How Prosecutors Rig Trials By Freezing Assets
If you don't find the government terribly scary and see us marching to a police state, you either only consume media about the Kardashians or the doctors and nurses see little brain activity from you at this time.
Harvey Silverglate writes at the WSJ of yet another abusive practice by government, designed to keep you from your right to a fair trial (with an able defense team), and it's freezing your assets so you can't afford a defense -- even before the prosecution has shown at any hearing that the assets were illegally obtained:
On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?...Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.
What crimes are the Kaleys charged with? Kerri Kaley was a sales representative for a subsidiary of Johnson & Johnson. Beginning in 2005, the fedsin Florida investigated her, her husband Brian, and other sales reps for reselling medical devices given to them by hospitals. The hospitals had previously bought and stocked the devices but no longer needed or wanted the overstock since the company was offering new products. Knowing that the J&J subsidiary had already been paid for the now-obsolete products and was focused instead on selling new models, the sales reps resold the old devices and kept the proceeds.
The feds had various theories for why this "gray market" activity was a crime, even though prosecutors could not agree on who owned the overstocked devices and, by extension, who were the supposed victims of the Kaleys' alleged thefts. The J&J subsidiary never claimed to be a victim.
The Kaleys were confident that they would prevail at trial if they could retain their preferred lawyers. A third defendant did go to trial with her counsel of choice and was acquitted. But the Justice Department made it impossible for the Kaleys to pay their chosen lawyers for trial.
The government insisted that as long as the Kaleys' assets--including bank accounts and their home--could be traced to the sale of the medical devices, all of those assets could be frozen. The Kaleys were not allowed to go a step further and show that their activities were in no way criminal, since this would be determined by a trial. But the Kaleys insisted that if the government wanted to freeze their funds, the court had to hold a pretrial hearing on the question of the legality of how the funds were earned.
...The Supreme Court has now threatened to upset the game that is so lucrative for the government and disabling for defendants. On March 18, the court agreed to consider the Kaleys' claim that the asset freeze without a hearing on the merits of the underlying criminal charge violated their constitutional rights. At oral argument in mid-October, the broader question will be whether, after four decades of federal asset seizures, the high court will put a freeze on the Justice Department.
While this should be a pretty cut and dried decision against current government practices, I'll bet 2 to 1 that the Supreme Court Fucks the American public in the ass once again. Any takers?
Assholio at October 21, 2013 8:39 AM
A, you'll have to give me better odds...
I lived in Janet Reno's South Florida in the early '80s, which was Ground Zero for asset forfeiture theory. It was explicitly stated by prosecutors at the time that the purpose of asset forfeiture was to prevent "drug kingpins" from being able to hire the high-priced lawyers who were routinely whipping the prosecutor's asses in court. It escalated very rapidly from there... being able to seize assets from anyone caught with a lot of cash on them, etc., all of the things that are familiar to us now.
Cousin Dave at October 21, 2013 9:28 AM
With crap like this going on more and more; I do have to admire even more folks who are willing to put it all on the line and go into business for themselves - knowing that your business could fail is one thing; but knowing that the government will try to do somthing to fuck you over is another ballgame all together.
Charles at October 21, 2013 12:08 PM
A, you'll have to give me better odds...
I lived in Janet Reno's South Florida in the early '80s, which was Ground Zero for asset forfeiture theory. It was explicitly stated by prosecutors at the time that the purpose of asset forfeiture was to prevent "drug kingpins" from being able to hire the high-priced lawyers who were routinely whipping the prosecutor's asses in court. It escalated very rapidly from there... being able to seize assets from anyone caught with a lot of cash on them, etc., all of the things that are familiar to us now.
Posted by: Cousin Dave at October 21, 2013 9:28 AM
And this is when the smart criminals started doing all their banking in the Cayman Islands and other places beyond the reach of the US authorities.
So now the only people caught in this trap are legitimate small businesses or the criminally stupid.
Isab at October 21, 2013 2:40 PM
Well jokes on the government I have no assets to freeze!
Ppen at October 21, 2013 5:20 PM
The main job for the Spanish Inquisition involved asset seizures, also, to the point where people were too intimidated to carry on normal business anymore. With the country's economy crippled by fear, it was finally necessary to end the Inquisition.
Speaking of making the laws impossible-- I decided to appeal my conviction for a stop sign ticket. The court clerk told me to download the appeal form from the court website, but-- It cannot be found there! I did locate it, elsewhere, but knowing what to look for was essential.
jefe at October 21, 2013 7:29 PM
Would any hospital be stupid enough to pay for equipment that it has not used? Obviously the hospital will adjust the payments for the newer equipment against that of the older equipment that is not used. And since this is older equipment that is unused, j&j would have allowed the sales reps allowing them to dispose of it in any manner they found suitable
Redrajesh at October 21, 2013 8:16 PM
I recall reading about a S. Florida asset seizure case. The government wanted to seize a tractor that they claimed had been used to cultivate a drug crop. So they filed the following lawsuit: United States vs. One Ford Tractor. That's right, they didn't sue the tractor's owner; they sued the tractor itself. Of course, the tractor, being an inanimate object, lacked the capability to mount a defense, so the government won a default judgement. I think that's when I first realized what a cluster the federal judiciary is.
Cousin Dave at October 22, 2013 8:33 AM
There was a case a few years back in Ohio where the couple bought the house for about $175K at a county auction. The pre-approved mortgage was approved for $200K. The house had been seized for 2 kilos of pot. By the time the title search was done the house had about $450K of liens on it from the original bank, various liens from contractors and a forfeiture lien from the federal government. The buyers only lost about $15K from the process.
You have to love a system like that.
Jim P. at October 22, 2013 8:46 PM
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