Choice of Counsel and the Appearance of Equal Justice Under Law

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The Supreme Court ruled this term, in Kaley v. United States, that defendants have no opportunity to challenge grand jury findings that lead to pretrial restraint of potentially forfeitable assets they would use to retain counsel.1 Consequently, prosecutors are able to decide, without any opportunity for challenge from the defense, whether they would liketo handicap defendants’ abilities to mount a case.2 The Court has certainly not been uniformly vigilant in maintaining a level playing field between prosecutors and defense lawyers,3 but examining Kaley in isolation, it is difficult to explain the authorization of such an imbalance of power. Recognizing the strategic effect of freezing assets used to retain counsel, however, would have spotlighted the differences in the protections afforded to wealthy and indigent defendants. The opinion thus is more easily explained as an effort to obscure the realities of justice in a world of scarce resources than it is an assessment of the appropriate use of prosecutorial power.

Part I of this Essay surveys the background of forfeiture laws before and after Kaley v. United States. Part II then examines the Court’s problematic analysis. Part III argues that the majority in Kaley was driven by the desire to avoid the potential ramifications of defining a standard for criminal representation.