Nov. 13, 2015 (Mimesis Law) — Justice Kagan provided the first glimmer of hope for the Sixth Amendment in many years in Luis v. United States, a case where the government is attempting to seize legally obtained assets before trial to make sure it gets paid back after conviction:

You have Monsanto, you combine Monsanto with a—a simple factual acknowledgement that money is fungible, and it gets you to a judgment in this case. You win, the petitioner loses. And—and, you know, that’s a fair, strong argument, if—if one is comfortable with Monsanto.

I mean, there is—so I think I would just ask you, I mean, suppose the Court is just uncomfortable with the path we started down the road on in Monsanto? And you might be right that it just doesn’t make sense to draw a line here, but it leaves you with a situation in which more and more we’re depriving people of the ability to hire counsel of choice in complicated cases. And so what should we do with that intuition that Monsanto sent us down the wrong path?

Since 1989, the Supreme Court has set a rule that is clear, consistent, and wildly unfair: the government’s right to be paid after trial is more important than your right to retain a lawyer.  Even the court acknowledged that its decision was potentially scary.

The notion that the Government has a legitimate interest in depriving criminals of economic power, even insofar as that power is used to retain counsel of choice, may be somewhat unsettling.

Forfeiture provisions are powerful weapons in the war on crime; like any such weapons, their impact can be devastating when used unjustly.

But despite those concerns, Monsanto (along with Caplan & Drysdale, its companion case) have puttered along, quietly stripping people of their preferred lawyer and forcing them instead to be represented by appointed counsel.

When the issue came up again in 2014, Kagan was among the six Justices who approved of taking a defendant’s money before trial, even when the evidence was weak. In fact, in a rather canny move, Justice Scalia (the senior-most judge in the majority) even had her write the opinion, effectively locking in her vote.

Kagan decided that case straightforwardly. Regardless of whether Monsanto was a correct decision, “[w]hen we decided Monsanto, we effectively resolved this case too.”

But with Kagan now wavering, and even Scalia asking pointed questions about whether there is truly any historical precedent for stripping a defendant of all his assets pre-trial, could Luis be the case that finally breaks the government’s ability to unilaterally decide whether you get to use your own money to pay for your chosen private attorney?

There are reasons for optimism.

For one thing, the parade of horribles that that the dissent predicted has come to pass. There are many places in the country where getting a public defender, or worse, appointed counsel, means that “there is no guarantee that levels of compensation and staffing will be even average.” Yet pre-trial forfeiture has only become more common over time, as the DOJ brags.

For another, the government may have finally pushed just one case too far. The argument for seizing tainted assets was pretty straight-forward—you shouldn’t benefit from your wrong-doing. But now that the argument has extended to seizing legitimately obtained untainted assets, the phantom of a slippery slope lurks ahead.

As Justice Kennedy points out, if legitimately obtained assets become forfeitable as soon as there is probable cause that they may have to be paid some day, then there is nothing to stop every state and local government from imposing draconian fees and fines, to be restrained in advance of every case, effectively killing the private criminal defense bar.

Indeed, Justice Sotomayor predicted that the federal government would do exactly that if the Court went along with the government’s position, creating a rule allowing forfeiture of untainted assets in all cases within three to five years.

That gets especially terrifying when you consider some other sections of our civil forfeiture code. For instance, the same law that allows forfeiture of healthcare fraud money allows the government to seize all assets belonging to anyone accused of terrorism. By contrast, the Founding Fathers prohibited permanent forfeiture, even after conviction, for those accused of the only crime listed in the Constitution, treason.

Now nobody ever got rich banking on the Supreme Court to make the right decision. But here we are, nearing the bottom of a slippery slope that may mean the destruction of the American ideal of counsel of choice. Maybe now, when the stakes are at their highest, and the government’s intention is clear, the Supreme Court will take a stand and say, for the first time in a long time, that the rights of an individual citizen trump the convenience of the Department of Justice.

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    […] reading the tea leaves of oral argument, Andrew Fleischman holds out a glimmer of hope from Justice Kagan’s […]