U.S. Supreme Court
Ideological lines blurred in SCOTUS arguments on right to challenge asset freeze
By Debra Cassens Weiss
Oct 17, 2013, 08:27 am CST
Chief Justice John G. Roberts Jr. was among an unusual lineup of justices who appeared to favor arguments on behalf of a couple seeking to use frozen funds to pay for a lawyer.
Roberts emerged as the “primary defender” for the New York couple, Kerri and Brian Kaley, who are accused of participating in a scheme to sell prescription medical devices, the New York Times reports. Kerri Kaley, who was a medical device sales rep, claimed she was legally entitled to resell the items that hospitals didn’t want, the Washington Post reports.
The Kaleys are seeking a post-indictment hearing to show that the charges were flawed, entitling them to use frozen assets to hire a lawyer.
Deputy U.S. Solicitor General Michael Dreeben argued that a grand jury indictment often results in the jailing of a defendant before trial, so those findings may also be used as the basis for freezing money, according to the Times account.
Roberts countered that argument. “It’s not that property is more valuable than liberty or anything like that,” he said. “It’s that the property can be used to hire a lawyer who can keep him out of jail for the next 30 years. So the parallels don’t strike me as useful.”
Justices Sonia Sotomayor and Stephen G. Breyer appeared to agree with Roberts’ concerns about government “overweening power” in the grand jury process and the right to counsel of choice, according to coverage by the National Law Journal. On the other side, Justices Ruth Bader Ginsburg, Samuel A. Alito Jr. and Antonin Scalia questioned whether a pretrial hearing challenging the indictment would undermine the grand jury process.
Scalia didn’t like the idea of reviewing the judgment of the grand jury, but he proposed other solutions, the New York Times says. He liked the idea of allowing frozen money to be used for lawyers, or requiring more than probable cause when freezing funds needed to hire a lawyer. “Couldn’t we make that up?” he asked about the possibility of a higher standard. Dreeben said that idea was nixed by earlier Supreme Court decisions.
The ABA has filed an amicus brief supporting the right to a hearing when courts freeze assets needed to pay counsel. Defendants should be able to challenge the evidentiary support and underlying probable cause for the order, the ABA says.