Supreme court building in Washington DC, USA.
Supreme court building in Washington DC, USA. (Stock photo)

Usually press-shy Miami attorney Robert Josefsberg—who cut his teeth representing rock legend Jim Morrison on indecent exposure charges—was eager to dissect the U.S. Supreme Court decision allowing the pretrial seizure of assets from criminal defendants.

Critics say the ruling undercuts the crucial constitutional right to choose counsel of one’s own, putting them even more at the mercy of federal prosecutors.

Without money to pay private attorneys, expert witnesses, jury consultants and investigators, defendants are assigned a federal public defender who works in a sequester-afflicted office that put its lawyers on furloughs.

Though Josefsberg disagrees with the 6-3 Supreme Court decision in Kaley v. U.S., he said, “the opinion isn’t as devastating as some people say it is.”

Defendants can still challenge an asset freeze if they can prove the assets aren’t connected to the alleged crime, he noted.

But what the Supreme Court did was reinforce the omnipotence of the prosecution and the grand jury, a body that defense attorneys like to say will indict a ham sandwich if given the chance.

The court barred a pretrial hearing on the seizure of assets predicated on challenging probable cause in the underlying grand jury indictment.

“At this hearing they would have to prove probable cause and give the defense a peak at their case, and they don’t want to do that,” Josefsberg said. “They want to come in and do everything by ambush.”

He was an assistant U.S. attorney when the Southern District of Florida had only a handful of prosecutors. He said he didn’t have a problem putting his cards on the table for defense attorneys, saying often the defense would see the futility of taking the case to trial.

He said criminal trials should be like civil trials where both sides get discovery. But federal prosecutors are afraid of giving a defendant anything that could be used at trial, Josefsberg said.

“Philosophically, I think it should be a more open trial. A trial by surprise is not the best way to achieve justice,” he said. “It’s very important—the right to counsel and the counsel of your choice.”

Medical Devices

Kerri and Bryan Kaley have been fighting for this right since 2007.

As salespeople for Johnson & Johnson Co., they were charged with stealing old hospital medical devices, such as catheters, and selling them for profit. Their defense is that they did not steal inventory but simply took items that the hospitals wanted to replace and were going to throw away.

A co-defendant, Jennifer L. Gruenstrass, has already been acquitted of the same charges.

The asset issue was raised when the couple took out a $500,000 home equity loan to pay for their defense. Prosecutors froze the money, saying the house was used to store stolen medical equipment.

The case was argued in the Supreme Court last October by attorney Howard Srebnick, a partner at Black, Srebnick, Kornspan & Stumpf in Miami. He was assisted by Miami appellate specialist Richard Strafer.

The Kaleys were going to use the loan money for trial experts and consultants. Now they may have no option but the federal public defender’s office. “The bottom line is they have to organize their finances to determine how much they have left to spend on counsel,” Srebnick said.

The argument to the high court was that the Kaleys’ Fifth Amendment right to due process and Sixth Amendment right to counsel of their choice were violated by the refusal of U.S. District Judge Kenneth Marra in West Palm Beach to grant them a pretrial hearing.

“We just wanted a judge to look at the evidence of innocence we submitted, much of which came from the trial of the co-defendant who was acquitted,” Srebnick said.

The Kaleys wanted a chance to prove before trial that the government’s case was specious and thus it was not entitled to seize the $500,000.

Writing for a six-justice majority, Justice Elena Kagan said in Tuesday’s decision that indicted defendants have no right to challenge an asset freeze even if those assets are needed to defend themselves.

“To me, it hurts innocent people. This is not a technicality for the guilty. The rights of the innocent have been dealt an enormous blow,” Srebnick said.

Property Restraint

Joseph DeMaria, a partner at Tew Cardenas in Miami and former federal prosecutor, said prosecutors for the most part do not abuse their power, but defendants now can’t challenge them if they do.

“Someone is going to be seriously hurt,” DeMaria said. “Only Congress can change this law to protect defendants from this risk.”

Miami criminal defense attorney David O. Markus said the Kaley decision flips the presumption of innocence on its head.

“The Supreme Court has made it clear that the courts must totally defer to the good faith of federal prosecutors in using grand jury indictments to prevent a defendant from hiring a private attorney,” he said.

Gary Bagliebter, a partner at Shutts & Bowen in Fort Lauderdale, said he found Kagan’s reasoning solid.

“If a person’s individual liberty can be restrained pretrial, then it’s not that far a stretch for me to say a court is going to allow your property to be restrained pretrial as well,” said Bagliebter, who prosecuted as well as defended cases with the judge advocate general’s corps while in the Air Force.

If a defendant can challenge a grand jury’s probable cause finding at a bond hearing, Josefsberg wondered why can’t that defendant challenge the finding when fighting for assets. He said bond hearings, where government witnesses can be called, never undermine a prosecutor’s case.

“In bail, one of the factors that can be argued is likelihood of conviction,” Josefsberg said. “When a judge has a bail hearing and they are releasing someone on bail, the charges don’t go away. There will still be a trial. Same thing here.”

“There still can be trial except money and property won’t be tied up and the defendant can go to trial. He is not overruling a grand jury.”

Josefsberg said his position is aligned with Chief Justice John Roberts, who wrote the dissent.

He said the justice who cast the deciding vote to uphold the Affordable Care Act again showed he is no ideologue. While justices known for their liberal interpretation of criminal law, such as Ruth Bader Ginsburg and Kagan, got behind the government.

“There is some kind of role switching which I don’t quite understand,” Josefsberg said. “There is some major shifts going on here.”