PRELUDE TO AN APPEAL 
Southern District Judge Lewis Kaplan yesterday dismissed charges against 13 of the 16 defendants in the government’s crippled tax shelter case against former KPMG employees, in what had been called the largest criminal tax case in U.S. history. In United States v. Stein, prosecutors had urged the dismissals as a prelude to an appeal to the U.S. Court of Appeals for the Second Circuit, which they hope will overturn Judge Kaplan’s earlier ruling that the government violated the Constitution by forcing KPMG to stop paying the legal fees of indicted partners and employees. As reported in The New York Law Journal, Kaplan said the government "deliberately or callously prevented many of these defendants from obtaining funds for their defense that they lawfully would have had absent the government's interference" — preventing them from defending the case the way they wanted to or using the lawyer they wanted. "This is intolerable in a society that holds itself out to the world as a paragon of justice," continued Kaplan. "The responsibility for the dismissal of the indictment as to 13 defendants lies with the government."

MORE WTC WOES
The World Trade Center litigation list grew yesterday as three rescue workers announced they will sue the city over Mayor Bloomberg's allegedly "squandered" attempts to use the $1 billion insurance fund for 9-11 victims to help rescue workers who filed work-related injury claims. According to The New York Post, the filing alleged that Bloomberg and his team of executives handling the insurance fund have spent $74 million on legal bills but has not shared the money with the thousands of workers who claim they were harmed while cleaning up the WTC site. The suit will be lead by Worby Groner & Napoli Bern, the firm that has a pending class action lawsuit for 10,000 workers who aided in the clean-up. Yesterday attorney David Worby explained the suit: "Congress gave Bloomberg a billion dollars to cover for the mistakes he and his predecessor, Mayor Giuliani, made in failing to protect tens of thousands of workers ... he refuses to use the funds intended for that exact purpose - to help the sick and dying 9/11 heroes."

 
PATAKI'S GHOSTS 
Elsewhere, The New York Post runs a story about the dozens of sexual offenders civilly confined after their prison terms — in accordance with a controversial maneuver authorized by former Governor George Pataki — who have been released after court-ordered hearings found them not to be a threat. "The people who are being released are being released because they were afforded a hearing to see if they should have been in the first place," said state Division of Criminal Justice Services spokesman and former New York Law Journal scribe John Caher. "We are following the courts, and they did not direct us to release people deemed to be a threat," he added. The Court of Appeals has twice found that the process violates state law.

 
FIERY FILING 
From other tabloid fodder: The Daily News runs a piece about a divisive affidavit filed by New York Firefighters Union President Stephen Cassidy, pursuant to a discrimination case alleging that FDNY written exams discriminate against minorities. The defense is that the test accurately weeds out those without “an alert and keen mind.” Brooklyn Federal Judge Nicholas Garaufis is presiding over the case. "What right does he have to assume the level of one's intelligence is based on an exam that has never been validated?" said John Coombs, president of the FDNY Vulcan Society, which represents black firefighters, adding that Cassidy's comments were "totally racially insensitive." Only 3 percent of the city’s 11,000 firefighters are black, and only 4.5 percent are Hispanic, even though the two groups make up more than half of the city's population.

 
PRELUDE TO A DEATH SENTENCE?
The three defendants in the shooting of two Brooklyn police officers last week made a joint courtroom appearance yesterday, two days after charges against them rose to first degree murder after officer Russel Timoshenko succumbed to his injuries, reports The New York Times. Dexter Bostic, Robert Ellis and Lee Woods were arraigned before Brooklyn Criminal Court Judge Richard Allman, to a room jam-packed with cheering police officers and grieving family members. While the office of Brooklyn DA Charles Hynes will prosecute the crimes, the Times quotes anonymous officials who raise the possibility of federal prosecutors taking over and trying the case under racketeering laws to perhaps qualify for the death penalty. (New York’s death penalty statute was ruled unconstitutional in 2004.)

 
SCHOOL DAZE 
And this short item from The Star Gazette of Elmira: Cortland County Supreme Court Justice Phillip Rumsey last week denied class action status to a lawsuit filed by a group of Elmira Business Institute students who said the private college used deceptive promotion and financial aid practices, and overcharged students for books. Rumsey stated the students could move ahead with their grievances individually, but added in his decision, “Plaintiffs have not tendered any proof regarding the numerosity of the class as a whole or the proposed subclass and there is no proof regarding the number of students who may have actually been subjected to the alleged wrongdoing.” Numerositily-wise, that is.