Vt. Supreme Court orders a hold on assets of alleged killer

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BRATTLEBORO — Attorneys representing the estate of a Townshend man who was shot to death in November 2014 received a favorable decision in the Vermont Supreme Court on Friday.

According to documents posted on the Supreme Court's website, the Estate of Jamis Lott had received approval from the Superior Court, Windham Unit, Civil Division to attach, or prevent the alleged killer from using, her personal funds in her defense against a charge of aggravated murder and two counts of murder in the second degree in the deaths of Lott and his father, Steven Lott.

The Vermont State Police responded to 110 Abbey Road in Townshend on Nov. 18 after receiving a phone call at 9 p.m. that someone had "just shot and killed her boyfriend and his son" at the residence. As a result, Robin O'Neill, 63, was charged and is now awaiting trial.

The Estate of Jamis Lott has filed a wrongful death civil suit against O'Neill. The attorneys for the estate asked the Windham Superior Court to prevent her from using her personal funds in her defense.

O'Neill's defense counsel appealed the county court's decision to the Vermont Supreme Court, which denied the appeal.

Her attorneys argued that attaching her personal funds was a violation of her Sixth Amendment right to legal assistance of counsel, using a U.S. Supreme Court case — Luis v. United States — as the basis for the appeal. That case held that the Sixth Amendment to the U.S. Constitution "prohibited the attachment of untainted funds a defendant wished to use to hire counsel of choice as legal representation in a criminal matter."

But attorneys for the estate argued that the Sixth Amendment prohibits only a prosecutor from attaching untainted funds to be used for criminal legal defense.

The county court found O'Neill's argument "persuasive," but ruled that Luis v. United States was not relevant.

Luis reads "(t)he evil the Sixth Amendment seeks to guard against is a prosecutor civilly seizing a defendant's money to prevent him or her from hiring an attorney. Not the court's issuance of an attachment on funds by any creditor, where the defendant also prefers to use the money to hire a lawyer."

In the Luis case, Sila Luis was indicted by a federal grand jury with conspiring to commit healthcare fraud against the federal government by using the healthcare companies she operated to bill Medicare for services neither medically necessary nor actually provided. The government alleged that the charged fraud resulted in $45 million improperly paid to Luis' companies. By the time Luis was indicted, she had spent much of the fraudulently obtained money. The government sought an order prohibiting Luis from dissipating her remaining assets, including $2 million in her possession, so that these assets could be used to pay criminal penalties and restitution after conviction.

When the case reached the Supreme Court, a four-justice plurality ruled that the Sixth Amendment did prevent the attachment of untainted funds.

"Although the question presented was expansively framed, the Court's analysis was narrowly focused," wrote Vermont Supreme Court Justice John Dooley for the three-justice majority, which included Chief Justice Paul Reiber and Justice Marilyn Skoglund. "The plurality's conclusion that the Sixth Amendment bars the freezing of untainted funds under the facts of Luis turns on a primary point, a point which also supports our conclusion that Luis does not control here. In Luis, the government was exercising a statutory right to forfeiture connected to a criminal prosecution, and the freezing of assets was done to ensure that property to be frozen was available for forfeiture at the end of the criminal case if the government secured a conviction."

Even though the Vermont State Constitution includes a right to legal assistance, neither the Estate of Jamis Lott nor O'Neill have argued this point, noted the majority.

While property obtained through legitimate, noncriminal means remains the sole property of the owner, tainted funds can be attached, ruled the plurality in Luis. "If it were otherwise, the government could preempt a defendant's right to counsel of choice by statutory authorization of forfeiture in all cases," wrote the majority in the Feb. 3 decision.

"With the rationale of the plurality and concurrence in Luis in mind, we turn to whether the Sixth Amendment is violated by the attachment order in this case," wrote the Vermont justices. "In support of her position, (O'Neill) argues that the circumstances that created the Sixth Amendment violation the U.S. Supreme Court found were present in Luis are also present here. The court order in this case results in a freezing of defendant's funds designated for defense of the criminal case, and the funds are entirely 'untainted' — that is, they are not fruits of the alleged criminal case."

"In Luis, the United States was both the prosecutor of the criminal case and the victim of the alleged crime," the justices wrote. "Here, although this action may arise out of a core of facts in common with the criminal case, there is no connection between the criminal proceeding and this private tort action. The State is not a party in this action and is not seeking any relief here. The (Estate of Jamis Lott) is using a temporary and pretrial security device that is generally available in any civil damage suit if plaintiff can show need and probability of success in the litigation. (The Estate of Jamis Lott) is in the position of a creditor ensuring that it will be able to collect on a civil money judgment."

"(O'Neill) suggests that the right being enforced in this civil proceeding exists because it is related to the criminal proceeding for which defendant needs to protect the ability to fund defense costs," notes the majority. "That rationale is perverse. In essence, it requires that victims, uniquely, subsidize the criminal defense costs of the accused by foregoing the ability to collect some of their civil damages from the accused. We see no justification for treating plaintiff any differently than any other creditor in civil damage litigation ..."

Justices Beth Robinson and Harold Eaton dissented, arguing Luis v. United States offered "sound reasoning on which that decision is based, militate against court-ordered attachment of untainted assets necessary to defendant's exercise of her Sixth Amendment right to counsel."

"(The Estate of Jamis Lott)... stands in much the same shoes as the government did in Luis, and the considerations underlying the plurality's resolution of the conflict between the government's statutory rights in that case and the defendant's Sixth Amendment interests apply in this case as well," wrote Robinson. "The consequences of this analysis are burdensome for (the Estate of Jamis Lott) ... and for any civil litigant seeking to attach a criminal defendant's untainted assets, but that burden is not dissimilar to other legal impediments to pretrial attachments, and flow from the weight afforded defendant's fundamental constitutional right. ... (O'Neill) ... relies on her Sixth Amendment right to hire an attorney of her choice whom she can afford to hire. Nothing about this case calls for a different analysis of the scope or significance of the Sixth Amendment right."

Robinson wrote O'Neill's assets "undisputedly 'untainted.' They are not the fruits of defendant's alleged crimes; nor was she alleged to have used them in the commission of the crime. ... there is no principle of common law or statute that provides that, by operation of law, title to the untainted assets belongs to someone else."

If anything, wrote Robinson, the Estate of Jamis Lott's interests are weaker than the government's in Luis. "In that case, the government had dual interests: it sought to secure future penalties and secure restitution for the victims from the defendant's funds. In this case, plaintiff's interest is nearly identical to the latter of the government's dual interests. Plaintiff seeks to secure a potential future judgment to compensate the Estate for injuries it suffered at defendant's hands. Like the government's interest in securing a potential future restitution order for the victim, plaintiff's interest in securing a potential future judgment is substantial; but it is still outweighed by the constitutionally grounded right to counsel of choice."

While it is true that this ruling may limit the ability of crime victims, or any other potential civil creditor with claims against a criminal defendant, to secure potential civil judgments in their favor from the untainted assets of the defendant, wrote Robinson, attaching untainted funds,as the U.S. Supreme Court noted, "could well erode the right to counsel to a considerably greater extent than we have so far indicated."

The Estate of Jamis Lott is represented by Costello, Valente & Gentry, P.C., of Brattleboro. O'Neill is represented by Sheehey Furlong & Behm P.C., of Burlington.

According to James Valente, the only route of appeal for O'Neill's legal counsel is to the U.S. Supreme Court.

Bob Audette can be contacted at 802-254-2311, ext. 160. Follow him on Twitter @audette.reformer.


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