WHEN the state accuses you of a crime and seizes your assets before trial, thus preventing you from hiring the counsel of your choice, what recourse do you have? That question is at the heart of Kaley v United States, a case the United States Supreme Court issued its decision on this week. The answer, worryingly, seems to be: None.

The case concerns an aspect of civil asset forfeiture (which we have writtenaboutbefore) that allows prosecutors to freeze an indicted defendant's assets before trial if they would be subject to seizure upon conviction. The question is whether defendants can challenge the forfeiture's legitimacy when it was based on a grand-jury indictment. A brief refresher: grand juries do not decide guilt or innocence; they simply decide whether enough evidence exists to charge a defendant with a crime, ie to indict him. Proceedings are usually closed to the public, and indeed to defense attorneys as well. Grand juries usually only hear evidence from the prosecutor. Historically, they had an investigative function as well—they were supposed to scrutinise the government's evidence—but many believe they are now little more than rubber stamps for prosecutors.

In this case, a grand jury indicted Brian and Kerri Kaley on charges of selling stolen medical equipment and laundering the proceeds. The Kaleys contested the allegations: they said the equipment was unwanted excess, and that they should not be charged with stealing something that nobody wanted. That argument convinced a jury to acquit a co-defendant, indicted along with the Kaleys, after the prosecution could not find a single witness who claimed ownership of the allegedly "stolen" devices. But it did not save the Kaleys.

When they first learned they were under investigation, the Kaleys took out a $500,000 home-equity loan and used that to pay for a certificate of deposit in that same amount, which they set aside to pay their lawyers. But when the grand jury returned its indictment, the government froze their assets, including the $500,000 certificate of deposit, arguing that those assets were "proceeds" of their alleged crimes. The Kaleys requested a hearing at which they could argue that the assets should not be subject to forfeiture because their alleged conduct was not criminal. They also argued that the forfeiture froze funds they needed to pay the lawyer who had been preparing for two years to defend them. The prosecution even admitted that they could only trace $140,000 in allegedly criminal proceeds to the Kaleys. And so they did the reasonable thing and unfroze $360,000. Just kidding! What the prosecution actually did was indict the Kaleys on conspiracy to commit money laundering, which carries a much broader forfeiture remit, and allowed the government to seize even more of their assets, including their home. They contended that these seizures prevented them from retaining the counsel of their choice, which the Supreme Court has long held that the Sixth Amendment guarantees, and they contended that they were entitled to a hearing to challenge the freezing of their assets.

In an odd 6-3 split, which found Justices Roberts, Sotomayor and Breyer in the dissenting minority, the court ruled against the Kaleys. Justice Kagan, writing for the majority, says that the Kaleys have no constitutional right to "relitigate" the grand jury's finding of probable cause, which led to their assets being frozen. But as Mr Roberts notes in his dissent, that is not at all what they were seeking. They wanted a hearing not on whether there exists probable cause to charge them with a crime, but on whether their assets should be subject to forfeiture. The prosecution, and Ms Kagan, believes that the two are the same. They are not. As Mr Roberts notes in his dissent, a ruling on the forfeiture alone "would have no necessary legal or logical consequence for the underlying prosecution because it would be based on different evidence and used for a different purpose." And, of course, nothing would be "relitigated", because nothing was litigated the first time: defendants are not present at a grand jury hearing, nor does the prosecution have any obligation to fairness. As a former judge famously remarked, a competent prosecutor ought to be able to convince a grand jury to "indict a ham sandwich."

Mr Roberts is absolutely correct in noting that Ms Kagan's ruling "pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching." And in the Kaleys' case, the government has a strong financial incentive to overreach. They froze more than $2m in assets. If the Kaleys win, they get their money back; if they lose, the government gets to keep it.

None of this seems to trouble Ms Kagan, however. For her and her five colleagues, a grand jury's decision, reached after hearing only the prosecution's case, is sufficient to determine whether the government can take everything you own and prevent you from hiring your counsel of choice. The government need not conclusively link the assets seized to the crime; they can simply charge you, allege a link and take everything you own.

Mr Roberts's conclusion is so good it's worth quoting at length: "[F]ew things could do more to 'undermine the criminal justice system's integrity,'... than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard. That is the result of the Court's decision in this case, and it is fundamentally at odds with our constitutional tradition and basic notions of fair play."