It’s been well-established that felony criminal defendants in the U.S. are entitled to a defense lawyer throughout the proceedings. As you may have gleaned from various cop shows, if you can’t afford one, the court will provide one to you.
However, that doesn’t mean that the attorney provided to you by the court, known as a public defender, will have the same kind of training, skill and experience as aBirmingham criminal defense attorney who has a successful private practice.
Inevitably, the latter will cost more. And typically, you’ll get what you pay for. But what if the reason you can’t pay is because the government has frozen your financial assets in connection with the crime of which you are accused, though not yet convicted?
That’s the issue in a case the U.S. Supreme Court has agreed to decide in this session.
The outcome could have a significant impact on countless criminal cases, as those facing serious charges will undoubtedly choose to spend at least some of their reserves on hiring a skilled defense team – if their cash is freed up to allow them to do so.
The case goes to the very heart of how we approach criminal cases in this country. If one is presumed innocent before proven guilty, why should he or she not have access to funds that would allow a strong defense?
This is not to say that public defenders can’t do a decent job. There are some who are very good at what they do. But it’s a gamble. When the court assigns you a public defender, you may get someone who has extensive prior experience with your kind of case. You may get someone who is taking on their very first case. Most are overworked regardless.
In this case, Kaley v. U.S., opening arguments were first heard in mid-October, although a decision may not come until sometime next year.
At issue is both the Fifth Amendment right not to be deprived of property without due process of law and the Sixth Amendment right to have access to assistance of counsel for purposes of defense.
The two defendants, a husband and wife, were sales representatives for Johnson & Johnson when they learned that they were the target of a grand jury investigation. The government claimed that the pair were obtaining prescription medical devices from hospitals – devices typically used for surgery – and then reselling them on the “gray market.” The pair hired an attorney to represent them throughout what later turned out to be a two-year investigation.
Throughout that time, the attorney interviewed witnesses, combed through the company’s extensive return policies, reviewed mountains of documents, researched various legal issues and met with prosecutors.
A settlement agreement collapsed. An indictment was forthcoming. The two applied for a $500,000 line of credit on their home to fund their defense. However, the government sought to freeze the couple’s assets, meaning they could not take out the line of credit that would allow them to pay for an attorney of their choice.
As their attorney put it, the government is impoverishing defendants without offering the opportunity to be heard through their counsel of choice.
While the couple is asking the court only for a hearing in which to argue that they should be allowed to use their money to defend themselves, the Supreme Court justices seemed to suggest during oral arguments that they might be open to a broader form of relief. Justice Antonin Scalia was quoted as saying, “I would prefer a rule that says you cannot, even with a grand jury indictment, prevent the defendant from using fund that her in his possession to hire counsel. Don’t need a hearing.”
Whether the rest of the court will agree with him remains to be seen.