Supreme Court To Hear Case Against UnConstitutional Asset Forfeitures Against Citizens Awaiting Trial

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If citizens awaiting trial are truly innocent until they have been proven guilty in court, why does the state have the power to commence their punishment (and cripple their chances of a solid legal defense) from the moment of their indictment?

The Supreme Court will hear a case this week that could shape the future of Federal forfeiture laws, laws that allow the state to seize and freeze the assets of the accused. Aside from violating the 5th Amendment (which guarantees the government cannot seize personal property without due process), as well as the 6th Amendment (which ensures the accused a right to legal counsel of their choosing), forfeiture laws also effectively return the burden of proof to the accused by robbing them of the wealth they could otherwise use to pay for a robust legal defense.

Before the high court is the case of Kerri and Brian Kaley, a New York couple who in 2007 were charged in a seven-count indictment with illegally receiving obsolete or overstocked medical equipment tossed aside by Ethicon, the device company that employed Kerri Kaley, and conspiring to resell the equipment to a Miami-based distributor.

At no time has Ethicon ever alleged that the Kaleys stole any of the equipment the company had voluntarily disposed of. Rather, the couple learned in 2005 that they were the target of a Federal investigation into the growing “gray market” for unneeded medical devices caught in the bureaucratic limbo between vendors, which didn’t want them anymore, and hospitals, which routinely render unused devices obsolete by adopting newer, pricier equipment as it becomes available.

The Kaleys had retained Miami criminal defense attorney Howard Srebnick, who has remained on the case throughout its long history. The couple had planned to finance their long and expensive legal battle chiefly via a $500,000 home equity loan against their property, which they converted to certificates of deposit. After their indictment, the government seized all of that with the expectation that the Kaleys would never get the money back once they had been found guilty (or had pleaded to some of the charges).

As Reason succinctly stated in a Wednesday piece, the pre-trial forfeiture assures prosecutors that the Kaleys “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.”

According to The Miami Herald, Srebnick, the Kaley’s longtime attorney, will argue before the Supreme Court that his clients:

…should be allowed to keep their bank accounts and other worldly possessions unless prosecutors can show before trial that the evidence supporting an indictment justifies the seizure of those assets.

For decades, prosecutors have only needed to point to a federal grand jury indictment to argue that defendants’ assets are traceable to the criminal allegations and therefore can be seized. And judges have almost always ruled in the prosecution’s favor because of the presumption that the grand jury found “probable cause” that a crime was committed.

The Kaleys’ chances, though, appeared to be better than those of many defendants. In a related but separate case arising out of the Federal investigation, fellow Ethicon employee Jennifer Gruenstrass went to trial and was found not guilty.

Personal Liberty

Ben Bullard

Reconciling the concept of individual sovereignty with conscientious participation in the modern American political process is a continuing preoccupation for staff writer Ben Bullard. A former community newspaper writer, Bullard has closely observed the manner in which well-meaning small-town politicians and policy makers often accept, unthinkingly, their increasingly marginal role in shaping the quality of their own lives, as well as those of the people whom they serve. He argues that American public policy is plagued by inscrutable and corrupt motives on a national scale, a fundamental problem which individuals, families and communities must strive to solve. This, he argues, can be achieved only as Americans rediscover the principal role each citizen plays in enriching the welfare of our Republic.

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  • crossrammed302

    Good luck to them. Prosecutors are lazy witch hunters who only want to win their cases. In my own personal case, they were ready to hang my husband based on false allegations. He was acquitted by a jury of his peers, all men his age (working class men) even when the procecutor tryed to through the case (after his witness confirmed the truth instead of the lies) via misstrial…which my husband refused and insisted on finishing the trial. I hope God is watching over the many innocents who are victimised by unfair accusations in our corrupt legal system.
    This included unlawful removal of a child from custody, with out Any papers being filed or documented through Child services. A county Sheriff Deputy, who was the accusers buddy was the trigger on our family. When discussed with attorney, he was unable/unwilling to push the improper procedures because he “still had to practice law in the county”. This also included an arrest at 455 on a Friday afternoon, from his work (added humiliation) with 5 officers, and an unsigned arrest warrant, that didn’t even have the charges printed on it….just go arrest this guy….he’s a threat. No prior criminal record, born and raised in the town. Not a flight risk…20,000$ bail…they were surprised that I showed up with bail money not 20 minutes after they got to the jail. Also, he had been in contact with the DA’s office, via attorney, to see if they were going to issue a warrant or not so he could turn himself in….that didn’t fit the Sheriff Deputies agenda, though and he convinced other deputies that he was possibly not going to cooperate…which was not even close to the truth.
    That deputy had a very poor showing in an election bid for sheriff recently and lost by a very large margin. We no longer live in that county, in Eastern Oregon. They rally their wagons to protect each other from their wrong doing….bast@#ds.

    • Wellarmed

      Sorry to hear about your experiences with the legal system crossram302 (excellent bore x stoke by the way on said engine). One day soon the American people will need all these unsigned arrest/search warrants as good absorbent material for wiping up the blood of those who falsely issued them.

      There should be definitive jail time and economic hardship for all those in the prosecutor/law enforcement sector when they knowingly bring charges with the intent to persecute rather than prosecute.

      Maybe we the people could dip into the NSA’s data bases, and sift through all of their correspondences, emails, and phone conversations to see if they are conducting themselves with integrity in their positions.

      I am being facetious if one cannot tell by the comments stated above, as two wrongs do not make a right. What does really worry me crossram302 is if the DOJ is already using the NSA database to deny citizens their due process rights (work product could not remain private under such circumstances). We already know that this IS occurring under DEA operation Hemisphere, but how far does this go? I assume that other Federal agencies such as the IRS are also participating in these criminal activities, and I question when the American people will finally say that we have had enough.

      I personally would dread being a prosecutor in any level of government, as I would not have the temerity to bring charges against someone unless the evidence were ironclad, and there were clear signs that someone had been victimized as a result of that persons actions. If there is no victim, then no crime has been committed.

      • paendragon

        Re: “Maybe we the people could dip into the NSA’s data bases, and sift through all of their correspondences, emails, and phone conversations to see if they are conducting themselves with integrity in their positions. I am being facetious if one cannot tell by the comments stated above, as two wrongs do not make a right.”

        Actually, that’s a great idea. They are our public employees and so can be legally monitored.

        Two “wrongs” occasionally do make a right, because it’s not “attacking” which is wrong, for instance, but only the sequence: it you counter-attack in defense of one’s self &/or of innocent others, then it’s perfectly moral and not in any way a crime.

        ;-)

        • Wellarmed

          I cannot disagree more vehemently paendragon. It would make us equal with those who wish to violate our constitution, and I am personally not willing to sink that low. Either way it would be considered fruit of a poisonous tree if evidence (obtained illegally) were used in an actual trial of a public official.

          I know many will say what is good for the goose is good for the gander (such as obamacare and congress exemptions), but I do not believe that that applies in this circumstance. Taking the high road is not easy, but neither was building this nation. Neither happened overnight, but with persistence I believe that we can serve justice on those who wish to trample on the limits that our constitution places on government actions.

          The real question is will it be peaceful or not. Only time will tell.

          • paendragon

            They want to dilute and avoid personal individual human responsibility by hiding behind imaginary idolatrous and false “group-rights?”! Fine – the penalty is all the illegal evidence-gathering they’ve done, ONLY applies to them – the members of their illegal crime-group – themselves!

            Besides, you said: “in their positions,” and not: “when they are off-duty at home.” Monitoring employee Internet usage at work, just for instance, is perfectly acceptable workplace behaviour for management and owners – and WE are the country’s owners, not “the government inc” employees (!)

            ;-)

    • Jim Nasium

      The key to unlock the cage we all find ourselves in at this time is
      the judiciary. This branch of government was created, in part, to
      protect the people from the ambitions and excesses of the other branches
      of government. Nearly all important issues are ultimately determined in
      a courtroom. Citizens no longer have direct access to grand juries and
      find that their complaints are first filtered through the political
      office of the district attorney. Litigants are routinely denied standing
      or due process in the courts to frustrate those who seek justice from
      the state.

      In Marbury v. Madison the supreme court ruled that an unconstitutional
      statute is void “ab initio” or from it’s inception. It reasonably
      follows that one of the first issues before any court should be the
      constitutionality of the law involved. Judges swear an oath to support
      and defend the constitution, within which is found your right to due
      process of law. Why is it that a denial of due process, the very
      definition of a void judgement, never renders any judgement void or
      results in prosecution of the judge for perjury of his oath?

      Judges are the gatekeepers of society. We depend upon them for redress
      and remedy. They have failed. In order to obtain remedy we must take
      back our courts by holding judges accountable.

      “Jail For Judges” is a concept which creates an external review board to
      hear complaints of judges actions and negligence and to sanction judges
      up to and including imprisonment. When judges must choose between
      according due process to litigants and going to jail for failure to do
      so, that is when people will receive due process and not a minute
      before. When “Jail For Judges” becomes law in any single jurisdiction,
      i.e. any state of the union, a person need only move to that state long
      enough to establish residency in order to qualify to petition the court
      for vacation of a facially void judgement, which is the court record of
      a case which demonstrates a denial of due process.

      People must qualify ballot initiatives to institute “Jail For Judges”
      and re-institute direct access for the public to grand juries to
      facilitate indictments against govt. actors who commit crimes. In this
      way the system may be used to purify itself and to return our country to
      a constitutionally restrained republic.

  • Wellarmed

    Guilty until proven innocent is the new standard here in the USA. Until there is a hefty price paid by prosecutors for bringing false charges against citizens, nothing will change.

    The office of Public Defender in all Jurisdictions across the entire United States should be entirely separate of the Prosecutors office in every way shape and form. And in order for citizens to receive a fair trial, the office of Public Defenders should also be equally equipped in funding, employee education, and trial experience.

    I am glad that this couples case is receiving the attention that it deserves, but based on many past rulings by SCOTUS, I would be shocked if they fell on the side of the Constitution. Their (SCOTUS) only objective at this point in our nations history is to solidify control for the police state, and that power can only be assumed in very small segments so as not to set the country ablaze.

    It is the frog boiling in the pot, and I would love to know at what temperature the American people become hot enough to jump out.

    • Asonofliberty

      That saying comes from the principal of gradual destruction. If you throw a frog in boiling water, it will jump out. If you put the frog in lukewarm water and slowing turn the heat up, it will stay there and die because it doesn’t even notice that it’s being cooked alive. And it is the same strategy our government is using to destroy our liberty. The government can’t just snatch away our liberty, they have to come up with reasons and slowly chip away until there’s nothing left. “Necessity has been the reason for every infringement on personal liberty. It is the argument of tyrants and the creed of slaves.” -Thomas Jefferson-
      When this country was founded, they sacrificed life, family, wealth, and were branded traitors and anarchists, nowadays they would’ve been labeled terrorist too, all for the hopeful prize of liberty. Now we disgrace their sacrifice by trading our liberty for the promise of security and the illusion of prosperity. Stop voting republican and democrat, they’re working together to centralize all power in this country. Please people, find a third party you agree with and support them. And don’t fall for the “it’s a wasted vote” line. That’s just how they maintain their power, by getting you to fight “against” the different side of the same coin instead of fighting “for” changing the coin completely. It’s the only thing we can do at our political level of power.

  • Vigilant

    “…as well as the 6th Amendment (which ensures the accused a right to legal counsel of their choosing)…”

    Sorry, Mr. Bullard, you need to read the 6th Amendment again. It provides the right to counsel but not “of their choosing.” Have you never heard of the “public defender?”

    Moreover, the takings clause of the 5th Amendment has not been violated because “due process” has been satisfied by the grand jury indictment and asset forfeiture laws.

    Admittedly, the law is egregiously flawed and should be rendered unconstitutional by the SCOTUS. Unless and until the SCOTUS rules on that case, the asset forfeiture laws are enforceable.

    • JLouisK

      Just because it is Law, doesn’t mean Constitutional. You should know that. Don’t support the regime, time for civil disobedience

      • Vigilant

        What part of “Admittedly, the law is egregiously flawed and should be rendered unconstitutional by the SCOTUS” do you have trouble comprehending?

        • CORMAC___NJ

          If you admit the law is unconstitutional, how can you possibly continue to defend it? Oh, wait, you’re probably a liberal, so you see the Constitution as just an obstacle to your Communist agenda. OK.

          • Vigilant

            “If you admit the law is unconstitutional, how can you possibly continue to defend it?”

            Yes, Obama believed the DOMA to be unconstitutional so he discontinued defending it. What’s your assessment of that?

            I do not pretend to be a legal expert on Constitutional matters; I do not “admit” that asset seizure laws are unconstitutional, I BELIEVE them to be so. That’s a big difference in contrast to your arrogant certainty.

            Tell us, by what authority or credentials do you take it upon yourself to decide what is Constitutional and what is not? In my experience, it has been the priggish habit of the leftists to consider the Constitution as a mere guideline and not the Law of the Land. You cannot unilaterally decide a law is unconstitutional on its face.

            The Constitution established via Article 3 the judicial system. The principle of judicial review has been in existence since Marbury v. Madison. That system is being demonstrated now in the challenging of the asset seizure laws. I agree with that challenge.

            You’re obviously new to this website. You’ll find no stauncher defender of the Constitution than I. Unlike you, I revere the rule of law and revile the foolhardiness of people who believe they can pick and choose which laws to follow. If you disagree with that, then you are no better than Obama.

        • paendragon

          If a law is flawed, then it’s automaticaly invalid – and, in fact, a crime in itself – and so doesn’t require the ruling of a court to render its self unconstitutional and so null and void.

          Objective fact, not subjective opinion of, or appeal to, an “authority” does this all on its own.

          • Vigilant

            “Objective fact, not subjective opinion of, or appeal to, an “authority” does this all on its own.”

            Precisely. It is your thought and my thought that the law is flawed, but it goes no further than that: our opinions

            I believe that abortion laws, Obamacare and municipalities condemning private property purely to increase their tax revenues are all flawed, and I believe them to be unconstitutional. But I do not believe in bombing abortion clinics or otherwise flouting the laws that will only result in my incarceration.

            If you are within the age window of Obamacare, are you going to cut off your nose to spite your face by not signing up because it’s “null and void”?

            In “A Man for all Seasons,” Thomas More excoriates his son in-law for saying he would cut down every law in the land in pursuit of the Devil:

            “And when the last law was down and the devil turned on you, where would you hide, the laws all being flat?

            “This country is planted thick with man’s laws, not God’s, and if you cut them down, do you really think you could stand upright in the winds that would blow then?

            “Yes, I’d give the devil benefit of the law for my own safety’s sake.”.

          • paendragon

            You’re only listing symptoms. The Law – is very simple, easy to see, and so it’s easy to see when it’s broken.

            “The Law” is The Golden Rule of Law principle, which simply defines all situational morality as “Do Not Attack First.”

            After all, when one chooses to attack first, one’s own choice defines one as the predatory, criminal aggresor, and they as one’s innocent victims – there’s no two ways about it!

            Caveat: All threats are (psychological) attacks, aka bullying, intimidation, coercion, activist agitations, extortion, and, of course, “terrorism.” Physical responses to threats are legally valid.

            (Counter-)attacking second is a requirement for justice, (and even the courts do this, even years later, when the criminal is most likely no longer committing any crimes, and so is not an immanent threat at all) because the falsely-sundered, “civil” and “criminal” branches of the law agree: One must pay for what one takes! All crimes are forms of theft.

            In fact, the only time the ends every justify the means, is in defense of one’s self &/or of innocent others.

            Otherwise the means only really ever define the end results – when one chooses to lie, murder and otherwise steal to get ahead, in the end one isn’t a great success, but one will only remain a lying, murdering thief!

            From this One Law, we find our only real right is to not be attacked first, and our only real responsibility is to not attack others first.

            All valid laws are put as: “If you choose to attack first in these ways, then these (not necessarily proportional) responses will occur.” They are warnings, not threats, because they involve if/then cause and effect.

            Idolatrous false laws, on the other hand, are pre-emptive slanders, and so are crimes in themselves, such as gun control laws: “SINCE you own guns, SO you will use them to commit crimes, SO we must take them away from you and attack you first, to defend our selves!” They are victim-blaming attacks in themselves.

            And these laws apply equally at all levels of human interactions – from the individual, to the family, clan, tribal, state, national, empirical, and global groupings.

            Even the largest group – the state – has no right to attack any individual citizen (by reversing the proof onus) first.

            So, pretty-much by definition, a bad law IS really a crime.

            And it’s not only the right of every citizen to reject and fight crime, it’s also our basic duty to rationality and civilization.

            Just because some self-determined “authority” declares it’s their right and duty to attack others first, doesn’t mean we should put up with their criminal nonsense.

            Capisce?

            ;-)

    • paendragon

      Attack-first, Reverse-onus (Guilty until never proven innocent) “laws” such as pre-trial (pre-judgment; prejudiced, slanderous and fraudulent) asset-seizures are really only illegal crimes in themselves, and so are never valid nor enforceable. They assert people are guilty and so should be punished before they even have a trial. “Due process” means you get to have a trial, not only be indicted (accused) of your crimes. Guilty by mere dint of being accused is really only slanderous fraud, because no proof has yet been offered.

      Capisce?

    • Eric Coddington

      Yes I must sadly agree ! The so called public defenders the one’s who have lunch with all the other court appointed attorney’s who at times

      cut a deal and see their clients rot in jail than to put every thing into winning, and offend a buddy for life!? Not all bad how ever! The best chance they have is a out side Attorney preferably one who does not share bass boats with the locals! One who can place his or her self in their shoes and know they need solid strong defense! The greatest

      defense is securing a document perhaps paying a very small amount of money for the property or just walk away!

  • paendragon

    This case is worse than it appears! Backgrounder: medical equipment (say, wheelchairs and walkers, even) is regulated in favor of the manufacturers, and against both the taxpayers who usually foot the bills for it and the governments who are the initial buyers/owners, in that criminally negligent, false “planned obsolescence laws” have been written (no doubt by bribed legislators and bureaucrats) which demand that perfectly good equipment be regularly trashed and replaced with the newer, more expensive stuff. Further byzantine regulations assert that the disadvantaged people who need the equipment, often can’t get it: if an elderly person on a fixed income needs a wheelchair, they have to be assessed as being fully disfunctional first, and have their homes retrofitted for full wheelchair access, or they aren’t allowed to have one, even if they wanted to, say, keep it in the garage for only using when they go out to shop, and to have a walker within their homes – they aren’t allowed to have either! It’s a total scam, and these people must have pissed off the shady characters and powers that be by trying an end-run around their addictions- industry schemes (addictions because it’s a need, not a want, which they have engineered having a monopoly on) and tried to actually get the equipment at a reasonable price to those who want and need it! This is a perfect example of pure bullying tactics used by the state in favor of big business manufacturers against all the taxpayers and disadvantaged citizens!

  • Paul

    There used to be a time when it was believed “it is better for a guilty person to walk away free then to send an innocent person to prison”. This belief is no longer true.
    The only mistake I see here is the accused should’ve contributed part of their money to the democratic campaign. If you donate, you’re innocent.