Saturday, February 18, 2017

Attachment Agitation

Estate of Lott v. O’Neill, 2017 VT 11

By Elizabeth Kruska

Easy facts. Robin O’Neill is accused of having murdered two men, one of whom is Jamis Lott. She got charged with two counts of murder (one aggravated, one second degree), and the murder charges are pending. She hired a lawyer to represent her in the criminal cases.

I have worked on a murder case, up to and through trial. I wasn’t the primary lawyer on the case—there were two of us working on it. I did a lot of work on the case. A barnload. Maybe several barnloads. And that’s just me; the other attorney did at least twice as many barnloads’ worth of work as I did. I can’t even start to guess how much that would have cost if someone was paying full-freight out of pocket for that defense. I say this not to pat myself on the back, but because I know that these cases take a lot of work, and consequently, would cost a lot of money if someone was paying for it out of pocket.

So. Robin not only got charged criminally, but she also was sued by the estate of Jamis Lott in a wrongful death action. Lott’s estate attached all her money, including the retainer she paid to her lawyer for her defense in the criminal case. The trial court said, “Ayup, that’s fine” and permitted the attachment. Robin, unsurprisingly, said, “I haven’t been convicted of anything, and under the Sixth Amendment I get to be represented. Attachment is unconstitutional because it affects my right to counsel.”

SCOV says, “Sorry, Robin. We agree with the trial court” and affirms the attachment.

There was a recent SCOTUS case called Luis v. United States that dealt with attachment of funds. In that particular case, Ms. Luis was charged with a crime and the government instituted an attachment action before she was convicted. That prevented her from hiring counsel of her choice. Essentially, the government said, “Hey, friend, we’re going to charge you; we’re going to freeze all your assets; and we’re going to prevent you from hiring a lawyer. Good luck!” They left out the “Good luck!” part because they were being jerks.

SCOTUS, though, for all their problems, aren’t jerks, or at least weren’t jerks when it came to this case. Well, they sort of were, because it’s a plurality opinion. That means if you cobble together the different opinions you get sort of an agreement about how it comes out. It’s like a messy Venn diagram. Regardless, they ruled that the government can certainly engage in attachments or forfeiture actions when it’s clear that the property or money is a direct result of a crime. But, if there are “untainted funds” the government doesn’t get to take that.

Suppose a defendant is alleged to have stolen… one million dollars. But suppose that same defendant already had a million dollars and hadn’t yet spent it on a Picasso or a Garfunkel or a green dress (but not a real green dressthat’s cruel). The government can seize the allegedly stolen million dollars since that never belonged to the defendant in the first place. They can’t seize the lawfully received million dollars because the government doesn’t have a lawful interest in that property.

So, yes, a criminal defendant has the right under the Sixth Amendment to counsel, but doesn’t have a Sixth Amendment right to use someone else’s money to pay for it. The government doesn’t get to step in and be jerks and prevent a defendant from using his or her own money to hire a lawyer. First of all, the government doesn’t have an interest in that property. Second, why prevent someone who can afford an attorney from hiring one? Public defenders are pretty famously busy. They should really be focusing their energies on representing people who legitimately can’t afford counsel. It’s not fair to tax an already-burdened system by giving them additional cases because the government is preventing wealthy defendants from hiring lawyers.

I’m going to hasten to add and make clear that Luis dealt with the ability of the government to prevent a defendant from using her own money to hire a lawyer in a criminal case. (See where this is going? Am I doing a good job with foreshadowing?)

SCOV then turns to the instant case and says that Luis is instructive but it doesn’t apply here. First of all, it wasn’t the government attaching Robin’s property. The attachment order was in the context of a civil wrongful death case. The government doesn’t have anything to do with this. It was the plaintiff —the decedent’s estate—who sought to attach the property so that in the event she was found liable for his wrongful death, there would be money available to pay out a judgment. She could be acquitted of the murder of Jamis Lott but still be found liable in civil court. The plaintiff-estate would want to make sure Robin doesn’t siphon all her money into her criminal defense so there is nothing to pay out at the end. SCOV thinks it would be unfair to deprive a potential victim-creditor by requiring his estate to subsidize Robin’s criminal defense.

It is entirely possible that even if Robin were acquitted of her criminal charge that she could still be found liable in the wrongful death case. I feel like that’s happened before . . .

Hey, remember that time a criminal defendant got acquitted of a murder (well, two) but still was found liable in a wrongful death action and then had to pay and even wrote a “fictional” book about it that essentially was a tell-all about how he committed the crime? Yeah, I remember.

Justice Robinson dissents, and is joined by Justice Eaton. First of all, she takes the position the SCOTUS plurality decision is not actually binding since there’s no clear majority. But, her thought is that, actually Luis is more instructive than the SCOV majority credits since it has a direct impact on a criminal defendant’s right to hire an attorney of her choice.

Second, Justice Robinson focuses on the issue of tainted versus untainted assets. In Luis, the defendant was accused of bilking Medicaid out of millions of dollars and was charged with fraud for that. By the time she got charged, though, she had spent most of the money. I have no idea how one would spend forty-five million dollars. In any case, the government was the rightful owner of that property and wanted it back. It sought to attach whatever it could so restitution could be fulfilled in the event Ms. Luis was convicted. But Robin’s case is different. The attachment sought is in a civil case by a plaintiff, not in a criminal case by the government. The dissent feels that Robin’s Sixth Amendment right in her criminal case outweighs a possible judgment in a civil case.

As it is, under various Vermont statutes there are lots of exceptions to civil attachment, so it’s not as if everything Robin has could be attached in the event of a possible judgment anyway. And it’s a real concern that if someone can afford to pay for counsel in a criminal case that he or she should not be forced into the over-burdened public defender system. That’s not fair. The dissent would exempt funds sufficient to pay for Robin’s criminal defense from any attachment.

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