Monday, May 5, 2008

When laws trip over themselves


I'm cynically amused by a recent court case in England.

In a nutshell, a drug dealer was convicted of his crimes and sentenced to incarceration. The State then sued to confiscate the assets he'd amassed from his life of crime. Unfortunately, they'd already frozen his assets, so he couldn't afford a lawyer to represent him at the confiscation hearing - and no lawyer could be found to take his case at the low rates offered by the State's legal aid scheme. The upshot was, the State lost its case and the criminal got to keep his assets.

Jansen Versfeld, the solicitor who conducted the fruitless search for a barrister, said: "Because of the very low rate of pay for these hearings, £175.25 per day, and the amount of work and complexity involved, with no payment for preparation, none could undertake to do it."

Mr Versfeld, who is with Morgan Rose solicitors, said that there were 6,586 pages of documents and a total of 4,548 transactions that would require arranging into a manageable form by experienced senior counsel for an estimated six-week hearing.

Judge David Mole, QC, sitting at Harrow Crown Court, accepted that the man could not have a fair trial as legal aid "does not provide sufficient funding to pay for the necessary representation".

At the same time, the law prevented him from using his own assets to pay for lawyers, the judge said.

"The consequence was that no barrister of remotely appropriate experience and ability had been prepared to take on the case from any of the chambers that the appellant's solicitors had contacted."

The judge had suggested that junior counsel might take the case but Mr Versfeld pointed out that it would run contrary to the Bar's code of conduct for a barrister to accept instructions in a case for which he or she lacked experience.


I have to admit to ambivalent feelings about this. I don't believe that criminals should be allowed to keep the proceeds of their crimes: but I'm also against the State having the right to sequester one's assets and so prevent one mounting a defense. In this case, I have to admit, reluctantly, that justice was probably best served by the outcome.

The freezing of a defendant's assets is the same trick the US prosecuting attorney used in the recent trial of the so-called "DC Madam", Deborah Jean Palfrey, who sadly committed suicide last week after being convicted. Her assets were seized at the beginning of proceedings, so she couldn't pay for legal representation. That led to her releasing her telephone records, exposing many highly-placed figures to embarrassment and ridicule, in order to raise funds for her defense.

I believe that the State should have no right to seize, freeze or sequester assets necessary for anyone to mount a legal defense. If there's suspicion that those assets are the fruits of crime, by all means fence them off, impound them, so they can't be disposed of in other ways: but to prevent someone paying for an appropriate defense is effectively to deprive them of due process (at least in my opinion). Those assets should be available for that purpose.

Any comments from readers? I'll be interested to hear what you think.

Peter

5 comments:

Sevesteen said...

I completely agree with you--the accused must be able to hire the best lawyer they can afford. It is reasonable to prevent the money from being spent in other ways, and to prevent the lawyer diverting the money back to his client. Prosecutors should use every fair means to win, but keeping the defendant from getting a good lawyer is nowhere near fair.

Phillip said...

I've disagreed with the concept of seizing assets for years, and while I'm with you in that I don't like criminals profiting from their crime, I am also of the opinion that it would be better to allow ten criminals to profit than to deprive one honest man of his property.
The forfeiture statutes can currently be used to financially ruin a person based ONLY upon suspicion. The wonderful "War on Drugs" has given the police and prosecutors the leeway to seize all of a person's assets without any proof of criminal activity, only flimsy reasonable cause, which may be as thin as an anonymous phone call. At this time, a person that is caught with more than a couple hundred dollars cash on their person has to prove that the money did not come from criminal activity. The state has to prove nothing, and once they've siezed your money, you can do very little about it. Recently, a couple in their sixties had over $40,000 taken from them that they had saved over their working lifetime. Apparently they didn't believe in banks, so kept all their savings in cash.
The problem with the asset forfeiture laws is that they are used to give the police departments an additional source of revenue. Basically, they've been told "Go out and take everything you can get, and you get a percentage of the take." That is the type of thing that lends itself too well to abuse. Especially since they can keep anything seized even if they later drop the charges. "Oh, we took ten thousand in cash and your car? Well, you have to file a lawsuit to get it back. What? You can't afford an attorney because we've taken all your money? Oh, too bad. So sorry."

Billll said...

The Cavalry arms case appears to be running along a similar vein as the ATF has confiscated Cavalrys inventory and business records, frozen its assets, and is now in the process of liquidating the confiscated property. With its business records held, Cavalry can't even protest that the property belongs to it. So far there have been no charges filed.

Anonymous said...

The whole "asset forfeiture" RICO crap is a means to EVADE constitutional protections for the citizen. The Founders would be OUTRAGED that a persons property could be seized without a conviction, much less even a CHARGE being filed. . This has become a cash cow for government in general, and "law " enforcement in particular. If an agency cannot muster sufficient proof to convict, in a court of law that is ALREADY BIASED IN FAVOR OF THE STATE, it has NO BUSINESS taking a persons assets and reducing them to poverty, and then requiring a DESTITUTE person to PROVE their innocence. (how in the hell does one prove a negative anyway?) This is criminal conduct, plain and simple, worthy of the Nazi's or the Soviets. That this should be a normal course of action in America is a disgrace and a nail in the coffin of liberty. And a virtual guarantee of police corruption on an agency wide basis. When they are ALL complicit, where are the watchdogs? And, of course, since it is "legal", they do not even have to feel guilty about it.

Simeron Steelhammer said...

Freeze ALL thier assests simply because you can't be sure where they came from then, appoint a custodian that can dole out funds for legal defense, food allotment, housing allotment etc.

The military does alot of this for the troops already, why not use them? I'm sure there are local bases that could handle it in most major places...

Except berkley of course (and yes I lower cased that b on purpose).

In this manner, they could mount a defense, stay fed and housed, live in other words like an average person or military member and the assets couldn't be squirrel away or otherwise hidden.

Simple enough to me..but again, its me..lol.