Interesting Retrial After Cheek Defense Based on Religious Objection to Use of Tax Collections (12/11/19)

I picked up this article: After mistrial, judge says he made mistake in allowing man to argue religious objection to filing tax returns (The Oregonian 12/10/19), here.  Basically, it reports that the defendant in a failure to file tax case, Michael Bowman, was permitted in the first trial to assert this defense: “he believed the government had to accommodate his religious objection to funding Planned Parenthood and abortions before he filed the returns.”  The jury hung, so the judge declared a mistrial.  Facing retrial, the judge determined that the defense could not be asserted.  So, it looks like the defendant may not have a viable defense, but he is still entitled to have the government prove his guilt beyond a reasonable doubt.

But, in that retrial, the parties apparently agreed to unusual procedures described in the article:

The extremely rare trial will have no witnesses and no jury and will take place before Chief U.S. District Judge Michael W. Mosman, the same judge who presided over the first trial. Mosman will make a decision based on a set of facts agreed upon ahead of time by the prosecutor and the defense lawyer. 

Bowman, 55, of Columbia City, doesn’t even plan to show up but instead will listen to the proceeding by phone, calling the latest legal twist an “abortion of justice’’ in an email to the judge. Stripped of his defense, he expects Mosman to convict him on all four counts of willful failure to file tax returns. 

Then he plans to appeal.

The trajectory in the first trial has become something of a cause celebre among tax protesters with some misleading claims about what happened.  Here is a good factcheck on those claims (Saranac Hale Spencer, Old Decision in Tax Lawsuit Gets New Spin (FactCheck.org 4/9/19), here) where the quick take is:

A website known for spreading misinformation writes that a man who cited religious reasons for not paying his income taxes “has won an historic lawsuit against the IRS.” That’s misleading. One charge was dropped, but four others have yet to be determined.

JAT Comment:

1.  The refusal to allow the religious defense is consistent with Cheek v. United States, 498 U.S. 192 (1991) and its predecessor cases which permit a defendant charged with tax crimes to present a defense that he was not willful because he had a good faith belief that he did not owe the tax (or, in this case, an obligation to file tax returns).  Constitutional arguments don't work.

2.  I have not heard of a defendant participating in a criminal trial by telephone.  Of course, as presented in the article, this is not a real trial.  But, usually in a criminal proceeding, the defendant is required to attend physically all hearings.  Perhaps there is some explanation for his participation by telephone.  And, if the evidence is solely by stipulation of facts (as indicated), there is no critical reason for his physical presence.

3.  I infer that the defendant expects to lose with his defense being prohibited from consideration.  Hence, his hope may be on appeal where, I speculate, the odds of prevailing are no greater.