Putting Kaley in Context

Suppose the government accuses you of a crime. Suppose it freezes your money while you await trial, claiming that if you’re convicted, you’ll have to forfeit the assets. Are you entitled to argue to a judge that you’re entitled to the money, so that you can use it to pay an attorney to get you acquitted? Or do you have to go to trial without the money you maintain you earned legally, even if that means relying on a public defender?

The Supreme Court took up this issue Wednesday in Kaley v. United States . Oral arguments were complicated. Much of the discussion concerned the nature of the hearing Kerri Kaley and her husband were asking for. What were they entitled to try to prove? What evidence would be considered? If the hearing gave the defense the chance to dispute that there was probable cause, wouldn’t that undermine the grand jury?

Troubled by that last point, Justice Antonin Scalia suggested, on page 14 of the transcript , that it would be better not to have any such hearing—but to let defendants use their otherwise frozen funds to hire lawyers anyway. The Kaleys’ lawyer didn’t take him up on it. He thought that issue had been decided in the 1989 Supreme Court cases of Monsanto and Caplin & Drysdale . But the Supreme Court has the power to overturn its own precedents, and considering the difficulties Scalia and other Justices were having with the idea of a hearing, counsel might have been wiser to pursue his invitation to advocate a blanket rule that otherwise frozen funds may be used to pay for a defense.

Certainly such a ruling would do more to protect the right to a fair trial in business cases. In these cases, vast collections of documents may be involved, and mounting a reasonable defense may require correspondingly large expenditures. Moreover, business defendants may already have relatio

nships with lawyers whom they trust and who have relevant expertise.

In deciding Kaley, the Court should remember that we now have an attorney general and a Department of Justice who don’t believe that defendants (at least as a rule) should insist on a trial—and that the overwhelming majority of convictions are now obtained through guilty pleas. The power to freeze the money a defendant needs to defend himself as he thinks best is a bludgeon the government can use to try to beat defendants into submission—and out of their right to a trial. In a society where the prosecutors are working to keep people accused of crimes from defending themselves, all such bludgeons are dangerous, not just to the guilty, but to the falsely accused. The Court should consider whether due process allows the government to use this bludgeon

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