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.

As Scott Greenfield puts it:

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.

Last 5 posts by Ken White


  1. xtmar says

    If the jury doesn't indict somebody, does that mean the case is dead, or can the prosecutor go back to the drawing board and indict again, either with a new jury or under a new theory?

  2. jimmythefly says

    Wow, I didn't even know that a grand jury was supposed to be some sort of check or balance or whatever. Always figured they operated exactly the way you say. Guess I need to get educated, thanks Ken.

  3. Aaron says

    As with jimmythefly, I had no real idea how (or what exactly) a grand jury did. Sounds pretty much like a farce!

    And somehow it seems wrong and immoral (and unconstitutional, although that's a gut feeling) that prosecutors can freeze the assets of an accused and prevent them from securing their preferred defense team.

    On that point, can an accused get access to those assets for the purpose of paying their defense if found guilty? Or what about living expenses if they are released on bail. Speaking of which, can their frozen assets be put up as collateral for bail? Or does frozen basically mean absolutely nothing can be done with them, or any liens put against them, until the process is complete?

  4. says

    And a question for you, Ken: Your experience shows you that grand juries suck. I don't question that. But how should the court rule? In theory, the grand jury provides some sort of protection, and the court ruled as if this theory were true. If they had ruled to the contrary, would we have to restructure or abolish the entire grand jury system? That would seem to me to be logically implied, but I'm legally ig'nant.

  5. Dan Weber says

    Maybe this is an entirely new piece at double the length, but, if I'm on a grand jury, what should I do?

  6. David Schwartz says

    The court should rule that the defendant is entitled to a chance to show that no reasonable jury could have ruled as this grand jury ruled.

  7. Ryan says

    And this is why, when Americans or American media refers to grand juries, every resident of every other country with a Common Law-derived legal system shakes their head and exclaims "You have a what now and why?!"

    (For those unfamiliar with systems outside the US, your northern neighbour instead allows for ex parte applications to lay an information explaining the charge, then for summons or warrant to arrest to compel the accused to court. These are done before the *unelected* [and thus politically-unencumbered] judge or justice of the peace who evaluates the claim against the standard of reasonable grounds to believe. In cases of serious charges, the case will then go to a preliminary hearing in which the court assesses the evidence to determine if the case should proceed prior to trial).

  8. says

    @ Not Claude Akins,

    I gather that the defendants here were not looking to scrap the entire grand jury system, but only to have the judge act as a reality check on the grand jury's probable cause determination.

    Judges do this in some other circumstances. In the context of a jury trial, e.g., the trial judge is sometimes called the "thirteenth juror" b/c of the judicial responsibility to independently assess the sufficiency of the evidence supporting the jury verdict of guilty.

    Only here, for whatever reasons (I have not read Justice Kagan's opinion yet), the grand jury's determination that probable cause exists is sacrosanct, and the judge may not review it.

    Also, as for whether scrapping the whole system would be "logically implied" by a ruling the other way…well, American courts have a long tradition of not following every holding to its theoretical logical conclusion.

  9. Dan Weber says

    Ah, Mecklenburg.

    I remember people telling me that Nifong couldn't have been that bad because the Grand Jury bought what he was selling. North Carolina Grand Juries should be more suspicious.

  10. zos* says

    Wow — A post I can actually comment on!

    Last year I finished up 18 months (that's right — 18 months!) as a member of a federal grand jury. I can say that in a lot of ways Ken's comments are on point. There was basically two hot topics in my particular experience which brought out the strong emotions — gun rights and race.

    We did make a concerted effort to turn off telephones and not have people reading papers while the cases were presented. That said, some of the cases were horrendously long, boring presentations of facts that made it difficult to stay awake, especially after sitting in the room for 8-10 hours.

    We tried to make sure that for all indictments evidence was presented for every person indicted, that the evidence presented at least bore some resemblance to what we understood would be needed to get a conviction and that there did not appear to be any gross misconduct by the government.

    Ultimately, we did return indictments on all cases, and only a handful of the hundreds of indictments we sat even came close to not having the votes to indict.

    I'll say that part of the problem is that the Grand Jury only hears one side of the case, and its hard to do anything but accept what is presented at face value. If an assistant attorney general puts a federal agent on the stand who says they got a search warrant for a house based on an informant, executed it, found a box of drugs, $10k in cash and a handgun, very rarely would anyone question the veracity of the informant, the validity of the search warrant, was there a valid reason he had $10k at home, etc, etc. And if the AGA said, of course here's why we're correct, who is there to say otherwise?

    But you also have to remember that we were 21 people, pulled at random from the general population, ranging from 22-75 years old. Some of us were professionals, some of us were clerks, some were retired. We had red-necks, political activists, racists, gun lovers, anti-drug activists, pro-drug activists, anti-government libertarians, republicans, democrats and everything in between.

    And none of us had any experience with criminal law or the courts. All anyone on a grand jury (or any jury) can do is try to do their best.

  11. Walt Granath says

    Dan Weber,

    Nifong wasn't anywhere close to Mecklenburg County. Nifong was DA of Durham County, which is two hours away.

  12. VinceClortho says

    Agree with what you say about grand juries, Ken. That has been my experience as well. The answer seems to be reform of the grand jury system rather than a different result in Kaley, though.

    I don't do federal criminal law, but in (my) state court, one can seek to have a case remanded to the grand jury where you have a legitimate basis to contest probable cause. Is this so in federal court? If so, wouldn't that be the best way for Kaley to proceed?

  13. Josh C says

    Isn't "Similarly, no one contests that the assets in question derive from, or were used in committing, the offenses" literally begging the question?

  14. am stupid says

    Yeah, count me as another one who'd like to know what a citizen *should* do if they end up on a grand jury.

  15. Becon says

    I've paid good money to be slapped across the face and have my mother referred to as a dirty bitch.

    My first thought as well. This post to an unexpected and sexy detour.

  16. Levi says

    To me, the decision never adequately addresses what was discussed in the oral arguments and in the dissent. How would such a hearing be any different than a bail hearing? What right does the government have to let you go but forbid you to ask for some of your money at the same time?

    1) Grand jury indicts person, allowing arrest.
    2) Person is arrested.
    3) Person gets a bail hearing, where they can present evidence.
    4) Judge decides whether person is allowed to roam free before trial.

    But here:

    1) Grand jury indicts person, finding probable cause that assets were used in crime.
    2) Assets are frozen.
    3) The end. Assets cannot be unfrozen before trial, so person cannot hire a lawyer to represent them appropriately unless they had sufficient other assets that were not included in the indictment.

    Also, though the opinion says "no one contests" that the assets were derived from the crime, it's not clear to me how a CD purchased from proceeds from a HELOC done after the grand jury proceedings had started would have been derived from the crime, particularly since the home itself was not considered forfeitable under the original indictment (only after the procecution went back a couple of days later and got a bigger rubber stamp indictment for conspiracy to money laundering).

    Looks like total crap to me.

  17. Joe Schmoe says

    Ken, I was on a grand jury once where we turned down an indictment.

    Basically, there was a real bad guy, a Latin King's member who was in CT state prison for 15-20 years. The Fed's wanted to pile on him with a possession of a handgun by a felon charge. The evidence was a picture of him with his "homies" where he had a gun in has hand. The feds made the case that the picture was taken on such and such date, after he had already been a felon.

    An ATF guy testified that the guy was holding a glock. I quickly pointed out that it wasn't a Glock, but rather a 1911 style handgun. The ATF guy got testy with me, and I said "Glocks don't have hammers, this gun does". The ATF agent told me they were the experts. Then, this old man who had never spoken in over a year who was on the grand jury (we did 2-3 days per month for two years) said "I'm a gunsmith, that's not a Glock".

    So when they were done presenting I said "If they are lying about the gun, how do we know they are not lying about the date the picture was taken".

    So we turned it down. The Prosecutor came in and yelled and screamed at us and said that we should have warned him in advance that we were going to vote no so that they could have presented more evidence, and now when they go to re-present this to a different grand jury this no-bill will have to be mentioned. He was literally yelling and screaming. I should have reported it to someone.

    My only other memorable experience was they were indicting a guy for having a "saleable" amount of cocaine. I asked the DEA agent what the definition of saleable was. We went back and forth for 5 minutes while I tried to figure out what amount was saleable versus un-saleable. Basically it turns out that any amount is saleable. So I asked him then that since saleable was a meaningless word in the context of the proposed indictment why he bothered pointing out that it was saleable and if that was just to prejudice the grand jury. The prosecutor then cut me off and ended that. Anyway, about 10 of us voted against the indictment because we were pissed.

  18. CJColucci says

    So is the grand jury actively dangerous or merely useless? Would we be better off without it? Or at least no worse off?

  19. JdL says

    Way to do an end run around the Constitution, government thugs! The accused has a right to a speedy [cough cough] trial, BUT, the government has the right to confiscate all the accused's money, to ensure that he can't possibly get a fair shot at pleading his case.

    This is about the farthest thing from justice that I can imagine. Might as well just jump right to blasting the guy with a drone, with the President's assurance that he was a terrorist.

  20. Basil. Forthrightly says

    Hmmm. The court, in a political context, has said effectively that limiting the ability to spend money is an unconstitutional bar on free speech (Buckley v. Valero).

    So isn't freezing assets therefore, logically, prior restraint? (Not that I actually believe that, I think Buckley is wrong.)

  21. Wade says

    The answer to those who are asking what to do when on a Grand Jury is simple. No Bill anyone accused of a malum prohibitum crime and ask the Judge if he can hold the prosecutor in contempt. Kudos to the commenter who almost made the prosecutor cry. After nine years practicing criminal defense law, I'm convinced that our criminal legal system is hopelessly broken and has been taken over by Judges, prosecutors and pigs who view ordinary citizens as subhuman and the Constitution as an inconvenience.

  22. Jim Tyre says

    There is a sentence I particularly like in the Dissent by Chief Justice Roberts:

    Common sense tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides.

    Being deeply involved in NSA spying litigation, and having the government frequently try to throw secret FISC decisions in our faces, I wonder whether CJ Roberts will remember that sentence when one of the cases makes it to the Supreme Court.

  23. jdgalt says

    To me this is beyond the scope of respectful disagreement. It's time to impeach some "Justices" now. If it doesn't happen, let's purge Congress until they do.

  24. PonyAdvocate says

    I am curious: what can, or what does, the organized bar do in cases of outrageous conduct by prosecutors or judges, including Supreme Court justices? I'm thinking not only of this specific decision, but all the denials of due process generally: civil asset forfeiture without even a probable cause hearing, or SCOTUS's recent decision to deny cert in the case of Justin Wolfe. Why, for example, doesn't the ABA issue a formal rebuke to the Supreme Court when it acts in a way so obviously inimical to the rights the Constitution guarantees? Why doesn't the Virginia bar immediately suspend the law licenses of Paul Ebert and his colleagues, pending the results of an investigation into their apparent malfeasance?

  25. NI says

    A question and an observation. First, the question: Are prospective grand jurors subject to any kind of a voir dire process comparable to patit jurors, or is it simply the first 21 who show up?

    The observation: I think this problem is caused in part by the fact that Supreme Court justices are mostly academics who little experience actually practicing law. I suspect that they are probably just as clueless about how grand juries work in practice as the general population.

  26. Steven H. says

    So, Ken, when you were presenting cases to your Grand Juries, did you often present cases that had insufficient evidence to justify an indictment?

    I was on a Grand Jury once, many years ago. Prosecutor told us up front that we shouldn't be surprised if we didn't come up with even one No Bill, since if he wasn't sure there was enough evidence, he wouldn't bother to put the case before us.

    Even so, we No Bill'd two cases, as I recall. No, he didn't yell at us for that, he thanked us politely, and went on to the next case both times.

  27. En Passant says

    Ryan wrote Feb 27, 2014 @12:51 pm:

    (For those unfamiliar with systems outside the US, your northern neighbour instead allows for ex parte applications to lay an information explaining the charge, then for summons or warrant to arrest to compel the accused to court. … In cases of serious charges, the case will then go to a preliminary hearing in which the court assesses the evidence to determine if the case should proceed prior to trial).

    Many USA states, including California, have procedures similar to this, in addition to grand juries. Preliminary hearing to determine probable cause to proceed to trial is adversarial.

  28. says

    To have a prosecutor yell and scream at a jury because it voted wrong? I'd be a consistent no vote for the rest of my seating whenever that prosecutor appeared. He would have shot his credibility with me.

  29. snjwffl says

    The "math problem" doesn't seem posed correctly (from my understanding, at least, though I'm not a lawyer). The hypotheses should be:

    (a) Probable cause –> Indictment
    (b) Probable cause –> Forfeiture

    Note that the arrows don't go both ways. In an ideal world they should; that they may not is why there's this thingy called due process.

    The court's decision stated that the converse of (a) must be assumed true (which itself is troubling). The question was whether or not the converse of (b) must be assumed true; their conclusion was that it should. However, this is based on the assumption that "Indictment <–> Forfeiture", which is valid only if we already know that the converse of (b) is true. Um…

    Who woulda thunk it? If you apply math wrong, you get the wrong answer!

  30. says

    Hmmm. The court, in a political context, has said effectively that limiting the ability to spend money is an unconstitutional bar on free speech (Buckley v. Valero).

    So isn't freezing assets therefore, logically, prior restraint? (Not that I actually believe that, I think Buckley is wrong.)

    By that logic, what if a newspaper stopped paying its taxes? Could the state seize their printing press the same way they'd seize a convenience store?

    A newspaper is entitled to say lots of things, but I'm not entitled to a newspaper, in other words.

  31. MCB says

    The saddest thing about this decision is that it isn't even slightly surprising. It would have been shocking if it had gone the other way.

  32. Noscitur a sociis says

    "Only here, for whatever reasons (I have not read Justice Kagan's opinion yet), the grand jury's determination that probable cause exists is sacrosanct, and the judge may not review it."

    The Supreme Court already decided that a grand jury's decisions can't be reviewed 50 years ago, in Costello v. U.S., 350 U.S. 359 (1956).

  33. says

    @Ryan Exactly… Also it's why most common law countries will not allow Grand Jury evidence from the USA to stand on it's own in extradition situations any more.

    What's more interesting is that historically the US Grand Jury system was set up to stop the problems of Star Chambers, Kangaroo Courts et. al and nowadays are becoming (if not are already) exactly what they were formed to stop.

  34. says

    Uhhh….. Thanks for explaining that. It was truly informative for us non-US citizens. It explains a lot of the detail which makes my instinctive and intuitive sense of things now feel doubly justified in joining Clark with a torch and wanting to burn it all the ground!

  35. Spacemanmatt says

    So, if selected for any jury, the correct action is to keep quiet, take careful notes, and wait until the hour before the verdict to spear the prosecutor and his case with his lies and omissions? Ok.

  36. says

    Now think about what the prosecutor is doing in a case where a cop is accused of something and the GJ no-bills. If it is so easy to get an indictment, maybe the prosecutor, to put it lightly, is not pursuing it as aggressively as they could, merely because of the identity of the accused? But then they wouldn't get the opportunity to tell the public, "See, the cop didn't do anything wrong here. The GJ no-billed him."

  37. fsandow says

    In Canada, the Criminal Code addresses this problem by letting defendants apply to the court to have legal expenses paid directly out of the seized assets (as well as reasonable living expenses). I take it there's no equivalent in the U.S.?

  38. MCB says

    "In Canada, the Criminal Code addresses this problem by letting defendants apply to the court to have legal expenses paid directly out of the seized assets (as well as reasonable living expenses). I take it there's no equivalent in the U.S.?"


  39. Mu says

    My county for years kept a third kind of grand jury, the "exculpatory jury". This was used in cases of police shootings, the jury could only find the shooting "justified" or "not justified", not actually pass down an indictment.
    Of course, this was never put to the test, three decades, 30+ cases, all of them "justified". Even in the cases the coroner testified "the physical evidence cannot be matched with the statements of the officers", or the case of the four bullets in the back.
    Our city pays out $8 Million a year to make sure these cases never make it to civil trial either, always with "no fault admitted" clauses.

  40. En Passant says

    Darryl wrote Feb 28, 2014 @8:03 am:

    Now think about what the prosecutor is doing in a case where a cop is accused of something and the GJ no-bills.

    Oh, that's easy. They all get free ham sandwiches for lunch that day, on the county, with lots of ice cream for dessert.

  41. ZarroTsu says

    I am hopeful that at least one case involving a dog being shot and killed resolved like this:

    "It would be difficult to press assault charges when the one who assaulted you is dead."

    "But I felt threatened."

    "Nobody gives a shit about what you FELT. You have shot and killed a living thing. Please leave."

    I'm probably delusional in my hopefulness.

  42. Chris says

    Is the solution to simply invite the justices to spend a morning observing a grand jury? Or is that simply not allowed?

    I've long suspected that modern SCOTUS precedents around criminal law are based more on how the law looks like on CSI than the way it looks in the real world.

  43. NI says

    Chris, this type of thing will change when one or more Supreme Court justices are the victims of egregious police misconduct, or an overreaching prosecutor, or has their property seized and isn't able to get it back, or some such. Until then, you're absolutely right; the Supreme Court makes decisions based on theory about how the world should work, with no real clue about what life is really like for those of us on the ground. In theory, the grand jury actually could be a defense against prosecutorial overreaching; it just doesn't happen to be in the world in which we all actually live.

    I once suggested, only half in jest, that the bench needed more felons and disbarred lawyers for that very reason. The process by which someone becomes a judge virtually guarantees that the only people wearing black robes will be people who assumes the system works just fine just like it's supposed to.

  44. Speed says

    Officer Kerrick’s indictment reveals grand jury debate

    During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

    That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

    Via Cato …

  45. Philosopherva says

    My thought would be not to get rid of the grand jury, but to get rid of the federal prosecutorial system. Cut the Justice Dept. by 98% of its funding. Teach people what the Constitution means and his the justice system was intended to work.

    Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day.
    Thomas Jefferson

  46. albert says

    1. Asset seizure should result in more convictions (a plus for prosecutors and the privatized prisons)
    2. Seized assets are an important source of income, especially in drug cases, where there's a lot of cash available. Motels are often seized, even in cases where the owner reports all suspicious activities to the police. This is easier and faster than eminent domain seizures.
    3. Civil Asset Forfeiture fraud has been, and continues to be perpetrated by the DOJ and other agencies.
    4. See: 1974, Supreme Court, Calero-Toledo v. Pearson Yacht Leasing Co.
    5. You can read the accounting at and

    The govt can take what they want, when they want, and there's damned little you can do about it, even if you have deep pockets for lawyers fees.

    I gotta go…

  47. don Roberto says

    Thanks for the insight. Should I find myself on a grand jury, I will remember to ask to see exculpatory evidence, then insist, then express incredulity when told there is none, then vote "No true bill" and attempt to persuade my colleagues to do the same in every single case where we are not shown exculpatory evidence.

    Of course, I'll probably then get indicted myself for tampering with a grand jury…

  48. Trent says

    Being deeply involved in NSA spying litigation, and having the government frequently try to throw secret FISC decisions in our faces, I wonder whether CJ Roberts will remember that sentence when one of the cases makes it to the Supreme Court.

    I've been deeply impressed by the integrity of CJ Roberts. I'm not sympathetic to Republican social causes nor have I been impressed with the jurisprudence of most of the republican appointed justices. When I watched the confirmations hearings for Roberts I told friends and family that I was willing to bet he would turn out to not be the patsy the Republicans were hoping to appoint. From the rulings I've read where he wrote an opinion I've been very impressed with his dedication to seeing the issue for what it really is and going against the conservative patsies on the court, in particular cases like this where the court has allowed the government to dramatically expand federal seizure power.

    I hope he continues that in the future in all 1st amendment and drug war powers trials. We need strong Justices that want to undo the damage of the drug war has done to freedom. There is very little I find more abhorrent than what the court allowed the government to do in civil forfeiture cases. Civil forfeiture violates the intent and spirit of the 4th amendment and would make the founders turn in their graves. That you can seize property by suing the property in question is a terrible abuse of government power and every court or justice that's allowed it should be ashamed.

  49. wumpus says

    "even if the criminal defendant needs those very assets to pay his or her attorney of choice."

    I suspect this is used far less often than the article implies. To force the rich into the "everyone else's justice system" will only happen for the rare few who are shunned out of the system. See "burn it all down" for how this works.

  50. Dan Weber says

    I once suggested, only half in jest, that the bench needed more felons and disbarred lawyers for that very reason.

    I get why you want felons on the bench, but why disbarred lawyers? To get disbarred a lawyer takes a special level of malfeasance.

  51. Kratoklastes says

    @Ryan – "the *unelected* [and thus politically-unencumbered] judge or justice of the peace".

    Do you really believe that judges are "politically unencumbered"? Seriously?

    You don't think, say, that Attorneys-General (who are politicians) might just have a hand in who becomes a judge, and might, say, select folks whose personal politics are absolutely aligned with the Party line? (Here's a hint: when the US government appoints Supreme Court justices, so you think that the new Justice is likely, or unlikely, to hold views that are conformable to the views of the government of the day?)

    Don't get me wrong – I don't think that elected judges are a good idea: the joint 'wisdom' of the crew of the Ship of Fools is no basis for any decision-making, since the bottom 55% can't read to a level sufficient to understand the instructions on a bottle of prescription medicine and less than 5% can read at a 9th grade level*).

    But appointment by 'the Crown' is a guarantee that only 'safe hands' (from the point of view of the State) will make it into the ranks of the robed geriatrics who administer The Law.

    *: the source for this claim is OECD and Statistics Canada (2011) Literacy for Life: Further Results from the Adult Literacy and Life Skills Survey: Table 2.3 [p 61] gives the level 4/5 (grouped) breakdown by country (Level 5 indicates an ability to extract key information from a moderately-complex piece of text – e.g., a job advertisement… the sort of thing you ought to be able to do at age 14).

    To drill down and see Level 5 on its lonesome (and to see how alone functionally literate folks really are), you gotta go to Table 1.3 on p21 of US Department of Education, National Centre for Educational Statistics Working Paper No. 97-33 "Adult Literacy: An International Perspective" (1997).

    All over the West, .gov stopped presenting L5 by itself after that year, since the outcomes were so horrible that they might undermine the widespread (erroneous) belief that a quadrupling of State expenditure per student was effective in raising functional literacy.

  52. Ryan says


    That judges appointed in the Canadian system have personal political beliefs, I have no doubt. But it's an interesting pattern that whenever the government actually appoints a justice, they almost inevitably (with few rare exceptions) find those politics are not necessarily in line with the governments' agenda. The Supreme Court has seen this happen multiple times in the last 20 years, and I highly suspect that Nadon – if indeed his appointment is maintained – will turn out not to be the pushover the Conservatives think he'll be.

    For those not aware, the system in Canada functions wherein various legal associations and bodies recommend certain lawyers for the bench (from both the Crown and defense communities), and certain judges' for promotion, based on their skills and case law experiences. The list ends up being pretty short and pretty clearly reasoned, and then a political operative at whichever level makes the final appointment to the bench. Unlike the circus of hearings in the US or the rampant idiocy of elections, the debate is limited and muted (and inherently skills-based), and we end up with a far less political and arguably more competent judiciary as a result… to the point that it doesn't seem to matter what kind of government is elected, you can be almost completely certain they will end up at loggerheads with the judiciary sooner or later.

    Purportedly we have one of the most 'conservative' Supreme Courts in Canadian history as many of the recent appointees have been by the Conservative government, yet we've seen some stunning decisions just this past year – not the least of which was a sweeping and well-deserved thrashing delivered to the criminal anti-prostitution laws. There have also been some remarkable changes to search and seizure law which lean heavily in favour of the rights of the accused… depending on your view, possibly a little too far (a warrant got squashed based on case law that was only decided and published several months after the warrant was executed, which was a little odd).

    Anyway, the experiences of other nations with Common Law adversarial legal systems with much-less-screwball legal systems than the United States make notions like grand juries and elected judiciary pretty questionable measures of ensuring the systems' integrity.

  53. Kilroy says

    Ken: Of your 200-300 cases, were there any that you felt shouldn't have been indicted?

    I walked through countless warrants in my days as a prosecutor without having any rejected. But of course, I had already reviewed them to make sure there was probably cause before I put it before a judge.

  54. Lior says

    The point here is: there is some level of probable cause sufficient to support an indictment. There is [arguably — I don't concede this point] also some level of probable cause sufficient to support freezing the defendant's assets ahead of trial.

    Now if the second threshold were _lower_, then indeed finding against asset freezing implies insufficient probably cause to indict. This seems to be what the Supreme Court is arguing (!)

    However, I don't think anyone here believes that this is the right order of priority: assuming asset freezing is ever permissible, the evidence threshold to support it must be much higher than the threshold for commencing the trial in the first place. In particular, finding that the higher threshold has not been met would say nothing about whether the lower threshold has been met.

  55. EPWJ says

    Despite the best of intentions, both parties – the prosecutor and the grand jury need to remember and keep sacred the whole "innocent until proven guilty" thingy – and this sounds like not only did it get thrown under the bus, but the Greyhound did donuts over it

  56. Lurker says

    Something that strikes me as odd here – there's two entirely different things that have to be put to a probable cause test.

    Indictment requires probable cause that the accused committed the crime.

    Forfeiture requires probable cause that the accused's assets are derived from the crime.

    Common sense dictates that the first does not imply the second, constructing such a scenario is trivial.

    Given the wording of the opinion, does it not only state (technically) that the first probable cause cannot be appealed? Would this technicality fly with a judge?

    Second, does the law permit freezing, say, $10 million when the crime alleged is on the scale of $10,000? This would appear to have no purpose other than to inflict hardship on the accused, since the purpose of freezing assets (as stated by SCOTUS even) is to ensure that the proceeds of the crime are available to be seized – any assets manifestly not the result of such should be exempt regardless (if my reading of the precedent is correct, IANAL) – SCOTUS has only held pretrial freezing constitutional for that limited purpose.

    Of course, since standing is required, and anyone with standing has had everything frozen, it seems unlikely they'd be able to get a lawyer capable of making an argument of this sort in the first place.