Chief Justice Roberts Is On the Side of Criminal Defendants? His Best Quote Yet

July 11, 2014

By: Sara Kropf

The Sixth Amendment guarantees the right to counsel. The Fifth Amendment establishes the grand jury. What happens when the right to counsel conflicts with the grand jury’s role?

The grand jury wins. So says the United States Supreme Court in the context of criminal forfeiture.

Justice Roberts dissented. Along the way, he makes a power case for the importance of protecting a defendant’s choice of counsel.

Monsanto and Probable Cause Required for Criminal Forfeiture

Under 21 U.S.C. § 853, the government can seize an indicted defendant’s assets before trial based solely on a grand jury’s determination of probable cause. Of course, defense counsel never has a chance to make a case before the grand jury, only the government.

In United States v. Montsanto, 491 U. S. 600 (1989), the Supreme Court addressed the elements of probable cause needed to properly seize criminal assets when a defendant seeks to use those assets to pay attorney’s fees. The Court held that the government must secure a grand jury determination of probable cause on two separate issues. The grand jury must determine both (1) that the defendant committed an offense that permits forfeiture, and (2) that the property to be seized has a requisite connection to the crime. However, Monsanto left open the question of whether there is a constitutional right to a hearing for the purposes of challenging the grand jury’s assessment of probable cause.

After Monsanto, lower courts had taken different approaches to criminal forfeiture probable cause hearings. While every Circuit gives the defendant the right to a hearing challenging their property’s connection to the alleged criminal conduct, the Circuits had been split on whether a defendant is entitled by constitutional right to contest the finding of probable cause that she actually committed the offense.

In March of 2013, the Supreme Court granted certiorari in Kaley et vir. v. United States, to resolve this split among the Circuits.  (Note: “et vir” means “and husband.” I’ll save you the time googling it.)

So what happened?

Well, the Court ruled that no such right to contest probable cause exists.

The Facts in Kaley

The Kaleys were not accused of a violent crime. Heck, they weren’t even accused of a drug crime. They sold medical devices.

Kerri Kaley was a representative for a Johnson & Johnson subsidiary. She and her husband, Brian Kaley took medical devices across state lines and sold them for profit. The indictment accused the Kaleys of stealing those medical devices and then laundering the profits from those sales.

The Kaleys denied it. They responded that the medical devices were outdated models and unwanted surplus. They were not stolen.

Once it secured the indictment, the government sought a restraining order to freeze the Kaleys’ assets, including a $500,000 certificate of deposit. The Kaleys intended to use this CD to pay for their legal fees. The lower court granted the government’s request and entered an order freezing their assets.

The Kaleys moved to vacate the order and asked for a hearing to show that their conduct was not criminal. After shuttling back and forth on appeal, the Supreme Court granted cert.

In their brief, the Kaleys and their defense attorney argued for a proposed rule under which they could contest the probable cause that they committed the underlying offense as a basis for attacking the forfeiture. That hearing, the defense argued, should take place before a disinterested judge to allow both sides to argue the issue fairly.

The Majority Refuses to Question The Grand Jury’s Role

Justice Kagan, joined by Justices Kennedy, Scalia, Ginsburg, and Alito delivered the opinion of the court. The majority rejected the Kaley’s proposal. The proposed rule could give rise to “legal dissonance” where (1) there were inconsistent rulings on the same issue in a single criminal proceeding and (2) a judge finding no probable cause underlying the charges of the indictment might later preside over a trial premised on the existence of that probable cause.

According to the majority, the grand jury’s probable cause determination should be the final word in criminal forfeiture cases in part because the justice system uses it as the basis for other, more serious, matters. In what the dissent calls a “greater-includes-the-lesser” argument, the majority highlighted the fact that courts issue arrest warrants based on a grand jury’s unreviewable probable cause determination. If individuals can be arrested based on the grand jury’s determination, then so too can assets be seized.

If judicial review of the grand jury’s probable cause determination is not warranted (as we have so often held) to put a defendant on trial or place her in custody, then neither is it needed to freeze her property. The grand jury that is good enough—reliable enough, protective enough—to inflict those other grave consequences through its probable cause findings must be adequate to impose this one too.

Makes you wonder what other constitutional rights can be denied based on the grand jury’s determination, doesn’t it?

The majority also examined the issue using the balancing test introduced in Matthews v. Eldridge, 424 U.S. 319, 335 (1976) to show that such a hearing could not be constitutionally mandated. The Eldridge test balances the (1) burdens a proposed procedure would impose on the government against (2) the value of the individual interests at stake, coupled with (3) the risk of erroneous deprivation of that individual interests without the procedure and the anticipated value of the additional procedural safeguard…

While it was careful to say that the Eldridge test was a poor fit for the current criminal case, the majority nonetheless applied it. Because both the government interests (punishment, deterrence, victim remuneration) and individual interests (choice of counsel) are high, Justice Kagan wrote, the third prong of the test is the one that would be dispositive. The test “boils down to the ‘probable value, if any,’ of a judicial hearing in uncovering mistaken grand jury findings of probable cause.”

According to the majority there is little risk of an erroneous determination of probable cause because the bar is so low.

Wow. The majority might as well have said, “a grand jury will pretty much indict anyone, and we’re ok with that. Also, we’re fine with using that incredibly low bar to deny defendants the ability to pay for their chosen lawyers.”

Oh Justices Ginsburg and Kagan—what happened?

The Dissent

Chief Justice Roberts, along with Justices Sotomayor and Breyer, poked holes in the majority’s arguments and assumptions. (I love it when I’m on Justice Roberts’ side … it feels so dangerously wrong.)

The dissent first argued that the majority’s feared “legal dissonance” is a fiction. The presiding judge may end up considering a completely different set of information from the grand jury. As a result, the judge’s finding of no probable cause could be based on a different set of facts and would not necessarily be inconsistent with the grand jury’s original determination.

(For example, the presiding judge may actually get to hear from defense witnesses who can challenge probable cause. You never know when letting the defendant put on a defense may affect things.)

Plus, the hearing would not relitigate whether there was probable cause to indict, only whether there is probable cause to seize the assets:

At that hearing, the District Court would consider the merits of the prosecution to determine whether there is probable cause to believe the Kaleys’ assets are forfeitable, not to determine whether the Kaleys may be tried at all.

Second, the dissent explained that the defendants’ proposed rule would not be burdensome on the government. Because a defendant would have to overcome a high bar to show that she is entitled to such a hearing at all, these hearings would be few and far between. This tips the Eldridge test in favor of the defendant.

In addition, Justice Roberts noted:

I see no great burden on the Government in allowing it to strike this balance as it sees fit when considering a pretrial asset restraint that would deprive a defendant of his right to counsel of choice. In the end, it is a bit much to argue that the Government has discretion to deprive a defendant—without a hearing—of the counsel he has chosen to present his defense, simply to avoid the mere possibility of a premature peek at some aspect of what the Government intends to do at trial.

It’s the third point that will be closest to every defense counsel’s heart.

Third, the dissent argued that the majority discounted the importance of choice of counsel. This goes to both the “greater-includes-the-lesser” argument and the weight that should be given to the individual rights at stake in the Eldridge test.

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. “A fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U. S. 133, 136 (1955).

The dissent reasoned that the temporary loss of liberty resulting from an arrest warrant is insignificant when compared to the potential for a lengthy prison sentence if a defendant is deprived her choice of counsel. Moreover, when a defendant is deprived of that choice, she has no way to rectify the error. This error has recognized by the Supreme Court a structural one that cannot be vindicated at any future adversarial proceeding.

Therefore, the dissent claims, due process demands the Kaleys have an opportunity to challenge the probable cause determination before the trial begins.

Shouldn’t a Defendant’s Choice of Counsel Outweigh Any Burden on the Government

Justice Roberts closed by saying

Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers—one at a time.

Read that one again. It’s an amazing statement.

The government constantly argues in criminal cases that some ghost-like and vaguely apocalyptic “burden” prevents it from being seriously challenged in court. The issue of criminal forfeiture is no different. Justice Roberts made a good case for why the burden argument here was a red herring but had no luck persuading the majority.

But shouldn’t government be required to show something more than probable cause in front of a friendly grand jury before it is allowed to seize a defendant’s money to deny him his choice of counsel?

Why not at least create an exception that the government cannot seize assets that are devoted to hiring counsel? This could protect the Sixth Amendment without undermining the grand jury. It’s not a perfect solution, but at least it would prevent an aggressive prosecutor from seeking to “hamstring his target.”


A third person indicted with the Kaleys for this supposed offense was acquitted. She had her choice of counsel.

Published by Kropf Moseley

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