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

#31

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

Natsu wrote: post #17

The 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…

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 freezes their remaining money on the presumption of guilt. Defendants then cannot hire the counsel they desire, lose their case and go to jail. But it wasn't drugs they sold, it was vinyl.

I'm not sure that my story would end up changing legal minds, but failing to consider it as a possibility is unpardonable.

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

#32

Post by vinceguidry » Thu, Nov 12, 2015, 5:43 AM UTC

davidgay wrote: post #26

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/somethi…

> 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).

I don't get it. Can you actually argue in court that because a particular outcome would be "unequal" in terms of access, that the services in question shouldn't be available to anybody? As far as I know, that's never been a viable argument. You have to satisfy a much stronger criteria for this sort of thing, that it's an actual public ill. Inequality, as far as I know, has never, by itself been sufficient to prove that.

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

#33

Post by rdtsc » Thu, Nov 12, 2015, 5:45 AM UTC

> Their argument dealt only with the Sixth Amendment — that while the government can seize untainted assets before trial, it must allow a defendant access to enough of his untainted assets to pay for his own defense.

However, in this case it seems to me the defendant is guilty of defrauding the govt. to the tune of $40M. The possible outcome of the trial would be forcing them to pay back + penalties perhaps. Had this been a trial about something else (murder for ex.) govt might not have fought much to freeze the assets.

EDIT: The problem is of course with the word assets. Are we talking about physical assets? Probalby not. Otherwise say they stole 5 apples from the govt and they also happen to have 10 bananas of their own. Govt comes and take away the apples and bananas. So one can say ok these apples are stolen, only get those back, but should not take the bananas. Now imagine the assets is money (as it probably is in this case). Can a thief steal a bag with $100 bills, change them all to $20 bills and then tell teh govt, don't take my $20 bills, these are not the assets I stole. I only stole $100 bills but those are gone now. It doesn't work that way of course.

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

#34

Post by Natsu » Thu, Nov 12, 2015, 5:45 AM UTC

agarden wrote: post #31

Natsu wrote: post #17

The 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…

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 use public defenders, the powerful would use their influence to make sure that it provided effective, independent defense. Even so, it's not like getting an expensive lawyer somehow gets you off and a public defender guarantees you'll be found guilty.

But it does not seem reasonable that we should adopt rules to increase the unfairness by doing everything possible to remove any incentive to improve the public defender's office and doing our utmost to ensure that the poor are forever trapped with ineffective counsel.

Just for the record, this guy has a very expensive lawyer, not a public defender.

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

#35

Post by omonra » Thu, Nov 12, 2015, 5:48 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.

Or fewer people will want to become lawyers.

Really thought this one through, I see :)

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

#36

Post by vinceguidry » Thu, Nov 12, 2015, 5:52 AM UTC

Natsu wrote: post #30

adventured wrote: post #28

Earlier quoted context omitted.

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 defrau…

While true, this argument falls flat when you realize the limitations. If I made millions legally, then why in the world would I decide to start making all subsequent money illegally? Wouldn't it be much better to just keep milking my legal cash cow?

The government doesn't seem to be limiting their purview to just the money that was supposedly illicitly gained. 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.

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

#37

Post by rayiner » Thu, Nov 12, 2015, 5:55 AM UTC

Playing up the "equal access to justice" angle here is shortsighted. Rich people have historically served as an important counterweight to government. When the government prosecutes them, it raises special interests, beyond the abstract interest in justice implicated whenever the government prosecutes someone. After all, it was the new-money commercial interests that lead the revolutions that gave us many of our modern democracies, including here in the U.S. And history is littered with examples of rich, powerful people being prosecuted precisely because of the threat they pose by virtue of their means.

An interesting example is Joseph Nacchio. While he was probably guilty of what he was accused of doing, at least he was declared guilty after putting up the best defense money could buy. Given the dynamics of the situation, it would've been troubling if he hadn't been able to do that.

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

#38

Post by zanny » Thu, Nov 12, 2015, 5:56 AM UTC

rdtsc wrote: post #33

> Their argument dealt only with the Sixth Amendment — that while the government can seize untainted assets before trial, it must allow a defendant access to enough of his untainted assets to pay for his own defense. However, in this case it seems to me the defendant is guilty of defrauding the govt. to the tune of $40M. The possible outcome of the trial would be forcing them to pay back + penalties perhaps. Had this…

Innocent until proven guilty must apply. And it is preposterous to tell a presumed innocent they cannot use their money to defend themselves in court.

If they spend that money and then lose, they are still responsible for the reimbursement. If its not money they will ever make in their lifetime, you can just garnish their income forever. It is magnitudes less injust for those whose money was stolen to never get the full amount back (as long as the responsible is compelled to give all their excess in compensation) than possibly finding the innocent guilty because they could not defend themselves.

But this is symptomatic of the fundamental issue in criminal justice that you need significant wealth to defend yourself. That in and of itself is the greatest injustice here, but making it harder on citizens to defend themselves cannot be the answer.

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

#39

Post by abfan1127 » Thu, Nov 12, 2015, 6:07 AM UTC

Natsu wrote: post #29

abfan1127 wrote: post #16

Earlier quoted context omitted.

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 the…

you are still assuming that the thief is guilty.

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

#40

Post by lifeisstillgood » Thu, Nov 12, 2015, 6:07 AM UTC

davidgay wrote: post #26

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/somethi…

Total tangent but the public/private school thing is one of history.

When there were no schools at all, wealthy English would have "private" tutors at home. Then schools became popular - one would go to a school with other rich children, which was "public" compared to home tutoring. When state funded schools arrived, they needed to distinguish between the phrase "public" school and "state funded" school.

In the USA, the concept of a "public" school was the norm by then, so they never bothered using "public" to distinguish them, so when state funded schools arrived private and public became the other way round.

So simply put, the USA was already a socialist paradise by the time they came to name their schools