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U.S. Supreme Court Update

The U.S. Supreme Court this week rendered an important decision regarding pre-trial asset restraint. In Kaley v. United States, the Court allowed the Department of Justice to restraint a defendant's assets after a grand jury indictment. The process at hand goes something like this: A case is presented to the grand jury, the grand jury identifies an asset as potentially forfeitable, and the Department of Justice then "freezes" that asset, which means that the assets cannot be sold or transferred. This practice thus prevents people from hiring the lawyer of their choice.

The Kaleys took the case to the Supreme Court, arguing that they wanted to hire a particular attorney but could not do so because their assets were frozen. The Supreme Court majority said, essentially, that because the grand jury has heard the evidence, the Kaleys cannot challenge it except at trial. So, they cannot then hire the counsel of their choice.

This is extremely bad news for a couple of reasons. First, as Ken White ably points out, the grand jury is little more than a rubber stamp. Ken used to be an Assistant U.S. Attorney and he describes his experiences getting indictments. There is a great chasm between what grand juries actually do and what the court seems to believe that they do.

The second reason this is a bad decision is the effect that this will have upon legal representation. Defense lawyers are not fungible. That's a lawyer term meaning that a good can be satisfied by anything similar. So if you buy a box of oranges, it really does not matter if you get box #1, #7 or #84 as long as the oranges meet the terms of the contract. Defense lawyers, though, are personal. The lawyer-client relationship is just that – a relationship. And this decision allows the government to decide whether you get to have the lawyer you want. It is kind of like the government deciding whether you can go on a date with someone. If the government does not like your lawyer for some reason, it can restrain your assets and prevent you from hiring that lawyer.

This decision has generated substantial discussion. Scott Greenfield gives more background on why it is bad for your right to counsel. Chanakya Sethi rightly describes the resulting justice as coming from Alice in Wonderland:

"First come the punishment – seizure of all their assets – then the trial, and the crime last of all. 'But suppose they never committed the crime?' Alice asks. 'It doesn't matter,' comes the court's answer, 'because a grand jury said so.'"

So what does this mean for you as you search for a lawyer? It means that at the very first hint that you are under investigation, you need to find a good lawyer. Find a lawyer who handles federal cases and investigations because federal law is substantially different than state law. Talk with that lawyer and follow your lawyer's advice. Do what you can to get your attorney before you get charged.

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