The Big, Bad Freeze

The Supreme Court just made it easier for the government to take your assets before you even go to trial.

Photo illustration by Lisa Larson-Walker

Justice for Kerri and Brian Kaley, the Supreme Court held Tuesday, is of the Alice in Wonderland variety: First comes the punishment—the seizure of all their assets—then the trial, and the crime last of all.* “But suppose they never committed the crime?” Alice asks. “It doesn’t matter,” comes the court’s answer, “because a grand jury said so.”

Writing for a six-justice majority in Kaley v. United States, thus concluded Justice Elena Kagan that a criminal defendant indicted by a grand jury has essentially no right to challenge the forfeiture of her assets, even if the defendant needs those very assets to pay lawyers to defend her at trial. In an odd ideological lineup, the dissenters were Chief Justice John Roberts and the more liberal Justices Stephen Breyer and Sonia Sotomayor.

The Kaleys’ saga began more than nine years ago when Kerri, a medical device salesperson, learned that she was under investigation by federal authorities for stealing devices from hospitals. Kerri admits she took some devices and later sold them with Brian’s help, but she says the devices she took were unwanted, outdated models that the hospitals were glad to be rid of—in effect, that she couldn’t steal something that was given to her. (It’s not a crazy argument. In fact, it worked for a co-defendant, who was quickly acquitted by a jury after the government failed to find even a single hospital that claimed ownership of the allegedly stolen goods.)

With charges looming, the Kaleys sought an estimate from their lawyers of how much mounting a defense would cost. The answer: $500,000. (That figure may seem high, but sadly the government agreed it was reasonable.) The Kaleys took out a home equity loan and used the $500,000 to purchase a certificate of deposit, which they planned to spend on lawyers.

Then came the grand jury indictment and with it a nasty surprise: an order freezing essentially all their assets, including the CD that was meant to pay their legal bills. The only assets exempt from the order—Kerri’s retirement account and their children’s college funds—weren’t enough to cover the $500,000 estimate. And if the Kaleys liquidated those funds, they’d have owed $183,500 in tax penalties. The bottom line: They could no longer pay for their lawyer of choice even though, as the government agreed, that’s what the Sixth Amendment right to counsel protects.

The reason the Kaleys are in this mess has its origins in the 1970s, when Congress started passing a series of forfeiture laws as part of the war on drugs. The logic is simple: Crime should not pay. If you made money stealing or embezzling or dealing drugs, you shouldn’t get to keep your yacht or your house. But as Sarah Stillman’s heartbreaking story in The New Yorker showed last year, the trend in these laws is to make asset forfeiture easier for the government. The civil forfeiture statutes that Stillman wrote about don’t even require a conviction for any crime. Neither does the provision of the criminal forfeiture law used in the Kaleys’ case, and they have yet to be tried, let alone convicted.

The Kaleys have tried only to keep the assets they want to use to pay for a lawyer, based on the Sixth Amendment. They initially had some success. A judge questioned why the government sought to freeze the entire CD when only $140,000 could be linked to the proceeds of the Kaleys’ allegedly criminal enterprise. The government’s response came just a few days later in the form of a new grand jury indictment adding a charge of conspiracy to commit money laundering. That allowed the government to say the entire $500,000 should be frozen because the funds were “involved in” the underlying theft. The lower courts went along.

As the case came to the Supreme Court, the role of the grand jury was front and center. Before the assets they wanted to use for defense counsel could be seized, the Kaleys argued that a judge should review the grand jury’s decision to indict them. Such hearings, where the judge hears evidence from both sides, have been conducted for more than 20 years in the U.S. Court of Appeals for the 2nd Circuit (the one that oversees New York, Vermont, and Connecticut). The couple argued the hearings would ensure their funds weren’t seized on the basis of a flimsy case against them. The government, on the other hand, said the grand jury should always have the last word. The government won—and that was the wrong call.

To be sure, grand juries have a proud history dating back to the founding era. In order to charge someone with a crime, prosecutors had to convince a grand jury, made up of local citizens, that they had a good reason to do so. As such, grand juries served as an important check against unjust prosecutions. In 1734, for example, two separate grand juries in New York refused to indict newspaper publisher John Peter Zenger on charges of seditious libel after he printed articles critical of the British governor. After the revolution, the requirement that serious crimes be prosecuted by grand jury unsurprisingly made it into the Fifth Amendment.

More recently, however, the grand jury has turned into a prosecutorial tool. Writing in 1973, one eminent judge noted that “the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything.” Another judge, as famously memorialized by Tom Wolfe, gave us the memorable line that a grand jury “would indict a ham sandwich.” By design, grand juries remain entirely one-sided affairs, guided by the prosecutor, who has no obligation to offer the defendant’s side of the story. The United States stands alone among common-law nations in still using them.

Reading Tuesday’s opinion, however, one would think the justices in the majority were living in the 18th century. In her 21-page paean to the grand jury, Kagan invoked the “fundamental and historic commitment of … grand juries,” the “inviolable grand jury finding,” and “the grand jury’s singular role.” There’s not a word about all the modern-day reasons to doubt its independence. In sharp contrast, Chief Justice Roberts, in dissent, called for a dose of pragmatism. “Common sense,” he wrote, “tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides.”

Of course, federal grand juries are going nowhere anytime soon. But I would have hoped the court would have seen fit to limit the damage they can do by giving criminal defendants, who are up against the awesome power of the state, a fair hearing before stripping them of their primary means of defending themselves. The Constitution should demand no less.

*Correction, Feb. 27, 2014: This article originally misidentified Kerri Kaley as Kelli Kaley. (Return.)