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

#21

Post by themartorana » Thu, Nov 12, 2015, 4:17 AM UTC

abfan1127 wrote: post #16

themartorana wrote: post #15

Earlier quoted context omitted.

Isn't it oddly adversarial to say that on the one hand, the government can cripple your ability to mount a private defense, but on the other your defense will come from that same prosecuting and asset-freezing government? Haven't we time and again seen industry more willing to protect its benefactor?

however, the person is considered innocent until proven guilty, therefore those assets shouldn't be seized until such proof.

Yes, thank you. I came back here to edit my previous comment to ask whether or not asset forfeiture is anything but the presumption of guilt. I get the argument about assets being contested and therefore should be frozen, but they're being frozen by the prosecuting party, and therefore isn't so unbiased.

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

#22

Post by eximius » Thu, Nov 12, 2015, 4:19 AM UTC

bayesianhorse wrote: post #13

lambda wrote: post #7

Earlier quoted context omitted.

> actually available Define "actually available" Most public defenders offices are so oversubscribed and underfunded that they can't really provide good representation for the majority of their clients.

It doesn't say anywhere that a public defender has to be effective.

On the one hand, it'd be absurd if it did. On the other, it would often come in handy.

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

#23

Post by Natsu » Thu, Nov 12, 2015, 4:19 AM UTC

themartorana wrote: post #15

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…

Isn't it oddly adversarial to say that on the one hand, the government can cripple your ability to mount a private defense, but on the other your defense will come from that same prosecuting and asset-freezing government? Haven't we time and again seen industry more willing to protect its benefactor?

That's a separate argument for a more robust and effective public defender's office. This is arguing that there's a right to obtain a counsel of choice, which is an argument that the justices said they have already rejected in oral argument [1]. The petitioner in this case is being represented by Howard Srebnick: http://www.royblack.com/attorneys/Howard/Srebnick/ and not a public defender.

[1] http://www.supremecourt.gov/oral_arguments/argument_transcri...

"JUSTICE KAGAN: I might just be repeating myself, but [...] I thought that, again, that distinction was the one specifically rejected in Monsanto."

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

#24

Post by [deleted] » Thu, Nov 12, 2015, 4:22 AM UTC

_delirium wrote: post #11

fpgeek wrote: post #10

Earlier quoted context omitted.

Yes, the theoretical availability of public defenders satisfies the literal text of the amendment. That being said, effectively banning most private counsel (except those working for free or possibly on contingency) and, in practice, forcing most defendants to rely on a government-employed counsel means locking up the spirit and throwing away the key.

Isn't the spirit of the amendment that everyone should have a good defense? The spirit of the amendment, to me, doesn't really seem to be "you can have as good a defense as you can afford", but more like, "you have the right to a good defense", period. Put differently, if a public defender isn't good enough to satisfy the spirit of the 6th amendment when someone who has money is on trial, then it should also not be g…

[deleted]

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

#25

Post by jdminhbg » Thu, Nov 12, 2015, 4:25 AM UTC

bayesianhorse wrote: post #13

lambda wrote: post #7

Earlier quoted context omitted.

> actually available Define "actually available" Most public defenders offices are so oversubscribed and underfunded that they can't really provide good representation for the majority of their clients.

It doesn't say anywhere that a public defender has to be effective.

The text of the amendment doesn't say so explicitly, but Ineffective Assistance of Counsel is grounds for overturning convictions: https://en.wikipedia.org/wiki/Ineffective_assistance_of_coun...

(Note that the standard requires both that your counsel was ineffective, and that his/her ineffectiveness caused your conviction)

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

#26

Post by davidgay » Thu, Nov 12, 2015, 4:36 AM 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…

> 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/something-else if you force the rich and powerful to have an equal playing field with everyone else (at which point they will then use their power to ensure a decent/good level of the service for everyone, including themselves).

Two fairly different, and likely overly generalised and simplified, examples of this view: - the British left-wing view of private (known as "public" in Britain, to confuse us all) schools (vs state schools): they allow the rich&powerful to get away with underfunding/neglecting the state school system, as it doesn't actually affect them, their family or their friends' family - the Swiss view of public schools - paraphrasable as "Swiss private schools are for foreigners" - which more or less implies that using (or a society needing) a private school is a moral failing ;) (ie the rich&powerful will help fix the public schools rather than send their children to the private one)

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

#27

Post by jhall1468 » Thu, Nov 12, 2015, 4:41 AM UTC

[deleted] wrote: post #14

[deleted]

You can call it that, however this is not asset forfeiture, it's asset freezing (which is vastly different). Furthermore, there is a four point test that judges use to determine if a freezing order is valid. It very rarely impacts anyone aside from perpetrators of fraud.

It is nothing like you claim, because if the government loses their case the assets are unfrozen. They can't use them, nor do they have actual access to them, until the case ends in a guilty verdict.

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

#28

Post by adventured » Thu, Nov 12, 2015, 4:54 AM UTC

bayesianhorse wrote: post #12

Maybe the public defender system may benefit, because when even wealthy or middle-class defendants can't pay for their lawyers, more lawyers are forced to either become public defenders or work on similar arguments, making financial means of defendants less of a factor in choosing their clients.

What benefit is a stronger public defender if your government can steal your property without any requirement of proof of guilt? That automatically destroys the property rights system, the knock-on effects will be truly massive. And then it leaves you without any means for defense other than to put your fate in the hands of the government. Orwell would certainly approve.

I'm baffled that some people here are arguing that this could turn out to be a good thing, and are applauding giving the government this kind of terrifying power. I can't believe it's not immediately grasped how it'll then be used to take 27 other steps, no different than how programs like the Patriot Act have been, and every other vast over-reach of power has been throughout recorded history.

This is the perfect setup to a totalitarian state. We were already too far down that road, if they kill the sixth amendment then kiss the remaining liberty goodbye, it'll all be rapidly eroded via the government using its power to (comically easily) control public defenders. We've already gotten to see how these systems work, with a century of failed fascist and communist regimes.

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

#29

Post by Natsu » Thu, Nov 12, 2015, 5:09 AM UTC

abfan1127 wrote: post #16

themartorana wrote: post #15

Earlier quoted context omitted.

Isn't it oddly adversarial to say that on the one hand, the government can cripple your ability to mount a private defense, but on the other your defense will come from that same prosecuting and asset-freezing government? Haven't we time and again seen industry more willing to protect its benefactor?

however, the person is considered innocent until proven guilty, therefore those assets shouldn't be seized until such proof.

Two problems: the asserts are only frozen in this case. This is a fraud case, not a drug case, and they've not been subjected to civil asset forfeiture, so this doesn't touch on that.

The other is that if they can never freeze the assets, someone can simply spend or transfer all of their money after stealing it. If a thief has $5,000 and they steal $5,000, they can spend the stolen money and then claim the $5,000 they originally had is untouchable because they only spent stolen money.

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

#30

Post by Natsu » Thu, Nov 12, 2015, 5:29 AM UTC

adventured wrote: post #28

bayesianhorse wrote: post #12

Maybe the public defender system may benefit, because when even wealthy or middle-class defendants can't pay for their lawyers, more lawyers are forced to either become public defenders or work on similar arguments, making financial means of defendants less of a factor in choosing their clients.

What benefit is a stronger public defender if your government can steal your property without any requirement of proof of guilt? That automatically destroys the property rights system, the knock-on effects will be truly massive. And then it leaves you without any means for defense other than to put your fate in the hands of the government. Orwell would certainly approve. I'm baffled that some people here are arguing…

This isn't about civil asset forfeiture or drugs at all. I can sympathize with requiring that you be found guilty of something before taking all your stuff, but this isn't even about that. And even if it were, a public defender's office that could take on that kind of case to help you get your money back when you're innocent would help stop abuse of it.

What this case is actually about is someone who allegedly defrauded Medicare. The state froze their assets so they could get back the stolen money after trial (it's frozen, not forfeit, so they have to find him guilty).

His lawyer (who is not a public defender, incidentally) argues that he had a lot of assets before the alleged fraud. But the response to that is that is that it's not really fair to let someone defraud Medicare and then declare their assets not subject to a freeze because they've spent all the stolen money. All that really does is incentivize thieves to spend the stolen money first and what good does that rule do? If you have $5,000, steal another $5,000, and then spend $5,000, why can't the state freeze your $5,000 whether you spent the stolen or non-stolen money? Is it really fair to let you hire a high-price lawyer that others could only dream of when the bulk of your funds come from fraud? Why does it matter which money they spent first?

You can find all this and more in the transcript of the oral argument: http://www.supremecourt.gov/oral_arguments/argument_transcri...