Monday, July 16, 2007
Commentary on Recent Dismissal of KPMG Defendants
Judge Kaplan dismissed the criminal cases of 13 (see here). Some commentary -
- The government asked for this dismissal - perhaps in part to move the case to the Second Circuit faster. Because the government could not contest the judge's initial decision, as it would be in an interlocutory stage, the dismissal was a way for them to proceed to a higher court. In many ways - what they asked for is what they got.
- But the government's request for dismissal may now come back to haunt them. For one, the question that will now be asked is whether this agreement serves as a waiver of their right to contest the initial court decision. If the tables were turned and the defense had in any way agreed to something at the trial level, the government would argue that the issue is now waived for appeal. Can't the defense make this same argument if the government should appeal this decision?
- 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.
- In many ways the government asked for this decision by interpreting the Thompson Memo as a way to void the right to counsel of individual defendants. By asking a company to waive attorney-client privilege and to not pay the attorney fees of individuals, even when the fees would normally be paid, the government was inserting itself in the judicial process as a party that could defeat the defense by improper means.
- The trial court is the finder of fact, and the facts determined by this court stand absent unusual circumstances. In light of this explicit factual finding, should the government really appeal this decision?
- Because of this court's finding of prosecutorial issues, will this now be conduct examined by DOJ's Office of Professional Responsibility?
- Many have voiced concerns with the revised Holder Memo (Thompson Memo). And even with changes of the McCullum Memo and later McNulty Memo, problems still persist. Is this not a clear sign that DOJ needs to re-evaluate how it is handling these cases? Isn't it more important to be able to proceed to trial, then to risk dismissal because of trying to deprive the defense of presenting the case as they wish?