I’m not a trial lawyer. In fact, there are many, many things that I’d prefer to do than be lead counsel at a trial: sleep on a bed of nails, summer in the swamps of Louisiana, have dinner with Scarlett Johansson (I have a hate/hate thing for her)…
Get the picture?
With that, I try not to be too critical of trial lawyers’ strategies because I figure this is something that they do and, well, they know better.
But this KPMG trial? What is going on with those guys?
Last year, Judge Lewis Kaplan dismissed charges against thirteen defendants (Randy Bickham, Larry DeLap, Jeffrey Eischeid, Steven Gremminger, Carl Hasting, John Lanning, Gregg Ritchie, Richard Rosenthal, Richard Smith, Carol Warley, Mark Watson, Philip Wiesner and Jeffrey Stein), because of alleged constitutional violations by prosecutors. And now, two executives have asked Judge Kaplan to declare a mistrial, alleging that the prosecution has changed its theory midway through the trial, making it impossible to defend. The judge has not yet ruled on that motion.
Are they right? I don’t know. C’mon, though. Have you ever seen such a circus? This trial started out with 19 defendants in what was said to be a “sure thing” for the feds. It is now down to 4 defendants, half of which are clamoring for a mistrial. I know there’s a lot at stake here but I cannot wrap my head around how the prosecution could let this much go awry. The race to convict those responsible for the “largest tax fraud ever” is now just a pathetic muddle.
A defense attorney has to do everything she can (as long is it is not illegal nor violates the rules of professional conduct) to defend her client and keep her client from suffering consequences whether or not her client is guilty. I don’t think though that the prosecution has any duty to outline their theory and stick with it. As long as the prosecution has given all information to the defense that the defense is entitled to, I don’t think it matters what their theory is.
Keep us updated and let us know what the ruling is, exciting stuff!
Kelly,
Maybe I have a bit too much of the defense attorney in me, but I love it when the prosecution falls apart. Few things make me happier than seeing the gov’t stumble!
Rebecca,
While prosecutors are not required to lay out their theory of the case, if they do so they are ordinarily required to stick with it. Having briefly worked for a brilliant federal defense attorney, the constant back and forth of filings and counter-filings very clearly lay out the theory of the case. This will be doubly so in a major tax fraud case, where the discovery will extend into the hundreds of thousands of pages.
Also, in a federal case, the gov’t is stuck with the allegations in the indictment. If the indictment alleges one theory of the case, but the proofs support a different (or even an additional) theory of the case, then that is a constructive amendment to the indictment and a violation of the grand jury clause of the Fifth Amendment.
Psha! The swamps of Louisiana are AWESOME during the summer!
I’d like to “skip” dinner with Scarlett Johansson.
The best legal minds generally don’t choose to work for the government. That is why you see so many prosecutions look like they’re being run by the Keystone Cops.