Will the Feds Appeal the Caswell Decision Just To Avoid Paying Legal Fees?

As Jacob Sullum reported the other day, Russell and Patricia Caswell of Tewksbury, Massachusetts, beat back an attempt by the federal government, represented by U.S. Attorney Carmen Ortiz, to snatch their motel (assessed by the town at $1,595,900) under asset forefeiture law. Assisted by the Institute for Justice, the couple defeated Ortiz's attempt to characterize the establishment as one that facilitated drug crimes, achieving what IJ's Scott Bullock called "a complete victory." That seems a fair claim, given that U.S. Magistrate Judge Judith Dein ruled that the government "failed to meet its burden" and that the Caswells "took all reasonable steps to prevent drug crime on the [motel] property." So given the pummeling Ortiz took in court, why is she considering an appeal? Could it be nothing more than an effort to extort an agreement from the Caswells' attorneys to not seek legal costs?

Under the Civil Asset Forfeiture Reform Act of 2000, "substantially prevailing parties" in judicial forfeiture proceedings have the right to collect attorneys fees. And the Caswells prevailed pretty damned substantially. According to John Chesto of the Boston Business Journal, "With Dein's decision, it's entirely possible that the feds won't just miss out on a property worth more than $1 million. Prosecutors may also have to pony up more than $500,000 to the two law firms that represented Caswell." Those two firms are the Institute for Justice and Schlossberg LLC of Braintree, the law firm that represented the Caswells before IJ entered the case. IJ represented the Caswells pro bono, but it intends to collect its costs from the government, as does Schlossberg.

Writes Chesto:

Schlossberg and the Institute for Justice filed a request this week with the federal court to temporarily shelve proceedings concerning the attorneys' fees and costs until Ortiz's office decides whether to appeal. …

So now they wait for Ortiz to make her move. She has until March 25 (60 days after Dein's decision) to decide whether to appeal. If no appeal is filed, Caswell's lawyers say they would bill the government for their costs by April 9.

Carmen Ortiz, outstanding human being that she is, wouldn't threaten to continue a losing case as a bargaining chip over those fees, would she?

You decide.

Comments

[John Galt]

It would be shocking if the nasty soul-less snake who goes by the name of Carmen Ortiz did not threaten to continue a losing case as a bargaining chip over those fees.

[Night Elf Mohawk]

Doesn't the appeal just rack up more attorney's fees "she'd" have to pay?

[tarran]

It racks up fees her office has to get Congress to appropriate to them. She malignant bitch pays nothing.

In the meantime, the lawyers on the opposing side go unpaid, with mounting expenses.

If they settle, the malignant bitch can then pretend that there was some merit to her case rather than being exposed for her barratry.

[Night Elf Mohawk]

It racks up fees her office has to get Congress to appropriate to them. She malignant bitch pays nothing.

That's why I put "she'd" in quotes.

In the meantime, the lawyers on the opposing side go unpaid, with mounting expenses.

And if the Caswells decide to trade lack of appeal for no attorney's fees, their lawyers go unpaid forever, of the Caswells are on the hook for them.

[Ted S.]

The article says the IJ is representing them pro bono. It doesn't quite say if Schlo?berg is representing them pro bono.

[Night Elf Mohawk]

Exactly, so the "in the meantime, the lawyers on the opposing side go unpaid" isn't a very persuasive reason to settle because a settlement guarantees they will go unpaid forever.

Granted, there is a non-zero chance the Caswells can lose on appeal but given the rogering the feds got on the findings of fact in the trial court, it doesn't appear to be much higher than zero.

[karovda]

I think the idea is more to threaten appeal - maybe simply filing it without going any further - so that she can then make a deal to drop the appeal in exchange for an agreement from the Caswells not to seek attorneys' fees.

There is also the general possibility of "fees on fees" if there is any further litigation regarding if and how much the gov't should pay.

[John Galt]

And, by the way, The Institute for Justice is pure awesome.

Nice work, boys and girls!

[robc]

I knew I had bought the right house when it turned out the previous owner was on the IJ mailing list.

[MP]

r u sure? There's real risks about buying houses from libertarians. Just think of the code violations. As long as you continue the fine tradition of dodging appraisers you should be OK.

[Another David]

I kind of hope she appeals just so I can read the ass-kicking the First Circuit would dish out. An appeals court has to respect the facts established at trial, and Dein's findings of fact are hilariously bad for the police.

[Death Rock and Skull]

250 stacks will be a nice kitty to the Institute for Justice's noble efforts, assuming the pro-boner attorneys won't claim any of it.

[Eduard van Haalen]

"Carmen Ortiz...snatch"

There's an image I can't get rid of.

[Enough About Palin]

Fuck that dead hipster Swartz.

[RyanXXX]

D- Troll effort

[croaker]

Maybe the bitch is hoping for another suicide.

[dantheserene]

What is it about politicians and wanna-be politicians from Massachusetts? Are any of them not lying assholes?