Wednesday, December 25, 2013

Asset Forfeiture Sabotages the Right to Counsel

I'm a public defender, always have been, hopefully always will be. I've never had to deal with retainers, fees, client accounts, and that's probably a good thing. The closest I've come to the issue is arguing that a partially-indigent client should not have to contribute to the court fund. To some clients, the only thing more suspect than a free lawyer is a $25-per-month lawyer. 

Guised as an asset forfeiture question, the Supreme Court will soon decide a critical Sixth Amendment right-to-counsel case, one that reaches far beyond the cost of a good lawyer. In Kaley v. US, the government -- post-indictment and ex parte -- froze the defendants' financial assets, thus interfering with their right to hire counsel (not to mention just taking their money without any due process). 

Here's how SCOTUSBlog frames it: "The issue before the Court arises from the (seemingly increasingly) common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer.  The question is whether the defendant can challenge the grand jury’s determination that there is probable cause to indict him, when the indictment is the basis for the freeze."

The procedural history and precedent are tied tightly to federal statutes and forfeiture proceedings, and this tends to hide the fundamental constitutional concern -- a criminal defendant's right to defend herself. As the Kaley brief says, 

With so much at stake, due process requires a preliminary procedure to provide interim redress from the ex parte restraint of assets, where the genuine hardship facing a claimant/defendant is the denial of her Sixth Amendment right to counsel of choice at trial. For without such a pretrial hearing – at which the defendant is prepared to demonstrate that the prosecution’s theory of forfeiture is misguided and thus the restraint of assets is unjustified – she cannot hire her chosen counsel to mount the most aggressive defense at trial against the charges that threaten to strip her of those assets, as well as incarcerate her for those and other charges alleged in the indictment.

This is an Eleventh Circuit case, and the cert petition argues that the Tenth and Eleventh Circuits split from the approach of other circuits. The controlling Tenth Circuit opinion, at issue in Kaley, is US v. Jones, which coldly holds that this is merely an issue of traceable funds.  Concern for the precious resources of the federal government  ("Every dollar and minute saved not litigating challenges of dubious merit can of course be spent on matters more deserving of attention") towers over the defense right to a fair trial with effective counsel ("Due process does not automatically require a hearing and a defendant may not simply ask for one"). 

Kaley has the opportunity to reverse these priorities, and to speak to due process, to government power, to ex parte proceedings, and to the very ground of Gideon. A ruling in favor of Kaley could shift the power from secret prosecution proceedings back to the constitutional rights of the defendant, where it belongs. 

-- Melody

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