The Cautionary Instruction: Supreme Court considers practice of freezing assets in criminal cases

Friday, 18 October 2013 06:00 AM Written by  Matt Mangino

20131018 frozenassets photocom95034978 150Criminal forfeitures are a key part of the federal government’s efforts to prosecute crime by limiting a defendant’s ability to fight the charges. The pretrial restraining orders enhance the government’s ability to get either a guilty plea or a guilty verdict.

This week, the U.S. Supreme Court took up the issue. The case arises from the common practice of the government freezing the assets of an indicted criminal defendant, who needs the assets to hire a lawyer.

In Kaley v. United States, attorneys argued that as a result of the Department of Justice freezing their clients’ assets, their clients have been in effect stripped of their ability to hire the defense attorney of their choice. They argued that such conduct violated their clients’ Sixth Amendment rights.

Defense attorneys argued that defendants should be allowed to keep their bank accounts and other possessions unless prosecutors can show, before trial, that the evidence supporting an indictment justifies the seizure of those assets.

Kerri and Brian Kaley were charged in 2007 with illegally profiting from the resale of older medical devices in South Florida. The equipment had been given to the Kerri, and other equipment sales representatives, by hospitals that no longer needed them because they purchased newer devices.

The Sixth Amendment does not require that an accused have legal counsel of their choice. Retired Superior Court Judge Eugene Hyman, of Santa Clara, California, said there is plenty of case law stating that one is entitled to a competent attorney and beyond that, "there's not a constitutional entitlement."

Attorneys also argued that it is more than just a Sixth Amendment issue. The Fifth Amendment Due Process Clause requires that defendants be given a pretrial hearing that would force prosecutors to establish the integrity of the indictment as a basis to seize the couple's assets.

There is reason for optimism among the appellants.

In Krimstock v. Kelly, Justice Sonia Sotomayor, then a lower court judge, wrote an opinion invalidating New York City's policy of seizing and holding vehicles owned by suspects accused of DUI. Sotomayor ruled that the policy violated the 14th Amendment, which mandates that citizens cannot be deprived of property without "due process of law."

On the other hand, Justice Samuel Alito appeared to have sympathy for the government's position. He noted that defense lawyers often use preliminary hearings -- like the one proposed to determine if there is evidence to support the seizure of assets -- to try gain an advantage by finding out details about the government's case ahead of trial.

"That's what this is all about," Alito said.

(Image: Sam Lee/Getty Images)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino.

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