With regard to political and social minorities Justice Scalia advocates redress through the political process; where corporations are involved, however, he is most willing to offer constitutional protections.
The Supreme Court heard arguments the other day in Luis v. United States, a case in which the Court, if it rules for the government, will essentially abolish an individual's right under the Sixth Amendment to hire his or her own criminal defense lawyer, except to the extent that the government would decide it to be o.k.
Luis involves a health care fraud prosecution; the defendant is charged with defrauding Medicare through the operations of her home health care agency. The government obtained a court order prior to trial freezing her assets, those it claims are tainted, meaning derived from criminal conduct, and those it acknowledges are untainted, meaning not derived from criminal conduct.
The Supreme Court framed the issue as follows: Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.
Luis claims that freezing her admittedly untainted assets leaves her unable to pay for her own defense to the criminal charges and therefore violates her right to counsel under the Sixth Amendment. The government argues that if Luis spends all, some or most of her admittedly untainted assets on her defense, she will not have enough money to satisfy the government's forfeiture demands, which become relevant only if Luis is found guilty.
Some will argue that Luis' right to counsel can be honored if the court appoints counsel for her. The appointed counsel process under the Criminal Justice Act, while in the vast majority of cases more than sufficient, does not work well at all in complex criminal prosecutions such as that faced by Luis; the government's advantage is increased vastly in these type cases. That's one reason why the right to counsel and the Sixth Amendment are important.
A Mirandawarning almost always renders admissible evidence of any inculpatory statement a suspect makes subsequently. But what about when the Miranda warning is preceded by interrogation in which the suspect has made involuntarily an inculpatory statement? Does the Miranda warning serve to inoculate the constitutional violation that has already occurred? The Sixth Circuit established the relevant test recently in United States v. Ray.
The defendant, Alvin Ray, was suspected of drug dealing, and police secured a warrant to search his residence. When police went to execute the warrant, they encountered a teenage boy in the front yard. When police entered the house, they found Ray and his girlfriend, the mother of the boy, asleep in an upstairs bedroom. A search of the house recovered marijuana, crack cocaine and three firearms. Later, at the police station, Ray, after being read his Miranda rights, acknowledged ownership of the items.
Ray moved to suppress his statements. His main and best argument, which the capable district court judge, Hon. Avern Cohn, ignored essentially, was that the police had coerced an involuntary statement from him at the residence. More specifically, Ray claimed that, while the search was ongoing, he was in custody and told by police that, if he did not admit to possession of the contraband etc, his girlfriend would also be arrested and her child would become a ward of the state. The Miranda warning at the police station did not inoculate this coercion and the statement that followed was also not voluntary, Ray argued.
The Sixth Circuit reversed the district court's ruling admitting Ray's statements and remanded for an evidentiary hearing both as to the voluntariness of the statement at the house and the effect of the Miranda warning. This latter point required it to establish the relevant test.
The Sixth Circuit began by considering the Supreme Court's decision in Missouri v Seibert, 542 US 600 (2004), a 4-1-4 decision, and concluded that it did not establish any rule, because there was not five votes for any rule at all. So the Sixth Circuit found it necessary to dig from Seibert some workable rule.
The court recited the two controlling inquiries as follows: (1) whether a reasonable person in the defendant's shoes would have seen the renewed questioning as a new and distinct experience from the initial interrogation; and, (2) whether Miranda warnings could have made sense as presenting a genuine choice to follow-up on an earlier admission. Five factors, the Sixth Circuit advised, should guide this inquiry: (a) the completeness and detail of the question and answer in the first round; (b) the overlapping content of the two statements; (c) the timing and setting of the first and second interrogations; (d) continuity of police personnel; and, (e) the degree to which the interrogator's questions treated the second round as continuous to the first.
Occasionally in criminal cases, particularly federal criminal cases, the client finds that it is necessary to sit down for a proffer session with law enforcement officers and prosecutors in which the defendant discloses facts that would support some or all of the charges against him. While there is usually a "proffer agreement" stating something to the effect that the disclosures in the proffer session can't be used directly against the defendant, there is also usually a provision that the government may produce evidence of the defendant's statements at the proffer session if the defendant would go to trial and, according to a recent Sixth Circuit decision in United States v. Shannon, do just about anything other than confess from the get-go.
Shannon was charged in a Medicare fraud conspiracy. Before eventually going to trial Shannon his lawyer in tow participated in a proffer session. They were presented with what is commonly referred to as a Kastigarletter that had these two paragraphs:
(2) Except as otherwise specified in this letter, no statement made by you or your client during this proffer discussion will be offered against your client in the government's case-in-chief in any criminal prosecution of your client for the matters currently under investigation.
(3) If your client is prosecuted, the government may use your client's statements in cross-examining your client, and to rebut any evidence offered by your client that is inconsistent with the statements made during this discussion. This is to ensure your client does not abuse the opportunity for this proffer discussion by making false or misleading statements, either at the proffer discussion or at trial.
Shannon made several statements in the proffer session inculpating himself in the health care fraud conspiracy.
For whatever reason, the plea negotiations fell apart. At trial, an Akhtar, a cooperating defendant, testified that Shannon recruited patients for his pain clinic and regarding some details of Shannon's recruiting tactics including payoffs. Shannon's defense lawyer, apparently under the misapprehension that he was supposed to actually function like a defense lawyer instead of an enabler for whatever the prosecutor wanted to do, cross-examined Akhtar on the point that he had no first-hand knowledge of whether Shannon had made payments. This the district court found to go "too far" and the government was permitted to introduce Shannon's proffered statements.
The Sixth Circuit affirmed, and its analysis should tell any federal criminal defense lawyer and defendant that a decision to attend a proffer session is also a decision to plead guilty and not go to trial. Here's what the Sixth Circuit explained:
cross-examining a witness is presenting evidence
presenting a position, which should be read as announcing ready, for trial is presenting evidence
making any argument is presenting evidence or a position, which should be read as stating in opening statement that the government will not be able to prove its case beyond a reasonable doubt
The Sixth Circuit's decision and analysis further strengthens the already way too strong hand of federal prosecutors. It treats the proffer agreement by traditional contract law principles, one of which is (one that goes unmentioned) that the parties to a contract have a duty of good faith and fair dealing toward each other. One wonders if the government lived up to that before the plea negotiations went south.
There are two main, basic problems with the arbitration clauses that corporate America relies on:
First and with all due respect to the arbitrators, the system is structured to favor the repeat players, which is the corporations. Arbitrators get paid when they preside over an arbitration, so they want to be selected to arbitrate a matter. If they don't get picked, they don't get paid. So this leads them inevitably to tilt in the favor of the corporations who will again have an arbitration. It's like buying the jury, and it is not fair.
Cost. Most arbitration clauses require the consumer and the corporation to share the arbitrator's charges and fees, which are likely to run into quite a hefty sum, perhaps tens of thousands of dollars. Individuals and families rarely have the money to pay for this. You could say that lawyers could represent them on a contingent fee basis; well, in reality, taking a case on a contingent fee basis where the arbitrator is likely to naturally and inherently favor the opposition adds a level of risk that sometimes is too much to bear.
