On February 24, 2014, the U.S. Supreme Court in Kaley v. United States approved the government’s seizure of a married couple’s home and a $500,000 C.D. purchased to cover anticipated legal expenses arising from the federal charges of selling stolen medical supplies.
After the Kaleys were indicted by a federal grand jury but before they were convicted, the government moved to seize the Kaleys’ assets. The district court granted the government’s motion. The Kaleys objected to the seizure on the grounds that they had no opportunity to rebut the government’s charges prior to the freezing of their assets. This action by the government prevented the defendants from obtaining the lawyers of their choice.
Chief Justice Roberts weighed in on this issue saying: “The hearing the Kaleys seek would not be mere relitigation of the grand jury proceedings ‘but rather it would be a hearing before a federal district judge aimed at determining if the prosecution had indeed proved probable cause for the asset forfeitures. And of course, the Kaleys would have the opportunity to tell their side of the story–something the grand jury never hears.’” Chief Justice Roberts went on to point out that the majority opinion upholding the asset forfeiture prior to trial and conviction minimized the critically important role of an independent “defense bar as a check on prosecutorial abuse and government overreaching.” The Chief Justice concluded by saying: “Granting the government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role.”
While the majority opinion by Justice Kagen found that the defendants have no constitutional right to contest a grand jury’s prior determination of probable cause, the dissent got it right in pointing out the stacked deck against a criminal defendant when the government freezes all of his or her assets, thus denying the accused counsel of their choosing.