Few clues on what SCOTUS will do about pre-trial detention of assets.

Yesterday's oral arguments in Kaley v. United States seemed to accomplish little for either reform advocates or the government. At stake is whether indicted (but still presumed innocent) defendants should enjoy an opportunity for a hearing wherein they could attempt to show that they were entitled to use their frozen assets to hire counsel because the charges against them were flawed. 

The government, unsurprisingly, insisted (1) that an additional hearing would be unfair to the government, inviting fishing expeditions from the defense; (2) that an additional hearing, where defendants could show that the prosecution's case lacked merit, would upend the sanctity of grand jury indictments; and (3) that the whole process would be novel and unwieldy, requiring the court to make up extensive new procedure to cabin the process.

The Kaleys enjoy the more intuitive appeal: it seems unfair that defendants should be prevented from using their own money to hire a lawyer because a prosecutor claims their assets were involved in a disputed crime and because a grand jury returned an indictment without giving the defendant an opportunity to put on a defense. The too common upshot, then, is that defendants, without access to qualified counsel, need to plead guilty because they cannot defeat the charges without qualified counsel. The process effectively subverts any meaningful notion of due process in a legal system that requires a good lawyer to prevail.

What the Justices might do, if anything, about the obvious unfairness, however, remains to be seen. Justice Antonin Scalia fretted about the strange territory the defense's proposed remedy would require the court to create, indicating he'd rather create a sweeping new rule that the government "cannot, even with a grand jury indictment, prevent the defendant from using funds that are in his possession to hire counsel" than create unwieldy new procedure for special adversarial hearings to determine whether the continued freezing of assets to deny counsel is appropriate.  Justice Samuel Alito, a former prosecutor, seemed worried that such hearings would generate fishing expeditions for additional discovery from the defense. Chief Justice John Roberts and Justice Stephen Breyer hammered the government's lawyer, repeatedly disputing the salience of the government's arguments and facts. 

At this point, it is, of course, difficult to predict how the justices might rule. However, reform might get at least three votes. A coalition of Chief Justice Roberts and Justice Breyer and Justice Sonia Sotomayor, who authored the landmark Krimsock v. Kelly decision that invalidated New York City's policy of seizing and indefinitely detaining DUI suspects' vehicles without allowing defendants opportunity to challenge the seizures before trial (which could take years to get to) and effectively created Krimstock hearings, seems plausible. 

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