The defense strategy doesn't make sense to me... Could this case be used to just this end? To shake Sixth Amendement and lay some ground work for terrorism case in future? Could it be that this is arranged between defendent and state attorney?
The Supreme Court could soon deliver a blow to the Sixth Amendment
81–90 of 121 posts
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#82Earlier 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…
In Norway, there is no dedicated public defender system. Instead what happens is that the bar association negotiates rates with the government, and most lawfirms will take cases paid for by the government.
There are still limitations. E.g. someone going private could hire a team to spend whatever time necessary while someone being defended under the public system will get one lawyer subject to billing limitations. And people relying on the public system does not get to pick and choose. But at least you have a good shot at getting someone good, that is not overloaded with cases.
As an example, I was sued by the government for refusing to accept formalities around my refusal to accept conscription (a small number of people go to jail in Norway for it every now and again for 3 months or so, and they keep making the accepted reasons to get out of it more lenient to make people just pick one of the accepted reasons rather than make a point; for my part it was very much to make a point, though I didn't end up in jail in the end), and my government appointed defence lawyer was one of the top lawyers in the country, who had argued cases in front of the Supreme Court multiple times, and who had conscription related cases as a special interest.
It's quite tragicomic to me that left-wing Norway has privatized the public defender system exactly to provide more equal access, while the US hold on to a socialized system that practically guarantees unequal access to justice.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#83Earlier quoted context omitted.
Or fewer people will want to become lawyers. Really thought this one through, I see :)
I don't understand why people continue to go into law in the numbers they do. Everything I've seen over the last few years indicates the number of law jobs being created/opening up due to retirement is far lower than the number of people passing the bar every year. Considering how much it costs to go through law school, it seems like an insane gamble unless you already have ins at a significant law firm.
See my other comment regarding the UK, where serving lawyers actually earn less than the national average. So yes, it's a bit puzzling. On the other hand, a law degree is a bit of a "I don't know what I'm going to do but this will at least give me a firm backing" type of degree.
You can take a law degree and go into any number of professions such as jobs in the police, human resources, journalism, areas of finance, all kinds of compliance roles and oversight or strategic positions in-house in companies etc. Basically you can treat being a qualified lawyer as having proven that you're able to work hard, learn fast and pay excellent attention to detail, which is often just as valuable or more as domain specific skills.
E.g. my ex recently went from one of the Magic Circle firms as a 2 year post qualification lawyer (UK system for solicitors - for barristers (litigators) it's slightly different - == 3 year law degree, 2 years training contract and passing the legal practice course; the latter can be done as part of/during training, especially if you get a contract with a top firm) to a director-level human resources position at a major bank on the basis of being a qualified solicitor with some lower level HR experience years ago, before her degree. Her legal training is by far the most relevant to the role vs. HR experience, given all the regulatory/compliance issues and general legal issues an investment banks HR department has to deal with.
But certainly, going into law to work in a law-firm is far from lucrative for most people.
(not that the overall cost is much lower in the UK,though: the law degree is a first degree, and costs the same as any typical first degree, and if you get a training contract the training is paid and many firms will then cover the cost of the legal practice course as well; even if you don't get a training contract before your LPC, it's possible to do the LPC for about GBP 5k I think)
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#84The 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…
The point Alito is making is that if the prosecutor can't get assets frozen, then it encourages guilty parties to spend all their assets prior to judgement.
He is not assuming guilt in this case. He is making the case for why not allowing freezing unrelated assets is a massively bad incentive which it is in the interest of justice to have counter-measures against.
If one believe countermeasures is necessary, it becomes a tradeoff between the necessity of such countermeasures vs. the negative impact they have on the innocent.
The bar for that is clearly quite high given that courts e.g. regularly will hold people without bail, or set huge bail amounts as countermeasures against having people run off.
In this case it is "only money", so it's not surprising that they court would consider it acceptable in general to freeze funds pending judgement compared to depriving someone of their freedom.
> Defendants then cannot hire the counsel they desire, lose their case and go to jail.
If the public defender system is not a good enough safeguard for justice, then that is an argument worth making, but the issue then is not the defendants ability to pick counsel, but that a substantial proportion of all defendants are forced to rely on a system that may be insufficient.
If you could convince the court that the public defender system is totally inadequate, that would be a strong case for unfreezing enough assets to get adequate representation, but still not necessarily enough to make the case for unfreezing enough for the counsel you might prefer (to take the extreme example: if you're guilty and could hire anyone what's to stop you from finding a suitable friend or relative who is a lawyer, and pay them every cent you own to defend you, as a means of moving the money out of reach?)
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#85Earlier 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…
"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 the courts to somehow figure out all of the possible combinations of actions in the future that might affect the money.
So let's take Alito's argument. We arrest a couple of brothers in suspicion of bank robbery. At the same time the bar owner opens a civil case for damages done to his bar during their party. Their criminal lawyer, getting a feeling he might not be paid (which sounds like a pretty good feeling to have) files a civil suit for his money.
Now we're having to ask the court to make a decision today about monies to maybe be spent or not sometime next year. This is ludicrous.
Yes, the money might be able to get away. But you've arrested the person, and that's all you get. 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.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#86Earlier quoted context omitted.
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 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. This happens in the UK too. People who are unwilling to send their children to private school will instead move to a more expensive house because it is in the catchment area of a good school. This is morally equiv…
Certainly does.
Near us (South London) the price difference between a 2-3 bedroom house in particularly good catchment area vs. an average one is at least 100,000 pounds, sometimes more...
Which makes it very clear that it's priced based on private school costs, given that the private schools near here costs ~10k/year (huge variations, but that's roughly it for 2-3 of the most popular ones)...
I've had the argument with my ex. over my sons school too. I had halfway given in and agreed to send him private, but we ended up sending him to the local school two doors down from me instead of 40-60 minutes travel to the nearest suitable private school, thankfully. But we'll be having that argument again over secondary school, I'm sure.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#87Playing 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…
Another interesting example is Stuart Gulliver, CEO of HSBC when they were fined 5 weeks of income for laundering money for Mexican and Columbian drug cartels. HSBC lawyers persuaded prosecutors "not to indict HSBC, the London-based bank, on charges of vast and prolonged money laundering, for fear that criminal prosecution would topple the bank and, in the process, endanger the financial system." Gulliver was not tried for any crime after helping launder money for literal mass-murdering drug lords in a country where people are jailed for possession of marijuana. Given the dynamics of the situation, it's troubling that he was able to do that.
[1] http://www.rollingstone.com/politics/news/outrageous-hsbc-se...
[2] http://dealbook.nytimes.com/2012/12/10/hsbc-said-to-near-1-9...
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#88Earlier quoted context omitted.
Why don't poor people deserve to be a counterweight to government?
They do, but if they don't have that ability now then that's the problem we should be addressing. Removing the ability of the rich to do so won't magically give that ability to the poor. If anyone here wants to argue that because the poor can't effectively fight government then nobody should be allowed to 'because otherwise it isn't fair', then please go ahead. But that's the logic of plucking out everyone's right ey…
I was looking around for a quote along these lines, but I think you've just expressed it quite well: "Removing the ability of the rich to do so won't magically give that ability to the poor."
It is quite easy to retard the success (or fill in the blank with legal defense, assets, education, IQ) of a group or individual. However bringing that success (or whatever) to another group is an entirely different sort of challenge, a very difficult one. There are rarely shortcuts and the most commonly suggested solutions often involve infringing on the rights of others. People don't realize this and in the quest of solving social problems with government intervention they end up creating even larger ones. Like you said, it results in pandering to the lowest common denominator. You see this very visibly with policies like "No Child Left Behind", but this sentiment tends to run rampant in leftist schools of thought.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#89Earlier quoted context omitted.
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…
How about some sort of middle-ground? An individual is accused of $x fraud or theft, $x of assets are frozen? That seems perfectly reasonable.
Did you read the article? They're not fighting the freezing of the $45m of alleged proceeds of fraud, only the $15m of unrelated assets. The government argument is that those would be payable as a fine upon convicting so they don't want that money transferred out of the country.
Re: The Supreme Court could soon deliver a blow to the Sixth Amendment
#90The 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) wins a civil suit against him. Brother B loses his immediately.