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Money changes everything

The plurality opinion in the Supreme Court's decision in Luis v. United States a few weeks back was a ringing endorsement of a defendant's Sixth Amendment right to counsel.

We nonetheless emphasize that the constitutional right at issue here is fundamental:  The Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.

As that last phrase might suggest, though, one comes away from the case with the firm impression that it mainly serves to corroborate the observation that the man who said money can't buy happiness never sat in a courtroom.

There's Medicare fraud and there's Medicare fraud; the Feds alleged that Luis had managed to pilfer some $45 million dollars from the program.  She'd spent most of it, but somehow, she still managed to have $2 million lying around which everybody agreed she hadn't stolen from the government.  She wanted to use some of it to hire a lawyer; the government claimed that it would be entitled to recover the funds as restitution, so they got a pretrial order restraining Luis from spending the money.  The Eleventh Circuit affirmed, and so here we are.

The government's argument was that although the funds might be untainted, they would still be forfeited upon conviction, and there was probable cause to believe Luis would be convicted.  (Whether this was any more than the probable cause found by the jury which indicted Luis the opinion doesn't say.)  Plus, money's fungible.  Maybe Luis used the tainted funds to buy things which she would otherwise have had to use the untainted funds to purchase.  As Kagan, who has succeeded Scalia as the best writer on the court, put it:

The thief who immediately dissipates his ill-gotten gains and thereby preserves his other assets is no more deserving of chosen counsel than the one who spends those two pots of money in reverse order. Yet the plurality would enable only the first defendant, and not the second, to hire the lawyer he wants.

No one will accuse Breyer of being in the running for the Best Writer award, and his opinion for Sotomayor, Ginsburg, and Roberts is a tough slog.  Bankruptcy law, and the manner in which the trustee can "pull back" assets into the estate, merits a page or two.  (I was exposed to bankruptcy early in my career.  I was also exposed to food poisoning, and drew the same lesson from both experiences:  I did not want to be exposed to them again.)  There's stuff about reversionary interests, too, and I came to appreciate the relative simplicity of Thomas' opinion concurring in the judgment:  He sided with Luis because that's the way they did things in Merry Olde England. 

But the upshot was that the assets were untainted, and the right to counsel of choice trumps any interest of the government's in those funds.  Breyer trots out the parade of horribles which would ensue from a contrary result:

These defendants, rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders ... The upshot is a substantial risk that accepting the Government's views would - by increasing the government-paid-defender workload - render less effective the basic right the Sixth Amendment seeks to protect.

Let's parse that.  The paragraph starts out with the statement that public defenders are overworked and underpaid, an assertion evident to anyone who spends a morning in the felony courts.  It then closes with the assertion that these poor chaps would be even less effective if people with lots of money had it taken from them so they couldn't hire a private attorney.

Does this mean they're not effective now?

Well, they're doing their best, but it's an uphill struggle.  The collapse of the Louisiana Public Defender system has made news, but it's merely an extreme example of the problem.  According to the DOJ, "only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards." 

And, as anyone who watched FX's series on the OJ trial remembers, the difference between being able to hire an expensive lawyer and having to hire a cheap one or depend on appointed counsel or a public defender is not merely one of degree.  A few years back, a defendant here pled to a sex crime, then hired a really good lawyer, who got the plea vacated when he discovered evidence that the other attorney hadn't.  When the case was retried, the lawyer built a small to-scale reconstruction of the house where the crime allegedly occurred, on the courtroom floor, which showed that the crime couldn't have occurred as the victim claimed.  The defendant was acquitted.  I wouldn't be surprised if he paid somewhere around six figures for his defense, but it was worth every penny.

Then again, few people can afford to eat lobster every night, they don't live in a mansions, and they don't drive a Bentley, so it's not unfair that they can't afford to pay for top-notch legal talent if they're accused of a crime.  The ceiling is whatever you can pay.  It's just that the floor is so low, and there's little on the horizon to suggest that's going to change.  Nobody ever lost an election because he voted to cut funds for lawyers who represent people charged with crimes.

Anyway, I am comforted by the fact that I can go to sleep tonight, knowing that if a potential client has $2 million or so lying around that he wants to use to hire me, I don't have to worry about the government seizing those assets before he does.  

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