The Kaley Forfeiture Decision: What It Looks Like When The Feds Make Their Ham Sandwich
February 27, 2014
By Ken White
Yesterday, in Kaley v. United States, the United States Supreme Court ruled 6-3 that a criminal defendant has no right to challenge the pretrial freezing of assets based on a forfeiture allegation in a grand jury indictment, even if the criminal defendant needs those very assets to pay his or her attorney of choice.
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Rather than tread over the ground well-described by my colleagues in the criminal defense bar, today I'd like to describe something else for you: what a federal grand jury proceeding looks like. From 1995 through 2000, I presented cases of varying complexity to federal grand juries as a federal prosecutor in Los Angeles. That experience did not inspire confidence in the process. Rather, it taught me that the adage that a grand jury will indict a ham sandwich is an understatement. A better description would be that the prosecution can show a grand jury a shit sandwich and they will indict it as ham without looking up from their newspapers. The notion that the Supreme Court relies upon — that the grand jury has a "historical role of protecting individuals from unjust persecution" — is not a polite fiction. A polite fiction would have some grounding in reality. It's an offensive fiction, an impudent fiction, a fiction that slaps you across the face and calls your mother a dirty bitch.What Grand Jury Practice Is Like
Most federal prosecutors use two types of grand juries — accusatory and investigative. Some small districts may have only one that serves as both; large districts like Los Angeles have multiple grand juries in each category.
Accusatory grand juries tend to hear quick, reactive cases that must be indicted immediately: cases where the defendant has already been arrested and must be indicted before a deadline, bank robberies, drug dealers and immigrant smugglers and other low-level defendants "caught in the act," and other simpler cases that do not involve the slow and steady assembly of a complex case.
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The grand jurors typically sat slumped in their wobbly government chairs, often openly reading the paper (Nowdays I'm sure they read their smartphones) or staring glassy-eyed out the window. They rarely asked for the statutes or elements to be read. A few would ask questions, but 90% of the questions were more matters of curiosity than anything resembling a probing of the sufficiency of the evidence or the justice of the prosecution. The other 10% of the time, when selected grand jurors probed the sufficiency of the evidence, more often than not they probed odd tangents or diversions that had little to do with the issues at hand. Many times grand jurors expressed irritation at the case even being presented to them if the evidence seemed abundantly clear.
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Having presented the case — the longest part of which was generally reading the indictment — the agent and court reporter and I would step out of the grand jury room and let the heavy wooden door close. I quickly learned to take several steps away from the door; if you didn't step away, when the door flew open moments later it would startle you and you would look foolish. The court reporter and I would file back into the room to put on the record that the grand jury had returned a true bill. The wait was very rarely more than five minutes, it was usually less than two, and not infrequently measured in seconds.Read more ...