Is That Legal?: A Clockwork Orange; or, Why Some are More Equal Before the Law Than Others
A few days back, a federal grand jury indicted three tax attorneys, an accountant, and two bankers for tax-fraud conspiracy arising out of their advice about various tax shelters. I suspect their defense will be that they acted in "good faith" based on the available legal precedents -- which will be a matter for the jury (assuming it gets that far).
The likely defense of "good faith" cast a new light on the civics staple we feed our kids: "All men are equal before the law." Gibson v. Mississippi, 162 U.S. 565, 591 (1896).
These seven professionals will place their liberty in the hands of 12 jurors on the question of "good faith." There's no summary judgment in criminal cases. United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992) (per curiam) ("There is no summary judgment procedure in criminal cases.").
But lets assume for a moment that all the government's proof in the tax-fraud case is based on truckloads of documents that FBI and IRS agents seized from defendants' offices during the execution of search warrant that, for one reason or another, violated the Fourth Amendment -- for example, the warrants lacked probable cause connecting the location to be searched to the items to be seized.
The prosecution would oppose application of the exclusionary rule, claiming that the agents acted in "good faith." The "good faith" question does not require a jury. Instead, the judge will make a summary decision by looking at similar past cases and decide if the agent's conduct violated clearly established law. (Guess who wins those arguments in nearly every case.)
Let's say the government dismissed the indictment, and the defendant's filed a civil-rights lawsuit against the agents for violating their 4th Amendment rights.
The same analysis would apply. The term of art in a civil case is "qualified immunity," instead of "good faith." But the two are the same. There's no jury. No drama. Just a judge looking at the warrant and supporting application and similar cases before writing, "everything's A-OK over here, so agents acted in good faith and the lawsuit's dismissed."
So, returning to my initial point, the irony here is that when law enforcement breaks the law -- the constitution, no less -- a plea of good faith is heard by a judge and based on a survey of the controlling case law. But when seven professionals are accused of structuring an illegal tax shelter, their good-faith defense goes to a jury.
Some folks -- like federal agents -- are just more equal than others.
Or . . . we're all in "A Clockwork Orange" now.
