On February 25 the Supreme Court held in a 6:3 decision that when challenging a pre-criminal trial asset seizure, the criminal defendant is not entitled to contest a grand jury's determination that there is probable cause to believe that the defendant committed the crimes in question (Kaley et vir v. United States).
Chief Justice Roberts wrote in the dissenting opinion:
"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 that 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..."
The defendants' $500,000 CD that they intended to use for legal fees was frozen pursuant to a federal statute. A previous Supreme Court decision indicated that this form of asset seizure requires a finding that there is probable cause to think that the defendant committed an offense allowing forfeiture, and that the property is sufficiently connected to the crime. The majority decision determined that the defendant was not entitled to a hearing to contest the grand jury's determination of probable cause that the defendant committed an offense allowing forfeiture.
The majority expressed concern that allowing a hearing might produce contradictory probable cause findings. Additionally, the Government might have to reveal its witnesses and trial strategy at the hearing. However, the majority also noted that showing probable cause is not a "high bar," a point that the dissent commented upon. The majority also noted that in federal Circuits that allowed a hearing like the defendants requested, the [defendants did not find] "a single case in which a judge found an absence of probable cause to believe that an indicted defendant committed the crime charged."
The dissenting opinion discussed the facts of this case in detail, noting that the defendants had obtained the $500,000 CD from a home equity line of credit. The Grand Jury indictment included language that the $500,000 CD was subject to forfeiture as "proceeds" of the alleged crimes. Based upon this language, the prosecution obtained an ex parte (only one side was represented) order freezing the CD. A co-defendant whose assets were not frozen was acquitted in a jury trial while this appeal was pending. Her attorney argued to the jury that no witness claimed ownership of the allegedly stolen items.
The dissent additionally emphasized the Sixth Amendment's guarantee of "the assistance of counsel" and that "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."
In my opinion, the dissent makes the better argument in this case. The fundamental legal concept of due process requires the right to be heard by a neutral decision maker before having life, liberty, and property taken by the government. The majority opinion seems to unduly fear a hearing. While it is true, as the majority states, that a grand jury indictment may result in an arrest that deprives one of freedom, is also true, but unstated by the majority opinion, that a defendant is typically entitled to bail that restores a measure of that lost pre-trial freedom. A probable cause hearing simply grants some reviewing authority to a neutral decision maker that is not as subject to prosecutorial influence as a grand jury may be. Society should always be concerned about the unchallenged exercise of power.