Is This The America You Want To Be Living In?
A couple has been accused of a crime, and they were going to pay the estimated $500,000 it would cost for their defense from a home-equity line of credit -- until the government stopped them from having access to it.
Jacob Sullum writes at reason about Kerri and Brian Kaley, accused by the government of trafficking in stolen medical devices, though the government is unable to find any actual victims of their supposed crimes:
The Supreme Court is now considering whether the Kaleys have a constitutional right to challenge the order blocking access to their money before it's too late to mount an effective defense....Technically, the government has not taken the money yet; it has merely "restrained" it, along with the rest of the home's value, in anticipation of a post-conviction forfeiture. But the result is the same for the Kaleys: They can no longer afford to pay the lawyers they chose and trust, the people who have been representing them for eight years and are familiar with the details of their case.
Those details are puzzling. Kerri Kaley, who had a job with Ethicon selling medical devices to hospitals in the New York area, knew that hospital employees periodically would ask the company's sales representatives to take overstocked or outmoded devices off their hands. Seeing an opportunity to make some extra money, she and some of her colleagues began selling the devices, which no one else seemed to want, to a distributor in Miami.
Neither Ethicon nor any hospital has come forward to complain that its property was stolen. Yet the federal government brought criminal charges against Kaley, her colleagues, and her husband, who had helped ship the devices and deposited some of the revenue in his business account.
...The only Ethicon sales representative who has been tried so far- who was able to hire the lawyers she wanted, since her assets were not frozen-was acquitted after less than three hours of deliberation. Two other sales representatives pleaded guilty and received sentences of five and six months, respectively, although the judges in both cases wondered aloud who the victims were.
If the fifth amendment property right cannot be successfully invoked, perhaps a creative argument in favor of the fifth amendment liberty right/ government deprivation of liberty (freedom to use funds) without due process?
Michelle at January 22, 2014 6:34 AM
The Institute for Justice is trying that line of reasoning, among others, Michelle. Slowly but surely, the obvious injustices of asset freezing and confiscation are becoming obvious and the huge, unwarranted bias in the system in favor of law enforcement's bulls**t rationalizations are being seen as the nonsense they are.
Eventually we'll see laws like this rolled back, and high-profile cases like this will help.
It will also help if you make it clear to your friends and family in law enforcement, uniformed or prosecutors, that you do not regard them as heroes. Mine know that if they show up socially, they're welcome, but if they show up in uniform, we'll be speaking in the driveway in front of a locked door.
As I told my Congresscritter when she stopped by while campaigning, I wasn't going to ask her in - I preferred not to expose my kids to the criminal element.
Grey Ghost at January 22, 2014 7:30 AM
What kind of lawyers are these who are refusing to move forward with representation unless they get paid upfront? If the defendants have been clients for eight years, haven't they already proven their worth? And if this appears to be a winnable case, they'll get paid afterward. If I was the defendent, I would be more angry at my attorneys for trying to bail on me.
Fayd at January 22, 2014 7:49 AM
What kind of lawyers are these who are refusing to move forward with representation unless they get paid upfront?
If the government seizes their money, they may never be able to get it. Are you willing to do $500,000 of work and never be paid?
Lawyers often require a deposit of money -- I forget what it's called (just woke up…we went to an Elmore Leonard tribute last night after my deadline day).
Institute for Justice, which I encourage people to donate to, along with theFIRE.org, defends people pro bono. They can because they get donations and are a non-profit. Other lawyers can't take just any case pro bono.
I am lucky that Marc Randazza is successful enough and cares enough about the First Amendment and bigmouths like me who are out there as activists that he took my case pro bono. (A TSA worker, Thedala Magee, got herself a lawyer and tried to squeeze me for $500,000, an apology, and a blog takedown. As Randazza said to me when we first started talking, "I sense you'd rather chew glass." I told him, "You sensed right.")
Pro bono doesn't mean free. I saw the time they spent -- Randazza and his associates -- and it would have cost me $15,000 had I paid for the time they spent to research the various points they had to knock down in the TSA worker's lawyer's letter of demand and to write the letter, which was multiple pages. Randazza and Popehat (Ken White) and Eugene Volokh and other lawyers who take First Amendment cases pro bono are to be highly commended.
Amy Alkon at January 22, 2014 8:24 AM
Thx GG. Will check out the IoJ site late tonight after work.
Amy - $ paid to an attorney in advance is a retainer, put in an escrow account.
You might also be thinking of an IOLTA account.
http://www.iolta.org/grants/
Michelle at January 22, 2014 8:41 AM
Yet again we see an example of how the government dodges the Constitition via wordsmithing. If you merely "restrain" rather than "seize" assets, than that pesky Fourth Amendment doesn't apply, n'est-pas? Just like that "administrative search" at the airport. It's just a search, it's not like it's a SEARCH-search!
Cousin Dave at January 22, 2014 12:51 PM
Cousin, et al, you'll notice that we also have "detainees", rather than "prisoners".
Apparently they use different handcuffs.
Radwaste at January 23, 2014 5:22 AM
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