What does a court do if the very assets it seeks to freeze are being used to hire an attorney to argue the defendant’s right to them? This is the dilemma the Supreme Court agreed to consider earlier this year.
According to the Washington Post, in 2007, when Kerri and Brian Kaley of Miami were accused of stealing medical devices, they took out a half million dollar line of credit on their New York home to hire a good lawyer. However, prosecutors sought to block this line of credit because, if the Kaleys were found guilty, the government would seize the house as forfeiture.
From the perspective of the defendant, your assets are frozen before you are even convicted of a crime. Furthermore, without those assets you cannot hire an attorney of your choice. In the case of the Kaleys, the defendants face a maximum of 85 years in prison and the forfeiture of their home. With stakes this high, they argue they are entitled to an attorney of their choosing.
“People who are indicted on criminal charges in the United States are presumed innocent,” says attorney Larry Salzman from the Institute for Justice. “Seizing their assets on the basis of an indictment alone turns the presumption of innocence on its head. It follows the rule of punishment first, evidence later.”
However, from the perspective of the courts, the accused can use up their assets to hire an expensive attorney then if ultimately convicted, there are no more assets to collect. Those accused of perpetrating Ponzi schemes, for example, could use up illegally acquired money to get themselves acquitted or delay or lighten their conviction. Furthermore, prosecutors maintain that if a case has enough merit to persuade a grand jury to formally indict someone, it has enough merit to freeze their assets as well.
In contention are the Fifth Amendment's due process clause, the Sixth Amendment's right to counsel, and the court’s presumption of innocence.
Sources: Washington Post