(One of many Al Capone mug shots.)

Maybe I woke up on the wrong side of the bed today, or maybe I've just heard the phrase "no underlying crime" one time too often, dunno. What I do know is that I am fed up with this particular brand of fresh fragrant fertilizer (ie, bovine manure).

Picture this, you are a prosecutor called to the scene of a murder. There is a dead body, there is obvious evidence of foul play; the victim has been shot. There are signs of forced entry. Based on the identity of the victim, it is likely that it’s a mob hit.

You begin the investigation.  You call various mobsters into the Grand Jury. Some tell you part of the truth. Some tell you a lot of the truth. Some lie to you outright. You are pretty confident that you know who did the murder, how it was done, where the murder weapon was obtained, how (but maybe not where) the murder weapon was disposed of and who all the co-conspirators are.

So far, so good.

However, because some of the witnesses in the Grand Jury (G/J) told only part of the truth and because some of the witnesses in the G/J just made stuff up, you do not have all the admissible evidence you need to be confident of conviction.

But you do have evidence of tax evasion by one of the main co-conspirators. Evidence beyond a reasonable doubt. And it’s an open and shut case. What do you do? Do you ignore the tax evasion because it’s not a murder charge? Do you say in you best spoiled brat whiney voice "I want to get the bad man for murder cause that's so much sexier than boring old stinky tax evasion!!! Wah !! wah!!" ?

Or do you look at the facts you know you can get admitted into evidence, say "well, this adds up to a prosecutable crime and I am a prosecutor and this is my job" and suck it up and do your duty?

Ask the guys who got Al Capone.

Can I tell you how often tax evasion is a fallback strategy for prosecution major drug traffickers? I worked on a case once where the drug trafficker and his wife showed a total combined income of about $20 grand a year and when I got done going through the receipts and checks for the vet bills, feed bills and farrier bills for her horses, they where almost $30K and that was before they paid the mortgage (nice house) or bought a single grocery – did I mention they had a Jag?  Nope, couldn’t make a narcotics case, so they went down for tax fraud. BUT it broke up his narcotics ring and there were lots of lovely little spin off narcotics cases that happened as the drug ring unraveled and everybody in their network began turning on each other.

So, I ask you: Is it better to put a man who you know has committed lots of crimes in jail for a subset of crimes that you know you can convict him of, or let him walk because you may not have enough admissible evidence to convict him today of the most serious of those crimes?

You know, until the Statute of Limitations runs out, conviction today of "crime A" does not preclude conviction tomorrow of "crime B."  If any new evidence comes to light?  Lots of possibilities suddenly open up, don't they?  Bottom line, at no point in the tax evasion case would anyone be silly enough to suggest that there had never been a murder in the first place.