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.
The reports about the oral argument are not encouraging; it appears that a majority of the Court is more than happy to allow the government to do whatever it wants and effectively abolish the Sixth Amendment, except to the extent that some prosecutor somewhere would decide it should or may exist. Read more: The Supreme Court could soon deliver a crushing blow to the Sixth Amendment; The Sixth Amendment, Asset Forfeiture, and the Right to Counsel and at SCOTUSBlog, Looking for Limits On Freezing of Assets.
