Should the Federal government be able to seize the assets of a defendant without a preliminary hearing and thereby infringe on the ability of a defendant to hire the lawyer of his choice? That is the question that the United State Supreme Court will answer after oral arguments on Wednesday. It is a question that has conflicting answers depending upon the Circuit in the United States and is a hot button issue in Federal Court cases.
At this time the government must merely allege that the defendant’s assets are “traceable” to property involved in the alleged crime. Currently the Judges do not look behind the Grand Jury’s finding that probable cause exists and will allow for the seizure to take place. There is no vehicle for the defendant to challenge the validity of the evidence to support the asset freeze.
So why is this important? The asset seizure occurs before a person is found guilty or enters a plea of guilt. The seizing of a defendant’s assets can prevent them from having the ability to hire the legal counsel of their choice and therefore infringes upon their Fifth Amendment right to counsel. The ability to have counsel appointed or retain alternative counsel still infringes on their right to retain the counsel of their choosing.
The government is arguing that the right to a preliminary hearing to challenge the seizure does not exist under the constitution and therefore the petition should be denied.
The government’s position is not unexpected. Their ability to curtail the choice of a defendant’s attorney leads to many guilty pleas. Jay Weaver notes in article that there have been many high profile cases where a defendant’s ability to retain the counsel of their choice was stymied due to the federal government seizing that money.
It will be interesting to see if the Supreme Court requires the government to make a showing at a preliminary hearing that there is traceable evidence that the property in question was involved with the alleged crime.