WHEN IT TAKES A VILLAGE TO FIGHT THE GOOD FIGHT

When probable cause exists that one should be made a criminal defendant and stand trial, the State gains the right to freeze the assets used in, or that are the proceeds of, the alleged crime.  This can be done before the defendant is ever convicted – in fact, before trial.  It can even be done if taking those assets prevents the defendant from hiring the attorney of their choice.

True, the Constitutional right to counsel encompasses the fair opportunity to secure one’s own choice as counsel.  But it is also true that this right has limits, as do all rights.  Drug dealers will not be allowed to sell the ware they were caught with, or the cash they just got in exchange, to hire some high-price lawyer.

A federal law goes further though.  It allows the government to seize any asset of equal value to those the State says were acquired as a result of the alleged crimes.  That includes, on the face of it, money and other assets that no-one claims were the product of any crime at all – what courts call untainted property.

This was a step to far for the Supreme Court.  The federal government cannot, it held, take so much of someone’s untainted assets that they cannot afford to hire the lawyer of their choice.  While the dissent feared this would encourage criminals to spend the proceed of their evil deeds as quickly as possible, the Court accepted that risk so as not to undermine the value of the constitutional right to counsel.

We would not presume to speak much about criminal law on this blog, as our firm does not practice in that area.  But forfeiture proceedings are civil actions.  Knowledge of civil procedures and the scope of the State’s forfeiture rights are a different story from the criminal trial per se.  Sometimes, it takes – if not a village – two lawyers to fight the good fight.