At War With The IRS

First of all, you must be lucky.
I can never really understand what's happening in a trial merely by reading newspaper accounts.

For example, no matter how much I read about Lieutenant Colonel Oliver North's trial, I remain a prisoner of the impression he made during the televised Iran-Contra hearings.

North's trial certainly has produced much compelling stuff. But the impact is lost on me because I haven't been able to see the most dramatic moments. Every trial worth remembering has a magical moment or two. These events seize the jury by the throat and swing its verdict.

Marvin Cooley, a 62-year-old tax protester, is currently being tried here in federal court for failure to file income-tax returns for the years 1981 and 1982.

Cooley, who was found guilty of the same charges on October 29, 1973, is acting as his own attorney.

Cooley, the father of ten, was sentenced to three years on the previous occasion. Up to that time he had made his living as a farmer.

Since Cooley's return from prison he has made a living operating a business called Tax Facts Publishing Company. He has been going around the country giving seminars on how to beat the income tax.

He is not one of the Internal Revenue Service's favorite citizens.
Cooley figures he lost the first trial because he had no idea how to present the evidence that was favorable to him.

That's all changed. Cooley spent his time in prison studying the law. He also got a typewriter, taught himself to type and learned how to write legal briefs.

Cooley considers himself a patriot in the line of Thomas Paine and the other founding fathers who fought the tyrannical taxing methods of Great Britain. He is a friendly, approachable man who is far from the zealot you might expect. His demeanor in court is businesslike and low-key. I have seen many professionally trained lawyers who are far from his match in handling a jury.

The other day, Cooley's self-taught lawyering skills paid off. Confidently, he stood behind the podium wearing a blue-striped western-cut suit with black cowboy boots. He announced to U.S. District Court Judge Roger Strand that his next witness would be Cindy Taylor, 29, of Mesa.

Mrs. Taylor turned out to be Cooley's daughter, who now has three children of her own.

Cooley asked her about the tactics used against him by the IRS during the Seventies.

"Do you recall any events concerning a government car?" he asked.
"Yes, I remember a plain light-colored government car parked in our side drive," Taylor said. "It had government license plates. Sometimes, they would shine lights in through our window. Once, I saw one of the men go across the street to our mailbox and remove a letter and bring it back to the car. Another time, they set up a tripod across the street and peered down behind it and looked over toward our house." Cooley asked his daughter if she remembered the incident of the telephone call.

His daughter's lips quivered. She was recalling events that occurred when she was approximately eleven or twelve years old. It was clear, however, how traumatic they had been.

"I was at home alone with two younger brothers," she said. "You were at a church social. The phone rang. Someone asked for you. I told them you and Mom were out.

"They asked if I was alone. I said that only my two younger brothers were with me." She took a deep breath and continued.

"|`Good,' the man said, `because we're coming over to kill you.'"
Cooley's daughter burst into tears.
"I have no further questions," Cooley said.

It was a dramatic moment. Cooley had successfully demonstrated the harassing tactics of the IRS investigators.

No matter what happens in the rest of the trial, the jury will remember that scene.

The government's lawyer in the case is a familiar face. He's former Maricopa County Attorney Charles Hyder, who has switched to the United States attorney's office. Hyder, a career prosecutor, has a well-deserved reputation for aggressiveness.

Hyder wore dark glasses. He limped to the podium. Years ago, one of his legs was amputated below the knee. It was an injury that never prevented him from participating in contact sports.

At this point, Hyder did not dare to appear to be bullying the witness.
"Did you call the police after this incident?" Hyder asked.
"No," she answered. "I called my dad. He told me he'd be right home and he was." Hyder seemed to hold his breath.

"You love your dad very much, don't you?" "Yes." "Would you lie to keep your father out of prison?" "No, I wouldn't." Hyder allowed that answer to hang in the air. He asked no further questions.

But Cooley was prepared for the moment.
He walked quickly to the podium. "What did your father tell you about how to testify here today?" he asked gently.

Cooley's daughter raised her chin. She seemed to gain strength from seeing her father back at the podium.

"He told me to tell my story exactly as I remembered it." Cooley remained at the podium studying his notes. His daughter left the witness stand. She walked to the third row of the courtroom and took a seat with her family.

None of this was lost on the jury.
Cooley was now suffering something that afflicts even experienced trial lawyers with back-up staffs. His daughter's testimony had taken less time than he had anticipated. And he was left with no more witnesses to fill out the morning session.

"Judge, could we have our morning recess?" he asked.
But it was clear Judge Strand wanted the case to move ahead without delay.
"Oh, well," Cooley said, taking the hint, "I'll take the stand myself."
Cooley walked to the witness box and took a seat.

With him, he carried several sheets of paper on which his questions had been typed.

This would be a delicate balancing act. Since Cooley was acting as his own lawyer, he would both have to ask the questions and answer them.

"Mr. Cooley," he asked himself, "are you guilty as charged?" "Objection," Hyder barked from his chair at the prosecution table.

Cooley did not heed the objection. He plowed straight ahead with his answer.

"I testify I am not guilty of willfully failing to file a return. I never had any criminal intent to violate the law." After a brief skirmish with Hyder, Cooley went on:

"The taxpayer is actually acting as a witness when filing his income tax. For this reason, he rightfully may refuse to answer on the grounds of self-incrimination. The Fifth Amendment protects him.

"I attached a memo to my return explaining I was protesting under my Fifth Amendment rights. A taxpayer is acting as a witness when he files a return, and every citizen has the right not to testify against himself." In a single morning, Cooley had succeeded in placing the most important points of his defense before the jury.

"I never tried to hide the fact that I went to jail before," Cooley said later. "I wanted to be able to tell them about it myself, that's all."

Hyder contends that Cooley made a business of conducting seminars about tax avoidance all over the country.

Hyder asserts that Cooley made as much as $95,000 in this business during one of the years he did not file.

In pretrial briefs, Hyder sought to limit Cooley's options while acting as his own attorney.

Hyder succeeded in getting Judge Strand to issue the following ground rules to Cooley:

Judge Strand prohibited Cooley from offering testimony favorable to himself while asking questions as a lawyer.

Neither would Cooley be allowed to try for sympathy from the jury because a lack of funds forces him to act as his own lawyer.

Cooley also could not tell the jury he didn't have the skills to defend himself because of a lack of legal training.

Any judge can issue such rules.
But Cooley, by sheer force of personality, has managed to circumvent all of them.

He has succeeded in presenting his side fully to the jury.
Sometime this week we'll see how many of those jurors are willing to believe the IRS can do no wrong.

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Tom Fitzpatrick

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