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Faculty Blog: Luis v. United States and a Right to Counsel for the Rich

By: David M. Siegel The Sixth Amendment, which the Supreme Court has for over half a century interpreted to afford indigent criminal defendants a right to a lawyer at government expense, now also provides wealthy defendants something: protection from the government’s freezing their untainted assets (as opposed to those traceable to, or proceeds of, crime) to prevent retaining counsel of their choice. As principled—and protective of the Sixth Amendment—as this distinction may be, it reinforces something much more pernicious: there is now effectively a right of the rich to be free from impoverishment by the government, to protect their Sixth Amendment right to retain counsel of their choosing, while the identical Amendment does not provide an indigent defendant access to an actual lawyer of anyone’s choice. Luis v. United States, was quite simple: federal law permits pre-trial freezing of certain criminal defendants’ assets that are proceeds of the crime, traceable to the crime, or of equal value to either of the first categories. Ms. Luis allegedly obtained $45 million through health care-related fraud, but when indicted had only $2 million, which the government agreed was neither proceeds of nor traceable to the fraud. Freezing these funds, to satisfy what the government contended would be restitution upon conviction, would preclude her hiring counsel of her choice. If the Sixth Amendment truly conferred a right to hire counsel of one’s choice, then did it also prevent the government from vitiating this right by freezing all one’s resources with which to pay counsel? Yes, the Court found, although not for any reason that commanded a majority.

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Contributing Author Profile: Steven Gariepy

Contributing Editor: Robin Craig
In today’s ever-changing environment, it is important to understand the interconnectedness of military and civilian life, the role law has in governing the use of military force, and how the U.S. government seeks to reduce civilian casualties in active combat environments. Having been deployed in Afghanistan, Lieutenant Colonel Steven Gariepy draws on his first-hand military experience to confront these issues and how the U.S., and its NATO allies, address the legal and humanitarian complications related with military action. Presenting on topics, including “International Humanitarian Law in Practice” and “Mitigating Civilian Casualties in Afghanistan: The Applicability of International Human Rights Law during Military Operations,” Lieutenant Colonel Gariepy applies practical knowledge and experience to complex, multi-layered issues in a manner his audience can understand.