FEAR's "Gideon Project" — to increase the availability of counsel for forfeiture victims
click here for February 2008 update

Victims of federal forfeiture cases whose homes were seized are eligible for court appointed counsel under the Civil Asset Forfeiture Act of 2000 (CAFRA).  Civil forfeiture victims frequently contact FEAR complaining that they can't afford to hire counsel because all of their assets were seized.  For those financially unable to hire forfeiture counsel, CAFRA requires the court to appoint counsel when the claimant's primary residence is seized.  Where the claimant has a court appointed attorney in a related federal criminal case, CAFRA permits the court to appoint that attorney for any other type of civil forfeiture case as well. 

Unfortunately, many federal judges apparently do not know about these provisions. In one case, the pro se claimant and his wife actually asked for counsel to be appointed to defend their residence and the judge denied it.  He was forced to defend against summary judgment pro se, while incarcerated -- and he lost. Then he contacted FEAR.  He followed our advice and argued that the summary judgment ruling was void because he and his wife had been denied their statutory right to counsel under CAFRA.  The judge vacated the ruling, and appointed counsel.

FEAR has been trying to determine the extent to which CAFRA's Right to Counsel provisions are being implemented.  It appears from our preliminary research that court appointments are rare.  FEAR is seeking funding to embark on a project to address this problem.  We have named it "The Gideon Project" (after Gideon v. Wainwright, the Supreme Court case that established the constitutional right to counsel in criminal cases).  The plan includes three components: 
  • research and compile statistics on the appointment of counsel in federal courts nationwide
  • educate judges, court clerks, and public defenders about the right to counsel provisions; and
  • create a forfeiture training program for court appointed criminal defense attorneys.
Please consider making a charitable donation to help fund FEAR's new Gideon Project, whose aim is to implement the right to counsel provisions of the Civil Asset Forfeiture Reform Act, and to expand the pool of qualified forfeiture lawyers nationwide.   This slide show explains the goals of the Gideon Project in greater detail.  (This presentation is best viewed using Internet Explorer 4 or higher.  For a better fit on the page, select "full screen" from the "view" menu.)

Tax-deductible donations can be made online at the FEAR website, using Paypal, or by mailing checks to FEAR Foundation, 20 Sunnyside Suite A-419, Mill Valley, CA 94941.  Write "Gideon project" in the memo line of your check to earmark the funds for this project.

February 2008 Update:
Forfeiture Endangers American Rights Foundation

20 Sunnyside Suite A-419
Mill Valley, CA 94941
(415) 389-8551
www.fear.org

February 2008
   
Help us implement CAFRA’s right to counsel provisions

        [A]ssistance of counsel is a fundamental right essential to a fair trial.
                                                    –Gideon v. Wainwright, 372 U.S. 335 (1963) .

The Civil Asset Forfeiture Reform Act of 2000 (CAFRA) provided some long-overdue reform of draconian federal forfeiture procedures.  Unfortunately the most important provisions – the court-appointed counsel provisions – are not being implemented.

Today – over seven years after CAFRA took effect – a shamefully low percentage of CJA lawyers are being appointed to represent their criminal clients in their parallel civil forfeiture cases, as 18 U.S.C. § 983(b)(1)1 allows.  Even worse, it appears that forfeiture claimants whose primary residences are seized almost never get counsel appointed under § 983(b)(2)2 – a statute that mandates the appointment of counsel.

Judges, CJA lawyers and public defenders often still don’t know about CAFRA’s right to counsel provisions.  Even when judges want to appoint counsel, there are no panels of forfeiture lawyers willing to take court-appointed cases. Experienced forfeiture defense lawyers are usually not on CJA panels and few would be willing to accept appointments at CJA rates.  We think the best solution is to train federal public defenders and CJA panel attorneys in forfeiture law.

In late 2005, FEAR announced its Gideon Project, a multi-pronged approach to address the right to counsel problem.  Unfortunately, funding fell through. 

Now, after pinching pennies for several years, FEAR has begun producing a basic forfeiture lawyer training video (DVD) which will qualify for CLE credit in those states that require CLE.  Preproduction work is well underway on the first CLE video, which FEAR hopes to publish in late spring 2008.  FEAR’s plan is to sell the DVD through its website as a non-participatory CLE program,  and to license it other nonprofits and bar associations willing to work with us to host participatory CLE programs showing the video, at a minimal cost per participant.  FEAR would file the paperwork to obtain CLE credits.  FEAR would also maintain a list on its website of all the lawyers who have attended a participatory CLE event or purchased the CLE DVD – so forfeiture victims who turn to our website trying to hire counsel can find lawyers who at least know the basics about forfeiture.

How you can help

Spread the word.  If you are a court-appointed attorney or work in the criminal justice field, please tell forfeiture victims, judges and other lawyers about CAFRA’s right to counsel provisions.

Educate yourself about forfeiture.  If you have a forfeiture case, and you have never done one before (or if you’ve had beginner’s luck and settled the first few forfeiture cases without disastrous results, but never really learned forfeiture law and procedure) please check out the resources available on FEAR’s website – http://www.fear.org.  The public (free) portion of the FEAR website includes a huge collection of educational materials on forfeiture.  FEAR’s website Law Library is a great starting place for research on state and federal forfeiture laws, and it’s free. For $100 a year, you can subscribe to FEAR’s Brief Bank, which includes over 200 motions/pleadings as well as several Department of Justice manuals on forfeiture and other research material you can’t get anywhere else on the internet – all cross-indexed by topic. The brief bank, coupled with FEAR’s Asset Forfeiture Defense Manual (500 pages, $119) will provide you with the essential information you need to know to defend a forfeiture case effectively.

Endnotes:
1. 18 U.S.C. § 983(b)(1) allows but does not require the judge to appoint counsel for claimants who have court-appointed counsel in their parallel criminal case.

2. 18 U.S.C. § 983(b)(2) requires the judge to appoint counsel for claimants whose primary residence is seized if they are "financially unable to obtain representation by counsel" – upon request by the claimant.