For The Love Of Process: A Hearing Before Getting Screwed

The scenario is well known amongst criminal defense lawyers. A defendant arrives to retain legal services, having more than sufficient assets to hire counsel of choice. A deal is struck and a check is written. Counsel gears up, ready to use everything in his power to defend his client, then poof, the check bounces. Not for insufficient funds. Not because the defendant stops payment. Nope.

Because the government has obtained a restraining order freezing the defendant’s assets. It’s not for lack of money, the funds are all there. It’s because the government says “after the defendant is convicted, the money is ours and you can’t have it now or it won’t be there for us later.”  The circularity of the problem is staggering.

The American Bar Association has announced its submission of an amicus brief to the Supreme Court in Kaley v. United States, involving a pre-trial, ex parte freeze of a criminal defendant’s assets.  The issue on cert is

Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.

The ABA’s submission argues that the defendant is denied due process by being stripped of his assets, ex parte, and thus deprived of his right to counsel of choice. This forces the defendant’s lawyer to either proceed pro bono, or essentially enter into a contingency fee arrangement, where the return of the frozen assets depends on the outcome of the case. Contingency fees in criminal cases are flagrantly unethical.

The brief begins with a rather important point:

Although a defendant is presumed innocent and retains title to presumptively legitimate assets, a pretrial order that restrains assets needed to pay counsel of choice will preclude the defendant from retaining and paying that counsel at a critical time. Indeed, selection of counsel may be the most important contribution a defendant makes to her defense.

The government seeks to restrain assets on the purported basis that they’re the proceeds, or perhaps substituted proceeds, of the crime, and thus subject to forfeiture to the sovereign. If the defendant goes and wastes all that fine money by paying for lawyers, then it’s not there when the government comes around to collect it. As the government argues, that would be terribly unfair to them, as they really, really want the cash.

The problem, of course, is that the ABA’s point, that the restraint shouldn’t be ex parte but subject to an adversarial hearing, is correct, yet not terribly availing. This is another example of process trumping substance, much as Justice Scalia loves to explain when an innocent man is about to be executed. As long as he received due process, who cares if he’s actually innocent?

The problem is twofold, first that the standard at an adversarial hearing makes the defendant’s ability to fight restraint on the basis of the criminal allegations nearly non-existent. While there may be some cases where a hearing, much like a probable cause hearing, offers the defendant an opportunity to pick apart crappy allegations, for the most part the government is fully capable of satisfying its burden, and the defendant will go through the motions and still end up losing.

This isn’t to suggest that there shouldn’t be an adversarial hearing rather than an ex parte restraining order, but that even an adversarial hearing isn’t going to do much to provide the relief that a defendant really needs. Another process with the same result doesn’t provide a defendant with access to his “presumptively legitimate funds” with which to retain counsel of choice to fight the criminal case. And that is the point of the exercise.

The second problem is that it places the defendant and putative defense counsel in something of an adversarial relationship as well.  If the Supreme Court holds that due process requires an adversarial hearing, defense counsel has an incentive to do whatever it can to fight the government and thus free up funds so he can get paid. Defense lawyers like to get paid. It’s just how we roll.

However, using whatever arguments, witnesses, evidence that may be available at this adversarial hearing in order to prevent assets from being frozen means that the defendant essentially gives his defense away for free, in advance, to the government. To the extent there is any hope of fighting on a level playing field, it’s lost when the defense lays its cards on the table in advance of trial.

Yet if the defense fails to do so, then he loses at the hearing, his assets are frozen and his lawyer goes home.

The Constitution assures the defendant’s right to counsel. That right is extended to counsel of choice, provided the defendant has the wherewithal and counsel of choice agrees to sign on. The problem isn’t the lack of an adversarial hearing, though such a hearing seems absurdly mandatory for minimal due process, but that a person is deprived of use of his assets to fight the charges against him based upon the argument that upon conviction, the assets should be forfeited to the government. It’s a brilliant system provided you’re the government. Not so good for the defense.

Not to disagree with the ABA’s position, nor lack appreciation of its taking a stand here, the problem won’t be resolved by a hearing but by reversal of the grossly misguided 5-4 decision in United States v. Monsanto, holding that the government’s interest in freezing potentially forfeitable assets pre-trial trumps the defendant’s Sixth Amendment right to counsel of choice.

As nice as the due process offered by an adversarial hearing may be, it’s akin to holding a trial before sentencing. If the outcome is a foregone conclusion and we’re just going through the motions, then it’s just another instance of putting form over substance. The defendant still gets screwed. Defense counsel too.


7 thoughts on “For The Love Of Process: A Hearing Before Getting Screwed

  1. C. N. Nevets

    I assume that, since the finances are restrained and not seized , they still count among the defendant’s wealth and thus likely prevent the option of a public defender? “You have this much money.” “Then I’d like to use it to hire a lawyer.” Yeah, that’s not going to happen.” “Then appoint me a lawyer.” “You don’t qualify; you have too much money.” etc….

    1. SHG Post author

      They’re happy enough to give a defendant a FD or CJA lawyer, as long as it’s not the lawyer the defendant wants.

      1. A Voice of Sanity

        > “… as long as it’s not the lawyer the defendant wants.”

        Doesn’t that open room for an appeal for ineffective assistance of counsel, not to mention violation of the Constitution?

        Once the defendant has committed to a particular counsel, the state is in a weaker position, no?

        1. SHG Post author

          No. Counsel of choice and ineffective assistance have nothing to do with each other. Entirely unrelated concepts. As for the state being in a “weaker position,” it’s unclear what you mean, but if you’re saying that it somehow affects the government’s ability to freeze assets, then no, it does not. Again, entirely unrelated concepts.

  2. Bart Torvik

    Very interesting post and issue. I’m probably missing something, but a thought: if the government can’t freeze the assets until after the adversarial hearing, wouldn’t the need for a hearing give the accused the time necessary to hire and pay for an attorney? If it does, the practical issues you raise would kind of melt away assuming the accused has at least a minimal amount of notice prior to the hearing.

    1. SHG Post author

      While I consider that a feature rather than a flaw, not exactly. If the govt was to give notice of a pending restraining order, and the deft ran to the bank to take it out to give to his lawyers, he would likely be subject to obstruction and the lawyer would be subject to the assets being taken from his account as substitute proceeds. The other alternative would be for the court to grant a TRO pending the hearing so that the deft can’t hypothecate the funds in the interim.

      Don’t fear for the govt getting screwed. It always manages.

  3. peck2

    Stop with the lie that one is considered innocent until proven guilty. The entire government legal system (there is no such thing as a justice system) considers one guilty from the “git go”. If you are a defendant and you lie “under oath”, you can be charged with perjury. If you are part of the corrupt government legal system and you lie “under oath”, you not only get away with it, you are often rewarded with promotions and medals.

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