Is That Legal?

A Clockwork Orange; or, Why Some are More Equal Before the Law Than Others

2009-06-20T14:17:54Z

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.

Elizabeth Edwards to Open Furniture Store

2009-06-02T20:21:21Z

I'm guessing there will be no loveseats.

My Grandparents Were Incarcerated at Manzanar ...

2009-05-19T02:55:04Z

And all I got was this lousy t-shirt! (Though I must admit, their book selection ain't too shabby!)

Typing Head

2009-05-18T23:47:14Z

Here's a link to some blowhard law professor yapping at washingtonpost.com today about the SCOTUS decision in Iqbal v. Ashcroft.

A Lovely Lunch with Jay Bybee

2009-04-22T13:56:14Z

Back in the spring of 2003, several of my UNC faculty colleagues and I had a very pleasant lunch with Jay Bybee, who was still at OLC while he awaited confirmation to the U.S. Court of Appeals for the Ninth Circuit. How I wish I could turn back the clock so that I could get up and leave. (It's worth recalling, by the way, that Senator Russ Feingold opposed Bybee's nomination on the ground that the Administration had refused to make available the legal memoranda that Bybee prepared while at OLC. How prescient that objection now seems...)

Warner Brothers on the Second Amendment

2009-04-21T17:28:02Z

Two days ago, a U.S. Marine was caught carrying an arsenal of weapons in his luggage through security at Boston's Logan Airport. He was charged with the crime of "possession of an infernal machine." Boston District Attorney Yosemite Sam had the following to say: "Dagnabit! What in tarnation does a fella need these doggone infernal machines for?!? Blast it all, I'm a-gonna make him pay!!"

"Laying Blame for the Past"

2009-04-17T12:34:19Z

President Obama yesterday on Justice-Department approved torture by CIA agents:

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America's ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

Why is it that we think it right that the South Africans lay blame for the past, and the Argentinians lay blame for the past, and the Austrians lay blame for the past, and the Germans lay blame for the past, and the Russians lay blame for the past, and the Iraqis lay blame for the past ... but not us?

Maybe Ford Will End Up Where GM Is.

2009-03-31T13:23:42Z

I just called our local Ford dealer to inquire about the 2010 Fusion, a hybrid that is getting fantastic press and that is supposed to be available starting right around now. ("Right around now" would be a very advisable thing, given that there's a $3400 tax credit for the purchase of hybrids that expires today, March 31, and is replaced by a credit of just half that amount, which itself expires after the next quarter.) The answer from my area Ford dealer: Good luck finding one. He said he'll have a single vehicle, "a white one," in maybe around a month. And he said that no North Carolina dealers have any in stock right now. And we wonder why the US auto industry is struggling?

%$#%$#

2009-03-18T22:15:14Z

I am not sure that there is a front page of the historical Onion that makes me laugh harder than this one. Every time I see it. No matter how many times.

Some Stories Will Bring A Blogger Out Of Retirement.

2009-03-16T22:58:44Z

My daughter just told me that the school cafeteria at her high school here in Chapel Hill, North Carolina, recently served fried chicken and watermelon "in honor of Black History Month." I am not making this up. UPDATE, March 25: I just had a nice phone conversation with Mark Rusin, the Child Nutrition Director for the Chapel Hill-Carrboro City Schools. He explained to me that the meal that was served in February was a "Southern Cooking" meal (including fried chicken, but no watermelon because it's too expensive this time of year) that the cafeteria occasionally offers as a promotional meal. The idea, he says, was not to link that meal to Black History Month -- and in fact, the meal is occasionally offered at other times of the year. He surmises that when the cafeteria contacted those who do the school announcements to inform them of the promotional meal, somehow someone outside the cafeteria staffed must have linked the meal to Black History Month, which was not what the cafeteria intended. (I do know that the meal was presented to the students on the morning announcements as linked to Black History Month; not only is this what my daughter told me, but two recent items in the school newspaper registered student complaints about the linkage. The school newspaper is not available online, it seems.)

The View from That Other Illinois State Senator.

2008-11-05T13:20:12Z

Shehecheyanu.

2008-11-04T13:46:02Z

Yes, I'm still here. Your video for today:

It's Enough To Be On Your Way.

2008-10-08T21:27:52Z

On Second Thought, Maybe There Is Something Worse.

2008-09-29T21:21:44Z

Two adjacent (and different) stories, just spotted on the CNN webpage:

Hey You With The Pretty Face!

2008-09-23T20:43:09Z