Tuesday, June 27, 2006
The KPMG Order provides the clear realization that some white collar cases can be costly to defend. Judge Lewis Kaplan states:
"This is by no means a garden-variety criminal case. It has been described as the largest tax fraud case in United States history. The government thus far has produced in discovery, in electronic or paper form, at least 5 million to 6 million pages of documents plus transcripts of 335 depositions and 195 income tax returns. The briefs on pretrial motions passed the 1,000-page mark some time ago. The government expects its case in chief to last three months, while defendants expect theirs to be lengthy as well. To prepare for and try a case of such length requires substantial resources. Yet the government has interfered with the ability of the KPMG Defendants to obtain resources they otherwise would have had. Unless remedied, this interference almost certainly will affect what these defendants can afford to permit their counsel to do. This would impact the defendants’ ability to present the defense they wish to present by limiting the means lawfully available to them. The Thompson Memorandum and the USAO’s actions therefore are subject to strict scrutiny."
White Collar defendants have felt the pressure of trying to defend themselves against a government accusation. But in many instances they cannot because of the cost involved in presenting this defense. This is in no way meant to diminish the importance of others having the ability to defend themselves, as indigent defense is clearly in a state of crisis in many parts of the United States. But the court's recognition of this high cost in a white collar case, and the particularly high cost in this white collar case is an important message. If the system is to operate with a presumption of innocence, than it is important to remember that everyone needs to have access to lawyers in order to properly present their defense.
Addendum - See
David Hoffman, Concurring Opinions here