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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