So:
- We've had religious erosions to the First
- Continued assault against the Second
- The Third appears to be safe
- Fourth is largely gone with Forfeiture
- Fifth mostly safe
- Sixth now under attack
- Seventh also attacked by Forfeiture
- This ruling also takes a passing swipe at the Eighth if it goes through
- The Ninth and Tenth were finally destroyed by the Health Care Act
The Supreme Court could soon deliver a blow to the Sixth Amendment
101–110 of 121 posts
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#102So: - We've had religious erosions to the First - Continued assault against the Second - The Third appears to be safe - Fourth is largely gone with Forfeiture - Fifth mostly safe - Sixth now under attack - Seventh also attacked by Forfeiture - This ruling also takes a passing swipe at the Eighth if it goes through - The Ninth and Tenth were finally destroyed by the Health Care Act
Destroyed? Hyperbole. You had to have insurance to drive a car already - did that destroy it?
Yes the balance of rights of individuals in an every-more-entangled economic and social world is shifting. And we'll have to do more to adjust to social media, the speed of the internet, cheap pervasive surveillance by anybody (drones, minicams etc) of anybody, and so on.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#103>the court will decide whether the government can freeze all of a defendant’s assets before trial, even those the government itself concedes aren’t tainted by any connection to criminality, thus effectively preventing that defendant from paying for his own defense. The shadow issue of our time is equal access to the legal system. It will be interesting to see how this changes the dynamic of the court system if the Su…
> though it is a bit like solving the equal access to education problem by banning all private colleges -- more than a little absurd. While one can definitely argue against this view, it's far from absurd: the basic argument is that the availability of private college/lawyers/your-favourite-resource favours the rich and powerful, and that you can only get actual equal access for all to education/trial-defense/somethi…
The basic argument is superficially appealing, but it's far from clear that it's true. Critiques of failing institutions have more force when there exists a credible threat to walk away. See e.g. "Exit, Voice, and Loyalty"
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#104So: - We've had religious erosions to the First - Continued assault against the Second - The Third appears to be safe - Fourth is largely gone with Forfeiture - Fifth mostly safe - Sixth now under attack - Seventh also attacked by Forfeiture - This ruling also takes a passing swipe at the Eighth if it goes through - The Ninth and Tenth were finally destroyed by the Health Care Act
Destroyed? Hyperbole. You had to have insurance to drive a car already - did that destroy it? Yes the balance of rights of individuals in an every-more-entangled economic and social world is shifting. And we'll have to do more to adjust to social media, the speed of the internet, cheap pervasive surveillance by anybody (drones, minicams etc) of anybody, and so on.
I have no desire to pull the conversation off track but comparing auto insurance requirements to the affordable care act is apples and oranges.
You don't have to own a car. (and in fact fewer and fewer people do) You also don't have to have auto insurance to own or drive a vehicle, just to drive it on public thoroughfares. Which, believe it or not, is not everyone's use case.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#105If the government gets to carried away with this, then jury nullification https://en.wikipedia.org/wiki/Jury_nullification will come into play.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#106Earlier quoted context omitted.
> If I made millions legally, then why in the world would I decide to start making all subsequent money illegally? I would suggest you pose that question to this guy: https://en.wikipedia.org/wiki/Bernard_Madoff > They're freezing all moneys that could conceivable by subject to a fine. It's not just the $5000, but everything. That's extremely problematic from a rights standpoint. From what I read, it's only freezing…
Are we reading about the same case? > charges of operating a complicated scheme that allegedly defrauded Medicare of upwards of $40 million. > federal government moved to freeze not only her “tainted” assets, meaning those assets that can be arguably traced back to the alleged underlying crime; but the federal government also moved to freeze Luis’ undisputedly legitimate assets, which amount to some $15 million that…
Yes, we are. The thing is that they've got to freeze $40M+ which probably is everything after what he spent.
The reason for this is that money is fungible. I can choose to spend from stolen assets or my original assets. Thus, it makes no sense to think of some as "tainted" and other funds as "untainted" which is something you will also see the justices question in oral argument. There's no sense in rewarding someone for spending the stolen money first, which is the only thing the rule being proposed would accomplish.
That's the same reason they've repeatedly rejected the idea, as also is mentioned repeatedly in oral argument by both the liberal (Kagan) and conservative members of the Supreme Court.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#107Earlier quoted context omitted.
They're not saying he's presumed guilty, they're just trying out various scenarios to illustrate the effects of the laws. And if you go that route, then it's not at all fair that some people can hire expensive lawyers and others cannot to improve their chances. If someone defrauds Medicare for millions, why should they get an expensive lawyer for that when other people cannot afford them? If everyone was forced to us…
"They're not saying he's presumed guilty, they're just trying out various scenarios to illustrate the effects of the laws." Yes, but the important point is that the courts can only act with what they know at the time, not how some eventual case will come out. If you expect the court to act under the "well sure, he's presumed innocent, but we have to cover the case where he's guilty too" theory, then we're expecting t…
That's not what they're doing or why.
They're not here to decide his fate or his case, though that may happen incidentally. They're here to settle a legal question that was posed to them in the petition for a writ of certiorari.
It's not their job to try his case, nor will they. Unless the entire case hinges on this question (it doesn't), they don't decide his case. So they might unfreeze his assets while he faces fraud charges, but we're not looking at them deciding his guilt or innocence here.
They're trying to decide what the best precedent to set is, which is why they have to consider every possible scenario. So yes, they really do have to consider scenarios with guilty people. It really wouldn't make sense to have them blind themselves to how the precedent will play out in the future. Surely you do not believe this will never be applied to people guilty of fraud? They do consider doubt in such stories, but only when it's important. So they might do that if they were pondering the scope of reasonable doubt, but it wouldn't make sense here.
This case may involve him but it's not about him. It's only about the Sixth Amendment question posed. They're not concerned about all that other stuff because they're not deciding his guilt or innocence.
> Yes, the money might be able to get away. But you've arrested the person, and that's all you get.
The Supreme Court and prior cases disagree with you.
> Aside from the due process problems here, it's quite disturbing to see the government seemingly much more interested in the money than the crime. Something's wrong there.
Yes, but that something is your understanding of what they're doing and why.
Due process is your Fifth Amendment right. Nowhere does this case allege a violation of that right. This is not at all the same as a Sixth Amendment right to counsel being argued here. Moreover, he is in fact already defended by counsel of choice, specifically this one: http://www.royblack.com/attorneys/Howard/Srebnick/
This makes the hypothetical infringement of the Sixth Amendment rights rather oblique--was he really denied his right to counsel when the very expensive lawyer he chose is arguing before the highest court in this country?
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#108The Supreme Court only answers the questions posed to them, not the merits of the underlying case, so the article's surprise that they're not addressing anything else is a strange to hear from a lawyer. It's also surprising to hear this as a "blow" to the Sixth Amendment, as the justices seem to believe they've rejected exactly this logic before in Monsanto. [1] One good thing is that the article hlepfully linked to…
Isn't that how it works with non-money property though? Suppose the brothers each inherit a yacht from their uncle, and each steal a yacht, and each host a party at a golf club, giving the owner a yacht in exchange - brother A the one he stole, brother B the one he inherited. The owner of the stolen yachts comes calling. Brother A gets to keep his remaining yacht until the golf club owner (who forfeits the stolen one…
There's a substitution rule that's discussed in oral argument, but it's a bit complex.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#109Earlier quoted context omitted.
Are we reading about the same case? > charges of operating a complicated scheme that allegedly defrauded Medicare of upwards of $40 million. > federal government moved to freeze not only her “tainted” assets, meaning those assets that can be arguably traced back to the alleged underlying crime; but the federal government also moved to freeze Luis’ undisputedly legitimate assets, which amount to some $15 million that…
Yes, we are. The thing is that they've got to freeze $40M+ which probably is everything after what he spent. The reason for this is that money is fungible. I can choose to spend from stolen assets or my original assets. Thus, it makes no sense to think of some as "tainted" and other funds as "untainted" which is something you will also see the justices question in oral argument. There's no sense in rewarding someone…
You're mixing things up here.
Certainly if she is convicted, then they can take her for everything. But she hasn't been convicted yet, she's just been charged. They're not 'rewarding' her for spending stolen money first, because in the case of a conviction they're going to take her everything and throw her in jail to boot.
And it's not necessarily true that assets, even monetary ones, are fungible and that you can spend from either pool at whim. My father has to separate his business and personal bank accounts for tax reasons. Criminals have to launder money, this was illustrated to hilarious effect in Breaking Bad. When you're dealing with large amounts of money, people pay more attention.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#110Earlier quoted context omitted.
Yes, we are. The thing is that they've got to freeze $40M+ which probably is everything after what he spent. The reason for this is that money is fungible. I can choose to spend from stolen assets or my original assets. Thus, it makes no sense to think of some as "tainted" and other funds as "untainted" which is something you will also see the justices question in oral argument. There's no sense in rewarding someone…
You're mixing things up here. Certainly if she is convicted, then they can take her for everything. But she hasn't been convicted yet, she's just been charged. They're not 'rewarding' her for spending stolen money first, because in the case of a conviction they're going to take her everything and throw her in jail to boot. And it's not necessarily true that assets, even monetary ones, are fungible and that you can sp…
They're not "taking" the money, they're preventing her from spending it--freezing sufficient assets to pay them back. In this case, she apparently does still have enough to pay a high-priced attorney.
They're freezing up to $45M to pay back the amount allegedly defrauded from Medicare: http://www.csmonitor.com/USA/Justice/2015/0514/If-a-defendan...
It would reward people for spending stolen money first if only the stolen money itself could be frozen, rather than simply allowing them to freeze the amount stolen, whatever accounts they might have to freeze to do so. That's the simple, logical consequence of separating the accused person's funds in the way that's being requested by petitioner. You spend stolen money and your regular assets can't be frozen, but if you spend your own money, the stolen money can't be. That simply rewards one for spending the stolen money and not their existing assets by privileging the others from being frozen.
Thus many of the justices, from Kagan to Alito, question how petitioner's request makes any sense.
Finally, although I realize you never said it was, due to the Breaking Bad reference, I feel compelled to continue to point out that this case does not involve drugs. Instead, it involves allegations that "bribes and kickbacks were paid to prospective patients who agreed to sign up for home health care they did not need or never received" in a scheme to defraud Medicare.
The law has a substitution rule that lets them freeze sufficient funds to recover the amount taken by fraud. Prior precedent allows this. Petitioner claims a violation of their Sixth Amendment rights.
It's hard for me to see why someone with a very expensive attorney can even make this case. Just how expensive an attorney does one need before their Sixth Amendment right is satisfied?