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  #1  
Old 08-31-2012, 12:49 PM
TriPolar TriPolar is offline
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MA State law. Asset forfeiture

I'm looking for a MA state law that allows assets confiscated at time or arrest to be used by the accused to hire a lawyer.

Background: An acquaintance who has been missing for several months called the other day. He is in the Sussex County Jail awaiting trial. He says he had almost $4000 in his pocket when he was arrested (he says he had just sold a car), and that was taken from him as proceeds of criminal activity. Having no other funds, he has only a public defender who he says is not helping him. He believes there was a ruling by the MA Supreme Court that would allow him to use the money to hire his own lawyer.

Does anyone know if there is such a ruling, or law?
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  #2  
Old 08-31-2012, 03:41 PM
md2000 md2000 is offline
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Hmmm... I would think a car sale would be an easy thing to check out. Either he's feeding you a line or the public defender is neither.
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  #3  
Old 08-31-2012, 03:47 PM
dolphinboy dolphinboy is online now
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It would be helpful to know what 'criminal activity' he was arrested for. Was is a drug trafficking, illegal gambling or prostitution-related offense perhaps? I would think the police would have to have a good reason to take a wad of money like that and not allow you to use it for your own defense.

BTW, if he is not happy with his public defender I would suggest he schedule a meeting with the judge to talk about getting a different PD after explaining why he is unhappy with the one he has. As long as his request is reasonable, and not a delaying tactic, I don't see what the judge wouldn't consider it.

Last edited by dolphinboy; 08-31-2012 at 03:49 PM..
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  #4  
Old 08-31-2012, 03:49 PM
Saint Cad Saint Cad is offline
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Also, what was the crime? Mass. only needs to show probable cause. Drugs? Probable. Prostitution? I hope he's really good. Robbery? How much was stolen?
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  #5  
Old 08-31-2012, 04:15 PM
leahcim leahcim is online now
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Add my voice to "the whole story sounds fishy" crowd, but also, wouldn't the money he had not just be money, but also physical evidence? Like if it's suspected to be drug money, it could tested for exposure to drugs or something?

I doubt any law would allow a suspect to use money that is evidence against them.
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  #6  
Old 08-31-2012, 05:01 PM
TriPolar TriPolar is offline
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Quote:
Originally Posted by md2000 View Post
Hmmm... I would think a car sale would be an easy thing to check out. Either he's feeding you a line or the public defender is neither.
I'm sure he'll say it was a private sale to someone who can't be located.

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Originally Posted by dolphinboy View Post
It would be helpful to know what 'criminal activity' he was arrested for. Was is a drug trafficking, illegal gambling or prostitution-related offense perhaps? I would think the police would have to have a good reason to take a wad of money like that and not allow you to use it for your own defense.
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Originally Posted by Saint Cad View Post
Also, what was the crime? Mass. only needs to show probable cause. Drugs? Probable. Prostitution? I hope he's really good. Robbery? How much was stolen?
I don't know. He didn't offer the information, and I didn't ask. My guess is either drugs or something to do with stolen cars. I suspect he was involved with a 'chop shop'. He says he's facing a 3 1/2 now.

Quote:
Originally Posted by dolphinboy View Post
BTW, if he is not happy with his public defender I would suggest he schedule a meeting with the judge to talk about getting a different PD after explaining why he is unhappy with the one he has. As long as his request is reasonable, and not a delaying tactic, I don't see what the judge wouldn't consider it.
He says if he asks for a new PD he will have to start everything over. He's been in jail for 7 months now, and his next hearing isn't until Feburary. He believes if he has a decent lawyer he can get a plea, serve some more time, and get out before too long.

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Originally Posted by leahcim View Post
Add my voice to "the whole story sounds fishy" crowd, but also, wouldn't the money he had not just be money, but also physical evidence? Like if it's suspected to be drug money, it could tested for exposure to drugs or something?

I doubt any law would allow a suspect to use money that is evidence against them.
Of course it's fishy. Years back I considered him a friend. But in recent years he's messed up several times. I seriously doubt he is innocent, but I'm pretty sure it's a property or drug crime.

This is a controversial area of law. Unless they evidence that the money was obtained from illegal activity, they shouldn't be able to just take it from him. But it's pretty hard for a defendent to say it wasn't evidence if he can't demonstrate where it came from. So I don't know the law, but I recall in some case somewhere a defendent being able to use confiscated money for a defense, but I assume there has to be a basis to prove it was obtained legally. Some minimal research I did shows he doesn't have much of a chance. But perhaps someone here knows the MA law sufficiently to comment.
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  #7  
Old 08-31-2012, 10:06 PM
md2000 md2000 is offline
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If he had a car, it had a registration, he sold it, and the person who bought it registered it, I suspect it can be traced. It's been several months, someone paid him $4,000 and has not yet tried to put this vehicle on the road? Either the public defender is extremely busy (or lazy) or the car buyer is extremely eccentric. Occam's razor. I'm sure for a court case the lawyer can subpoena DMV records if he is specific about what he is looking for?

Quote:
This is a controversial area of law. Unless they evidence that the money was obtained from illegal activity, they shouldn't be able to just take it from him. But it's pretty hard for a defendent to say it wasn't evidence if he can't demonstrate where it came from. So I don't know the law, but I recall in some case somewhere a defendent being able to use confiscated money for a defense, but I assume there has to be a basis to prove it was obtained legally. Some minimal research I did shows he doesn't have much of a chance. But perhaps someone here knows the MA law sufficiently to comment.
You live in a country that can lock up foreigners indefinitely, recenently allegedly passed bills to allow the same for its own citizens despite the cosntitution, passed retrocative laws to allow eavedropping illegally (again in spite of the constitution) tortures and has legal papers on why its OK, kidnaps Canadian citizen and sends him to SYria for real torture, allows private security to machinegun civilians in Iraq with no consequences, fines someone $250,000 for putting 22 songs online...

And you are surprised the law allows them to seize assets on flimsy evidence?

Last edited by md2000; 08-31-2012 at 10:11 PM..
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  #8  
Old 08-31-2012, 10:13 PM
TriPolar TriPolar is offline
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Quote:
Originally Posted by md2000 View Post
If he had a car, it had a registration, he sold it, and the person who bought it registered it, I suspect it can be traced. It's been several months, someone paid him $4,000 and has not yet tried to put this vehicle on the road? Either the public defender is extremely busy (or lazy) or the car buyer is extremely eccentric. Occam's razor. I'm sure for a court case the lawyer can subpoena DMV records if he is specific about what he is looking for?
It's very common for people not to reregister cars. They're not supposed to do that usually, but I've bought cars from people who have purchased the car from someone else, repaired it, and then sold to me. I always check with the registered owner in that case though.

But it is all irrelevant. He hasn't been convicted of this crime so far. The money was his unless the state can demonstrate it was proceeds of criminal activity. He believes there is a law which would enable him to use that money in his defense, so I'm simply trying to find out if there is one. So far, it doesn't look good for him. It looks like the feds, the states, and local muncipalities have given themselves great power to seize assets, and make it difficult for anyone to recover those assets. I doubt $4000 is going to buy him enough lawyering to resolve that.
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  #9  
Old 08-31-2012, 10:26 PM
TriPolar TriPolar is offline
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Here's an article from some random source that explains why he may have no hope. It appears to say that the government has given itself the authority to sieze assets based on civil law with the low threshold of preponderance of the evidence. Possibly this case is different somehow. If I can find relevant law, I'll tell him about. But he's also made his own bed, and I'm not inclined to extend great effort in helping him out.
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  #10  
Old 08-31-2012, 10:43 PM
Elendil's Heir Elendil's Heir is offline
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Criminal asset forfeiture laws tend to be pretty robust. Dunno about the Mass. law in particular, but it wouldn't surprise me if he has an uphill battle to get his money back.

Oddly enough, in Federal cases, asset forfeiture cases are always captioned United States v. whatever the property is. I remember cases like United States v. $14,502.03, More or Less, in U.S. Currency; United States v. One 2011 Cadillac Escalade; and United States v. One Piper Aztec F Deluxe Model 250 PA 23 Aircraft.

Here's a DOJ overview of Federal assert forfeiture law - start on p. 8 (warning: .pdf file): http://www.justice.gov/usao/eousa/fo...m/usab5506.pdf
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  #11  
Old 08-31-2012, 11:07 PM
TriPolar TriPolar is offline
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I found the info from the police blotter:

ARREST CHARGE WARRANT ARREST
WARRANT CHARGE DRUG VIOLATION NEAR SCHOOL c94
WARRANT CHARGE DRUG, DISTRIBUTE CLASS B c94C 3

I think he is cooked on drug charges. Information I can find on asset forfeiture laws show that drug distribution charges are well covered, and recovering the money is difficult or impossible. If they've caught him with drugs, or have witnesses to sales, I doubt he has any chance to prove they aren't proceeds of the crime.

Here is one case that discusses using seized assets to pay defense attorneys with the permission of the judge, and not a sterling justification for the practice.

Here's a story about why a lawyer might not want to accept that money.

ETA: Thanks Elendil's Heir. 'Uphill' looks like an understatement.

Last edited by TriPolar; 08-31-2012 at 11:09 PM..
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  #12  
Old 09-01-2012, 08:20 PM
md2000 md2000 is offline
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I recall an article about this from almost 40 years ago - I think it was Rolling Stone magazine. They described a stretch of north Florida highway where the local police essentially pulled over "suspicious looking" people, and if they had too much cash on them, seized it as proceeds of crime and then usually (if they found nothing illegal) let them go. This was in the 1970's. One fellow claimed he had made some $8,000 helping with roofing jobs and was driving home. He went on home minus $8,000.

Two guesses what qualified a person driving down the interstate in Florida as "suspicious"?

Even then, the odds were the people did not get their money back. Besides needing expensive professional help to do so, facing a hostile court, and often unable to take the time to travel back to the location where their money was stolen...

Even then, the only logic was "why would this sort of person be carrying $8,000 cash if it was not criminally obtained?" If they did find something illegal, there goes the car and everything in it too.
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  #13  
Old 09-03-2012, 01:34 PM
jtgain jtgain is offline
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I remember hearing a speech from Alan Dershowitz about this very thing. God forgive me for agreeing with him, but he made some excellent points:

1. Most people charged with a crime are indeed guilty. Ours would be a bad justice system indeed if a majority of people put on trial were innocent.

2. Since these people are guilty, it's very likely that their money came from illegal sources.

3. If they can't use that money to hire an attorney, then what functional good is the constitutional protection of a right to an attorney? That you can only use one provided by the government?

4. Further, asset forfeiture laws make a joke of the Constitutional protection of not being deprived of ...property without due process of law. If the government can simply act as a private person and civilly seize assets, what's to stop them from scrapping the criminal justice system in favor of the preponderance of the evidence standard and leave a person penniless?
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  #14  
Old 09-03-2012, 02:33 PM
TriPolar TriPolar is offline
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I agree with Dershowitz on those points. But it doesn't seem to reflect the reality of the situation. This also seems to affect drug cases more than others, not surprising considering the war on drugs mentality that spawned them.
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  #15  
Old 09-05-2012, 03:23 PM
Saint Cad Saint Cad is offline
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Quote:
Originally Posted by TriPolar View Post
I agree with Dershowitz on those points. But it doesn't seem to reflect the reality of the situation. This also seems to affect drug cases more than others, not surprising considering the war on drugs mentality that spawned them.
Point #1 fails. You can have your assets seized and never be charged with a crime.
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  #16  
Old 09-05-2012, 03:36 PM
TriPolar TriPolar is offline
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Quote:
Originally Posted by Saint Cad View Post
Point #1 fails. You can have your assets seized and never be charged with a crime.
I don't get you. Point #1 says:

Quote:
1. Most people charged with a crime are indeed guilty. Ours would be a bad justice system indeed if a majority of people put on trial were innocent.
It doesn't mention seized assets at all.
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  #17  
Old 09-05-2012, 04:02 PM
ElvisL1ves ElvisL1ves is online now
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Quote:
Originally Posted by md2000 View Post
I recall an article about this from almost 40 years ago - I think it was Rolling Stone magazine.
You don't have to go that far back. The little town of Tenaha, Texas had effectively institutionalized a system of official theft from DWB's as recently as 2008, before a class action.
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  #18  
Old 09-05-2012, 10:56 PM
MikeS MikeS is offline
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Quote:
Originally Posted by Elendil's Heir View Post
Oddly enough, in Federal cases, asset forfeiture cases are always captioned United States v. whatever the property is. I remember cases like United States v. $14,502.03, More or Less, in U.S. Currency; United States v. One 2011 Cadillac Escalade; and United States v. One Piper Aztec F Deluxe Model 250 PA 23 Aircraft.
Wikipedia has some amusing ones on its pages about jurisdiction in rem, including:
  • United States v. Forty Barrels and Twenty Kegs of Coca-Cola
  • United States v. One Package of Japanese Pessaries
  • United States v. 11 Dozen Packages of Articles Labeled in Part Mrs. Moffat's Shoo-Fly Powders for Drunkenness
  • United States v. Various Pieces of Semiconductor Manufacturing Equipment
  • United States v. Approximately 64,695 Pounds of Shark Fins
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  #19  
Old 09-06-2012, 07:56 AM
Saint Cad Saint Cad is offline
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Tripolar,
Dersh is making points that most people that have assets seized did in fact get them from committing a crime (See #2) which to some extent would validate the asset seizure laws from the government's perspective anthough not Dershowitz's (See #4). My point was that you can have assets seized and never be charged with anything so the whole premise of #1 and #2 to justify local LEAs to seize assets is ridiculous.
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