From the Atlantic: A Near-Epiphany at the Supreme Court: The justices come close to recognizing the perilous state of the American public-defense system.

The case was Luis v. United States.

- Here's what Scotusblog has to say about it: Click here.

- And here's what Oyez has: Click here.

The question in the case: Does the pretrial restraint of assets that are not directly related to the crime at issue and are needed to retain counsel of choice violate the defendant’s Fifth and Sixth Amendment rights?

And the holding: The pretrial freeze of a criminal defendant's legitimate, untainted assets violates the Sixth Amendment right to counsel of choice.

- Click here for the Atlantic article.

In a 5-3 decision in Luis v. United States on Wednesday, the U.S. Supreme Court forbade the government from seizing legitimate funds defendants could use to hire a lawyer of their choice. Along the way, the justices came close to asking a more troubling question: Does America’s underfunded public-defender system meet the Sixth Amendment’s standards for adequate legal counsel?

The case itself had nothing to do with public defenders, at least on the surface. Sila Luis, who brought the appeal before the Court, was indicted for federal health-care fraud to the tune of $45 million in 2012. Luis had $2 million in assets when a federal grand jury indicted her; she said she hoped to use the funds to pay for her legal defense.

But prosecutors sought a court order barring her from using any of her funds—even those wholly unconnected to the crime—in hopes of acquiring them after conviction for restitution and possible criminal penalties. Luis argued that seizing those untainted funds would violate her Sixth Amendment right to seek assistance of counsel of her choice. Lower courts disagreed, so she appealed the order to the Supreme Court, which agreed to hear the case last year.

Five justices agreed on the ruling itself: The Sixth Amendment forbids the government from seizing untainted assets before trial when defendants need those assets to hire lawyers of their choice. Four of them, led by Justice Stephen Breyer, ruled the right to counsel of choice outweighed the government’s interest in restitution and fines. Justice Clarence Thomas supported the result but saw a clear command from the Sixth Amendment instead of a balancing act.

In his plurality opinion, Breyer expressed alarm at the right-to-counsel implications in the government’s position. “How are defendants whose innocent assets are frozen in cases like these supposed to pay for a lawyer—particularly if they lack ‘tainted assets’ because they are innocent, a class of defendants whom the right to counsel certainly seeks to protect?” Then he made an interesting divergence. Indeed, what would happen if Luis and others like her could no longer afford to pay for a lawyer?

“These defendants, rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders,” he continued. “As the Department of Justice explains, only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards. And as one amicus points out, ‘[m]any federal public defender organizations and lawyers appointed under the Criminal Justice Act serve numerous clients and have only limited resources.’”

“The upshot,” Breyer concluded, “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.”

From Slate: Samuel Alito’s Sixth Amendment Denialism

For our look at constitutional meaning - apparently there is a dispute on the Supreme Court about what aspects of a trial procedure are and are not covered under the "right to a speedy and public trial."

- Click here for the article.

Monday’s case, Betterman v. Montana, is not strictly about the evils of plea bargaining. Rather, it poses a seemingly simple question: Once a defendant has accepted a plea deal, can the government detain him for 14 months before giving him a sentencing hearing?

You might respond to this question by reciting the Sixth Amendment, which states that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Even by the measure of our perpetually clogged-up court system, 14 months is not “speedy,” and so Brandon Thomas Betterman—the defendant here who spent all that time waiting for a hearing—should win. But Montana disagrees, insisting that Betterman’s right to a speedy trial was never violated. That’s because, in Montana’s telling, a sentencing hearing isn’t a trial at all, and so isn’t subject to the Sixth Amendment’s speedy-trial guarantee.

There are two problems with that argument, not including the fact that it would upend 50 years of precedent. The first was highlighted repeatedly throughout the morning by Justice Elena Kagan, whose vim is invigorating on an otherwise torpid court. (I counted at least four catnaps by three justices over the course of the hour.) A delay in court proceedings, Kagan noted, may “impair the defense”: Evidence disappears; witnesses scamper off; memories fade. This problem is present in both conventional trials and sentencing hearings.

“You know,” Kagan tells Montana Solicitor General Dale Schowengerdt, “in most cases these days, most of the actual adjudication of contested issues goes on in sentencing rather than at the trial stage, given that we don’t have very many trials anymore.”

More Restrictions on the Rights of Criminal Defendants

Thanks to Michael for pointing out concerns raised by some about Obama's support for overturning Michigan v. Jackson.

From WaPo:

The case at issue is Michigan v. Jackson, in which the Supreme Court said in 1986 that police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present. The decision applies even to defendants who agree to talk to the authorities without their lawyers.

Anything police learn through such questioning may not be used against the defendant at trial. The opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time.

ScotusBlog also has background on the dispute as well as links to amibus briefs with arguments on either side.

The government’s amicus brief can be found here. Siding with a group of states that had argued earlier that the Jackson precedent was no longer necessary to protect the rights of suspects in police custody, Solicitor General Elena Kagan made the same point. The U.S. brief said that the ruling is not needed “given the purposes of the Sixth Amendment and the existence of other strong protections against coercion.”

The brief continued: “Although the Sixth Amendment affords criminal defendants a right to counsel at certain critical pre-trial stages, the Amendment should not prevent a criminal defendant from waiving that right and answering questions from police following assertion of that right at arraignment. Jackson serves no real purpose and fits poorly with this Court’s recent precedent; although the decision only occasionally prevents federal prosecutors from obtaining appropriate convictions, even that cost outweighs the decision’s meager benefits.”

Perhaps the most surprising thing about the Obama Administration so far has been its willingness to continue whittling away at defendant's rights, a trend that has been ongoing for almost three decades:

While President Barack Obama has reversed many policies of his Republican predecessor, George W. Bush, the defendants' rights case is another stark example of the White House seeking to limit rather than expand rights.

Since taking office, Obama has drawn criticism for backing the continued imprisonment of enemy combatants in Afghanistan without trial, invoking the "state secrets" privilege to avoid releasing information in lawsuits and limiting the rights of prisoners to test genetic evidence used to convict them.

The ACLU has been especially disappointed so far. Which makes me wonder whether there's a political calculation here. Is he attempting to minimize the ability of a Republican challenger in 2012 to argue that he is soft on crime?