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Judge Dismisses KPMG Indictments

Yesterday, federal district Judge Lewis Kaplan dismissed charges against 13 defendants in a large criminal tax shelter action, finding that the pressure that government prosecutors placed on the defendants' employer KPMG to cut off legal funds violated the defendants' constitutional right to counsel  (Charges Dropped Against 13 in KMPG Case, NYT, 7/16/07). As this post from the Blog of the Legal Times notes, the judge didn't mince words about who was to blame for the dismissal:

[The prosecutors' actions] foreclosed these defendants from presenting the defenses they wished to present and, in some cases, even deprived them of counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice. The responsibility for the dismissal of this indictment as to thirteen defendants lies with the government.”

Peter Lattman summarizes the history of the case and the legal issues in this WSJ Blog Post.

Tom Kirkendall's post at Houston's Clear Thinkers offers more choice tidbits from Judge Kaplan's decision. And Ellen Pogdor discusses some of the implications of the judge's decision at White Collar Crime Blog. Among her comments:

And more importantly, now the court is not only dismissing the matter on the basis of  its prior conclusion, but is additionally finding that the prosecutor's conduct "shocks the conscience in the constitutional sense."  This is definitely more detrimental to the prosecution should they decide to appeal.

But professor Ribstein worries that the decision dismissing the indictments may have worse consequences for the defendants than if they'd have been convicted. From this post:

Dismissing the 13 indictments ironically is good for the government because it lets them appeal the dismissals rather than suffering likely reversal even if they were able to prove guilt. It therefore exposes these defendants to still more hardship and uncertainty at the hands of prosecutors whose conduct Judge Kaplan has deemed “intolerable.”  And all this in a case in which it was hardly clear the defendants had done anything illegal, or at least that justified a criminal sanction.

As a lawyer, I'd rather lose a hard-fought case on the merits than win by luck or unfair bias. Why don't prosecutors feel the same way?

Posted by Carolyn Elefant on July 17, 2007 at 07:19 PM | Permalink | Comments (0)


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