The Supreme Court could soon deliver a blow to the Sixth Amendment • Hacker News Board

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#111

Post by vinceguidry » Thu, Nov 12, 2015, 8:51 PM UTC

Natsu wrote: post #110

vinceguidry wrote: post #109

Earlier quoted context omitted.

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 st…

> In this case, she apparently does still have enough to pay a high-priced attorney.

Having representation is not the same as being able to pay for a defense. That's just the start.

> Just how expensive an attorney does one need before their Sixth Amendment right is satisfied?

Like you said, this case doesn't involve drugs, it's not petty crime. It's not a simple matter to ascertain guilt based on the facts, because the facts aren't simple. You need expert witnesses, paralegals to comb through the evidence, defending yourself in court against a white-collar crime charge is not something you can do adequately without a war chest.

Unless the government is proposing that they pay for her defense, then they're basically railroading her by not allowing her to fund it herself. The government is going to bring all its unlimited guns to bear on making her look guilty and she won't be able to make her case adequately. It's not a simple matter of looking at a videotape.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#112

Post by limeyx » Thu, Nov 12, 2015, 9:07 PM UTC

clavalle wrote: post #5

>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…

Indeed. When only the rich and wealthy can afford legal services and everyone else is forced to plea-bargain to things they didnt even do in order to avoid the threat of decades behind bars ... something has gone wrong.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#113

Post by DanielBMarkham » Thu, Nov 12, 2015, 9:08 PM UTC

Natsu wrote: post #107

DanielBMarkham wrote: post #85

Earlier 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." 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 fr…

" but we're not looking at them deciding his guilt or innocence here"

Yes, I got that. My point is that positing the various ways the case plays out with whether the person is guilty or innocent is outside the scope of the question. Alito's avenue of analysis was misguided. It doesn't matter whether they're guilty or innocent because we're asking what the government should do with the funds before we know the result of the case

And I understand the point of appeals courts. I'm making an argument based on a plain, layman's understanding of how the system should work. I have no doubt that for those inside the system, it all makes some kind of weird sense. "Hey, we took all of your money, but look! The paperwork has been done correctly!"

I also understand that the Supreme Court disagrees with me. Probably isn't the first time, nor will it be the last. Those guys are a hell of a lot smarter than I am. My best argument is that at some point it makes sense legally but yet you lose consent of the governed. Taking somebody's money so they can't afford a lawyer -- along with a half-dozen or so other bone-headed decisions over the last decade or two -- begin to cross that line. Somebody should speak up. That "speaking up" is not a legal argument; it is a political one.

Sometimes the law is an ass.

Thank you for the instruction on the split between the Fifth and Sixth Amendment issues. Lots of detail to consider here.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#114

Post by Natsu » Thu, Nov 12, 2015, 9:34 PM UTC

vinceguidry wrote: post #111

Natsu wrote: post #110

Earlier quoted context omitted.

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 st…

> In this case, she apparently does still have enough to pay a high-priced attorney. Having representation is not the same as being able to pay for a defense. That's just the start. > Just how expensive an attorney does one need before their Sixth Amendment right is satisfied? Like you said, this case doesn't involve drugs, it's not petty crime. It's not a simple matter to ascertain guilt based on the facts, because…

> Unless the government is proposing that they pay for her defense

Yes, they will provide public defenders if someone cannot afford representation.

That's why I've pointed out several times that the better argument here would be for a stronger public defender's office, rather than having a two-tier justice system where the rich (or those who stole a lot of money...) can buy better treatment.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#115

Post by Laaw » Thu, Nov 12, 2015, 9:43 PM UTC

roel_v wrote: post #77

Laaw wrote: post #68

Earlier quoted context omitted.

It's not unsure (like I said, assets unrelated to the crime can't ultimately be kept), and what else are they going to do? You can't seriously suggest all criminal defense attorneys are just going to give up on their professions. The only thing extra you'd need as a criminal defense attorney is additional capital to start up your firm, and only for actual criminal case work. They have plenty of money, enough to wait…

The vast majority of criminals have assets lower than their total penalties / damages payable. You're basically asking lawyers to hope that their clients will have enough money left after they have paid their damages? And you're saying defense lawyers will do that because... what... otherwise they'd have to find clients in other fields of law? "It's actually super common to wait years for payment in tons of industrie…

I'm not asking lawyers to do anything, I'm saying law firms who do criminal defense will not simply cease existing if this happens, which is what you're implying.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#116

Post by Laaw » Thu, Nov 12, 2015, 9:44 PM UTC

vox_mollis wrote: post #100

Laaw wrote: post #48

Can't you just pay your defense attorney after the trial, guilty or not, whenever your assets are unfrozen? Assets frozen during trial that aren't linked to any criminal activity can't be permanently confiscated, so your defense attorney can just settle up your bill at the end of the trial, when the assets are unfrozen. Maybe that's not how it works now, but if this happens, then defense firms will have to do their b…

I can only assume you're trolling, or an incredibly obsequious shill for federal power. The only time an attorney will defend you without both a retainer and on-time payments is when your particular case is high enough profile to make pro-bono work worth it in terms of publicity. Your odds of this circumstance are less than one percent. Federal prosecutors have extremely high conviction( or rather, plea )rates becaus…

Currently? Yes. If this case gets decided such that non-criminal assets can be frozen? No.

I'm explaining that law firms won't simply cease to exist if this case gets decided a certain way, which is what folks here seem to be implying. It's not an insurmountable hurdle.

Bill collection will adjust if it has to. Are you suggesting it won't?

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#117

Post by Natsu » Thu, Nov 12, 2015, 9:58 PM UTC

DanielBMarkham wrote: post #113

Natsu wrote: post #107

Earlier quoted context omitted.

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 fr…

" but we're not looking at them deciding his guilt or innocence here" Yes, I got that. My point is that positing the various ways the case plays out with whether the person is guilty or innocent is outside the scope of the question. Alito's avenue of analysis was misguided. It doesn't matter whether they're guilty or innocent because we're asking what the government should do with the funds before we know the result…

I'd like to point out that I'm not "in the system" as it were. I'm not a lawyer, I just happen to have studied a bit of legal procedure in college and the Supreme Court in particular. Thus, I know the process and why one normally petitions them for a writ of certiorari simply because the Supreme Court has original jurisdiction over only some obscure types of cases and thus does not hear most cases. See also: https://www.law.cornell.edu/wex/certiorari

> we're asking what the government should do with the funds before we know the result of the case

The converse is that we have two innocent people who have money frozen. One can pay for a lawyer, the other cannot.

If you find this is a Sixth Amendment violation, then isn't the Public Defenders office itself a violation? If that's the case, why are they not arguing that we cure that? The answer is that it wouldn't help them: they are able to afford a rather expensive lawyer. It's true that a full defense is expensive, but they're just causing themselves harm with an expensive Supreme Court appeal rather than saving the funds for the main defense. There are quite a few weird expenses involved there, not the least of which is the special booklets prepared for each justice and several other parties which have a large number of very exacting rules. Also, of note, is the fact that one can petition the Supreme Court 'in forma pauperis' and the Supremes will in fact pick up the tab for all that if you actually can't pay. They have accepted pro se applicants who were then provided representation for all the expensive formalities and such.

I think there is a good point that it's not at all fair that some people can get their own lawyer while others cannot. It would be better if that was fair for everyone, rather than rich people paying for better treatment.

Alas, that's not at all what petitioner is asking for. They're only interested in a rule that would help themselves here and that would encourage people who defrauded or robbed others to spend the stolen money first. So I steal all of your money and use it to pay for an expensive lawyer to get away with it, while poor but innocent people would have to rely on a state-appointed lawyer.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#118

Post by vinceguidry » Thu, Nov 12, 2015, 10:05 PM UTC

Natsu wrote: post #114

vinceguidry wrote: post #111

Earlier quoted context omitted.

> In this case, she apparently does still have enough to pay a high-priced attorney. Having representation is not the same as being able to pay for a defense. That's just the start. > Just how expensive an attorney does one need before their Sixth Amendment right is satisfied? Like you said, this case doesn't involve drugs, it's not petty crime. It's not a simple matter to ascertain guilt based on the facts, because…

> Unless the government is proposing that they pay for her defense Yes, they will provide public defenders if someone cannot afford representation. That's why I've pointed out several times that the better argument here would be for a stronger public defender's office, rather than having a two-tier justice system where the rich (or those who stole a lot of money...) can buy better treatment.

Once again, representation is not defense.

Your sense of justice is ill-placed. The court system is a machine deliberately engineered to destroy lives. It offers no real justice, only political scapegoating. Stripping away the ability of individuals to fight the system in the name of rectifying inequality is a net loss to all of us.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#119

Post by agarden » Thu, Nov 12, 2015, 11:34 PM UTC

Natsu wrote: post #34

agarden wrote: post #31

Earlier quoted context omitted.

It strikes me that the problem with Justice Alito's analogy is that it presumes guilt. One could retell the story this way: two brothers each received $5000 from a rich uncle on the same day, and also made $5000 selling old vinyl records that turned out to be highly collectible. Then they go and spend $5000 partying. The government comes along and accuses them of attaining the second $5000 through illicit means and f…

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…

If someone defrauds medicare for millions, then they do not deserve, in a moral sense, expensive counsel or any help at all, because they are guilty. But a person can be accused of defrauding medicare for millions without having actually done so. And in that case, yes, they deserve to be free to hire an expensive lawyer.

Why? Because the prosecutor set against them is an expensive prosecutor and is going to give the case more of his attention.

If you have been charged with a minor offense that carries small penalties, you will be charged by a prosecutor that is lower on the career ladder and cares less about your particular case; they will put less effort into it. But if you have been changed with a big crime that carries large penalties, that is going to be prosecuted by a better lawyer. A public defender might well be adequate to defend against a minor charge but be wholly inadequate against a major charge where the prosecution is very highly motivated and incentivized to win.

And since we do not know if the charged party is guilty or not, they ought to be presumed innocent and not restricted from hiring counsel of their choice and means.

Re: The Supreme Court could soon deliver a blow to the Sixth Amendment

#120

Post by ghayes » Fri, Nov 13, 2015, 7:30 PM UTC

teekert wrote: post #58

Scanning for 10 seconds, no sign of what the sixth amendment is, no way of judging significance, moving on. For those as annoyed: https://www.law.cornell.edu/constitution/sixth_amendment

> to have the Assistance of Counsel for his defense.

The author of the article believes this Supreme Court case weighs whether or not the government can willfully deprive an accused of the ability to pay for counsel by freezing untainted assets.