A Pivotal Asset-Forfeiture Issue Reaches The Supreme Court

Humor me for a second. What if you were charged with a serious crime, and you felt like your whole world were hanging in the balance, but you couldn’t retain a lawyer to defend you, not because you didn’t have any money, but because you couldn’t access any of it? What if the government had frozen all your bank accounts, home equity, and other assets even though you’re presumed innocent and the prosecution hadn’t proven anything yet?

That’s the situation that confronted Kerri and Brian Kaley, a married couple who were indicted in 2007 on federal charges related to the alleged theft of medical devices. After they were indicted, the government obtained a restraining order that froze a line of credit the couple had taken out on their home in order to pay their lawyers.

Today, they’re still waiting for their trial because the U.S. Supreme Court agreed to hear their challenge to the government’s pretrial freeze of their assets. Their case will decide an issue that has already divided the federal courts of appeals: whether the Constitution affords you the right to a pretrial hearing to challenge the government’s basis for freezing your assets and potentially depriving you of the means to hire the lawyer of your choice. The Court heard arguments in the case last Wednesday, and some observers have called it a close call.

The Kaleys’ petition has drawn support from the American Bar Association, the National Association of Criminal Defense Lawyers, and critics of the government’s perceived use of asset-forfeiture laws to line its pocket or stack the deck against defendants. We should have a decision by June.