Monday, March 10, 2014

Controversial Supreme Court decision on asset forfeiture and access to legal services

About two weeks ago. the Supreme Court decided a case that has important implications on a criminal defendant's access to legal representation.  The case is called Kaley v. US and the opinion is available here.  You can also find links to the lower court's opinion and many other documents in the case here.

An editor of the SCOTUS blog summarizes the facts as follows:  "In 2007, Kerri Kaley and her husband, Brian, were indicted on charges arising from a plan to steal and then re-sell prescription medical devices. Based on the indictment, the federal government also got a restraining order to freeze their assets. The Kaleys asked the district court to lift the asset freeze so that they could pay their lawyers: although they did not dispute that the frozen assets could be traced to the conduct for which they were indicted, they argued that the charges against them were “baseless.” Both the district court and the U.S. Court of Appeals for the Eleventh Circuit denied the request, holding that it was prohibited because the Kaleys had no right to a hearing to challenge the grand jury’s determination that there was probable cause to support the charges against them. This morning a divided Supreme Court agreed, preserving a frequently used tool in the government’s arsenal for prosecuting crimes."  This author's analysis of the case is available here.

In the days that followed the announcement of the decision a number of very critical reviews have been published.  The White Collar Crime Prof Blog, for example, concludes that
The opinion, written by Justice Kagan, exalts the inviolability of the grand jury and demonstrates a naive misunderstanding of (or lack of concern about) the reality of its role in the determination of probable cause, ignores the presumption of innocence, and denigrates the importance of independent defense counsel in the criminal justice system. It tilts the playing field of justice in the government's favor by giving the government, in some cases, the option to deprive the defendant of the counsel he has selected or intends to select. [You can read the full comment here.]

Likewise, Simple Justice states:
In considering the Court’s adherence to beloved legal fictions, one of which is that a grand jury indictment conclusively proves the existence of probable cause to believe that a crime occurred and the defendants committed the crime, the majority reduced the issue before it to an absurdity. What about the presumption of innocence? What about the right to counsel of choice? What about the constraints of forfeiture to the proceeds of crime?  [You can read the full comment here.]

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