Frozen out of justice by the Supreme Court


In America you’re innocent until proven guilty. But the federal government can seize your assets before trial and prevent you from using them to hire the lawyer of your choice, even though the right to counsel is protected by the 6th Amendment. That’s an injustice, and it was compounded this week by the Supreme Court.

In 2007, Kerri Kaley, a sales representative for a subsidiary of Johnson & Johnson, and her husband Brian were indicted on charges that they had participated in a scheme to resell medical devices allegedly stolen from hospitals; they maintained that the hospitals no longer had any use for the devices.

The couple wanted to pay a private lawyer using personal funds, including a certificate of deposit they had purchased using a home-equity line of credit. But a court froze many of their assets on the theory that they were related to the couple’s supposed wrongdoing. The issue before the Supreme Court was whether a judge should have taken a second look at the indictment, with an eye toward releasing the couple’s assets if the evidence that they had committed a crime was questionable.


By a 6-3 vote, the justices said no. Writing for the majority, Justice Elena Kagan concluded that allowing a judge to decide whether there was probable cause would usurp the traditional role of the grand jury and result in a redundant “pretrial mini-trial (or maybe a pretrial not-so-mini-trial).” Besides, she said, the court settled this question in 1989 when it ruled that a defendant’s assets could be frozen even when he wanted to use them to pay legal fees. But that earlier, and objectionable, decision didn’t require the result reached by the court in the Kaleys’ case. As Chief Justice John G. Roberts Jr. pointed out in a powerful dissent, when it comes to forfeiture of assets, grand jury indictments aren’t as final as Kagan suggested.

For example, judges can hold hearings after an indictment to determine whether assets seized by the government are traceable to the alleged crime. If that sort of second-guessing is permissible, why can’t a judge review the grand jury’s finding of probable cause — at least in the context of deciding whether a defendant may use his own money to pay for a lawyer? That would still leave the decision of guilt or innocence to a jury.

Roberts also had an eloquent answer to Kagan’s argument that allowing a judge to review an indictment in these circumstances would “undermine the criminal justice system’s integrity.” He countered that “few things could do more to undermine the criminal justice system’s integrity than to allow the government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice — without even an opportunity to be heard.” The Kaleys, and the Constitution, deserved better.