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0 pointsNatsu10y ago0 comments

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 use public defenders, the powerful would use their influence to make sure that it provided effective, independent defense. Even so, it's not like getting an expensive lawyer somehow gets you off and a public defender guarantees you'll be found guilty.

But it does not seem reasonable that we should adopt rules to increase the unfairness by doing everything possible to remove any incentive to improve the public defender's office and doing our utmost to ensure that the poor are forever trapped with ineffective counsel.

Just for the record, this guy has a very expensive lawyer, not a public defender.

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DanielBMarkham10y ago

"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.

NatsuOP10y ago

That's not what they're doing or why.

They're not here to decide his fate or his case, though that may happen incidentally. They're here to settle a legal question that was posed to them in the petition for a writ of certiorari.

It's not their job to try his case, nor will they. Unless the entire case hinges on this question (it doesn't), they don't decide his case. So they might unfreeze his assets while he faces fraud charges, but we're not looking at them deciding his guilt or innocence here.

They're trying to decide what the best precedent to set is, which is why they have to consider every possible scenario. So yes, they really do have to consider scenarios with guilty people. It really wouldn't make sense to have them blind themselves to how the precedent will play out in the future. Surely you do not believe this will never be applied to people guilty of fraud? They do consider doubt in such stories, but only when it's important. So they might do that if they were pondering the scope of reasonable doubt, but it wouldn't make sense here.

This case may involve him but it's not about him. It's only about the Sixth Amendment question posed. They're not concerned about all that other stuff because they're not deciding his guilt or innocence.

> Yes, the money might be able to get away. But you've arrested the person, and that's all you get.

The Supreme Court and prior cases disagree with you.

> 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.

Yes, but that something is your understanding of what they're doing and why.

Due process is your Fifth Amendment right. Nowhere does this case allege a violation of that right. This is not at all the same as a Sixth Amendment right to counsel being argued here. Moreover, he is in fact already defended by counsel of choice, specifically this one: http://www.royblack.com/attorneys/Howard/Srebnick/

This makes the hypothetical infringement of the Sixth Amendment rights rather oblique--was he really denied his right to counsel when the very expensive lawyer he chose is arguing before the highest court in this country?

DanielBMarkham10y ago

" but we're not looking at them deciding his guilt or innocence here"

Yes, I got that. My point is that positing the various ways the case plays out with whether the person is guilty or innocent is outside the scope of the question. Alito's avenue of analysis was misguided. It doesn't matter whether they're guilty or innocent because we're asking what the government should do with the funds before we know the result of the case

And I understand the point of appeals courts. I'm making an argument based on a plain, layman's understanding of how the system should work. I have no doubt that for those inside the system, it all makes some kind of weird sense. "Hey, we took all of your money, but look! The paperwork has been done correctly!"

I also understand that the Supreme Court disagrees with me. Probably isn't the first time, nor will it be the last. Those guys are a hell of a lot smarter than I am. My best argument is that at some point it makes sense legally but yet you lose consent of the governed. Taking somebody's money so they can't afford a lawyer -- along with a half-dozen or so other bone-headed decisions over the last decade or two -- begin to cross that line. Somebody should speak up. That "speaking up" is not a legal argument; it is a political one.

Sometimes the law is an ass.

Thank you for the instruction on the split between the Fifth and Sixth Amendment issues. Lots of detail to consider here.

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agarden10y ago

If someone defrauds medicare for millions, then they do not deserve, in a moral sense, expensive counsel or any help at all, because they are guilty. But a person can be accused of defrauding medicare for millions without having actually done so. And in that case, yes, they deserve to be free to hire an expensive lawyer.

Why? Because the prosecutor set against them is an expensive prosecutor and is going to give the case more of his attention.

If you have been charged with a minor offense that carries small penalties, you will be charged by a prosecutor that is lower on the career ladder and cares less about your particular case; they will put less effort into it. But if you have been changed with a big crime that carries large penalties, that is going to be prosecuted by a better lawyer. A public defender might well be adequate to defend against a minor charge but be wholly inadequate against a major charge where the prosecution is very highly motivated and incentivized to win.

And since we do not know if the charged party is guilty or not, they ought to be presumed innocent and not restricted from hiring counsel of their choice and means.

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DanielBMarkham10y ago

"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.

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.

NatsuOP10y ago

That's not what they're doing or why.

They're not here to decide his fate or his case, though that may happen incidentally. They're here to settle a legal question that was posed to them in the petition for a writ of certiorari.

> Yes, the money might be able to get away. But you've arrested the person, and that's all you get.

The Supreme Court and prior cases disagree with you.

> 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.

Yes, but that something is your understanding of what they're doing and why.

DanielBMarkham10y ago

" but we're not looking at them deciding his guilt or innocence here"

Sometimes the law is an ass.

Thank you for the instruction on the split between the Fifth and Sixth Amendment issues. Lots of detail to consider here.

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agarden10y ago

Why? Because the prosecutor set against them is an expensive prosecutor and is going to give the case more of his attention.

And since we do not know if the charged party is guilty or not, they ought to be presumed innocent and not restricted from hiring counsel of their choice and means.

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