Defending Yourself With Hands Tied Behind Your Back

If you’re a ham sandwich, beware.

Six months ago, this blog previewed a Supreme Court case that was to decide an important issue concerning your ability to pay for a defense, and two weeks ago, we got a decision.

Here’s the question: If the government charges you with a crime, and if it then seizes or freezes your money or property because it believes those assets are connected to the crime, can you challenge the government’s taking of your property before trial? What if that’s the only way you had of paying your lawyers to defend you? Doesn’t due process entitle you to a hearing on the issue?

The answer: Yes and no. Yes, you may be able to ask your trial court for a hearing, and at that hearing, you may be able to get your stuff back if you can show that it’s unrelated to the alleged crime. But no, you can’t try to get it back by using the hearing to challenge the decision to charge you in the first place.

The answer is more nuanced than that because the case concerned the government’s use of grand juries to charge felony cases, which is nearly every case in the federal system. (It’s less of an issue in state systems, which seldom use grand juries to bring criminal charges.) In the federal system, prosecutors typically decide what charges to bring and what evidence the grand jury hears.

And that’s the beef that some people have with the Court’s decision: the grand jury is supposed to perform a gatekeeping function, but in reality, the process is one-sided. There’s no defense attorney in there with them; there’s no cross-examination or presentation of defense evidence; and hearsay is permitted. What was enshrined in the Magna Carta as a shield against the King’s power is widely seen as a rubber stamp for the government and prosecution.

To the detriment of all ham sandwiches.

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