A blog of the Philadelphia Bar Association’s Criminal Justice Section

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This post concerns Kaley v. United States, 2/25/14, 2014 WL 700097

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By Burt Rose

21 U. S. C. §853(e) authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. The Supreme Court has approved the constitutionality of such an order so long as it is based on a finding of probable cause to believe that the property will ultimately be proved forfeitable. This is the standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.


In this case, two indicted defendants wished to hire an attorney and challenged a pretrial restraint on their property that prevented them from retaining the lawyer of their choice. The question presented was whether criminal defendants are constitutionally entitled at a hearing to contest a grand jury’s prior determi­nation of probable cause to believe they committed the crimes charged. The majority held that they had no right to reliti­gate that finding.


Justice Kagan delivered the opinion for the Court. Chief Justice Roberts dissented, joined only by Justices Sotomayor and Breyer. The Chief Justice concluded his dissent with the following remarkable (for him) language (emphasis supplied by me):


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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