Here’s a Nickel, Kid. Get Yourself a Lawyer

Yesterday, the Supreme Court continued their slow assault on basic civil liberties.

Justice for Kerri and Brian Kaley, the Supreme Court held Tuesday, is of the Alice in Wonderland variety: First comes the punishment—the seizure of all their assets—then the trial, and the crime last of all.* “But suppose they never committed the crime?” Alice asks. “It doesn’t matter,” comes the court’s answer, “because a grand jury said so.”

Writing for a six-justice majority in Kaley v. United States, thus concluded Justice Elena Kagan that a criminal defendant indicted by a grand jury has essentially no right to challenge the forfeiture of her assets, even if the defendant needs those very assets to pay lawyers to defend her at trial. In an odd ideological lineup, the dissenters were Chief Justice John Roberts and the more liberal Justices Stephen Breyer and Sonia Sotomayor.

Kaley was accused of stealing medical devices. She claims the hospitals knew and didn’t object to her taking them because they were outdated and no longer in use. In fact, the other defendant in the case was acquitted because not a single hospital complained about it.

After she was indicted by the grand jury, the feds froze all her assets, depriving her of the ability to hire the lawyer she wanted (or just about any lawyer). If you have read the writings of Harvey Silverglate, you’ll know this is not unusual. A common tactic when bringing federal charges against a big business is to let the business off with a fine if they cut a token employee loose for criminal prosecution and refuse to provide legal help. The feds freeze their assets and they can not get the attorney of their choice. A conviction or plea quickly follows.

Kaley wanted a judge to review the indictment before freezing her assets because she thinks the charges are garbage. He refused. It went all the way to SCOTUS. And they’ve decided that, sure an indictment is good enough to freeze your assets, even those you want to use to hire an attorney. No judicial review required. You should read the Slate piece to get an overview of the entire disgusting saga.

Greenfield unpacks the Court’s logic:

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?

I’ve made my feeling about asset forfeiture clear many times: it is one of the most repulsive powers our federal government deploys and the Monsanto case that legalized using it to deprive a citizen of the right of self-defense was a horrible decision. The Court has now affirmed not only that horrible decision but denied citizens even a cursory judicial review before their assets are seized.

One of the biggest problems with the Supreme Court is that, for all the efforts to “diversify” it, the Court has very little intellectual diversity. Every single judge went to either Harvard or Yale Law. Very few have practiced law and none as a defense attorney. As a result, they say stunningly myopic things about our legal system. And this is just their latest ignorant edict: that the grand jury system is a sacred thorough process that we shouldn’t question.

Here’s what Ken White, an attorney with actual criminal trial experience — both as a prosecutor and a defender — has to say about it:

Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I’d like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a “historical role of protecting individuals from unjust persecution” — is not a polite fiction. A polite fiction would have some grounding in reality. It’s an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.

Ken can only remember one case where the grand jury declined to indict. Usually, the “deliberation” took about as long finding the door to the hall to hand the prosecutor the indictment. For the Supreme Court to pretend that this farce of a process — which every other common law country has abandoned — is adequate enough to deprive someone of their ability to hire an attorney is nothing short of ridiculous.

This is what happens when you staff a Court with career prosecutors, academics and administration flacks. This what happens when your search for a SCOTUS judge doesn’t go further than Cambridge and New Haven. I don’t care if the next SCOTUS judge is black, white or pink with green polka dots. I don’t care if it’s a man or woman or one of those 50 new genders Facebook threw at us. I just want someone who might entertain the merest possibility of considering the idea that the government isn’t entirely 100% absolutely without question on the level when it comes to prosecuting people.

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  1. Hal_10000 *

    Bingo. We’ve got too many people on the bench who think their cases are some obscure discussion in Law Review instead of actual decisions that can impact millions of lives.

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