The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich
Yesterday, in Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.
The question presented was not whether assets can be frozen before trial — it's old news that they can — or whether they can be frozen even if it deprives the defendant of the ability to pay counsel. The question presented was whether the defendant could ask the judge to review the grand jury's probable cause finding in the course of challenging the freeze. The Court found that the defendant had no such right, because of the trust we place in the grand jury:
A grand jury has already found probable cause to think that the Kaleys committed the offenses charged; that is why an indictment issued. No one doubts that those crimes are serious enough to trigger forfeiture. Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses. See supra, at 5. The only question is whether the Kaleys are constitutionally entitled to a judicial re-determination of the conclusion the grand jury already reached: that probable cause supports this criminal prosecution (or alternatively put, that the prosecution is not "baseless," as the Kaleys believe, supra, at 5). And that question, we think, has a ready answer, because a fundamental and historic commitment of our criminal justice system is to entrust those probable cause findings to grand juries.
Indictment = Probable Cause
Forfeiture = Probable Cause
Indictment = Forfeiture
Others, including Scott, have explained what this means: prosecutors can deprive you of the effective defense of your choice by aggressive use of forfeiture statutes. I have seen it done to my clients.
Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.
What Grand Jury Practice Is Like
Most federal prosecutors use two types of grand juries — accusatory and investigative. Some small districts may have only one that serves as both; large districts like Los Angeles have multiple grand juries in each category.
Accusatory grand juries tend to hear quick, reactive cases that must be indicted immediately: cases where the defendant has already been arrested and must be indicted before a deadline, bank robberies, drug dealers and immigrant smugglers and other low-level defendants "caught in the act," and other simpler cases that do not involve the slow and steady assembly of a complex case. Even in federal practice — which is often more meticulous and formal than state practice — accusatory grand juries are an assembly line. On grand jury duty it was routine for me to present a dozen accusatory cases in a morning to the panel. I'd read the proposed indictment to the grand jury (which another federal prosecutor has drafted), offer to read them the relevant statutes and the elements of the offenses, and call a federal agent to summarize the evidence by hearsay, which is permitted. I probably presented between 200 and 300 cases this way over the course of my career as a federal prosecutor.
The grand jurors typically sat slumped in their wobbly government chairs, often openly reading the paper (Nowdays I'm sure they read their smartphones) or staring glassy-eyed out the window. They rarely asked for the statutes or elements to be read. A few would ask questions, but 90% of the questions were more matters of curiosity than anything resembling a probing of the sufficiency of the evidence or the justice of the prosecution. The other 10% of the time, when selected grand jurors probed the sufficiency of the evidence, more often than not they probed odd tangents or diversions that had little to do with the issues at hand. Many times grand jurors expressed irritation at the case even being presented to them if the evidence seemed abundantly clear. Why, I was asked several times, were they there if the defendant had confessed? Why couldn't the criminal be sent straight to jail? (The answer, of course, is that a confession is just a piece of evidence like any other, subject to being challenged for admissibility or for whether it happened at all.)
Having presented the case — the longest part of which was generally reading the indictment — the agent and court reporter and I would step out of the grand jury room and let the heavy wooden door close. I quickly learned to take several steps away from the door; if you didn't step away, when the door flew open moments later it would startle you and you would look foolish. The court reporter and I would file back into the room to put on the record that the grand jury had returned a true bill. The wait was very rarely more than five minutes, it was usually less than two, and not infrequently measured in seconds. I only heard of one cases being declined by the accusatory grand jury in my years as a federal prosecutor: the case of a mother who let a dog out of its pen when INS agents arrived to arrest her son. The INS shot the dog dead and then sought her indictment for assault on a federal agent. The grand jury, to their credit, didn't buy it. During that five year period, my office probably secured around three or four thousand other indictments from accusatory grand juries.
Investigatory grand juries are different. They hear cases that federal prosecutors are assembling bit by bit, and return indictments at the end, often months or years later. But the name is a misnomer: the investigatory grand juries do not themselves investigate, or direct the investigation in any meaningful sense. It's better to understand the investigatory grand jury as part tool and part container into which federal prosecutors drop evidence to use later.
The investigatory grand jury is a tool in the sense that it can be used to issue subpoenas for documents and other physical evidence. But federal prosecutors and federal agents decide what subpoenas to issue, for what evidence, and to whom; the "return" generally involves the agent stepping in front of the grand jury and testifying for a few moments that subpoenas have been issued on behalf of the grand jury, that documents have been received, and that the agent will keep the documents. The investigatory grand jury is also used as a tool in the sense that witnesses are subpoenaed to testify before it. This lets the government find out what people will say when compelled to testify, preserve their testimony, and lock them in to one story. But it is often done over long periods of time, with the investigatory grand jury given no realistic way to connect the dots. Investigatory grand juries might meet a couple of times a month, and on any given day a few federal prosecutors in unrelated cases might be calling witnesses before them, and the grand jurors might not hear from witnesses in the same investigation again for weeks or months or even longer, with only a cursory reminder at the beginning about what the case is about.
The fiction is that investigatory grand juries remember the witnesses they heard months or even years before. Once again, this is not even a polite fiction. Sometimes a grand jury's term expires and a new one begins and the prosecutors give the new grand jury a set of the transcripts from the old grand jury and invite them to read the transcripts to "get up to speed." Eventually, if the investigation goes anywhere, the federal prosecutors will ask the investigatory grand jury to return an indictment. At this point the process looks much like the indictment-mill before the accusatory grand jury: the prosecutor has drafted the indictment and the grand jury either votes on it or not. The grand jury has no role, practically speaking, in what is charged or how it is charged. It has no role in deciding why — as in the Kaley case — the prosecutors seek asset forfeiture in one case but not another, or why the prosecutors bring aggressive charges (say, money laundering) in one case but not another. In very nearly all cases they vote to indict exactly as requested. I never had any grand jury ask that any indictment be adjusted or that particular accusations or language in it be changed or removed on the grounds they were not supported by the evidence. The questions I got from investigatory grand jurors, like those from accusatory grand jurors, were most often odd diversions or expressions or curiosity or slightly nutty crankery that had little to do with skepticism of government power and more to do with wanting to sound like they knew what they were talking about, like a gadfly at a council meeting.
With very few exceptions — usually involving touchy cultural issues — the grand jury is a rubber-stamp. When it's accusatory it's a very minor speed bump, a speed bump like the one your neighbor's 17-year-old son races over in his truck at 2 in the morning. When it's investigatory it's a tool and container to assist in prosecutions with a rubber-stamp on the end. The courts, as reflected in Kaley, tell us that it serves to protect rights. Perhaps with lightning-strike rarity it does. But in the overwhelming majority of cases the grand jury — and the courts' confidence in it — reflects the view that the purpose of the criminal justice system is to convict the people the government sees fit to accuse.
That's why the Kaley Court's conclusion — that the grand jury is reliable, and a defendant ought not be able to challenge the grand jury's conclusion that property is forfeitable and thus not available to fund a criminal defense — is preposterous and grotesque.
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