How does the Kaley case affect the seizure of assets before trial?

March 25, 2014 (Press-News.org) Undergoing a criminal investigation and grand jury indictment is even more complicated when bank accounts are frozen. How do you pay for an attorney to defend against the charges supporting the government seizure? This is exactly the question that the U.S. Supreme Court addressed in a recent case.

Brian and Kerri Kaley were indicted by a grand jury for an alleged plot to steal and re-sell medical devices. Based on the indictment, the federal government obtained a restraining order freezing their assets. This left the couple without any money to hire a criminal defense attorney to fight the complicated charges.

The grand jury process and a request for a second hearing

In the grand jury process only the prosecutor is present. The prosecution gets to selectively present evidence and witnesses cannot be cross-examined. A defendant does not have the right to present evidence that might show his or her innocence. A judge is not even present.

Following the indictment, the Kaleys requested access to their money so they could pay their lawyers. They argued that the government should have to establish probable cause in a hearing before a judge where they could cross examine witnesses and present exculpatory evidence. The U.S. District Court and the Eleventh Circuit of Appeals disagreed and denied their request. The Kaleys appealed to the U.S. Supreme Court.

No right to a judicial probable cause hearing on the seizure of accounts

In a 6-3 ruling, the court held that the Kaleys did not have a right to a probable cause hearing. Justice Elena Kagan writing for the majority held that the grand jury probable cause determination was enough to support freezing a defendant's assets. She worried that a separate hearing could lead to "strange and destructive consequences." For instance, a judge might find no probable cause existed to freeze the assets, while a grand jury finding kept the defendant in custody while awaiting trial.

The dissent in the case was made up of an interesting cross section of judges. Chief Justice John Roberts joined by Justice Stephen Breyer and Justice Sonia Sotomayor criticized the consequences of the decision. The Chief Justice noted that the ability to seize accounts allows the prosecution to "disarm its presumptively innocent opponent by depriving him of his choice of counsel--without even an opportunity to be heard."

A defendant does however have the right to question the scope of a seizure even after a grand jury makes a probable cause finding. This ruling highlights the importance of consulting an experienced asset forfeiture attorney as early as possible, so that the seizure of assets and underlying criminal investigations can be challenged.

Article provided by Brown, PC
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