July 21, 2006
Judge Kaplan and the KPMG case
The Wall Street Journal editorial page today called the KPMG tax fraud case in New York a "fiasco" and suggested that the Justice Department "reconsider" the case at its "senior levels." The behavior of the Justice Department attorneys has been less than exemplary but there is another problem here. We are watching a Judge over control a complex case. And there is no normal relief for this until an appeal. Kaplan has written a scathing opinion in June over the government's use of the Thompson Memo. Judge's should rarely write "scathing" opinions; this should be reserved for a once in a decade case. A Judge has the awsome power to decide the fate of the people before her; she rarely needs angry words -- a decision is enough. The Judge does not like the policy of the memo (I do not either) but wrote a nutty legal analysis about its unconstitutionality. The Judge continues to "exchange barbs" with prosecutors. Judges should not "exchange barbs" with anyone (again, perhaps, with a one in a decade exception). Now the Judge has delayed trial, trial Judges should normally do the opposite and facilitate and push for a speedy trial on the merits, except in very unusual circumstances. This case is not that unusual . A Texas judge has ruled on the merits that the KPMG tax shelters are legal; a speedy trial may even benefit the defendants here.
I suspect that the Wall Street Journal may get its way and the Justice Department will drop the case. The Judge's decisions and conduct will not get reviewed. Indeed, it may be vindicated. Pity.
Federal district court judges are an admirable bunch, but a few, a very few, are not. They sit alone in important cases and can, with self-righteous sanctimony, lose patience and focus. I have been there and seen it. I have not been in this courtroom to watch this case and therefore cannot say. From long distance ...
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