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Top-notch Federal Criminal Defense Lawyers Are Expensive, but the Supreme Court Says It’s Ok for Prosecutors to Freeze Assets Before Trial to Prevent Defendant From Hiring Counsel of Choice

Kish Law LLC

I write often about criminal defense lawyers, and regularly point out how defending a client against federal crimes is a rare speciality that requires an attorney who keeps up on the law and who will fight for his or her client. In private practice, it is expensive to hire the rare lawyer who has all these qualities. Yesterday, the Supreme Court ruled that it is OK for prosecutors to tie up all the Defendant’s assets pretrial with seizure of bank accounts that prevent the Defendant from hiring the specialist he or she has chosen to defend himself. The case is Kaley v. United States, you can read it here. I previously posted about this important case here and here.

Reduced to the basics, Ms. Kaley and her husband were suspected of crimes. They hired an amazingly good lawyer, and set aside the money needed to let this specialist do his job. The Feds got an indictment, and also got an order freezing the money Ms. Kaley had put aside to pay the attorney. Kaley eventually took the case to the Supreme Court, arguing that she at least had the right to a hearing to challenge whether there was enough evidence to justify tying up her assets even before a trial. She probably has a pretty good chance, in that a trial against a CoDefendant charged with the same crime resulted in an outright acquittal. However, Ms. Kaley did not fare so well in the Supreme Court, which ruled that she has no right to a hearing to challenge the seizure of her money even before a trial.

The best thing about this decision is the dissent by Chief Justice Roberts. Here’s a couple of quotes that lawyers, Judges, prosecutors and all participants in the criminal justice system need to remember:

“An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.”

The Chief Justice wrapped up with this stirring language:

“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. … Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers- one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.”

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