By ADAM LIPTAK
WASHINGTON — Kerri and Brian Kaley, a New York couple, were unable to hire a lawyer to defend themselves against serious criminal charges because the government had frozen their assets. That seemed to trouble several justices at a Supreme Court argument on Wednesday.
The Kaleys were accused of participating in a scheme to obtain and sell prescription medical devices. They said they were likely to win at trial because no one had been harmed by their conduct, a point two justices seemed to find plausible.
The couple’s lawyer, Howard Srebnick, said the case posed a fundamental issue.
“I ask that this court not rule that the government can beggar a defendant into submission,” Mr. Srebnick said. “I ask this court not to rule that the government can impoverish someone without giving them a chance to be heard through their counsel of choice.”
But the relief the Kaleys actually sought was substantially narrower. They did not challenge the general framework established by a pair of 1989 Supreme Court decisions, which ruled that freezing assets before a criminal trial was permissible, even if it frustrated the defendant’s ability to hire a lawyer, so long as there was probable cause that a crime had been committed and the assets were linked to the offenses described in the indictment.
All the Kaleys were seeking was a hearing at which they could try to show that they were entitled to use their money to defend themselves because the charges against them were flawed.
Justice Antonin Scalia said he was uncomfortable with the modest step of allowing a hearing but might be open to a bolder one.
“To save your client, I would prefer a rule that says you cannot, even with a grand jury indictment, prevent the defendant from using funds that are in his possession to hire counsel,” he said. “Don’t need a hearing.”
Later in the argument, he proposed another solution. “I don’t like casting into doubt the judgment of the grand jury,” he said, “but why couldn’t we say that when you’re taking away funds that are needed for hiring a lawyer for your defense, you need something more than probable cause?” he asked. “Couldn’t we make that up?”
Michael R. Dreeben, a deputy United States solicitor general, responded that earlier decisions by the court had ruled out that approach.
Some justices tried to assess the practical consequences of allowing the requested hearings. Justice Elena Kagan said that defendants had never prevailed in any of 25 such hearings conducted in a part of the country that allowed them.
“So what are we going through all this rigamarole for,” she asked, “for the prospect of, you know, coming out the same way in the end?”
Chief Justice John G. Roberts Jr., who emerged as the Kaleys’ primary defender, said those statistics were only part of the picture.
“Who knows how many hundreds of times the government would have sought to seize the assets but didn’t because they knew they would have to justify it at a hearing?” he asked.
Mr. Dreeben said that grand jury findings of probable cause often serve as a basis for jailing a defendant until trial. It followed, he said, that such findings may also serve as the basis for freezing tainted money.
Chief Justice Roberts rejected the comparison. “It’s not that property is more valuable than liberty or anything like that,” he said. “It’s that the property can be used to hire a lawyer who can keep him out of jail for the next 30 years. So the parallels don’t strike me as useful.”
Mr. Dreeben said that requiring hearings could allow defendants to have an early look at the government’s evidence, put prosecution witnesses at risk and frustrate efforts to pay restitution to crime victims.
Chief Justice Roberts jumped on the last point. A hearing, he said, could also establish whether there had been any victims, a question in dispute in the case, Kaley v. United States, No. 12-464.
By Jeffrey Rosen
Last week, with little fanfare, the Foreign Intelligence Surveillance Court (FISA) released a previously secret opinion upholding the National Security Agency’s mass surveillance of telephone metadata. The opinion, which deserves more attention than it has received, is a cavalier piece of work. Judge Claire Eagan fails even to consider, let alone to rebut, the strong arguments suggesting that the NSA programs violates both the U.S. Constitution and section 215 of the Patriot Act, the statutory provision the government has invoked to authorize it. The Electronic Privacy Information Center (EPIC) has asked the Supreme Court to conduct an independent review of the legality of the NSA surveillance program, and Justice Antonin Scalia said yesterday that he expects the Court to eventually hear a version of the case. But because the Court may be unlikely, for technical reasons, to rule squarely on the merits, congressional reform of the FISA court is now more urgent than ever.
Read rest of the article here http://www.newrepublic.com/article/114853/fisa-court-decision-upholding-surveillance-joke
In Fourth Circuit, a Spotlight on Warrantless GPS Tracking
There’s no dispute that the traffic stop one morning in May 2009 was legitimate. The driver of a Pontiac Grand Prix failed to use a signal before turning into an exit lane to leave Interstate 95 in South Carolina.
The authorities initiated a traffic stop on the exit ramp that morning near Charleston. The passenger, police would later say, was nervous. His arms and legs were shaking, according to court records.
The stop wasn’t random. Local and federal investigators, working on a drug case, secretly were monitoring the movement of the car via a global positioning device—one that had been attached without a warrant.
The passenger, Naarl Richard, who was returning from a trip to New Jersey, was convicted at trial on heroin charges. While awaiting sentencing, the U.S. Supreme Court ruled in U.S. v. Jones that the warrantless installation of a GPS tracking device amounted to a “search” under the Fourth Amendment. (Defendant Antoine Jones’s conviction and life sentence were thrown out.)
Richard won a new trial based on the Supreme Court decision. The second time around, in the summer of 2012, prosecutors weren’t allowed to use the GPS data to explain how the police ended up finding him—and the drugs. He was convicted anyway. Richard is serving a 21-year prison sentence.
The legal fight is now playing out on appeal. A lawyer for Richard on May 17 asked the U.S. Court of Appeals for the Fourth Circuit to overturn the judgment, arguing that the trial judge should have suppressed the drug evidence because it flowed from the illegal use of the GPS device. The audio from the court hearing is here.
The case is important because, for prosecutors and federal agents, there isn’t much guidance among appellate courts on how to handle challenges of warrantless GPS tracking.
Federal trial judges are divided over when the “good faith” exception to the exclusionary rule—concerning when evidence of an unlawful search can be thrown out—should be in play.
One big issue for the appellate court: Did the traffic stop constitute a new and distinct crime such that it, as Richard’s lawyer said, “purged the taint of the government’s illegal use of a GPS tracking device?”
Richard’s lawyer, G. Wells Dickson Jr. of Charleston, S.C., urged the appeals court to set aside the verdict and grant Richard a new trial—with the drug evidence, 1,000 glassine bags of heroin, excluded. (The authorities found the drugs in a false compartment under the center console of the car in which Richard was a passenger.)
“It was a legal stop, with the driver giving consent to search—none of which would have happened if we hadn’t had the GPS,” Dickson said in the Fourth Circuit. “They wouldn’t have been there.”
In court papers in the appeal, Dickson wrote: “If the government’s logic is accepted, then law enforcement could use any illegal method of their choosing to develop leads on the location of a suspect and then follow that suspect until the individual made some minor mistake such as failing to use a turn signal or failing to yield to a yellow light. This would effectively render our Fourth Amendment protections meaningless.”
Nathan Williams, an assistant U.S. attorney in Charleston, told the appellate panel that the police acted in good faith when they installed and monitored the GPS device. The Grand Prix had been stationary for weeks, save for one trip to a laundry.
“The GPS tracker was applied to do what the officers would ordinarily do—without that technology—to determine when the vehicle was going to leave the area to connect with its source,” Williams said in court.
When investigators saw the car leave the state and reach New Jersey—the source of drugs, according to an informant—they moved into position to make a traffic stop. The stop was a pretext. Investigators didn’t know whether they’d find anything illegal in the car, which was driven by Richard’s girlfriend.
After car returned to South Carolina, the authorities followed it. They pulled it over after the driver failed to signal upon entering an exit lane. “Fairly marginal traffic offense,” Williams said in the appeals court.
Williams argued that the panel judges should find the heroin evidence admissible—despite the illegal search—because the police were not acting outside the scope of their authority.
“They were doing what we would want law enforcement to do,” Williams said. “There was certainly no flagrant misconduct.” Officers were following the rules they best they could, he said.
Williams wrote in court papers: “Detectives acted with an objective, good faith belief that their conduct was lawful.”
The Supreme Court’s decision in Jones last year has sweeping consequences for law enforcement investigators. Williams said that, in cases he was handling, GPS devices were shut down after the high court’s ruling.
Williams didn’t specify the number of cases. “Across the country,” he said, “reliance on the use of GPS… was in good faith.”
The appellate court judges didn’t immediately rule after the hearing.
WASHINGTON (AP) — The hacker-activist group Anonymous says it hijacked the website of theU.S. Sentencing Commission to avenge the death of Aaron Swartz, an Internet activist who committed suicide. The FBI is investigating.
The website of the commission, an independent agency of the judicial branch, was taken over early Saturday and replaced with a message warning that when Swartz killed himself two weeks ago “a line was crossed.”
The hackers say they’ve infiltrated several government computer systems and copied secret information that they now threaten to make public.
Family and friends of Swartz, who helped create Reddit and RSS, say he killed himself after he was hounded by federal prosecutors. Officials say he helped post millions of court documents for free online and that he illegally downloaded millions of academic articles from an online clearinghouse.
The FBI’s Richard McFeely, executive assistant director of the Criminal, Cyber, Response, and Services Branch, said in a statement that “we were aware as soon as it happened and are handling it as a criminal investigation. We are always concerned when someone illegally accesses another person’s or government agency’s network.”