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A judge’s effort to avoid duplicative testimony and wasted time at the trial of 18 defendants accused in a KPMG International illegal tax shelter case has drawn the ire of defense attorneys. Lawyers for five of the defendants recently objected to procedures set forth by Judge Lewis Kaplan of the Southern District of New York for the five-month trial that is set to begin this fall. The trial, believed to be the largest criminal tax evasion case ever brought by the government, will focus on tax shelters designed by Big Four accountant KPMG that prosecutors claim were intended to defraud the government of more than $2 billion. Kaplan’s proposed plan for U.S. v. Stein, No. S1 05 Cr. 0888, states that the first defense attorney to open a subject of cross-examination “ordinarily will be the only defense attorney permitted to cross-examine the witness on that subject for good cause shown. Defense counsel should therefore consult in advance to ensure that all viewpoints are taken into account in formulating each cross-examination.” Susan Necheles of Hafetz & Necheles, who represents former KPMG tax partner Richard Rosenthal, objected in a memo to the court on behalf of her client and four other defendants. She claimed that the proposed restrictions went “far beyond” those imposed by judges in other multiple-defendant cases, where judges simply prevent attorneys from repeating the “same questions or series of questions.” Cross-examination concerns Kaplan had already denied the defendants’ motion for severance in the case, requiring that the defendants be tried together. The proposed order, Necheles said, “will force the objecting defendants to forfeit their right to have the attorney of their choice conduct critical cross-examinations on their behalf.” Their attorneys, she said, will be forced to delegate cross-examination to attorneys who were “not hired by them, owes no loyalty to them . . . and does not know the details of each of the objecting defendants’ defense,” which will violate their constitutional right to an attorney of their choice free of conflicts. Necheles insisted that it would be “impossible” to implement the trial procedures because the defendants will not know witnesses’ testimony in advance, and the attorney who stands up for one defendant will not know the facts of another defendant’s experience at KPMG, his relationship with people at the company and the details of his defense.

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