Alleged criminal conspiracies. If the prosecution of an alleged criminal is undermined by his being able to afford competent defense, we've got a bigger public policy issue.
I agree with the general sense of your post, and its implications about current drug policy, but I think tptacek is right about what our focus should be in this specific trial.
To be intellectually honest about this specific case we're discussing, DPR did by definition commit most of the drug charges. Even if you believe the only morally problematic charge is 5.b of count 1 (that the defendant hired a hitman to murder a troublesome user--I do hope you find that charge problematic!), which is certainly only alleged at this point, it is fact that the Silk Road aided and abetted drug trafficking, which is criminal in the U.S.
So while I certainly agree that people need to be entitled to a competent defense (and I am glad DPR will have competent attorneys to dispute the murder charge), emphasizing the alleged nature of a criminal conspiracy that we realistically know to be largely true doesn't seem to be the best place to focus on rights of the accused. In reality, the vast majority of people wrongfully convicted are going to be the ones who can't afford competent defense. So to me this case almost raises the opposite question from yours: if the prosecution of guilty defendants is undermined by their being able to afford better attorneys than the government, and if the defense of wrongfully accused defendants is undermined by their inability to afford competent defense, then we've got bigger problems with the nature of criminal trials!
I agree with your last point, and was making it in a roundabout way. "How do we convict this guy if he can afford a good lawyer?" and "We'll definitely convict this guy because he can't afford a good lawyer." are both troubling thoughts. Why not freeze the assets of everybody charged with a felony and appoint public defenders?
The rest of your post I have some difficulty with. It's almost as though you're saying we don't even need a trial here because the facts are so obviously established. I don't believe it's yet been established in a court of law that any crime was committed, much less that this person committed it.
One answer to this is that the DOJ can't in fact freeze the assets of anybody; they have to convince a court to do so, and it's for this reason among many that the courts are an entirely separate branch of government. To the extent that you can't trust the courts to be impartial, there's really no part of the criminal justice system you can trust.
It should not in general be in the best interests of the federal court system to allow federal prosecutors to abuse asset seizures to prevent defendants from mounting competent defenses. Among other things, such abuses set judges up for costly appeals.
Civil forfeiture requires only reasonable suspicion (preponderance of evidence) and does not require criminal conviction. So the bar for taking the assets is much lower than the bar for conviction.
>>> It should not in general be in the best interests of the federal court system to allow federal prosecutors to abuse asset seizures to prevent defendants from mounting competent defenses. Among other things, such abuses set judges up for costly appeals.
It is very well in the interest of the prosecutors, in order to extort plea bargain. And appealing the guilty plea would probably have a very low chance for success.
At some stage, there is a constitutional rights issue. An attornery is a representative of the person in court. Ie, he is the mechanism for the client to express freely his position (defense). Limiting this is a free-speach issue, at some stage. You are forcing the defendent to speak through someone paid for by the government. While this is arguably true today for people in poverty, it seems a bit more uncouth to force this for each and every citizen under all conditions. Even those without resources, for example, could in theory arrange for a pro-bono intervention. But such intervention must by necessity free-ride on fee-earning clients. And without a viable business, there would be no-one to do the pro-bono work.
> Why not freeze the assets of everybody charged with a felony and appoint public defenders?
Agreed, but that would either bankrupt the government or make defense attorney a much less lucrative career and, therefore, greatly decrease the number of available defense attorneys.
> It's almost as though you're saying we don't even need a trial here because the facts are so obviously established. I don't believe it's yet been established in a court of law that any crime was committed, much less that this person committed it.
Not at all what I meant. On the contrary, I meant that cases when we the outside viewers realistically know that the defendant isn't clean are probably not the best cases for highlighting the need for a competent defense.
"If" is not necessary here - current criminal prosecution system massively (90% of cases) relies on plea bargains which often are achieved by overcharging and making defendant's life as miserable as possible until they accept the deal. Including seizures, forfeitures and other tactics that hinder defendant's ability to hire council and may ruin their entire lives even if the are proven innocent.
I stipulate that a practice of deliberately undermining defenses is problematic, but that doesn't respond to my question. What's the right public policy? Let's shift the frame to someone unsympathetic at the head of a lucrative conspiracy --- a murderous cartel, say, or an arms dealer.
It basically catches the new 'little rich' in exchange for bulldozing over the majority of people caught up by the criminal system. The ones who have personal fortunes under $10 million or have little experience with it. Taking 9/11 at face value, it's like how the response to 9/11 cost the USA so much more than the actual effects of 9/11.
After you starting dealing with the 'experienced rich' you find they start becoming skilled in hiding such financial resources. It's even harder when it's an entire multi-national organization and you are not an English speaking country or China. It's the story of marrying a wealthy daughter of some incredibly wealthy family, and finding out in the divorce she only has $5000 to her actual name, and your the one who will be paying alimony to her.
Going to the root of the problem in the first place, how do these large criminal organizations even exist? It's because government law going against technological reality have created large market opportunities to exploit in the first place. Governments have created the fertile land for these creatures to exist.
What's the policy harm in allowing them to submit a request to unfreeze assets to pay for legal counsel, expert witnesses, etc?
Do you honestly believe that proposed harm is worse for society than sham trials, where we're getting convictions simply because people can't defend themselves properly?
