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109 Nw. U. L. Rev. Online 1 (2014-2015)

handle is hein.journals/nulro109 and id is 1 raw text is: Copyright 2014 by Wesley M. Oliver Vol. 109 Northwestern University Law Review CHOICE OF COUNSEL AND THE APPEARANCE OF EQUAL JUSTICE UNDER LAW Wesley M. Oliver* The Supreme Court ruled this term, in Kaley v. United States, that defendants have no opportunity to challenge grand jury findings that lead to pretrial restraint of potentially forfeitable assets they would use to retain counsel.1 Consequently, prosecutors are able to decide, without any opportunity for challenge from the defense, whether they would like to handicap defendants' abilities to mount a case.' The Court has certainly not been uniformly vigilant in maintaining a level playing field between prosecutors and defense lawyers,3 but examining Kaley in isolation, it is difficult to explain the authorization of such an imbalance of power. Recognizing the strategic effect of freezing assets used to retain counsel, however, would have spotlighted the differences in the protections afforded to wealthy and indigent defendants. The opinion thus is more easily explained as an effort to obscure the realities of justice in a world of scarce resources than it is an assessment of the appropriate use of prosecutorial power. Part I of this Essay surveys the background of forfeiture laws before and after Kaley v. United States. Part II then examines the Court's problematic analysis. Part III argues that the majority in Kaley was driven by the desire to avoid the potential ramifications of defining a standard for criminal representation. I. FREEZING ASSETS, FREEZING A DEFENSE A. Taking Title Through Forfeiture Laws Forfeiture laws enable the government to handicap criminal organizations by taking their profits and means of operations.4 The laws Associate Professor of Law and Criminal Justice Program Director, Duquesne University. B.A., J.D., University of Virginia; LL.M., J.S.D., Yale University. I Kaley v. United States, 134 S. Ct. 1090 (2014). 2 See id. at 1107 (Roberts, C.J., dissenting) (The possibility that a prosecutor could elect to hamstring his target by preventing him from paying his counsel of choice raises substantial concerns about the fairness of the entire proceeding.). 3 See Bennett L. Gershman, The New Prosecutors, 53 U. PITT. L. REV. 393 (1992) (describing powers the Supreme Court has given to prosecutors). 4 See Russello v. United States, 464 U.S. 16, 27-28 (1983); Note, A Proposal to Reform Criminal Forfeiture Under RICO and CCE, 97 HARv. L. REV. 1929, 1935-36 (1984).

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