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ABA Argues the Accused have Constitutional Right to Challenge Pretrial Orders Freezing Assets Needed For Counsel Fees

Philadelphia, PA July 25, 2013 鈥� Constitutional Right to Challenge Pretrial Orders Freezing Assets

Hope Lefeber, a leading federal criminal defense attorney, in Philadelphia, discusses the pending U.S. Supreme Court case of Kaley v. United States, 12-464.

Hope Lefeber, an expert in criminal law, states, 鈥淭he American Bar Association, in its amicus brief, asserts that, in any criminal case in which an ex parte restraining order has been entered that freezes assets needed by defendants to retain counsel, an adversarial pretrial hearing that provides a meaningful opportunity to challenge the evidentiary support and underlying probable cause for such an order is essential to protect the defendants鈥� Fifth Amendment Due Process rights and their Sixth Amendment right to retain counsel of their choice.鈥�

Lefeber continues, 鈥淎ccording to court documents, in Kaley, Kerri Kaley and her husband, Brian Kaley, are accused of conspiring to sell stolen prescription medical devices on the black market.

Pursuant to pretrial orders freezing their assets, the defendants asserted their right to a pretrial hearing to challenge the evidentiary support and underlying probable cause for the order. The 11th Circuit Court of Appeals ruled in Kaley that there is no right to a pretrial hearing.鈥�

The ABA takes the position, in its amicus brief, that an adversarial pretrial hearing to review ex parte restraining orders obtained by the government in forfeiture proceedings in criminal cases, 鈥渋s essential to protect the defendants鈥� Fifth Amendment Due Process rights and their Sixth Amendment right to retain their counsel of choice.鈥�

Otherwise, according to the amicus brief, a conflict of interest is created by converting the lawyer鈥檚 representation to a contingency fee matter, in which payment is dependent on whether the defendant is found not guilty at trial or the frozen assets are otherwise returned to the defendant.

Thus, the brief argues, the defendant鈥檚 counsel is faced with the conflict of withdrawing or continuing the representation pro bono because contingent fee representation is prohibited by attorney ethical rules of every jurisdiction in the United States.

鈥淒efendants are presumed innocent until convicted and the prosecution has no justification for punishing a defendant prior to conviction.鈥� Hope Lefeber

In sum, the ABA argues, 鈥溾�efendants are presumed innocent until convicted and the prosecution has no justification for punishing a defendant prior to conviction.

The federal forfeiture laws confer title on the government only at final judgment, and a pretrial adversarial hearing provides an appropriate balance for the prosecution鈥檚 otherwise unfettered ability to decide when to request an ex parte order freezing assets.鈥� The case is Kaley v. United States, 12-464.