Choice of Counsel and the Appearance of Equal Justice Under Law

INTRODUCTIONThe Supreme Court recently ruled, in Kaley v. United States, that defendants have no opportunity to challenge grand jury findings that lead to pretrial restraint of potentially forfeitable assets they would use to retain counsel.1 Consequently, prosecutors are able to decide, without any opportunity for challenge from the defense, whether they would like to handicap defendants' abilities to mount a case.2 The Court has certainly not been uniformly vigilant in maintaining a level playing field between prosecutors and defense lawyers,3 but examining Kaley in isolation, it is difficult to explain the authorization of such an imbalance of power. Recognizing the strategic effect of freezing assets used to retain counsel, however, would have spotlighted the differences in the protections afforded to wealthy and indigent defendants. The opinion thus is more easily explained as an effort to obscure the realities of justice in a world of scarce resources than as an assessment of the appropriate use of prosecutorial power.Part I of this Essay surveys the background of forfeiture laws before and after Kaley v. United States. Part II then examines the Court's problematic analysis that produced what seems like an unjust result. Part III argues that the majority in Kaley was driven by a desire to avoid focusing attention on an even larger injustice for which the Court could not provide a remedy.I. FREEZING ASSETS, FREEZING A DEFENSEA. Taking Title Through Forfeiture LawsForfeiture laws enable the government to handicap criminal organizations by taking their profits and means of operations.4 The laws also present prosecutors with incredible strategic pretrial advantages.5 Forfeiture allows the government to ultimately take title to assets that are the proceeds of criminal activity or have been used to facilitate criminal activity.6 These laws are of two types: civil and criminal.Civil forfeiture laws are proceedings against the property and require only a finding by the preponderance of the evidence.7 The offending property is taken so that individuals, or criminal organizations, may neither profit from the spoils of a crime, nor press the property back into service to commit further crimes.8 Criminal forfeiture laws punish the person by taking the property involved in criminal activity after a finding of guilt.9 This forfeiture mechanism requires proof of criminal wrongdoing beyond a reasonable doubt.10 Although the burden is higher, prosecutors often opt for criminal forfeiture because a parallel civil forfeiture proceeding would allow the criminal defendant to depose many of the witnesses that the prosecution would call at trial.11Once a grand jury returns an indictment, federal prosecutors can obtain an ex parte order restraining assets traceable to the criminal conduct alleged if there is a substantial probability that the government will prevail in the forfeiture sought and if the property would be unavailable for forfeiture absent the requested restraint.12 Prior to the Kaley decision, a number of federal circuits held that the Sixth Amendment right to choice of counsel guaranteed a defendant the right to a hearing to challenge an order freezing assets intended to retain counsel.13 These courts concluded that defendants were permitted to challenge both the government's claim that probable cause existed to believe that the defendant had committed the crimes giving rise to forfeiture and the claim that the frozen assets were traceable to the alleged crimes.14B. Kaley's Facts and HoldingIn Kaley, the Supreme Court held that while a defendant could challenge the district court's determination that the frozen assets were traceable to the defendant's alleged crimes, he could not challenge the preliminary determination that he had committed the alleged crimes.15 Justice Kagan's majority opinion concluded that the grand jury's finding of probable cause to believe the defendant committed the crime giving rise to forfeiture was sufficient to justify pretrial restraint of all assets traceable to the alleged crime, even if the assets would be used to fund the defendant's constitutionally protected right to choice of counsel. …