Wesley Snipes was a “tax denier,” one of those people who believed that the tax laws are illegal and, for a variety of reasons, don’t apply to them.  This strikes me as a bit facile, considering that Wesley Snipes earned something in the order of $38 Million as a film actor, but even high-income earners are allows to believe in silly things.

According to this  New York Times anthology of the case, the purpose of the government’s prosecution of Snipes was general deterrence, to send a message to other tax deniers that they were wrong, their failure to pay taxes was criminal and that they could be convicted and sent to prison.  Well, that didn’t work out nearly as well as the government hoped.

In closing arguments on Tuesday, lawyers for Mr. Snipes sought to portray him as a well-intended victim of bad advice by his co-defendants. They called his tax theories “kooky,” “crazy” and “dead wrong,” but said acting on these views did not make him a criminal because he disclosed his actions.

So the technical message from this verdict is that sincere, though erroneous, beliefs preclude a conviction for fraud.  But it seems unlikely that this is the message that most people will take from this case.  Even though Snipes was convicted of 3 misdemeanors, his acquittal on 2 felony fraud and conspiracy charges, and 3 other non-filing misdemeanor counts, will be the focus of this case.

By using a celebrity to make its point, and then losing the case, the government has not only failed to achieve its purpose of general deterrence, but has sent a wholly unintended message.  The most likely message is that celebrities can’t be convicted in the United States of America. 

This theme has been echoed for a while, from O.J. Simpson to Robert Blake to Michael Jackson to Phil Spector.  The public sees these cases as a reflection of their being above the law, above reproach, but juries that are so star-struck that they can’t convict.  Except for any celebrity represented by Mark Geragos, who will be definition be convicted (see Winona Ryder), or the celebrity/business icon who opts for a White Shoe defense lawyer (see Martha Stewart), the fact remains that most celebrity defendants do not get convicted.

Is celebrity the reason?  I have some doubts.  The positive aura surrounding celebrities, coming from the confusion between the public persona or the characters they portray, is likely a very important factor.  Celebrities walk into court with a level of credibility or positive public image that bears little connection to reality, but likely exists in the minds of jurors nonetheless.  Even though jurors realize that the real people are different than the characters they portray, there remains a tacit favorable impression, a bias if you will, that a celebrity has that others do not.

But once the evidence is introduced of actual conduct by these individuals, the hidden bias is unlikely to be sufficient to overcome the presumption of guilt that attaches to all people accused of crime.  A leg up in the first place, then, won’t prevent conviction if that’s all they’ve got.

What’s rarely spoken, and even more rarely considered, is that these defendants have committed an enormous amount of resources into mounting a defense.  By putting the wherewithal into the hands of competent counsel to use all the tools and weapons available, they are capable of walking into court and presenting a defense with the greatest potential for prevailing.

This begs two questions, one good for the government and one important for the defendant.  While the government’s ill-conceived effort to send a message to the public by prosecuting a celebrity such as Wesley Snipes may not have resulted in the desired conviction, there remains a point that Snipes has suffered a huge financial blow in the course of his win.  Are ordinary people prepared, and capable, of mounting such a defense?

While a celebrity may possess the ability and willingness to do everything possible to prevent their conviction, normal people are too often shockingly resistant to putting up a real fight.  Of course they want the fight, but they don’t want to pay for it.  Legal fees in a criminal defense are often viewed as dead money; at the end of the day, the best you can hope for is to remain in the status you held before the prosecution started.  They don’t view their personal freedom as having a value attached. 

One question that I’m asked with amazing frequency is, “Why should I have to pay a lawyer when I didn’t do anything wrong?”  Bear in mind, but it’s not just paying the lawyer, but paying for all the ancillary services that enable the lawyer to mount a winning defense.  The investigators, forensic accountants, document examiners, neuro-psychologists, whatever, all expect to be paid for their services as well. 

The answer to this question, the one that’s important for the defendant, is because without this panoply of services, you will be unable to defend yourself against the government’s accusation. 

A recurring corollary to the “why do I have to pay” question is that a defendant, having paid for a lawyer, can’t understand why the rest of the potentially necessary services don’t come as part of the deal.  The answer is obvious, yet problematic.  When you retain the criminal defense lawyer, you are paying for the lawyer’s services, his “time and advice” as Lincoln put it.  There may well be a host of additional disciplines that will enable the lawyer to make his representation more effective, but it’s up to the client to decide if he wants them, and is willing to pay for them, in order to mount the best possible defense.

Adding to this problem is the potential that an investigator will come up empty-handed, despite his efforts.  Or a neuro-psych will determine that the defendant is mentally healthy as a horse.  We don’t buy the desired results from legitimate, competent professionals, but only their services.  Sometimes things don’t pan out the way we hope, and this leaves defendants miserable.  Believe me, the lawyer isn’t any happier about it, but when we use respect professional services because their opinions in court will carry the necessary weight, we run the risk that they will come back to us with an honest answer that doesn’t help us.  

The lesson of Wesley Snipes, and other celebs, is that the defendant can prevail against the government, but it requires a commitment from the defendant to do whatever is necessary to mount the best possible defense.  This begins with retaining a real criminal defense lawyer, and forgetting such nonsense as bigger is better, and it ends with giving the lawyer the ability to do his best work.  While it won’t get you a role in the next big action movie, it can keep you from going to prison for a crime you didn’t commit.  And that’s a good thing.