Thursday, December 6, 2007
If you've ever sat at a railroad crossing waiting for a freight train to pass, it is such agony as an endless stream of cars rolls by. I suspect the participants in the KPMG tax shelter prosecution may be feeling the same way as the case moves at a languid pace. U.S. District Judge Lewis Kaplan issued an order on November 29 (available below) scheduling the trial for the remaining defendants in the case, with voir dire to begin on September 25, 2008, and the opening arguments on October 2. The original indictment came down in October 2005.
The case has been through a number of proceedings, including the dismissal of thirteen defendants after the district court determined that prosecutors violated their Fifth and Sixth Amendment rights related to pressuring KPMG to cut off payment of their attorney's fees. That issue is now before the Second Circuit, which has granted an extension to the defendants to file their brief until January 11, 2008, with the government reply due on January 25. At that point the case will be ready for oral argument, and it's anyone's guess how quickly the court of appeals can rule on the case.
There is a possibility that the Second Circuit will issue its decision by September 2008, and it if reverses Judge Kaplan's order and reinstates the indictment, then the current trial may be postponed yet again to figure out whether to try all the defendants together. I think that regardless of who wins in the Second Circuit, there's at least a decent chance of the case going to the Supreme Court because the issues involving the right to counsel are coming up with greater regularity in corporate crime investigations. Will there be a trial by 2009? 2010? Perhaps even 2011? Keep counting those freight cars. (ph)