165 A.3d 1099
Vt.2017Background
- Defendant is criminally charged with aggravated murder and second-degree murder; a private firm represents her and she paid a retainer for criminal defense.
- Plaintiff is the wrongful-death claimant (the victim’s estate) that obtained a prejudgment attachment freezing defendant’s assets, including the criminal-defense retainer.
- Defendant moved to dissolve the attachment, arguing Luis v. United States bars pretrial seizure of untainted assets a defendant intends to use to hire counsel of choice.
- Trial court denied the motion, concluding Luis applies only to government-forfeiture contexts, not ordinary civil attachments by private creditors; it allowed interlocutory appeal.
- The Vermont Supreme Court affirmed, reasoning Luis’s holdings arose from the government’s statutory forfeiture power and common-law pedigree of forfeiture, which differ from historical trustee-process/attachment used by civil creditors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Luis bars attachment of a defendant’s untainted funds that she intends to use to pay criminal defense counsel | Luis is limited to government forfeiture; civil creditors may use ordinary attachment to secure judgments | Luis bars pretrial seizure of untainted assets needed to hire counsel of choice under the Sixth Amendment | Attachment allowed; Luis inapplicable beyond government forfeiture context |
| Whether Sixth Amendment right to counsel protects funds from private civil attachment | No; Sixth Amendment prevents state action (prosecutor), not private creditors | Yes; pretrial seizure of necessary defense funds undermines counsel-of-choice right | Court rejected extending Luis to private civil attachments |
| Whether common-law history favors limiting attachments of untainted assets | Attachment/trustee process has deep common-law roots supporting civil prejudgment attachments | Luis relied on common-law limits of preconviction forfeiture, suggesting protection for untainted assets | Historical differences between forfeiture and attachment support allowing civil attachments here |
| Whether balancing test from Luis should be applied against private civil creditors | Plaintiff’s interest as creditor is substantial and different from government forfeiture interest | Defendant: balance favors protecting counsel-of-choice and avoiding burden on public defenders | Court declined to apply Luis balancing; even if applied, it would differ and not compel relief for defendant |
Key Cases Cited
- Luis v. United States, 136 S. Ct. 1083 (U.S. 2016) (plurality/concurring opinions holding that pretrial restraint of untainted assets under federal forfeiture statute can violate Sixth Amendment right to counsel)
- Caplin & Drysdale v. United States, 491 U.S. 617 (1989) (Sixth Amendment does not permit use of forfeitable assets to pay counsel when title belongs to government)
- United States v. Monsanto, 491 U.S. 600 (1989) (similar rule limiting use of forfeitable assets for legal fees)
- Connecticut v. Doehr, 501 U.S. 1 (1991) (due process limits on prejudgment attachment procedures)