Chipping Away at Our Sixth Amendment Right to Counsel: Kaley v. United States

It makes sense that criminals should not be allowed to profit from their wrongdoing. But, most would agree with the time-tested presumption of innocence afforded to all those accused of a crime.

Imagine the scenario where a company, and its management, are accused of committing some economic crime such as tax fraud, social security fraud, etc. Upon establishing that probable cause exists to believe a crime occurred through a grand jury indictment, federal prosecutors can freeze the assets of any of the accused immediately if the assets would be subject to forfeiture if the accused was convicted.

The accused, then, though presumed innocent until proven guilty in a court of law, may have no access to funds not only to continue business operations during the sometimes lengthy pre-trial and trial process to generate income, but also may not have access to funds to hire counsel. As most are aware, there are federal public defenders and appointed counsel available to the indigent, but frozen assets still qualify as assets even where the accused is unable to access those funds. By freezing an accused’s assets, federal prosecutors are empowered to put the accused in a legal vise, where funding normal activities (mortgage, food, etc.), much less obtaining legal counsel, is an impossibility.

Such power seems to create even more imbalance between the federal prosecutors and those they accuse of criminal wrongdoing. It may come as a surprise to many that the United States Supreme Court recently reaffirmed that not only are federal prosecutors empowered to seize assets that may be related to alleged criminal activity, but the accused are not entitled to any pre-trial hearing to challenge the probable cause determination that led to the seizure of assets. See Kaley v. United States, 134 S. Ct. 1090 (2014).

Though the Supreme Court has concluded that a defendant does not have a constitutional right to a hearing to challenge the probable cause required for the seizure of assets (though such pre-trial probable cause hearings take place in Virginia state courts every day), Chief Justice Roberts succinctly stated the problem with this approach:

“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.”

Until the day where Chief Justice Roberts’ view is in the majority of six who determine whether an accused should be able to hire their counsel of choice, the accused will simply have to look into their crystal ball, determine that the federal government may be investigating their activities, and retain and pay an attorney as quickly as possible, so as to not find themselves in a legal vise where the prosecutor controls the lever. Unsettling, isn’t it?

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