Supreme Court Says Verdict Before Trial: Grand Juries Can Destroy Your Ability To Defend Yourself

When Slate tells me a Supreme Court decision is “terrible” there is a fifty-fifty or better chance that I will think it is wonderful. After all, Slate is a Lefist (“progressive,” they would say) rag. So I would expect to rejoice in their bad news and grieve over their good news. Not this time. The Supreme Court has caused grief for all of us.

The decision was about the evil and malignant practice of government plunder known as “asset forfeiture.” The idea behind this forfeiture is that no one should be permitted to profit from a crime. Or so we are told. But that bit of common sense is only window dressing. The real idea behind forfeiture is that the government can take your stuff before ever convicting you of a crime, or even without ever convicting you of a crime.

It is evil, anti-civilization-level, oppression. The Supreme Court should outlaw it. Instead, they have amplified the power.

Let me give you the abstract points from Slate’s narrative.

  1. Couple is accused of Federal crime
  2. Courts, prosecutor, and couple come to an agreement about what their defense will cost so that the accused couple can borrow money to pay for their defense.
  3. Couple borrows money (a cool half-mil) and puts it into a certificate of deposit.
  4. Grand jury indictment is given that not only accuses them, but seizes all their assets, including the cd they needed for their defense.
  5. Couple now faces trial with no way to pay for a legal defense.
  6. Supreme Court says that’s totally fine, and grand juries are wonderful instruments of justice and rainbows.

No, I am not making this up.

The Kaleys have tried only to keep the assets they want to use to pay for a lawyer, based on the Sixth Amendment. They initially had some success. A judge questioned why the government sought to freeze the entire CD when only $140,000 could be linked to the proceeds of the Kaleys’ allegedly criminal enterprise. The government’s response came just a few days later in the form of a new grand jury indictment adding a charge of conspiracy to commit money laundering. That allowed the government to say the entire $500,000 should be frozen because the funds were “involved in” the underlying theft. The lower courts went along.

No, this is not Russia. It happened in your country Mr. and Mrs. American.

Slate goes out of its ways to point out how the Kaleys might indeed be innocent. That’s fine, but I don’t care. It shouldn’t matter. Since they haven’t yet been convicted by a jury of their peers, they are legally innocent at this point, and everything that happens to them is simply and completely a case of the government chomping down on the innocent because they want to.

…the grand jury has turned into a prosecutorial tool. Writing in 1973, one eminent judge noted that “the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything.” Another judge, as famously memorialized by Tom Wolfe, gave us the memorable line that a grand jury “would indict a ham sandwich.” By design, grand juries remain entirely one-sided affairs, guided by the prosecutor, who has no obligation to offer the defendant’s side of the story. The United States stands alone among common-law nations in still using them.

Reading Tuesday’s opinion, however, one would think the justices in the majority were living in the 18th century. In her 21-page paean to the grand jury, Kagan invoked the “fundamental and historic commitment of … grand juries,” the “inviolable grand jury finding,” and “the grand jury’s singular role.” There’s not a word about all the modern-day reasons to doubt its independence. In sharp contrast, Chief Justice Roberts, in dissent, called for a dose of pragmatism. “Common sense,” he wrote, “tells us that secret decisions based on only one side of the story will prove inaccurate more often than those made after hearing from both sides.”

No kidding! Yet six—six!—justices went along with the madness. Slate notes the “odd ideological lineup” of the three dissenters: Chief Justice Roberts and Justices Breyer and Sotomayor.

Think about that. Alito and Thomas could have decided not to be raving lunatics and swung a majority. We fought for Republican presidents so that they would be appointed.

It should make any real conservative feel sick.