Another Amendment Bites the Dust
Back in October, the WSJ reported on an interesting case about to be heard by the Supreme Court. Apparently prosecutors are more and more often rigging trials by means of civil forfeiture. By simply confiscating the assets of the accused, the accused can no longer pay for a defense lawyer of their choice. This makes life for the prosecution a lot easier, but it appears to be in conflict with the 6th amendment, at least in spirit. The amendment states:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
One could of course argue that a court-appointed lawyer is after all counsel as well (in fact, the prosecution did so argue in the case discussed below), but the countless innocents found vegetating on death row after DNA analysis became available could probably tell you a thing or two about the quality issues occasionally associated with that option.
“On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant’s assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?
Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.
What crimes are the Kaleys charged with? Kerri Kaley was a sales representative for a subsidiary of Johnson & Johnson. Beginning in 2005, the feds in Florida investigated her, her husband Brian, and other sales reps for reselling medical devices given to them by hospitals. The hospitals had previously bought and stocked the devices but no longer needed or wanted the overstock since the company was offering new products. Knowing that the J&J subsidiary had already been paid for the now-obsolete products and was focused instead on selling new models, the sales reps resold the old devices and kept the proceeds.
The feds had various theories for why this “gray market” activity was a crime, even though prosecutors could not agree on who owned the overstocked devices and, by extension, who were the supposed victims of the Kaleys’ alleged thefts. The J&J subsidiary never claimed to be a victim.
The Kaleys were confident that they would prevail at trial if they could retain their preferred lawyers. A third defendant did go to trial with her counsel of choice and was acquitted. But the Justice Department made it impossible for the Kaleys to pay their chosen lawyers for trial.
The government insisted that as long as the Kaleys’ assets—including bank accounts and their home—could be traced to the sale of the medical devices, all of those assets could be frozen. The Kaleys were not allowed to go a step further and show that their activities were in no way criminal, since this would be determined by a trial.But the Kaleys insisted that if the government wanted to freeze their funds, the court had to hold a pretrial hearing on the question of the legality of how the funds were earned.
The Kaleys complained that the asset freeze effectively deprived them of their Sixth Amendment right to the counsel of their choice—the couple couldn’t afford to hire the defense that they wanted. Prosecutors and the trial judge responded that the Kaleys could proceed with a public defender. This wouldn’t have been an encouraging prospect for them, for while public counsel is often quite skilled, such legal aid wouldn’t meet the requirements the Kaleys believed they needed for this complex defense. Choice of counsel in a free society, one would think, lies with the defendant, not with the prosecutor or the judge.”
“Choice of counsel in a free society, one would think, lies with the defendant, not with the prosecutor or the judge” – Yes, one would certainly think so, alas…
Supreme Court Hands Government a Big Club
As criminal defense lawyer Scott Greenfield reports, the “Day the 6th Amendment Died” has arrived. He sounds slightly surprised, but he shouldn’t be. After all, the 4th amendment and habeas corpus have become victims of the GWOT and the ‘national security’ octopus with nary a peep from anyone. A great many protections once enjoyed by individuals have become, shall we say, bona peritura.
Asset forfeiture on pure suspicion is especially pernicious given the fact that nowadays everyone is basically a criminal, as a result of the vast overproduction of laws, and rules/regulations that have the force of laws. Since ignorance cannot protect one from the law, every citizen would in theory have to spend several lifetimes studying the whole shebang to make 100% certain he won’t commit at least three crimes before 9 AM. Of course this situation is not a coincidence. The fact that there are now so many laws that it has become nigh impossible not to break some of them now and then without even knowing it has become a major weapon against the citizenry in the hands of the State (only TBTF banks are completely safe, even if they e.g. launder 100ds of millions in drug money – since they are ‘systemically relevant’, they cannot be prosecuted or punished. And this after it was decided that corporations are ‘persons’. Evidently not all ‘persons’ are similarly likely to get the book thrown at them).
As the case of the Kaleys shows, such asset forfeitures can be employed on what appear to be rather flimsy grounds. Judging from the WSJ article, the government seems to be attempting to transform an apparently victimless crime – as no-one asserts that they believe their property rights were violated by the accused (how can there be theft without victims? It boggles the mind) – into a major theft and criminal conspiracy case ex nihilo. This is all the more astonishing as one of the co-accused has already been acquitted in a separate trial. So clearly, the prosecution is seeking to gain an advantage by means of the asset forfeiture in a complicated case it might otherwise very easily lose.
Here are a few excerpts from Mr. Greenfield’s article:
“Having followed Kerri Kaley’s struggle to enable herself and her husband to fight charges of dubious merit since the circuit, an old question arose: Would the law that grew like a fungus in the bad, old drug days of forfeiture law that gave rise to such discreditable decisions as Monsanto, be perpetuated now that they were being applied to people who society didn’t inherently despise?
The Supreme Court answered the question in Kaley v. United States, a split decision by Justice Elena Kagan: Hell, yes!
The manner in which the Court structured its issue, and hence its response, foretold the outcome. Rather than approach the case as a 6th Amendment deprivation of the ability to obtain counsel to defend themselves from a spurious indictment, the majority seized upon it as a math problem.
Indictment = Probable Cause
Forfeiture = Probable Cause
Indictment = Forfeiture
Ham sandwich, anyone? 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?
Meh. It’s as if someone mumbled during their post argument conference, “you know, if we cut her a break, it’s going to look like we no longer have faith in grand jury indictments. Since everybody already knows they’re argle-bargle, that won’t end well. It looks like we have no choice here.”
There was always the other side of the equation, that pre-trial restraint of allegedly forfeitable assets is unconstitutional because it impairs a fundamental 6th Amendment right to counsel, but they blew that one in Monsanto when they were busy hating on drug dealers. Yes, that crap invariably comes back to haunt us.”
Goodbye, presumption of innocence and due process. Which incidentally is precisely what Justice Roberts mentioned in his dissenting opinion:
“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.”
Inspector Clouseau to Justice Roberts:
What is the price of a piano compared to the terrible crime that has been committed here?