Not April Fool’s: Big Win in Forfeiture Case in Supreme Court

April 1, 2016

By: Sara Kropf

On Wednesday, the United States Supreme Court decided Luis v. United States. It is a big win for criminal defendants and for criminal defense lawyers alike. The Court held that

For the reasons stated, we conclude that the defendant in this case has a Sixth Amendment right to use her own “innocent” property to pay a reasonable fee for the assis­tance of counsel.

This opinion is a Very Big Deal. It protects defendants in criminal cases by allowing them to hire their counsel of choice when they have sufficient “untainted” assets to do so. It’s also a true limit on government overreach. Justice Breyer in the plurality opinion highlighted:

[A]s a practical matter, to accept the Government’s position could well erode the right to counsel to a consid­erably greater extent than we have so far indicated. To permit the Government to freeze Luis’ untainted assets would unleash a principle of constitutional law that would have no obvious stopping place.

The heart of the opinion by Justice Breyer:

[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.

Justice Thomas (finally free from Justice Scalia’s influence?) concurred in the opinion. Justice Kennedy also dissented, joined by Justice Alito.

Oddly, Justice Kagan dissented. She agreed with Justice Kennedy that there is no real difference between a criminal who spends his tainted assets quickly and a criminal who does not.

And given that money is fungible, the plurality’s approach leads to utterly arbitrary distinctions as among criminal defendants who are in fact guilty. The thief who immediately dissipates his ill-gotten gains and thereby preserves his other assets is no more deserving of chosen counsel than the one who spends those two pots of money in reverse order. Yet the plurality would enable only the first defendant, and not the second, to hire the lawyer he wants. I cannot believe the Sixth Amendment draws that irrational line, much as I sympathize with the plurality’s effort to cabin Monsanto. Accordingly, I would affirm the judgment below.

I disagree. 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.

Justice Kagan (and Justices Kennedy and Alito) effectively conclude that timing doesn’t matter. They seem to believe that the fact that the government may eventually win at trial is sufficient to allow the government to act as though it has already won at trial and seize untainted assets. This is nonsensical.

This position could possibly be logical if the government adequately funded public defenders, so that they could devote adequate time and resources to every case–resources to hire the right experts and time to draft all the needed motions and prepare for trial. We all know that’s not the situation anywhere in the United States. Until then, a defendant should be permitted to hire private counsel with untainted funds. The Court got it right.

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