Accused Have Constitutional Right to Challenge Pretrial Orders Freezing Assets Needed For Counsel Fees, ABA Argues In Amicus Brief

The American Bar Association filed an amicus brief in the United States Supreme Court in Kaley v. United States, 12-464, supporting the right to a pretrial hearing to challenge pretrial restraint of assets that impedes a defendant’s ability to retain counsel for his/her defense. The American Bar Association, in its amicus brief, asserts that, in any criminal case in which an ex parte restraining order has been entered that freezes assets needed by defendants to retain counsel, an adversarial pretrial hearing that provides a meaningful opportunity to challenge the evidentiary support and underlying probable cause for such an order is essential to protect the defendants’ Fifth Amendment Due Process rights and their Sixth Amendment right to retain counsel of their choice. The defendants, Kerri Kaley and her husband, Brian Kaley are accused of conspiring to sell stolen prescription medical devices on the black market. Pursuant to pretrial orders freezing their assets, the defendants asserted their right to a pretrial hearing to challenge the evidentiary support and underlying probable cause for the order. The 11th Circuit Court of Appeals ruled in Kaley that there is no right to a pretrial hearing. The ABA takes the position, in its amicus brief, that an adversarial pretrial hearing to review ex parte restraining orders obtained by the government in forfeiture proceedings in criminal cases, “is essential to protect the defendants’ Fifth Amendment Due Process rights and their Sixth Amendment right to retain their counsel of choice.” Otherwise, according to the amicus brief, a conflict of interest is created by converting the lawyer’s representation to a contingency fee matter, in which payment is dependent on whether the defendant is found not guilty at trial or the frozen assets are otherwise returned to the defendant. Thus, the brief argues, the defendant’s counsel is faced with the conflict of withdrawing or continuing the representation pro bono because contingent fee representation is prohibited by attorney ethical rules of every jurisdiction in the United States. In sum, the ABA argues, “…defendants are presumed innocent until convicted and the prosecution has no justification for punishing a defendant prior to conviction. The federal forfeiture laws confer title on the government only at final judgment, and a pretrial adversarial hearing provides an appropriate balance for the prosecution’s otherwise unfettered ability to decide when to request an ex parte order freezing assets.” The case is Kaley v. United States, 12-464. About Philadelphia Attorney Hope Lefeber: Hope C. Lefeber is a practicing federal criminal defense attorney and a member of Federal Bar Association. She is a graduate of the University of Pennsylvania, Rutgers University School of Law, and is a member of the Federal Bar Association, the National Association of Criminal Defense Lawyers and numerous other criminal defense groups. Ms. Lefeber has represented high-profile clients, published numerous articles, lectured on federal criminal law issues, taught Continuing Legal Education classes to other Philadelphia Criminal lawyers and has appeared on TV News as a legal expert. Ms. Lefeber specializes in white collar crimes, drug crimes and appeals and is the Managing Member of her Philadelphia-based law firm, Hope C. Lefeber, LLC.