Presumptive appointment for criminal defendants & Discretionary appointment for claimants

Criminal Defendants

Presumptive right to counsel

Forfeiture of property is made as part of sentencing if convicted of a crime where forfeiture may be imposed and if the court finds by clear and convincing evidence adduced at a separate hearing that the property was derived from, used, or intended to be used to facilitate the criminal violation. See e.g., Neb. Rev. Stat. Ann. § 28-813.01 (child pornography); 28-416(18) (drugs and narcotics); 28-1463.01 (child pornography).  Because the right to counsel attaches at sentencing matters [which is considered a “critical stage” of the criminal matter under U.S. Supreme Court precedent e.g., Glover v. United States, 531 U.S. 198, 203–204 (2001); Mempa v. Rhay, 389 U.S. 128 (1967)], criminal defendants have a presumptive right to counsel as relates to the forfeiture sentencing.

Non-Defendant Claimants

Discretionary appointment

In forfeiture proceedings for property involved in the commission of certain crimes, a person, other than the defendant, who has a claimed interest in the property may petition to intervene “for the specific and limited purpose of demonstrating his [or] her . . . legal interest in the property and . . . lack of actual knowledge that such property was derived from, used, or intended to be used in violation of” the relevant statutes.  Neb. Rev. Stat. Ann. § 28-1601(3).  “The court, on its own motion or upon application of the intervening claimant, may appoint counsel to represent such person if such person is indigent.”