A day in the Life.

High court sides with government on frozen assets


This is probably one of the most dangerous Supreme Court opinions the Roberts Court has ever released.  Under Kaley v. United States, any prosecutor who can gin up a probable cause determination from a  Grand Jury may freeze your assets—including money set aside for legal defense—and prevent you from hiring the attorney of your choice.  And they may do so without granting you an opportunity to contest the Government’s probable cause determination at a hearing.

The Court has previously held that the Government can freeze assets set aside for legal defense.  But it has never held that the Government can do so without at least providing a hearing for the aggrieved Defendant to challenge the probable cause determination underlying the asset forfeiture.  Under Kaley v. United States, the Government can now use federal forfeiture statutes as a weapon against Defendants who seek private counsel, and they have absolutely zero recourse.  

Consider the implications of this decision.  People who cannot afford private counsel are usually assigned a public defender.  For much of the past year, the Federal public defender system has been facing a budget crisis.  Much has been written about the lengths that Federal public defender’s offices have had to go to in order to keep their offices running.  Federal public defenders are an extremely talented and dedicated group (I am proud to have worked in a Federal Defender’s Office while I was in law school).  But there are not enough of them to go around, and they lack the resources of the United States Attorney’s Office.

So imagine a USAO prosecutor knows that the local Federal public defender’s office in his district is understaffed.  He knows that staff attorneys in the public defender’s office are being furloughed, and thus has less time to work on their cases.  That USAO prosecutor can now use federal forfeiture statutes to force a criminal Defendant to abandon their private attorney, and instead be assigned a public defender who has less time to work on the Defendant’s case.

This power could also be abused in other ways.  Suppose that the prosecutor knows that the private lawyer representing the Defendant has a long-standing relationship with the Defendant.  The private attorney knows the details of the Defendant’s personal and professional life, making it easier to represent the Defendant effectively.  The prosecutor can neutralize these advantages by freezing the Defendant’s assets and forcing the Defendant to go with a public defender instead—one who is completely unfamiliar with the facts surrounding the Defendant’s personal and professional life.  This is obviously detrimental to the Defendant for equally obvious reasons.

A private criminal defense attorney with more time to work on a client’s case is, ceteris paribus, in a better position than a public defender who is being furloughed.  A private attorney who knows the intimate details of a client’s personal and professional life is often better equipped to represent that client in court.  But  Kaley v. United States allows the Government to manipulate the system to force criminal Defendants to accept legal counsel who may not be able to represent them as well, and it gives the Defendant zero opportunity to challenge the prosecutor’s decision.  It is totally unreviewable.  All they need is a probable cause determination—the second lowest evidence standard in criminal law.  With this decision, federal prosecutors are given a weapon of unbelievable power that can and will be used to force Defendants to take pleas and accept potentially substandard representation.

The Court’s majority opinion tries to give cold comfort to the reader by stating that Congress can easily remedy this situation by amending the forfeiture statute.  But the question here is not what Congress can or should do.  The question is whether the present statute deprives someone of a fundamental Constitutional right.  We are not asking what the Government can or should do, but what it can’t or must do.  It is cold comfort to know that the Constitution allows the Government to effectively choose the Defendant’s attorney for them with zero recourse.

Justice Roberts, with whom I rarely agree, shocked me by dissenting in this case.  He seems to understand that this case is not simply about fundamental fairness or preserving the presumption of innocence, but about an enormous imbalance of power between the Government and criminal Defendants that has now been made even deeper :

The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial. 

Money quote:

Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role.