Sunday, January 13, 2008
The Appellee Brief in Jeffrey Stein et. al. - the KPMG related case - was filed late this past week. And as anticipated by the fact that the appellees requested that the court permit them to file an oversized brief of 25,690 words -- it's long. The filed brief comes in at 25,604 words, which is slightly less than the 25,690 words filed by the government (see here).
The opening words of this brief capture the essence of the argument - "may prosecutors, without justification, deprive a criminal defendant of funds that otherwise would lawfully be available for his defense?" At the heart of this case are alleged violations of the Fifth and Sixth Amendments. The brief notes that KPMG for 30 years had "an unbroken practice of advancing, and indemnifying employees against, legal fees incurred in defending actions arising out of their employment." That practice was not followed in this case with questions raised about the prosecutor's use of the Thompson Memo.
The Brief of Appellees questions the deprivation of attorney fee funds for these defendants, with the issues presented as to whether there was a Sixth Amendment deprivation of the right to the assistance of counsel and a Fifth Amendment right to due process. Claimed here is that the government "interfer[ed] with the criminal defendants’ access to resources that would otherwise be lawfully available to finance their defense."
When the government starts interfering with the accused's right to secure legal counsel, it is a serious deprivation. An individual brief is filed by one appellee to emphasize the unique circumstances in his case - the deprivation of counsel of choice. The predicament this individual was placed in by being told that his failure to cooperate with the government would cause legal fees to cease stresses the importance of what is before the appellate tribunal.
Many of the issues raised in this case were resolved by the trial court, as they are factual issues. This is important as the trial court's factual findings have a strong chance of being adhered to by the appellate tribunal. One issue that presents discussion is whether the appropriate remedy for a violation is dismissal.
And yes, it was good to see a reference to my co-blogger, Peter Henning's 2005 law review article, Targeting Legal Advice, 54 Am. U. L. Rev. 669 in the main brief.
Brief of Appellees - Download us_v_stein_defense_reply_bried_jan_11_2008.pdf
Brief of Hastings - Download hasting_brief_11108.pdf