ILL GOTTEN GAINS, OR NOT QUITE YET

Eager to ensure that criminals would not benefit from their crimes, Congress has passed forfeiture laws.  Under those, assets (from cars to money to houses) used in the commission of the crime may be confiscated by the government.  Every state has followed suit, to nobody’s surprise.  Auctions of forfeited goods supplement law enforcement budgets quite nicely.

More controversially, assets suspected to have been used in the commission of an alleged crime may be frozen before trial and therefore before one if convicted of anything.  All it takes is probable cause (in other words, as the Supreme Court just clarified, an indictment) and finding that the asset is linked to the alleged offense.  Once that is done – and it does not take much – the assets are frozen.  They may not even be used to pay for an attorney of the Defendant’s choice.

Chief Justice Roberts, the same supposedly arch-conservative, anti-defendant Chief Justice castigated by certain media outlets, dissented from that line of thinking with a passion worth quoting directly:

“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.”

The Chief went on to deplore the ways in which the Court has continued to sustain the means prosecutors and legislators have created to put increasing hurdles in front of a defendants’ ability to hire counsel.

In the meantime, forfeiture proceedings will continue.  In Florida, those are civil proceedings.  Civil litigators and, as needed, appellate attorneys, are thus well suited to handle those matters.  And there are a few defenses left for us to fight the good fight.