Kagan and Roberts Can Write

February 25th, 2014

The unusual alignment in Kaley v. United States gave us something of a treat–Justice Kagan writing a majority opinion, with Chief Justice Roberts writing a dissent. These two are my favorite writers on the Court, and this opinion does not disappoint.

Kagan’s opening makes a mundane fact pattern about civil asset forfeiture understandable, and even interesting.

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the sei- zure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determi- nation of probable cause to believe they committed the crimes charged. We hold that they have no right to reliti- gate that finding.

This prose, past and present, is a joy to read:

This Court has twice considered claims, similar to the Kaleys’, that the Fifth Amendment’s right to due process and the Sixth Amendment’s right to counsel constrain the way the federal forfeiture statute applies to assets needed to retain an attorney. See Caplin & Drysdale, 491 U. S. 617; Monsanto, 491 U. S. 600. We begin with those rul- ings not as mere background, but as something much more. On the single day the Court decided both those cases, it cast the die on this one too.

And this paragraph:

And that inviolable grand jury finding, we have decided, may do more than commence a criminal proceeding (with all the economic, reputational, and personal harm that entails); the determination may also serve the purpose of immediately depriving the accused of her freedom. If the person charged is not yet in custody, an indictment trig- gers “issuance of an arrest warrant without further in- quiry” into the case’s strength. Gerstein, 420 U. S., at 117, n. 19; see Kalina v. Fletcher, 522 U. S. 118, 129 (1997). Alternatively, if the person was arrested without a war- rant, an indictment eliminates her Fourth Amendment right to a prompt judicial assessment of probable cause to support any detention. See Gerstein, 420 U. S., at 114, 117, n. 19. In either situation, this Court—relying on the grand jury’s “historical role of protecting individuals from unjust persecution”—has “let [that body’s] judgment sub- stitute for that of a neutral and detached magistrate.” Ibid. The grand jury, all on its own, may effect a pre-trial restraint on a person’s liberty by finding probable cause to support a criminal charge.

This is a great conclusion, though I think there may an odd usage in the last sentence:

The same result follows when, as here, an infringement on the defendant’s property depends on a showing of prob- able cause that she committed a crime. 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 needs be [sic?] adequate to impose this one too.

Kagan also replies directly to a point made by the Chief in dissent. The second sentence is such a subtle, but effective jab.

The dissent, while conceding this point, notes that courts may con- sider the “weight of the evidence” in deciding whether a defendant has rebutted the presumption. See post, at 9–10, and n. 3 (opinion of ROBERTS, C. J.). And so they may, along with a host of other factors relating to the defendant’s dangerousness or risk of flight. See §3142(g). But that is because the Bail Reform Act so allows—not because (as argued here) the Constitution compels the inquiry. And even that provision of the statute cuts against the dissent’s position, because it enables courts to consider only an evidentiary issue different from the probable cause determination. When it comes to whether probable cause supports a charge—i.e., the issue here—courts making bail determinations are stuck, as all agree, with the grand jury’s finding.

Here, I’m sure Kagan had to resist the urge to say “different umpire.” And the alliteration of “demand a do-over” is fantastic.

And indeed, the alternative rule the Kaleys seek would have strange and destructive consequences. The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is prob- able cause to think the Kaleys committed the crimes charged.

Here is the Chief’s intro, which paints the issue in a totally different light:

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.

We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense—the attorney he selects and trusts—by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an oppor- tunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent.

When I was clerking, I worked on a case where the Assistant U.S. Attorney moved to disqualify a defendant’s retained counsel, because he *might* call a witness at trial, and the retained counsel had previously represented the potential witness. On this basis, the Judge granted the motion to disqualify. At this point, presumably, the defendant had paid a lot of money to the lawyer. The defendant, now broke, was stuck with a CJA Panel attorney (and not a good one). This episode left a bad taste in my mouth. The case never went to trial, and the witness was never called. Just another guilty plea.

This paragraph from the Chief speaks to the case I worked on:

It is of course true that the right to counsel of choice is (like most rights) not absolute. A defendant has no right to choose counsel he cannot afford, counsel who is not a member of the bar, or counsel with an impermissible conflict of interest. Wheat v. United States, 486 U. S. 153, 159 (1988). And a district court need not always shuffle its calendar to accommodate a defendant’s preferred coun- sel if it has legitimate reasons not to do so. Morris v. Slappy, 461 U. S. 1, 11–12 (1983). But none of those limitations is imposed at the unreviewable discretion of a prosecutor—the party who wants the defendant to lose at trial.

There was good reason for that caution. 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 pro- ceeding.

And this:

In any event, few things could do more to “undermine the criminal justice system’s integrity,” ante, at 11, than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court’s decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play.

And this ode to criminal defense lawyers, with a subtle jab at the Leviathan U.S. DOJ.

The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial.

Federal prosecutors, when they rise in court, represent the people of the United States. But so do defense lawyers— one at a time. In my view, the Court’s opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant’s chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.