The Day The 6th Amendment Died (Again)

Having followed Kerri Kaley’s struggle to enable herself and her husband to fight charges of dubious merit since the circuit, an old question arose: Would the law that grew like a fungus in the bad, old drug days of forfeiture law that gave rise to such discreditable decisions as Monsanto, be perpetuated now that they were being applied to people who society didn’t inherently despise?

The Supreme Court answered the question in Kaley v. United States, a split decision by Justice Elena Kagan: Hell, yes!

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.

The manner in which the Court structured its issue, and hence its response, foretold the outcome. Rather than approach the case as a 6th Amendment deprivation of the ability to obtain counsel to defend themselves from a spurious indictment, the majority seized upon it as a math problem.

Indictment = Probable Cause

Forfeiture = Probable Cause

Indictment = Forfeiture

Ham sandwich, anyone?  In considering the Court’s adherence to beloved legal fictions, one of which is that a grand jury indictment conclusively proves the existence of probable cause to believe that a crime occurred and the defendants committed the crime, the majority reduced the issue before it to an absurdity. What about the presumption of innocence?  What about the right to counsel of choice? What about the constraints of forfeiture to the proceeds of crime?

Meh.  It’s as if someone mumbled during their post argument conference, “you know, if we cut her a break, it’s going to look like we no longer have faith in grand jury indictments. Since everybody already knows they’re argle-bargle, that won’t end well. It looks like we have no choice here.”

There was always the other side of the equation, that pre-trial restraint of allegedly forfeitable assets is unconstitutional because it impairs a fundamental 6th Amendment right to counsel, but they blew that one in Monsanto when they were busy hating on drug dealers.  Yes, that crap invariably comes back to haunt us.

Then there is the substitute proceeds question, where the idea that what the government is seizing is the proceeds of crime gets blind-sided by the desire to grab anything they can get their hands on. And in whatever amount a prosecutor can claim based on his most fertile imagination. Reality has no place in forfeiture.

But what about due process, the opportunity for full and fair litigation of a disputed issue?  Silly rabbit, tricks are for kids. Once the grand jury issued an indictment, there is nothing left to litigate. It’s sacred. Would you like mustard on that ham sandwich?

That this opinion leaves no room for the real consequence of this low-ball confluence of bad law arising from the hated drug dealer days and beloved legal fictions gave rise to a dissent by no less a lover of the defense than Chief Justice John Roberts.

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.

We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense—the attorney he selects and trusts—by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent.

To his credit, Justice Roberts recognizes that the only thing standing between a defendant and prison is a criminal defense lawyer. It’s not like it’s a fair fight anyway, but it doesn’t have to be a gimme either.

Acknowledging Monsanto, Roberts points to the question left unanswered, whether a defendant was entitled to a fair hearing to challenge the basis for a pre-trial restraint of assets before he was denied his ability to retain counsel of choice.  The Court was “cautious.”

There was good reason for that caution. The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire proceeding.

After picking apart the majority’s “syllogistic-type reasoning” based upon its failure to recognize that the grand jury’s indictment, while adopted for the purpose of determining probable cause that a crime has been committed by the Kaleys, does not similarly include a probable cause component that finds the assets seized to be related to the crime. In other words, there are variables in the simple math equation that render it inapplicable.

Addressing the “short shrift” given by the majority to the due process rights denied the Kaleys under the Matthews v. Eldridge balancing test, Roberts notes how the “burdens” on the government are overestimated while the deprivation to the defendants is underestimated.

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.

Yet, giving a defendant any opportunity to challenge the government’s advanced impoverishment would deprive the government of its critical interest in making sure that there were assets to be seized on the back-end, after the Catch-22 was completed upon conviction, thus proving how right they were to restrain the assets in the first place.

But that due process thing? That right to counsel thing? That Constitution thing?  Stop complaining. The grand jury indicted, and that’s good enough reason to deprive a defendant of the money to fight. Get over it.

28 comments on “The Day The 6th Amendment Died (Again)

  1. Marc R

    It seems the Court ignored the idea that while the grand jury may find pc for the existence of the charged crime, that GJ never makes a determination as to what assets are used. Using another syllogism:

    GJ Bill = crime occurred

    crime occurred =/= asset used for crime

    GJ Bill =/= asset used for crime

    1. SHG Post author

      I purposefully avoided that syllogism because of the substitute proceeds problem. It’s a nitpicking solution when there are fundamental reasons why the ruling is wrong.

      1. Marc R

        It’s frustrating; was just trying to fight fire with fire. I read the briefs [deleted] and I thought this would be an easy decision. Apparently it was easy for SCOTUS…

        1. SHG Post author

          If you had been around when Monsanto was decided, it would have been clear that this was never going to be an easy decision.

  2. Andrew Fleischman

    For me, the most offensive line in the while opinion is when Kagan days that Kaley wants a do over, but with a different referee. What Kaley really wanted was a chance to watch and participate in the game before somebody put up the score.

    1. SHG Post author

      It was a ridiculous characterization by Kagan. Is she unaware of how the grand jury works? That’s what comes of academics becoming judges.

  3. Bill

    Not being a lawyer, my understanding is generally that there are some categories of crimes they can seize your assets up front for right? So if that’s the case, doesn’t that effectively render categories of crimes like drug dealing, as ‘sure thing convictions’ if the prosecutor wants to get you? Coupled with people facing mandatory minimums and the state’s ability to keep the supposed ill gotten assets, seems like a system so stacked to the prosecution that even the most honest/ethical prosecutor could easily get corrupted. I get the feeling I’m stating the obvious though ;-)

  4. Charlesmorrison

    On the bright side, at least the chief weighed-in in favor of a defendant, right? Scalia has even come around on some issues in the 4th and 6th debates, perhaps another 15 years of hearing cases will further cause the Chief to realize the reality these folks face. If Scalia can harden to states’ positions, almost anything is possible. It ain’t much, but it’s something.

    Then again, Roberts probably sympathized with this sort of defendant easier. As you noted, these weren’t shoot-up-the-streets drug dealers. So, his pro defendant position here may truly be sui generis.

    Oh well, it’s just the latest approval of a form of punishment levied during a period of time that innocent folks try to carry on and preserve their innocence. Well done supremes.

    1. Andrew

      Scalia can surprise you every once in a while, if you let him. Although it’s funny that even when he does surprise you, his basic Scalia-ness shines through. Look at Hamdi. I agree generally, but it seems like the gist of his problem with it was that the dude was on American soil. Take him elsewhere and it presumably wouldn’t be a problem. But maybe I misread him.

  5. Andrew

    Funny isn’t it? The coalitions that form for criminal cases? Breyer, Sotomayor and Roberts dissenting if I read correctly.

    And ” but they blew that one in Monsanto when they were busy hating on drug dealers. Yes, that crap invariably comes back to haunt us.”

    Right on. Either everybody has rights, or no one does. Yet we pretend there’s a middle ground.

  6. Dan Z

    Why in the hell are grand juries even still used? Its yet another tool that is solely a benefit for the prosecutors and one that makes little sense in a modern criminal justice system with the severe implications that can arise from their decisions.

    1. SHG Post author

      That’s really the 800 lb. gorilla question here. If grand juries worked as they were intended, they would be a check on prosecutorial power rather than enable it. This may be the strongest argument against having grand juries yet.

    2. Jim Majkowski

      The reason is the express language of the 5th Amendment to the US Constitution:

      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

        1. John Barleycorn

          But for an educated populace.

          Ken over at Pope Hat tips his hat to our esteemed hosts writing on this case and decides to share a little insight of his past experience as a prosecutor with grand juries.

          In fact, he even goes a bit further than our esteemed hosts pondering of the courts willingness to use the grand jury inditement to skip past awareness and accuses that lofty bunch of calling your mother a dirty bitch.

          If it doesn’t make you crave a ham sandwich (btw, where was to indite a ham sandwich first used anyway?) it is worth the read if you were, like me, a little skeptical of CDLs always blasting grand juries.

          I can roll with bemoaning the lack of effort put forth by the typical members of your garden variety grand jury and the prosecutors abuse of the sleeping sheep syndrome but the critical role the grand jury plays (at least on paper) is not something I think I will be supporting anytime soon.

          If the entire justice system guild ever does go completely off the tracks I think it might be just the antiquated body necessary.

          1. SHG Post author

            Ken provides an excellent description of “inside the grand jury,” which I have indeed already read.

            As for the ham sandwich reference, it comes from former Chief Judge of the New York Court of Appeals, Sol Wachtler, who said in a New York Daily News interview on January 31, 1985, the district attorneys have so much influence over a grand jury that they could get them to indict a ham sandwich.

            1. John Barleycorn

              Housecleaning of your hot link to “inside the grand jury” in that last comment.

              That hot link above goes to one of those other Merry Prankster (an Italian 1st amendment renegade) CDL. not to Frank Zappa’s entire unreleased vault nor Ken speaking of grand juries and this case from the other day.

              You might have been thinking about another post though. Who knows…?

              Thanks for the ham sandwich information.

              P.S. I hope your readers accept my apologies for not even attempting to slide in some Don McLean here and your Emotional Rescue Post from the other day was not unnoticed.

              Entirely too orderly…when folks don’t take pot shots at the low hanging plump tune fruit.

              I am starting to get concerned.

  7. Scott Jacobs

    And in a similar ruling, the court found that cops are totally allowed to remove a guy who said you can’t enter his home so that he won’t be there to object to them going into his home.

    My former-cop teacher mentioned it before class yesterday and ignorantly framed the search of the home as “incident to arrest”.

    It was all I could do to not throw a chair.

    1. SHG Post author

      And I’m torn about throwing your comment in the trash because it has nothing to do with this post. Next one goes in the garbage without hesitation.

  8. Pingback: The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich | Popehat

  9. Jordan Rushie

    It’s funny, because the same court has also held that imposing significant punitive damages against large corporations is a deprivation of their right to due process.

    An entity that is a legal fiction has more rights than a living person who is looking at spending the rest of their life behind bars…

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