Back in December, I wrote about a case that was pending before the U.S. Supreme Court that could decide the dividing line between a prosecutor’s ability to freeze a defendant’s assets before trial and the defendant’s Sixth Amendment right to hire a lawyer of their choice. Late last month, the Supreme Court issued an opinion that will benefit criminal defendants in state and federal criminal cases. I’ll talk about the Court’s decision as well as the dissent in today’s posting.
The question in Luis was whether the government could freeze a defendant’s assets before trial where the assets are unrelated to the crime and necessary to retain the defendant’s choice of legal counsel, which is guaranteed by the Sixth Amendment.
I won’t go into full detail on the law of asset freezing or the particular facts of Luis, but will just highlight the main points. If you’d like to read a more details discussion of the background, please check out my prior post, “Freezing a Federal Defendant’s Assets Pretrial and the Current Constitutional Challenge.“
Over 200 federal laws and countless more state laws allow the government to seize property related to a crime in cases where the defendant is convicted. Where such funds aren’t available because the defendant already spent the funds related to the crime, the government can seize substitute assets or assets that don't have a direct relation to the crime. In the interest of preserving assets to ensure they are available should prosecutors obtain a conviction, courts have allowed prosecutors to freeze a defendant’s assets even before a trial has started.
The Court was split 5 to 3 in the Luis case, though not along traditional ideological lines. The judgment of the Court was written by Justice Breyer, who was joined by Chief Justice Roberts, Justice Ginsburg and Justice Sotomayor. Justice Thomas concurred with the judgment, but on slightly different legal grounds. Justices Kennedy, Alito and Kagan dissented.
The majority agreed that the lower courts had incorrectly allowed the government to freeze Luis’ untainted assets prior to her trial. Justice Breyer, in his plurality opinion, noted three general reasons for this finding. First, in weighing the constitutional right to assistance of counsel against the government’s interest in ensuring there are funds available for fines and restitution, Breyer noted that the constitutionally protected right carried more weight. Second, the plurality could not find any precedent in other Court rulings that would allow for unrestrained pretrial freezing of assets with no relation to the crime at issue. Those precedents that did exist were, in Breyer's opinion, limited by the fact that they involved assets that were related to the alleged crime. Third, Justice Breyer made what is commonly referred to in the legal world as the “slippery slope” argument. Justice Breyer reasoned that if they allowed the restraint of Luis’ assets, Congress would likely enact more and more laws allowing this kind of restraint, chipping away at the ability of an increasing number of criminal defendants to retain counsel of their choice and forcing more defendants to use public defenders. Based on these factors, Justice Breyer decided that Luis did in fact have the right to retain those assets that were unrelated to the crime for which she was charged in order to pay a reasonable fee for her attorney. The Court vacated the lower court’s ruling and remanded the case for further proceedings.
Justice Thomas agreed with this judgment but not with the plurality’s three-pronged analysis. In Thomas’ opinion, the judgment could be based solely on the text of the Sixth Amendment and its common law background. In order to exercise the right to counsel of your choice, Thomas reasoned, you must be able to use your lawfully owned assets to pay your counsel. The government’s attempt to freeze a defendant’s untainted assets before trial, which effectively prohibits the defendant from spending those assets on counsel, is a violation of the Sixth Amendment regardless of the government’s competing interest in preserving assets for punishment and restitution.
Two separate dissenting opinions were issued in the Luis case. Justice Kennedy, joined by Justice Alito, wrote the more detailed dissenting opinion of the two. Among the points Justice Kennedy made in his dissent, he noted that money is fungible and that the Court’s ruling would reward those defendants who spent the portion of their assets related to their crimes first and reserved their untainted assets for legal counsel. In his opinion, the Court’s prior rulings that allowed for pre-trial freezing of a defendant’s assets were not limited strictly to tainted assets. Taking the reasoning from those prior rulings, Kennedy noted that defendants whose assets are frozen pretrial can still retain counsel of their choice, though they would need to somehow obtain a loan or find a defense counsel willing to take their case on the hope that the defendant would some day have the money to pay them.
Justice Kagan, in a much more succinct dissent, agreed generally with Justice Kennedy’s view that the Court’s precedent on pretrial asset freezing controlled in this case. Though Justice Kagan made a point to note that she was “troubled” by the precedent that allows for pretrial asset freezing, she also noted that Luis did not challenge that precedent in her appeal so she was bound to follow what she believed to be a controlling prior opinion.
Going forward, criminal defendants should now be able to use funds that are unrelated to the alleged crime in order to pay reasonable fees for legal counsel. Where the prosecution does seek to freeze tainted assets before trial, courts will often need to go through an analysis to determine which of a defendant’s assets are related to the alleged crime and which are unrelated. This will certainly add a layer of complexity to the pretrial process but one that ultimately should benefit a number of criminal defendants who want to ensure they have quality legal representation.
If you have been charged with a federal crime and are looking for a tough defense lawyer, please contact the Law Offices of Hope Lefeber for a free initial consultation. I have over 30 years of experience defending clients from across the Philadelphia area and am ready to fight for you too.