A Reminder of the Need for “Civil Gideon”?

Update (October 14, 2016): The Securities & Exchange Commission (“SEC”) brought suit against Mr. Louks for securities fraud in September 2015. The SEC accuses Mr. Louks of defrauding some 90 “investors” in FiberPoP, a bogus “investment opportunity.” This is a civil action, not a criminal prosecution. Therefore, Mr. Louks is not entitled to the appointment of a public defender as indigent defendants in criminal prosecutions are as a matter of United States constitutional law.

When Mr. Louks was alleged to be collecting money from investors after the SEC sued him (the subject of the earlier post, below), he was ordered by the Court to stop and to submit an affidavit to the Court promising that he had stopped.  Without the benefit of counsel, he crafted an affidavit that was unsatisfactory in the opinion of U.S. Judge Patrick J. Schiltz (D. Minn.). 

This resulted in Mr. Louks be sent to jail for contempt of Judge Schiltz’s order.

Fortunately for Mr. Louks, Judge Schiltz then saw to it that Mr. Louks was appointed a public defender, who helped Mr. Louks with a clearer second amended affidavit. (The explanation for the hand-written page of the affidavit is here.) And Judge Schiltz promptly ordered Mr. Louks’ release from jail and the contempt order purged.

This calls to mind the “Civil Gideon” movement, an effort to establish a right for the poor to be represented in civil litigation, not just criminal cases.

The primary counter-argument against proponents of Civil Gideon, presumably, is that such a right would cause an explosion of civil litigation. It would over-tax and over-burden court systems that already struggle under their current caseloads. But maybe it could be limited to certain kinds of cases? Louks’ situation highlights the fact that the line between civil and criminal law can blur. Being forced to navigate our legal system without a lawyer can lead to devastating hardship in either arena.

Original post (June 8, 2016): (under the headline: “Wrong-doing, Pathology, Perpetrators, Victims”): Minnesota Litigator focuses on news and commentary about Minnesota civil litigation but, unpredictably, I go on detours to neighboring jurisdictions (whether geographical or subject matter) because, let’s face it, Minnesota civil litigation is a pretty small gym in which to exercise our jurisprudential core strength.

Our criminal justice system is built on foundation of personal responsibility. As we all know, we do not convict people who are “innocent by reason of insanity” and, sometimes trembling with outrage, we righteously condemn criminals for intentionally transgressing fundamental criminal laws.

I submit to you that this dichotomy of “sane” and “insane” is insane.

Our entire criminal justice system is premised on a fiction that criminals are bad actors to choose to do bad things and people who unintentionally harm others, through no fault of their own, are innocent actors who should be acquitted.

In fact, there is now and there has always been a great deal of scientific uncertainty about the etiologies of our involuntary misconduct.

An old Woody Allen quip comes to mind, “My brother thinks he’s a chicken but we don’t want to get him medical attention because we need the eggs.”

In other words, our criminal justice system is constructed on a cracked foundation but, there it is, fully built, and also we do not know how to live without it.

These thoughts were brought to mind by the recent contempt order from the U.S. District Court (D. Minn.) (Schiltz, J.) to Mr. James M. Louks.

Mr. Louks appears to have a problem. It seems that he compulsively collects money from trusting “investors,” and then turns around and “invests” the money in scams after taking a commission for himself. He allegedly did this for years, was caught, and, after having been caught, continued to do it. Now, Judge Schiltz has issued an order finding Mr. Louks in contempt and ordering him to get the investors’ victims’ money back.

Is Mr. Louks sane? Is he insane? How about the people who seem to fall over themselves to give Mr. Louks their money? (I note that one victim in particular almost seems to have been tithing to Mr. Louks.)

I posit that Mr. Louks and, in fact, an overwhelming number of “bad actors” caught within our justice system, are neither sane nor insane, at least as I understand these words. I posit that our justice system’s delineation of “insanity” is convoluted and does not withstand scrutiny — an ancient, muddled, and obscure concept, an attempt to preserve the moral underpinnings of our criminal justice system, which cannot tolerate the idea of someone being punished when they are blameless.