What's new at FEAR

Updated June 1, 2006
by Brenda Grantland

Judy Osburn has taken over as FEAR webmaster.  Expect more major improvements to the FEAR website in coming weeks and months!
Today, we proudly announce the debut of
FEAR's brand new, updated, expanded, revamped and greatly improved
Brief Bank II
& Private Collection of Research Materials

... but it's still under construction, so please bear with us.

A few months ago, Judy Osburn agreed to take over webmastering the FEAR Brief Bank and Private Collection.  She had a daunting task. We had over 80 pleadings and motions in our online collection already, that had all been sorted and coded into webpages by hand.  They were in various degrees of completion and disarray, with many broken links.  The issue index to the Brief Bank was 2 years out of date, and didn't include about half of our collection. Plus we had another 50 to 60 new documents to add and no one to add them.  The manual system of cataloging them and cross-referencing them had already become impossible considering the volume of documents in our collection, especially since FEAR has been relying on unpaid volunteers to maintain the website. 

Judy and I faced a similarly overwhelming task several years ago when we started organizing our research for FEAR's Asset Forfeiture Defense Manual.  What saved us back then was a database we created using Microsoft Access, a database program donated to FEAR by Microsoft Corporation.  We decided to use that same database to catalog the documents in the FEAR Brief Bank and Private Collection, and were stunned at what this now allows us to do.  We have partially automated the process of updating the website.  That means information can now be sorted and cross-referenced and printed out in different reports without much additional work.  We have 40 or 50 additional motions and pleadings to add, and more donations promised. This new database will make it feasible to add the new material as it comes in.  This has the potential to grow into a huge system in just a short period of time.

Try it once and you'll see, this is the first place you'll want to go when conducting forfeiture research.  (And you might not have to go any further!)

If you are a current subscriber to Brief Bank you can access the new Brief Bank II using your regular user ID and password.  If you are not a current subscriber, a one-year subscription costs $100, and can be purchaed online on the FEAR website, using Paypal.  If you are interested but would like a test drive first, call FEAR and leave us your contact information (including your email address).  In a couple of weeks, when we've worked out the kinks, we'll be giving out passwords that will allow you to try it out for a week for free.

And so, without any more ballyhoo, here's what's in it (or what will be in it soon, if the link is missing).

Brief Bank II - now with 109 motions and pleadings (and 40-50 more yet to catalog)
    - Brief Bank II - indexed by Issue
    - Brief Bank II - indexed by type of motion or pleading
    - Brief Bank II - indexed by author
    - Brief Bank II - indexed by case name

Private Collection - just a peek at the first few items in the collection -- more will be cataloged and added soon!
    - Private Collection - indexed by Issue
    - Private Collection - indexed by author
    - Private Collection - indexed by publication or article

Also specially completed for the launch of Brief Bank II is FEAR's newly completed hypertext version of two DOJ forfeiture manuals:
Department of Justice's proposed Federal Rules amendments for civil and criminal forfeiture

... and you guessed what that means -- less Due Process for victims!  This time, instead of lobbying Congress for new legislation taking away procedural protections for forfeiture victims, the DOJ is offering their new procedures as proposed changes to the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure.  Here is the DOJ Proposal in PDF format.  (Unfortunately it's the only version we have.  It takes a while to load and print out, so be patient.)  Alexandria, Virginia forfeiture defense lawyer David Smith, Esq., has submitted this letter on behalf of the National Association of Criminal Defense Lawyers -- critiquing the DOJ proposal and suggesting rules changes that benefit forfeiture victims.  (Here is the PDF version of that letter.)  David Smith and NACDL submitted a more extensive  counterproposal on March 9.  Between the two letters, NACDL has presented a thorough response -- but please read them over and send us any comments or suggestions you have.

If you want to know how you can help, we don't know what to tell you at this point.  Writing your Congressman probably won't help.  Changes to the federal rules are drafted and approved by the Advisory Committees on federal rules, and then adopted (or not) by the U.S. Supreme Court.  The Advisory Committees are comprised of judges, law professors and lawyers.  Their names and addresses and their terms and assignments are listed on the U.S. Courts website.  Although there is nothing to stop the public from writing to Advisory Committee members with their comments while proposed rules are still in the drafting stage, there is an actual official period of public comment which will occur later, after proposed rule changes are drafted and approved by the Advisory Committee.  When that happens, there is a period of public comment, during which you can submit comments through the U.S. Courts' website.  We'll keep you posted on progress.

FEAR announces new rate increases

Last year was a lean year for nonprofits in general, and certainly for FEAR.  Apparently donor fatigue from the numerous natural catastrophes was the culprit -- if so,  it should be better this year (barring further Katrinas and tsunamis!)   Unfortunately, the lack of significant end-of-the-year donations has required us to shelve the Gideon Project for the time being.  We also unfortunately had to raise the price of FEAR services.   Basic membership in FEAR will remain at $35, but will no longer include access to the FEAR Brief Bank (although we may create a very basic set of sample pleadings for those who can only afford basic membership).  Membership plus access to the Brief Bank is now $100 per year.  It's a bargain at twice that price -- and we'll be adding more materials in coming weeks.   Those of you who subscribed to the Brief Bank prior to the rate increase will be able to continue using the Brief Bank for the balance of your year's subscription.

Attorney listings in the FEAR website Attorney Directory have been free for the past two years.  Unfortunately now we are going to start charging for listings.   The normal fee was $100 per year, but, to ease the transition, we're reducing the fee to $50 a year for directory listings purchased before the end of 2006.  Those of you currently listed in the Attorney Directory will get a notice from us soon.


FEAR's "Gideon Project" -- to increase the availability of counsel for forfeiture victims

Civil forfeiture victims frequently contact FEAR complaining that they can't afford to hire counsel because all of their assets were seized.  Victims of federal forfeiture cases whose homes were seized are eligible for court appointed counsel under the Civil Asset Forfeiture Act of 2000 (CAFRA).   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.  CAFRA took effect on August 23, 2000.  By now, there should be thousands of cases where counsel was appointed under CAFRA. We only found a handful of published opinions that mention appointed forfeiture counsel.  We hear anecdotally that courts are appointing counsel for forfeiture claimants who have pending criminal cases, but don't know the extent to which that is happening.  Gathering that information is not easy.

CAFRA assigned the Legal  Services Corporation (LSC), in Washington, D.C., the responsibility of providing counsel to claimants whose homes were seized.  LSC admitted last year that only $4,000 to $5,000 in attorneys fees had actually been paid out so far under that provision -- 5 years after CAFRA took effect!  The Congressional Budget Office projected that enforcement of the right to counsel provisions would cost the federal government $1 million per year.

We have to do something about this.  FEAR did not lobby Congress for eight years for forfeiture reform only to have CAFRA's key provisions ignored!

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: 

(1) research and compile statistics on the appointment of counsel in federal courts nationwide  - Thanks to the Pacer database, which allows internet access to (most) federal court dockets nationwide, it is now possible to research court dockets and determine whether counsel is being appointed.  However, it will be expensive.  Pacer charges by the page for searches, and viewing the dockets on individual cases is slow and labor intensive.  We  have determined from our initial research that there are close to 2,000 real estate forfeiture cases in the Pacer database since the year 2000.  If finances permit, we would like to look at every one of those cases, to see if counsel was appointed, and if we find that any were forced to represent themselves, we would immediately contact them and advise them of their rights.  The other category of claimants eligible for counsel will not be so easy to locate.  There are over 11,000 forfeiture cases in Pacer.   We'd like to make at least a random sampling of these cases, courthouse by courthouse, to see if there are courts that are still not appointing counsel at all.   We'll try to survey it from other angles as well, including through the Administrative Office of the U.S. Courts, where the CJA vouchers are paid, but so far it appears that they don't compile this data.

(2) educate judges, court clerks, and public defenders about the right to counsel provisions -  This will include direct mailing to chief judges, court clerks and public defenders.  Unfortunately, letting judges know they can (or must) appoint counsel now won't solve the problem in some areas.  Our anecdotal research turned up the unfortunate fact that judges who want to appoint counsel have no pool of experienced forfeiture attorneys willing to accept court appointed cases.  Criminal Justice Act panel attorneys and Federal Public Defenders usually don't know how to defend civil forfeiture cases, and experienced forfeiture counsel are often unwilling to take cases for the rates paid court-appointed attorneys.  Hence, the next and most crucial component...

(3)  create a forfeiture training program for court appointed criminal defense attorneys  - This is the most exciting component of the Gideon Project.  We are reassembling the team that produced FEAR's Asset Forfeiture Defense Manual to work on this project.  We've come up with some great ideas on how we can make these CLE programs available to attorneys nationwide (and non-attorneys, if any pro se litigants wanted to take them) for a reasonable cost to the individual attorneys. Our training programs would qualify for Continuing Legal Education (CLE) credit in the states where CLE is required.  As a by product, this training program would vastly increase the number of qualified retained forfeiture lawyers available nationwide, and assist lawyers handling their first forfeiture cases.

We can't get the Gideon project off the ground without your help.  We will be applying for foundation grants, and even some government grants, but we need donations from private sources to get the project underway while we're applying for grant money. 

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. 

Forfeiture victim story --  Corruption in Hamilton Ohio:  Civil Asset Forfeiture  (the story of Earl Cavin Sr.)

This new forfeiture story is sad and maddening, but has a happy ending, at least so far as forfeiture and justice is concerned.  We are interested in adding other forfeiture victim stories to the FEAR website if anyone is interested.

The California Supreme Court has agreed to review FEAR Board member Mark Clausen's ruling invalidating the Stockton, CA forfeiture ordinance!

On Friday April 22, 2005, former FEAR Board of Directors member Mark Clausen, a lawyer in Sonoma County, California, won a great court victory against city-wide forfeiture ordinances.  The Third Appellate District in California held in O'Connell v. City of Stockton that the Stockton ordinance violated procedural Due Process because it failed to provide for a reasonably prompt post seizure hearing after property was seized!  The court also held that the Stockton Ordinance was pre-empted by state law, which sets the penalties for criminal violations.

This was a MAJOR VICTORY for our cause!  Forfeiture ordinances have been popping up in cities all over California, and a few other states.  Now, the state Supreme Court will decide whether the victory stands.  If it does, the ruling will invalidate forfeiture ordinances across California!
Get the opinion here: O'Connell v. City of Stockton.
Please join FEAR and get access to our Brief Bank

So far, this collection includes excerpts from FEAR's Asset Forfeiture Defense Manual, and two of the "almost banned DOJ publications" -- the 300+ page "Civil and Criminal Forfeiture Procedure" and the 26-page introduction to "Select Criminal Forfeiture Forms."  Even those of you who purchased the FEAR manual will find this Private Collection valuable.

Now available on the FEAR website:  all four of the "almost-banned DOJ publications"!

For those of you who missed news of the scandal, in the summer of 2004, the U.S. Department of Justice ordered public libraries to destroy five DOJ publications on asset forfeiture -- publications distributed by the Government Printing Office to public libraries.  As FEAR reported below, under pressure from public librarians and the public, the DOJ backed down and rescinded its order that the public libraries destroy the publications. 

The DOJ's attempt to suppress these publications made us wonder what was in these publications.  We borrowed them and made copies.   Four of these publications are very useful to forfeiture lawyers, victims, legislators and forfeiture reformers!  No wonder DOJ didn't want the public to have them!  (The fifth was a telephone directory of forfeiture personnel at the different federal agencies - we didn't bother copying that one.)

All four of the "almost-banned" DOJ publications are now available on this website.
To encourage people using our website to join FEAR and help defray our costs, we placed the two most important of these publications in the new "Private Collection" section of the FEAR Brief Bank, accessible only to dues-paying FEAR members.

FEAR's "Private Collection" of Research Materials
 
The members-only section of the FEAR website contains scanned in versions of the two most important of the almost-banned DOJ publications, as well as some excerpts from FEAR's Asset Forfeiture Defense Manual.  Here are the current contents

Civil and Criminal Forfeiture ProcedureCivil and Criminal Forfeiture Procedure  - 300+ pages [All parts available in PDF format; Parts I and III available in hypertext (web pages); rest is coming soon]
"...Of the five DOJ publications on forfeiture which the government ordered public libraries to destroy last summer (and then retracted its order because of our public outcry) , this almost-suppressed publication is the most important to forfeiture victims and defense lawyers.  It contains the Justice Department's official position on the key legal issues the defense commonly encounters in civil and criminal forfeiture cases, and is updated with the changes made by CAFRA (the Civil Asset Forfeiture Reform Act of 2000).

"This DOJ publication is a good way to start your research..."

Selected Criminal Forfeiture Forms
Select Criminal Forfeiture Forms - [26 page introduction available in hypertext and PDF format]

"This almost-banned Department of Justice publication contains some statements about criminal forfeiture procedure which could be very useful to forfeiture victims.  I  used a quote from the introduction, "Criminal Forfeiture Procedure,"  to great effect in countering a prosecutor's argument that certain provisions of civil forfeiture law did not apply to a seizure of some airplanes because (he said) they were seized with a criminal forfeiture warrant....

"...nothing I could cite would have had the impact of quoting the Department of Justice's own manuals on the subject."
FEAR's Asset Forfeiture Defense ManualExcerpts from FEAR's Asset Forfeiture Defense Manual and related materials, including:

Index to FEAR's Asset Forfeiture Defense Manual - Available here only -- not in the published volume!  Purchasers of the Manual should print this out and keep it with the manual for ready reference.

Appendix 1: CAFRA digested by key word- this alphabetized digest of civil and criminal forfeiture procedure is so useful we decided to make it available on-line in our Private Collection.  This hypertext version is even better than the hard copy, because it links to the text of the applicable statutes.

Excerpt from Chapter 00 Part A:  "Forfeiture Litigation After CAFRA"- this portion of the first chapter of FEAR's manual explains how the Civil Asset Forfeiture Reform Act of 2000 changed asset forfeiture law and procedure, and why we feel the reform bill did not go far enough to restore Due Process and curb government abuses.

FEAR's Asset Forfeiture Defense Manual is available for purchase on this website.  (500 pages in 8-1/2" X 11" format; $119 plus tax and shipping charges).  FEAR depends on profits from the sale of this manual to support its nonprofit educational activities.
FEAR pamphlet available for download -- What to Do When Your Property Has Been Seized

We've updated one of the original FEAR pamphlets, which answers the questions new victims of forfeiture most need answered to survive the early stages of the forfeiture process.  "What to Do When Your Property Has Been Seized" is now downloadable in PDF format.  This is the final, corrected version.  Feel free to print it out and make copies to distribute to clients and friends.  We would love to see these pamphlets available for free in places where forfeiture victims frequently turn for assistance, such as public defender offices and criminal law firms.  If you would like to make a donation earmarked for the mass printing and distribution of this pamphlet to such sources, please contact us.

FEAR's Asset Forfeiture Defense Manual

Forfeiture victims and forfeiture defense lawyers need this book!  It's big -- 500 pages in 8-1/2 X 11" format, in 11 point type, with  2,629 footnotes.   Even though it was published in January 2002, the law is still up to date.  It's comprehensive. And "it's readable!" -- said Jody Neal-Post.  Forfeiture victims trying to represent themselves pro se need this book -- particularly inmates, who don't have access to adequate research tools. 

Profits from the sale of the FEAR Manual helps keep FEAR afloat -- so you're helping the cause while you help yourself!

The official annual reports for the federal Forfeiture Funds are online.  For the Department of Justice's fund see  DOJ's website Reports to Congress. The Treasury Department's reports are online at   http://www.eoaf.treas.gov/AnnualReports-text.asp.

The U. S. Attorneys' manual, complete with a search function, is online.  The area of most interest to us is Section 9-111, "FORFEITURE/SEIZURE".