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

washingtonpost.com

61–70 of 121 posts

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

#61
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 Norwegian view of private schools was long that only those rich to send their kids to Swiss private schools (or similar) would use them...

Since the rise of the labour movement, sending your kids to private schools has been largely seen as either a moral failing like in Switzerland, or an admission that your kid is so dumb that you need to buy them a diploma from somewhere else. For a very long time there were hardly any in Norway at all.

To take your example one step further: This same argument is part of the reason why in Norway there are heavy restrictions on private healthcare providers offering necessary services to the public - the public healthcare system has a near monopoly on this. Private providers can provide elective surgeries etc. like breast implants and other cosmetic surgery that is not (usually) covered by the public healthcare, but are mostly prevented from offering services covered by the public healthcare system.

Here the argument goes further: It will ensure everyone has an incentive to ensure the public healthcare is good enough. But it also will ensure that private actors are not substantially draining the public system of resources, such as e.g. doctors that are substantially subsidized by the public education system in the first place.

Basically going private is seen as immoral queue-jumping that will indirectly deprive more needing patients of treatment by reducing the available resources.

> known as "public" in Britain, to confuse us all

It's worse. Not all private schools are public schools. It is first and foremost used about some of the oldest, most exclusive private schools, but "public" here comes from being open to the (paying) public irrespective of e.g. religion or occupation or where you live contrary to e.g. private schools run by religious groups and similar.

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

#62

Earlier quoted context omitted.

Yes, that's right. What you hear about are the extreme edge cases of society - the places where things fall through the cracks. As a whole the US Justice system is incredibly effective. That being said, in a population of 300 million edge cases start to add up, and they are significant problems we should figure out how to fix.

The function of the Supreme Court is to decide edge cases. Anything they hear is either a question of overlapping laws and/or an area without significant precedents.

Very, very little makes it to the Supreme Court

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

#63
post #37

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 mode…

Why don't poor people deserve to be a counterweight to government?

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

#64

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.

how does lawyers becoming public defenders help anything? We don't have a shortage of PD lawyers, we have a shortage of funding to pay them to serve clients.

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

#65
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…

That's not the question here—those $20 bills would still be "tainted". Moreover, the bar to demonstrate that they are tainted is reasonably low, significantly easier than getting a conviction. In this case, though, the persecution agrees that the assets are unrelated. As far as the courts are concerned, that's an established fact.

It's more like if you steal some apples, perhaps eat some of them and then the government freezes your bananas which you got through completely legitimate means unrelated to your (alleged) crime.

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

#66

Earlier quoted context omitted.

> 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…

I'd argue that Swiss public schools being so "good" is a function of social homogeneity and income equality, than it is one of forcing rich kids to attend public schools. The obvious counter example is the US, where public schooling is sectioned off by neighborhood and rich kids still attend school together because they can afford to live in their respective neighborhoods. Even worse, the US spends more money per chi…

The point isn't the rich kids, it's the parents. When all or very nearly all the children attend the same school, the capable, resourceful parents experience that school and care about it. (Simplified, but you see the point.)

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

#67

Couldn't this be hacked by "law trouble" insurance. You get policy of up to X, in case you have your assets frozen and need legal council. The current situation is strange. I can see why the Supreme Court would not want to open another can of worms. The problem comes from government being able to freeze all assets without guilt. Everything else is band aid on gangrene.

Govt could sieze your insurance payout.

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

#68
post #51
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…

What lawyer will take on such a case, when it's unsure if you'll ever get paid, and if you do, it's years after the actual work is done? The first thing you do after you've hired a lawyer is pay his advance. No small firm can shoulder having to front cases that can drag on for years. It's not like you can tell your staff 'yeah we'll pay you in a few years'. And when the client is found guilty, the prosecutor will con…

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 for some time for a payday.

It's actually super common to wait years for payment in tons of industries, including law.

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

#69
post #63
post #37

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 mode…

Why don't poor people deserve to be a counterweight to government?

Because it has never been a question of who is deserving of what...

The poor have no leverage, and realistically, no one is going to give that to them.

We're not talking about an idealistic re-working of civic values, but the natural tension that already exists between private interests and the public sector.

One need only look to antitrust law to see why letting any single locus of control grow unchecked can wreak havoc on a market/economy -- I think we should appreciate the few checks & balances we have left, lest this notion of naive idealistic equality allows them to slip away unchallenged.

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

#70
post #67

Couldn't this be hacked by "law trouble" insurance. You get policy of up to X, in case you have your assets frozen and need legal council. The current situation is strange. I can see why the Supreme Court would not want to open another can of worms. The problem comes from government being able to freeze all assets without guilt. Everything else is band aid on gangrene.

Govt could sieze your insurance payout.

By that logic govt could prevent you from utilizing your health insurance. Not sure if anyone could even think in that direction.
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