U.S. Supreme Court Decides If A Criminal Defendant May Use Frozen Assets to Pay An Attorney

Under federal law, when a defendant is convicted of a major crime the defendant’s assets can be seized by the government. This action is called forfeiture. The idea is to take the profit out of crime and to compensate victims of crime.

The defendant’s assets may also be frozen prior to trial. In the U.S. Supreme Court case Kaley v. United States, the defendants wished to access their frozen assets. Their goal was obtain funds in order to retain an attorney for their case. The defendants proposed that they be allowed a hearing to challenge the probable cause finding of the grand jury. The Court ruled that such a hearing is not constitutionally required.

When the federal government initiates a prosecution for a serious crime a grand jury must deliver an indictment. An indictment involves a grand jury finding that there is probable cause to believe that the defendant committed the charged crime. If the grand jury also finds probable cause to believe that the defendant’s assets are linked to the charged crime then those assets may be frozen at that time in the anticipation of a potential forfeiture.

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In general, defendants are permitted to a hearing on whether their assets are linked to the charged crime. Kaley was asking the Supreme Court for the opportunity to challenge the probable cause finding that the charged crime was committed.

The Court denied defendants this opportunity. The Court analogized the government’s ability to freeze assets with its ability to detain a defendant in jail prior to trial. Once the grand jury has delivered the indictment upon a probable cause finding, an arrest warrant is issued. With the arrest warrant the government may be able to detain the defendant in jail without bail. Defendants are unable to challenge the grand jury’s finding to overturn pre-trial incarceration.

Therefore, the Court reasoned, if the grand jury’s probable cause finding is sufficient to impose a restraint on a defendant’s freedom, then it is strong enough to freeze assets without challenge.

Allowing defendants to challenge the probable cause finding would lead to unworkable scenarios, the Court said. For example, it could leave the judge in an awkward situation to preside over a trial in which a probable cause finding had been overturned.

Chief Justice Roberts dissented, writing that the Court’s decision “is fundamentally at odds with our constitutional tradition and basic notions of fair play,” because it allows the government to preemptively disarm presumptively innocent defendants from hiring an attorney of their choosing.

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