Prosecutors Gain a Dangerous Weapon

Suppose the government claims your business was illegal. You disagree, and you’ve worked with a lawyer to build your case. But the government gets an indictment anyway, from a grand jury that hears only the government’s case, so the court freezes the money you made in your business and you can’t pay your lawyer anymore. You have to go to trial with a public defender, not the lawyer you trust and who knows your case.

In such a situation, you would probably want a chance to argue that you’re entitled to use your money to pay your lawyer because your actions weren’t a crime.

Yesterday, in the case of Kaley v. United States, the Supreme Court held that the Constitution doesn’t give you that chance. The circuit courts with jurisdiction in New York, California, Illinois, and Washington, D.C., had all held that a defendant who needed his money to pay his lawyer was entitled to argue that he hadn't committed a crime and was therefore entitled to use it. Those precedents have now been overturned. The precedents of the circuit courts that held defendants could only argue that their assets didn't come from their alleged crimes have been upheld.

Sadly, going by its own precedents, which the defendants in Kaley chose not to challenge, the Court’s 6-3 decision is legally correct. Nevertheless, the power to freeze the money a defendant needs for legal fees is a dangerous weapon to give prosecutors.

EXPLORA:

• Alexander R. Cohen, Putting Kaley in Context
• Alexander R. Cohen, Treacy: Get a Lawyer When You Become Big
• Alexander R. Cohen, Equal Injustice 50 Years after Gideon

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