Mimesis Law
4 July 2020

Right to Counsel of Choice vs. The Government’s Right to Your Money

Oct. 2, 2015 (Mimesis Law) — Let’s say you’re in trouble with the government. So you pick a great (but expensive) lawyer: Clarence Darrow’s suave great-great grandson, Schmarence Darrow. Schmarence has never lost a case. Juries weep at his closing arguments, scratch out “not guilty” and write “innocent.” Prosecutors tremble when he passes, and at trial, their suits soak through with pit stains. At oral argument, he spends half his time autographing gavels.

What can the government do in the face of such legal brilliance? It could marshal enough evidence to make your conviction inevitable, or offer a favorable plea deal. But why do that when it can just seize the money you would have used to pay your lawyer?

That’s what happened to Sila Luis, who found herself in the government’s cross-hairs for Medicare fraud. Before trial, the government moved to seize $45,000,000 of her assets, to make sure that it got paid back after it convicted her. This included money that had never been involved in any crime. Because that is more than all of Luis’ money, this seizure would mean that she could not hire a lawyer.

The government won at the trial court level by having a single government employee come in and testify that certain confidential informants told him that Luis had defrauded the government of $45,000,000. Luis was not permitted to speak to these informants, or even learn the basis of their knowledge.

After her assets were frozen, she appealed to the 11th Circuit, arguing that it was unconstitutional for the government to take away her lawyer and literally all of her money without proving that the money was at least connected to a crime.

The 11th Circuit Court of Appeals did not struggle with the decision. It affirmed the seizure of all of Luis’s assets, saying that her position was meritless in light of Supreme Court precedent. The Supreme Court of the United States has agreed to review the case, and frankly, the prognosis is bleak.

Last term, in Kaley v. United States, the Supreme Court held 6-3 that defendants are not entitled to a meaningful hearing to determine if they will have access to allegedly tainted assets. Defendants, the court reasoned, can be seized and held in jail without bond for years awaiting trial based solely on the findings of a grand jury. So if the government can put you in jail on that basis, why not your money?

Further, as the court noted, giving defendants a meaningful hearing, where the rules of evidence applied and both sides presented witnesses, might provide a “sneak preview” of the government’s case, allowing the defendant to anticipate and rebut the government’s case, or “facilitate witness tampering.”

Finally, the court held, the whole thing was more or less a foregone conclusion, because it had already held in Monsanto that the government’s right to be paid after trial trumps the defendant’s right to have counsel of choice during it.

Justice Roberts penned a powerful dissent in Kaley, pointing out that:

[F]ew things could do more to ‘undermine the criminal justice system’s integrity’… than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice — without even an opportunity to be heard.

But he was not on the winning side. The government can totally do that.

The only meaningful difference between this case and Kaley is that, while Kaley dealt with assets that were allegedly tied to the fraud, in this case, the defendant stands to lose every last cent she has pending trial without any proof that its connected.

If the government can seize even non-related assets whenever it charges a defendant with fraud, then it can snatch away a citizen’s counsel of choice at a moment’s notice.

Not that there has been much hand-wringing from the government about it. The trial court analogized Luis to a bank robber trying to use proceeds of the crime to hire a lawyer:

The reason the bank robber is not permitted to use the [bank’s] $100,000 to hire a lawyer is obvious. The money does not belong to him. But suppose the bank robber in the example above spent the $100,000 that he stole. It just so happens, however, that he has another $100,000 that he obtained legitimately. Should his decision to spend the $100,000 he stole mean that he is free to hire counsel with the other $100,000 when Congress has authorized restraint of those substitute assets? The reasonable answer is no.

The bank has the right to have those substitute, untainted assets kept available for return as well.

Of course, the distinction between this case and the bank robber is that we can be pretty sure just how much a bank robber stole. When it comes time for the government to set out its losses, though, it can rely on confidential informants before trial and revise downward if the evidence doesn’t materialize. When the standard is probable cause, the sky is the limit.

Also, the trial court’s example conveniently forgets about that presumption of innocence thing we keep hearing about. As Ken White pointed out, it’s not terribly hard to get a grand jury to find probable cause.

If that is all it takes to seize all of a defendants assets and prevent her from hiring a lawyer, then the “right” to counsel of choice really only exists until the government passes a new forfeiture law.

But that’s the situation in which we find ourselves. And unless the Supreme Court comes to realize the terrible mistake it has made, Luis will likely be another in a long line of decisions holding that “the Government may effectively remove a defendant’s primary weapon of defense- — the attorney he selects and trusts…”

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