Legal Fees Lost

A line stood out in Radley Balko’s post about another forfeiture outrage.

It took Nelson nearly five years to get back his money and property. I don’t know if his attorney took his case pro bono, but if he didn’t, Nelson won’t be reimbursed for his legal costs. Nor will be reimbursed for any money he had to spend traveling to Nebraska for hearings or depositions. He also won’t be paid any interest he might have earned while the Nebraska State Police held on to his money.

The post is about a 22-year-old kid from Cedarburg, Nebraska, John Nelson.  He took his life savings of $48,100 and headed for Colorado.  A few weeks later, after buying some personal use pot and learning that Denver didn’t love pit bulls, he decided to turn his RV around and head back to Nebraska. Stopped along the way, bad things happened.

During the stop, the trooper began to suspect Nelson was transporting a large amount of high grade marijuana. Specifically, the trooper reacted to Nelson travelling in a large, uneconomical vehicle from Denver, a marijuana transportation hub city, to Milwaukee, a distribution city. The trooper also found suspicious Nelson being nervous, under-representing his criminal history, and falsely claiming snowboarding had been his reason for having traveled to Colorado.

After issuing Nelson a traffic citation, the trooper asked Nelson if the RV contained drugs or guns. When Nelson told him it did not, the trooper asked to search the RV. When Nelson refused permission, the officer detained him and called in a canine unit for a sniff search. While awaiting the canine unit, the trooper told Nelson possessing only a “personal use” amount of marijuana would merely be subject to a fine. Nelson then admitted having a small amount of marijuana in the RV. Concluding he then had probable cause to search the RV, the trooper began to do so.

The trooper found some personal use quantity pot and the cash. He kept both and Nelson was let go. The government claimed Nelson had the cash to make a drug buy. Despite the inability to see into the future, the government had the usual evidence to support its position.

Much of the affirmative evidence in this case could support either party’s position. Nelson’s travel with a large amount of currency is by itself suspicious. See $124,700 in U.S. Currency, 458 F.3d at 826. Equally suspicious is the way Nelson bundled the money and carried it in a plastic bag inside his backpack, because doing so is consistent with the possibility of it being drug money. See id. (“[W]e have adopted the common-sense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking.”).

This has been an article of faith in forfeiture law for decades; there are ways that drug dealers bundle money. It’s not exactly unique, though you can always tell a criminal defense lawyer who defends drug dealers by the pile of rubber bands on his desk. It may sound crazy to the uninitiated, but not to the government.

Adopting the government’s theory, the magistrate judge concluded it was more likely than not the $48,100.00 was subject to forfeiture for being substantially connected to a planned, but unconsummated, drug transaction.

Nelson did something unusual. He fought for the return of his money. He lost, but he fought. Most don’t. Most can’t, either because they can’t afford to, particularly given the low probability of success, or can’t withstand the scrutiny. Then Nelson did something really unusual. He appealed.  And he won before the 8th Circuit.

In the end, this case may be more about what was not found in the RV. As we have noted, the government’s theory about Nelson’s alleged plan to obtain a large amount of marijuana to sell in Milwaukee is not supported by any affirmative evidence. This is not by itself dispositive.

The government’s case, however, falls short. As the trooper testified, there are several things missing here which he would typically expect to find if Nelson had been planning to purchase and transport a large amount of drugs cross-country to sell. Nelson’s phone, which was seized and examined, contained no texts or voice mail recordings referring to a plan to engage in trafficking. Nelson also had no firearm, the possession of which the trooper testified often goes “hand in hand” with drug trafficking. The marijuana Nelson possessed was small, consistent with personal use, and the paraphernalia in his possession was far more consistent with personal use than distribution. In the end, the government’s theory about a planned transaction relies on mere speculation rather than circumstantial evidence.

Notably, the trooper’s inspection of Nelson’s cellphone, which worked in his favor here, would no longer be constitutional under Riley.  Even so, this reversal was by the skin of his teeth. Circumstantial evidence is a nice name for rank speculation, and that’s all that’s needed.  Had the circuit affirmed, no one would have been surprised, no less outraged. If anything is shocking, it’s that the circuit cut the kid a break.

And throughout this morass of the legal system, the underbelly that produces billions of dollars in free money under conditions that make it nearly untenable to fight, no less win, was a lawyer.  Back to the line from Radley’s post that caught my eye:

I don’t know if his attorney took his case pro bono, but if he didn’t, Nelson won’t be reimbursed for his legal costs.

Why would his attorney have taken his case pro bono?  Is it because we’re all so fabulously wealthy we can spend our days carrying truth and justice on our back to dish it out for free to the unfortunates?  Is it because we, and we alone, are the only ones in this society who give a damn about the impropriety of government actions that are fundamentally wrong?  Is it his lawyer’s fault that the government engages in forfeiture, that judges find the routine speculation of cops and prosecutors adequate to rule against kids like Nelson?  Did the lawyer do this to him?

Whatever the lawyer was paid to represent Nelson, it wasn’t enough.  Enough would have been a multiple of the total amount seized, and that would make no sense for Nelson to pursue.  But the lawyer took the case and ultimately won.  He won’t be buying a Ferrari on the fee. It’s unlikely he could pay his rent on the fee. But he did it.

Where were the rest of you, carrying the weight of this outrage perpetrated by the government on this 22-year-old kid named Nelson?  Where were you for the past 30 years while the government perfected its story to justify forfeitures?  Where were you when judges waved their hands and approved this wild speculation that allowed cops and agents to seize at will?

There were lawyers there, doing their job, fighting to stop this from happening.  This is how they earned a living, fighting for people when the rest of the nation couldn’t give a damn. Or, truthfully, applauded the government’s war on crime, drugs, whatever.

Pro bono?  When is the last time you walked up to a criminal lawyer in a bar and bought him a drink to thank him for all the good he’s done for society? For you?  But the lawyer should do it pro bono so when it’s your turn on the wrong end of the government’s wrath, you not only get zealous representation, but you get it for free.

You don’t like the fact that our legal system is filled with systemic flaws that force people to pay lawyers to defend them?  Maybe, just maybe, you should speak out before rather than bemoan the “injustice” of it all afterward.  There’s another battle going on with moralists screaming about the terrible hurt feelings they endure, demanding new crimes to end their suffering, which will sweep in innocents who will have to pay lawyers.

Yet, aside from a very small handful of folks, including me, trying to prevent this moralist zeal to create an entirely new category of crimes that you will come to recognize as a travesty and despise in a decade or two, most of you are dead silent.  But you will want lawyers to defend you pro bono someday, when you are outraged because it touches you and want so desperately for someone to save you at no cost to yourself.


24 thoughts on “Legal Fees Lost

  1. Michael Williams

    Three cheers for this post. As an aside, Balko’s point is a valid one: despite winning the case, Mr. Nelson has suffered harm. If the lawyer didn’t work for free (and Balko never argued that he should’ve), a small, necessary part of that harm came in the form of fees to his lawyer.

    1. SHG Post author

      Did I say Balko’s point wasn’t a valid one? The point is valid for every person forced to need a lawyer to defend themselves or their property from spurious government charges. And if there were no lawyers to defend them, they wouldn’t have to waste their money.

  2. FN

    Balko clearly is not saying that an attorney should take such cases for free, but making the point that such is unlikely the case and therefor the costs of fighting that case would eat the costs of his “winnings” substantially.

    Making it an apparent fiscally unwise choice to fight the confiscation in the first place—pretty much your point on the rarity of such cases. And that the lawyer should (and likely did) charge a great many times more than the $48k for the process, trial and appeal.

    It is a sad fact that in Amerika every person should be an attorney. This is the result of every politician, appointed hack and judge being one. And while it is nice to have a lawyer defend you in court, the whole process is a guild created to employ lawyers.

    1. SHG Post author

      First, notice that I changed your name, as I have in the past. This is a law blog. Please don’t use that user name or I won’t let your comments publish. I’m tired of having to change your name.

      Second, as for the “guild” conspiracy, that’s total lunacy. The “sad fact” is we have all these laws because people scream for the government to “do something” about every problem, large and small, and vote for the politicians who do. This has become a country of clueless morons, and you aren’t helping with comments like this.

      Third, Radley would have done better not to mention pro bono. While he didn’t suggest lawyers should work for free, the words “pro bono” had no business being in his post at all. It shouldn’t be on the table.

      1. CWH

        Off topic:
        “It is a sad fact that in Amerika every person should be an attorney.”

        The sad fact is that laws are not written (or at least no longer written) so that an untrained individual has a chance against the trained gov’t lawyers and enforcers. And yet, people still think they are smart enough to defend themselves (“if I just tell my side of the story, everyone will understand”). I hate getting the second call from folks that tried to do it themselves — asking how to appeal their conviction.
        On topic:
        Great main posting, SG! Tired of having to explain why a defense lawyer should be paid for her work.

        1. SHG Post author

          Laws cannot be written so everyone can understand them adequately to defend themselves. Even if they could, people still wouldn’t be capable of fashioning a viable defense. Most people can’t muster a logical argument about much of anything, and few can appreciate why “proof” that seems great to them isn’t as persuasive to anyone else.

          While people might want to be able to defend themselves, and one in a million does so successfully (giving hope to others), it’s simply not possible on a wide scale. People’s descriptive “well, that’s what I think the law should mean” approach, or “well, I feel that it’s a good argument,” dooms the best of intentions.

          This issue has been discussed here numerous times in depth, but the bottom line is that it’s just not possible, no matter how strongly non-lawyers feel it should be.

          1. Dave

            Laws should be written much more clearly than they often are. In fact, as I am sure you must be aware, there is a big movement for plain language in both statutes and court rules. The federal rules underwent such a revision. But your point holds true. Plain language makes it easier for lawyers (leaving less room for misunderstanding by all sides and by courts) but it is still something you want a professional for. Understanding the law perfectly still does not mean you can fashion a cognent legal argument nor that you can do real legal research. Those who can do so have a particular designation: lawyers.

            1. SHG Post author

              You’ve hit on a secondary issue, that legislatures write lousy laws, using incomprehensible verbiage, and too many of them. But the “plain language” movement is terribly misleading. Even the simplest of “laws,” “thou shalt not kill,” is replete with nuance that goes whoosh over the heads of most people. It’s just not simple, and never will be.

      2. Jesse

        I’m guessing the reason Radley made mention of pro bono was to illustrate the fact that pursuing the lawsuit was financially useless and may have even been more costly than the sum forfeited unless he had a really generous lawyer, one of the features of these forfeiture cases. As you know.

        The kid won, but plenty of people out there won’t understand that the government makes it financially impossible to come out on top anyway and they need to have this pointed out explicitly.

        1. SHG Post author

          Yes, I understand what Radley’s purpose was. The problem is the takeaway, that the only viable solution is for lawyers to represent people pro bono. And if lawyers refuse to represent claimants pro bono, then the greedy lawyers are just as responsible for this travesty as the government.

  3. John Jenkins

    I think maybe what Radley was suggesting is that these cases are generally such losers that they can normally be pursued only with the assistance of pro bono counsel because:(1) the low likelihood of a victory means lawyers cannot take it on a contingency basis; and (2) the claimant generally is without the funds to pay precisely because of the unlawful taking at issue. Mostly, I think he is focused on part (2) of that claim and the ridiculous procedural posture of these claims.

    1. SHG Post author

      I would imagine you’re right, and that’s the problem. As with indigent defense, why won’t the lawyers just defend the poor for the good of mankind? Why should society be burdened when we can look to the lawyers to do it for free? It’s a “terrible injustice,” so let the lawyers shoulder the cost for the good of these poor people abused by forfeiture laws.

      Anybody screaming for the auto mechanics to fix the cars of the poor pro bono? Anybody screaming for grocers to give lawyers who defend the poor free food?

      I’m not blaming Radley, nor do I think he meant to suggest otherwise, but it’s important that people recognize that lawyers work for a living, and to stop tossing pro bono around so loosely.

      1. Brett Middleton

        As with indigent defense, why won’t the lawyers just defend the poor for the good of mankind?

        Aha! It seems that what we really need for cases like this is some kind of indigent offense, where the public has to pay at least some pittance to the lawyer tilting against the windmill of overwhelming state power. Would the existence of Public Offenders be too absurd? I think not, given the absurdity of the whole situation.

  4. John Barleycorn

    My grocer gave me an extra dozen eggs for free on Thursday via a buy one get one free deal. I made extra holindsise sauce with the free eggs.

    It was exclent.

    P.S. How come no one ever posts lawyer jokes around here?

    1. SHG Post author

      That’s an excellent question. I could definitely use some good jokes. Saw this one this morning:

      A family walks into a hotel and the father goes to the front desk and he says “I hope the porn is disabled.” The guy at the desk replies. “It’s just regular porn you sick fuck.”

      And this one:

      What do you get when you cross the Atlantic with the Titanic?
      About half way.

      Not about lawyers, but…

      1. John Barleycorn

        What do you call a lawyer with an IQ of 100. A Judge.

        What do you call a lawyer with an IQ of 50? A Senator.

        What do you call two lawyers whose combined IQ meets the definition of legally competent in all fifty states? Professors.

        If you see a criminal defense lawyer on a bicycle, why don’t you swerve to hit him? It might be your bicycle.

  5. Paul The Cab Driver

    I agree with the thrust of the article here, and the comments, that this behavior by the cops is reprehensible and needs to be stopped in some way. However, what kind of a dumbass travels across state lines with weed and large sums of cash in their vehicle?
    Assume the cops are robbers, and you will go a lot further.

    1. SHG Post author

      People do a lot of stupid things. All the time. If stupid was a crime, there would be very few people walking the streets.

  6. yclipse

    I have represented numerous people who did not have the means to pay, and most made some kind of effort to pay. The only person who ever asked me if I would work pro bono (after the case was over, and won) was a guy who made $150,000 per year.

    1. SHG Post author

      And I get a constant stream of calls seeking pro bono representation, because JUSTICE!!! But it’s always fascinating to hear the experience of an anonymous person on the internet.

  7. Ken Bellone

    I really enjoy reading Balko, but I take the risk of appearing a butt-kisser in agreeing with your perspective.

    Yes, forfeiture laws are an evil worth fighting and I am personally pleased that the young, but not so bright, Mr. Nelson persevered and got (some) of his money back.

    No lawyer should be expected to take the case “pro bono” because the seizure was unjust. I have spent three decades in health care and wouldn’t be doing so if it didn’t provide me the opportunity to advance my family financially, despite the fact that illnesses that befall folks are unjust. Life is that way, not always fair. Nelson could have mitigated his risk, just as many folks can mitigate their risk of illness. It is never completely possible, but in both cases, there will be someone who expects reasonable compensation to help.

    Should I ever run into you in a local watering hole, I would be happy to buy you a beer, though.

    1. SHG Post author

      I really enjoy Balko too, and don’t write this to disagree with him as much as to point out the tacit implications that sometimes sneak into the writing of non-lawyers who may forget that lawyers eat too.

Comments are closed.