Today, after several years of vigorous litigation in a series of cases that have been contested all the way to the United States Supreme Court, the Sixth Amendment protection of the right to counsel, the right retain counsel, and the right to counsel of choice, has been re-emphasized in the face of the Government's repeated efforts to use forfeiture laws to undermine it. In Luis v. United States___U.S.___ (March 30, 2016), the USSC reversed the Eleventh Circuit and found that the Government's restraint, through the forfeitures laws, of untainted assets intended to be used to mount a defense is unconstitutional. And the Court did so with language that provides reinforcement for the right to counsel that recognizes the current problems with underfunding of the indigent defense function. A number of criminal defense organizations have been involved in these litigations, including CACJ and NACDL. A number of lawyers contributed to the briefing including Courtney Linn and a team from Orrick, and John Philipsborn, CACJ's amicus committee chair.
Over the last 5 years, CACJ has joined with other criminal defense lawyer organizations in contesting the Government's broad approach to the use of forfeiture laws to affect the ability of individuals to retain counsel of choice, and to conduct a privately funded defense where possible. In 2014, Chief Justice Roberts mentioned CACJ's briefing attacking the degradation of the Sixth Amendment in the dissent that he filed in Kaley v. United States 571 U.S.___(2014). Given the aggressive position that has been taken by the U.S. Justice Department in trying to restrict the resources available to individuals to funds their defense, the criminal defense and civil liberties communities were concerned to stem the tide, and achieve recognition for the right of individuals to defend themselves without Government interference. Criminal defense lawyers will be interested in this outcome, and in the phrasing of the ruling.
MARCH 30, 2016