Having followed Kerri Kaley’s struggle to enable herself and her husband to fight charges of dubious merit since the circuit, an old question arose: Would the law that grew like a fungus in the bad, old drug days of forfeiture law that gave rise to such discreditable decisions as Monsanto, be perpetuated now that they were being applied to people who society didn’t inherently despise?

The Supreme Court answered the question in Kaley v. United States, a split decision by Justice Elena Kagan: Hell, yes!

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure’s legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury’s prior determination of probable cause to believe they committed the crimes charged. We hold that they have no right to relitigate that finding.

The manner in which the Court structured its issue, and hence its response, foretold the outcome. Rather than approach the case as a 6th Amendment deprivation of the ability to obtain counsel to defend themselves from a spurious indictment, the majority seized upon it as a math problem.

Indictment = Probable Cause

Forfeiture = Probable Cause

Indictment = Forfeiture

Ham sandwich, anyone? In considering the Court’s adherence to beloved legal fictions, one of which is that a grand jury indictment conclusively proves the existence of probable cause to believe that a crime occurred and the defendants committed the crime, the majority reduced the issue before it to an absurdity. What about the presumption of innocence? What about the right to counsel of choice? What about the constraints of forfeiture to the proceeds of crime?

Meh. It’s as if someone mumbled during their post argument conference, “you know, if we cut her a break, it’s going to look like we no longer have faith in grand jury indictments. Since everybody already knows they’re argle-bargle, that won’t end well. It looks like we have no choice here.”

There was always the other side of the equation, that pre-trial restraint of allegedly forfeitable assets is unconstitutional because it impairs a fundamental 6th Amendment right to counsel, but they blew that one in Monsanto when they were busy hating on drug dealers. Yes, that crap invariably comes back to haunt us.

Then there is the substitute proceeds question, where the idea that what the government is seizing is the proceeds of crime gets blind-sided by the desire to grab anything they can get their hands on. And in whatever amount a prosecutor can claim based on his most fertile imagination. Reality has no place in forfeiture.

But what about due process, the opportunity for full and fair litigation of a disputed issue? Silly rabbit, tricks are for kids. Once the grand jury issued an indictment, there is nothing left to litigate. It’s sacred. Would you like mustard on that ham sandwich?

That this opinion leaves no room for the real consequence of this low-ball confluence of bad law arising from the hated drug dealer days and beloved legal fictions gave rise to a dissent by no less a lover of the defense than Chief Justice John Roberts.

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. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent.

To his credit, Justice Roberts recognizes that the only thing standing between a defendant and prison is a criminal defense lawyer. It’s not like it’s a fair fight anyway, but it doesn’t have to be a gimme either.

Acknowledging Monsanto, Roberts points to the question left unanswered, whether a defendant was entitled to a fair hearing to challenge the basis for a pre-trial restraint of assets before he was denied his ability to retain counsel of choice. The Court was “cautious.”

There was good reason for that caution. The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire proceeding.

After picking apart the majority’s “syllogistic-type reasoning” based upon its failure to recognize that the grand jury’s indictment, while adopted for the purpose of determining probable cause that a crime has been committed by the Kaleys, does not similarly include a probable cause component that finds the assets seized to be related to the crime. In other words, there are variables in the simple math equation that render it inapplicable.

Addressing the “short shrift” given by the majority to the due process rights denied the Kaleys under the Matthews v. Eldridge balancing test, Roberts notes how the “burdens” on the government are overestimated while the deprivation to the defendants is underestimated.

The issues presented here implicate some of the most fundamental precepts underlying the American criminal justice system. A person accused by the United States of committing a crime is presumed innocent until proven guilty beyond a reasonable doubt. But he faces a foe of powerful might and vast resources, intent on seeing him behind bars. That individual has the right to choose the advocate he believes will most ably defend his liberty at trial.

Yet, giving a defendant any opportunity to challenge the government’s advanced impoverishment would deprive the government of its critical interest in making sure that there were assets to be seized on the back-end, after the Catch-22 was completed upon conviction, thus proving how right they were to restrain the assets in the first place.

But that due process thing? That right to counsel thing? That Constitution thing? Stop complaining. The grand jury indicted, and that’s good enough reason to deprive a defendant of the money to fight. Get over it.