Srebnick argues that two constitutional amendments — due process of law and right to counsel — require that defendants such as his clients be given a pretrial hearing that would force prosecutors to establish the integrity of the indictment as a basis to seize the couple’s assets.
If prosecutors fail to put forth compelling evidence, then “the assets needed for counsel of choice and legal expenses must be unfrozen,” Srebnick argues in his briefs, written with Miami appellate lawyer Richard Strafer.
The Obama administration’s solicitor general, Donald B. Verrilli Jr., will defend the practice as a way to prevent criminals from spending ill-gotten gains that could be returned to victims or the government.
In court briefs, he argues that the purpose of the existing law — adopted by Congress in 1970 to target organized crime — is to preserve the “availability of property” before trial that may ultimately be forfeited so that it is “not dissipated before a conviction.”
The solicitor general points out that the law allows for a pre-trial hearing to determine whether defendants’ assets are “traceable” proceeds from their crimes, but that the hearing should not allow defense attorneys to challenge the “validity” of an indictment.
The issue before the Supreme Court is whether defendants before trial have a “due process right to challenge the probable cause underlying the criminal charge,” Verrilli wrote. “The Constitution guarantees no such right.”
The high court, which hears about 75 oral arguments a year, took Srebnick and Strafer’s petition because there has been a split among appellate courts in the country over whether the due process clause requires such a pretrial hearing before prosecutors can seize defendants’ assets.
Another aspect of the argument: Defendants whose assets are frozen before trial can always be represented by a less costly lawyer or a federal public defender, thereby guaranteeing their right to counsel under the Constitution.
The solicitor general’s deputy, Michael Dreeben, who has appeared 77 times before the Supreme Court, will be Srebnick’s adversary.
Srebnick and Strafer’s petition before the high court has drawn support from influential organizations, including the American Bar Association, which filed amicus briefs. Also, University of Miami law professor Ricardo Bascuas wrote the amicus brief for the National Association of Criminal Defense Lawyers.
Srebnick, a law partner with famed criminal defense attorney Roy Black, has prepared for his Supreme Court showdown by attending three moot courts with professors at UM, Duke University and his alma mater, Georgetown University Law Center.
Srebnick may be making his first appearance before the U.S. Supreme Court, but he is no stranger to Chief Justice John Roberts. Back in 1987-88, when Roberts headed the Washington law firm Hogan & Hartson’s appellate department, Srebnick worked for him as a student law clerk while attending Georgetown.