8/6/2019 Judges and Civil Forfeiture

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Of Course, the Judge Matters!

Lawyers in every type of case want to believe that who the judge is shouldnt matter to the

outcome of their case. We want to believe that the facts and the law will decide the case, not the

personality of the person in the black robe on the bench. Thats what we want to believe, but its

not always true.

In forfeiture cases, the judges philosophy is supremely important in a number of ways. Some

judges approach the case as a direct adjunct to a criminal case punishing a criminal by taking

property or, at the very least, denying a criminal the proceeds of their unlawful acts. Some

judges approach the case as a balancing act balancing the States interest in obtaining

contraband against the respondents interest (sometimes innocent interest) in the property. Some

judges dont want to fuss with all of the rules of a civil case, and some judges are scrupulous

about putting the State to its proof. And then, rarely, there are judges who mistrust the State and

its motives and take nothing at face value in the States case.

If you get the right judge, you can win with less effort. If you get the wrong judge, it will bea long uphill battle to defend the respondents right to the return of the property.

The State prosecutes forfeiture cases through the same offices as it prosecutes criminal cases.

Prosecutors, though in the civil arena in a forfeiture case, bring their prosecutorial bias to civil

forfeiture cases. As a practical matter, that often means that the respondent is guilty until

proven innocent and the word of a law enforcement officer is golden, regardless of how unlikely

their version of events may be. Some State lawyers believe that if a criminal defendant pleads

guilty to the crime giving rise to the forfeiture, then its game over, and they should

automatically win the forfeiture case. However, thats not strictly the case, and the forfeiture

case, while connected to the criminal prosecution giving rise to the forfeiture action, should

always be evaluated separately from the criminal case.

The reality of the matter is that a lawyer representing a respondent in a forfeiture case must treat

and approach the case as any other complex civil litigation preparation matters and the little

things count, sometimes a lot. Often, issues in the criminal case have to be viewed in a new

light. Issues that would not have changed the outcome of the criminal case still must be

evaluated in the forfeiture case. The fact that a person pled guilty to a crime that gives rise to the

States notice of intended forfeiture is not, and should not be, the only factor in evaluating or

deciding the forfeiture case.

If you draw a judge that sees the forfeiture case as an extension of the criminal case, and believesthat the guilty plea in the criminal case has already determined the outcome in the forfeiture case,

the first order of business must be to develop the facts and the legal arguments to distinguish the

two cases. Educating the judge who has an unfriendly attitude toward the respondents rights,

and, sometimes, an ignorance of the law as it applies to civil forfeiture, has to be part of the

strategy from the beginning.